Mishpatim: The Covenant of Justice and Conquest

By: Cantor Michael Davis

My moral education as a traditional Jew began with this week’s Torah portion, Mishpatim. After last week’s Ten Commandments, this week we get to the nitty gritty of Torah. Mishpatim opens with a long list of civil laws. One of the first sections of the Talmud that young Jewish children are taught is the Bavot )”the Gates”): Bava Kama, Bava Metzia and Bava Batra – the First, Middle and Last Gates. The Bavot are the oldest section of the Talmud: it is where the Talmud starts out. These legal discussions are an elucidation of the laws we read in Mishpatim. What do you do if you accidentally- or intentionally – break something? If you borrow something and lose it? How do youmake the other person whole? These are good moral exercises for young people. It was how Jewish morals were first taught to me.

The Midrash draws our attention to the biblical setting of Torah. The Torah was given to Israel not to Egypt to the west or Canaan to the east but in the empty desert in between.

Only in the great openness of the desert was there room for the people to take on this new thing: Torah.

How did the Israelites end up in the desert? The Bible acknowledges that this wasn’t the obvious choice. A more direct route from Egypt to the Land of Canaan would have taken the people along the coastal road, along the shore of the Mediterranean Sea (Exodus 13:17). Today that would be crossing from Africa to Asia through the northern Sinai desert, passing through El-Arish, north through Gaza into the State of Israel. The Bible calls this route “the Land of the Philistines”. God steered the Israelites away from populated lands because, as the Biblical verse teaches, the just-freed slaves were not ready for war. God knew that encountering any settled people meant war. So the people were guided southwards, away from civilization into the empty desert.

It seems that in the desert there was a willingness to try other new things too. Famously, Moses, the father of the Jewish people, married a non-Israelite woman,Tzipporah. Moreover, his father-in-law, Jethro was clergy, a Midianite priest. Last week’s Torah portion records how the novice leader Moses turned to his more experienced father-in-law for advice. Judaism is built on the wisdom of another religion.

Whereas the first part of Mishpatim is an orderly list of reasonable laws addressing commonplace situations, the end of this week’s Torah portion turns to another part of Israel’s covenant with God. Chapter 23 points to the next phase in nation building -getting land. For Israel that meant the invasion of Canaan. This portion presages the divine destruction of the city of Jericho and the Israelite war of conquest. In this section, God lets Israel know that they will need to kill, expel or enslave the inhabitants of the land. Peaceful, interfaith coexistence were good for the desert; in the land they must turn to war and – according to this section – what today we could only call “ethnic cleansing.”

Exodus 23: 20 Behold, I send an angel before thee, to keep thee by the way, and to bring thee into the place which I have prepared. 21 Take heed of him, and hearken unto his voice; be not rebellious against him; for he will not pardon your transgression; for My name is in him. 22 But if thou shalt indeed hearken unto his voice, and do all that I speak; then I will be an enemy unto thine enemies, and an adversary unto thine adversaries. 23 For Mine angel shall go before thee, and bring thee in unto the Amorite, and the Hittite, and the Perizzite, and the Canaanite, the Hivite, and the Jebusite; and I will cut them off. 24 Thou shalt not bow down to their gods, nor serve them, nor do after their doings; but thou shalt utterly overthrow them, and break in pieces their pillars. 25 And ye shall serve the LORD your God, and He will bless thy bread, and thy water; and I will take sickness away from the midst of thee. {S} 26 None shall miscarry, nor be barren, in thy land; the number of thy days I will fulfill. 27 I will send My terror before thee, and will discomfit all the people to whom thou shalt come, and I will make all thine enemies turn their backs unto thee. 28 And I will send the hornet before thee, which shall drive out the Hivite, the Canaanite, and the Hittite, from before thee. 29 I will not drive them out from before thee in one year, lest the land become desolate, and the beasts of the field multiply against thee. 30 By little and little I will drive them out from before thee, until thou be increased, and inherit the land. 31 And I will set thy border from the Red Sea even unto the sea of the Philistines, and from the wilderness unto the River; for I will deliver the inhabitants of the land into your hand; and thou shalt drive them out before thee. 32 Thou shalt make no covenant with them, nor with their gods.

(From Mamre, the JPS translation)

If we read this text with a contemporary religious sensibility, it is truly shocking. Nowadays, we might turn to religion for comfort, tranquility or inspiration. But this section features “the God of the Old Testament” in all His fury.I think our reaction is not just a modern sentiment. Throughout the ages the rabbis had a sense of discomfort with this text. They kept it hidden: it is tucked away at the back of the weekly Torah reading. The last part of Mishpatim is not in the beginning Talmud curriculum. Ask most Jews to identify it and they won’t recognize it.

I believe that the value of these words is in its honesty. There is no pretense that this “people with no land” was about to enter “a land with no people.” The Torah tells us that the land was already inhabited with seven peoples. And all of them were condemned by the Israelites’ God to death or exile. Or in the case of the land’s eponymous indigenous people – the Canaanites – they were to become the indentured slaves of the Hebrew invaders with few rights.

So, what are we to make of this?

I have come to read sections like this, like the bloody wars of conquest in the Book of Joshua too, as Biblical acknowledgements of human nature and the ways of the world. These sections are included in the canon because war is unavoidably a part of life. That was so three thousand years ago and is still the case today. By including this section in the canon, the ancient rabbis acknowledged the ugly realities of the world. In trying to talk to other Jewish leaders about the reality of life on the West Bank I have encountered the objection, “but this is so harsh!” If our social world is all polite and kind, where do we find the language to speak and the concepts to think about the wars and atrocities we know are happening in the world? The Bible does give us the language to talk about what we know is true. But by excluding the end of Mishpatim out of prayer and liturgical readings, while keeping the beginning of Mishpatim within the Talmud in the curriculum, Judaism laid out for us a path of constructing our moral universe in an often violent, unjust world.

It is up to us to decide:

War or peace and justice.

The Bible includes both.

The Rabbis of old established a Judaism that chooses peace.

Which will we choose?


2 thoughts on “Mishpatim: The Covenant of Justice and Conquest

  1. Cantor….you ask which will we choose?….war or peace…sometimes you have no choice..ww2..Israeli/Arab wars..48..52..67..73..it’s fight or perish….granted there are wars one can question..viet nam…Korea..lebanon82..Iraq..even Afghanistan…quandaries in political affairs.war or peace are ever present..take the Iran nuke situation..a perfect example…of course one can take the Quaker liberal stance of turn the other cheek..or the hasid..you fight for me..I will pray for you..positions…however for a nation to survive,it needs folks who will stand strong and take up whatever weapons and tactics needed to fight the battles their leaders deem necessary …even if those leaders may be wrong…that is how the world works..

  2. An angel came before Moses. The angel directed Moses to command his people not to trade openly with their neighbors, but to wait until the population dwindled enough to ensure a military victory. Watch for plagues, drought, famine. The Angel told Moses that the enemy were not worthy to live, nor were they worthy of even healthy equal negotiations that would allow Moses’ people to pick a nice spot next to the existing town and start their nation building. All the while no attempt was made to start nation building where they sat.
    This theology is a modern synapses of how Moses conquered nations to acquire land. Back then their was no law to ensure the safety of civilians outside of the governments military. Today its against the law across the globe. That action alone created an environment where people could feel safe from outside intrusion from forces that can overwhelm smaller nations, but we see clearly that the institutions designed to protect the sovereignty of smaller nations has been usurped. My guess is that their is a good reason for not advertising the Mishpatim as it is a permission slip to defy sovereignty laws.

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