Torah Portion Mishpatim and The Study of Law and Ethics
Torah Portion Mishpatim and The Study of Law and Ethics
The major part of our Torah portion, Mishpatim, raises important questions about Judaism, religion in general, ethics, and law.
First, the nature of Judaism. Many of our philosophers have divided Jewish law, halakha, into two areas: commandments that connect us to God, and commandments that connect us to other human beings.
Examples of commandments that connect us to God are keeping the Sabbath and devotional practice – prayer, meditation, and so forth. Commandments that connect us to other human beings are related to ethics and justice.
Our Torah portion contains commandments in both areas, but we find the study of ethics and justice especially prevalent. Many people define their Judaism through the lens of ethics and justice, hence the importance of this Torah portion. Here is the problem: both words are profoundly difficult to define.
Ethics is from the Greek term “ethos” – normally translated as society’s norms. Morality, by the way, is simply a Latin translation of ethics. Morality, like ethics, is etymologically connected to “mores,” also meaning societal customs or norms. Etymologically, there is no difference between ethics and morality; they are translations of each other.
Both terms eventually moved away from societal norms, what people do, to what people ought to do, rooted in what is truly right by its nature, not people’s opinions. Is theft really wrong, or wrong because most people think it is wrong? Judaism holds that there really are better and worse answers to question of ethics and justice.
Justice is also very difficult to define. Etymologically, it comes from something being according to a line or standard, as in wanting something to be “just so.” Justice, of course, is concerned with the line of what is fair and right.
There are no satisfactory definitions of these terms – ethics, justice, fair, and right, for example. When you study these terms, the definitions always end up using some of the other terms. What is fair, is just. What is just, is fair.
Through a lifetime of study of these ideas, I find that defining these terms is less important than studying cases where these terms play a decisive role.
In any well-functioning society, there is enough consensus on what is ethical and just to create a legal system, law being the attempt to consolidate ethics to an enforceable code of behavior. All well-functioning societies also understand the difference between law and ethics, in two ways.
One difference between law and ethics is the understanding that law will always lag behind ethics, that law won’t always line up with evolving understandings of what is right and fair. When enough people in a society recognize that the law in a given case is not fair, there is a way to change the law in well-functioning societies. The legislature or the courts step in. Crisis occurs when people in a society have radically different understandings of what is right and fair. Ideally, we work these things out at the ballot box.
Another difference between law and ethics is that ethics (what is truly right and fair) requires things of us that the law can’t. Ethics would require, for example, that we be civil to other people going about their business. Law could never delineate what it means for us to be civil to others – the law waits for a crime.
In our Torah portion, we see many examples of what is mostly case law, “if this happens, then this happens.” It seems clear that these legal problems presented in the Torah are the result of generations of questions of law and ethics, normative ways to settle disputes. It is also clear that the legal and ethical issues presented in our Torah portion are frozen in time, often expressed in ways that are foreign, or even objectionable to us.
Our work as faithful interpreters of Torah is to look behind any legal case and find the ethical dimension – what problems of fairness and justice are being addressed? Studying how the Torah addresses questions of fairness and justice in its time can teach us how to address problems in our own time.
In my view, every well-functioning religion (especially to the degree that religion and law intersect) and society are always working both to close the gap between law and ethics, and also to support ethical behavior that the law can’t cover.
From this point of view, there really is no such thing as “Jewish ethics.” Ethics, meaning the study of what is truly right, fair and just, is universal. I prefer a longer term: “Jewish ethics is the articulation of the Jewish tradition’s struggle with discovering what is right, fair, and just.”
Every religion, every society, struggles with the questions of ethics. Ethics is universal, but the understanding of ethics differs from place to place, from time to time.
Our goal in studying Jewish law and ethics is to sharpen our sensibilities regarding these issues. One example would be that traditional Jewish texts focus on duties much more than rights. Our rights-oriented discourse in American society can be enriched by the concept of duty – not what we deserve, but what we owe.
In our study of this week’s Torah portion, we will study different aspects of law and ethics that can enrich us as human beings, and that can even enrich our participation in our nation’s ongoing struggle with what is right, fair, just, and true.
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