Mishpatim: Church and state

Insights into the Torah reading for this Shabbat.

Rabbi Dr. Raymond Apple,

 Raymond Apple
Raymond Apple

Torah reading: Mishpatim


Towards the end of this week’s sidra, God tells Moses to come up upon the mountain to receive the Torah and commandments which He had written (Ex. 24:12).

So when was the Torah written? In advance? After the event?

Maimonides (in the introduction to his commentary on the Mishnah) thinks it was at the end of the 40 years in the wilderness.

Nachmanides thinks Moses wrote the first section (from Creation up to the building of the Tabernacle) when he came down from Mount Sinai and finished the Torah at the end of the 40 years.

What about the idea in our verse that God had already written the Torah?

Nachmanides suggests that what God was talking about was the Ten Commandments.

Sforno says God had written the whole Torah but decided to delay giving it to Moses and the Israelites because of the sin of the Golden Calf.

Rashi has a compromise view, that in truth God was talking about the Ten Commandments but He had actually already written the whole Torah since all the 613 mitzvot are linked up to and implicit in the ten principles of the Decalogue.

A fascinating interpretation is given by the Meshech Chochmah of Rav Me’ir Simchah of Dvinsk. His idea is that in a spiritual sense the Torah was already written on the hearts of all the people of Israel.

Church and State

Mishpatim raises the question of how far a modern state can live by Biblical laws.

Many countries are proudly secular and separate church and state. Israel is one of the lands where the principle is still being debated but the way things have worked out the decision seems to have been made.

In 19th century America a leading lawyer, John Norton Pomeroy, distinguished between the Jews and other peoples, stating that “the Scriptures expressly declare that (the Jews) were a peculiar people and that their condition was anomalous”.

Though the debate in Pomeroy’s generation concerned the United States, this might not be the case in a Jewish state. But Israel has not embraced the “Torah state” model but has separated religion and state, though in some respects those who draft Israeli legislation are obliged to take the relevant principles of Jewish law into consideration.

There is a fear that Israel might become a theocratic state, and orthodox judges mostly fail to support the principle of basing the state on the Torah. The fault lies on both sides – the secularists’ fear of religious coercion (they don’t see Torah as the historic national culture of the Jewish people) and the orthodox failure to formulate Jewish law in terms of a legal system.

In 1948 Chief Rabbi Yitzchak Herzog knew what was needed but others did not support his efforts.


Many a time, people get hurt or even killed because they just happened to be in the wrong place at the wrong time.

Is this what is envisaged in Ex. 21:22, which speaks about a squabble that results in a pregnant woman losing her baby?

First let us ask why the Torah says “kiyinnatzu anashim”, “when men strive together”. A few verses back (verse 18), we read “ki yerivun anashim”, “when men contend” – a different verb, a different meaning?

Verse 18 must be referring to a heated verbal exchange, whilst our verse envisages a fight with fisticuffs (the same verb is found in Ex. 2:13, where a quarrel becomes physical). So two men are exchanging blows, and it is the woman who gets to be hurt.

What was she doing there?

One view is that she was trying to separate the men; another view, that she just happened to be standing there.

If we said to the woman, “You should have kept out of harm’s way”, what sort of advice would that be in the circumstances?

The rule is that if no actual harm came to the woman or her baby, there is no penalty. If the baby is lost, the man who struck the fatal blow is fined.

If the quarrel resulted in “ason” (“if any harm follow”: i.e. if the woman dies), the punishment is the “lex talionis”, “eye for eye”, etc. This does not mean that because the woman is now dead, the culprit must be executed, but it implies a harsh financial penalty.

The woman’s death is not deemed to be murder because there was no premeditation.

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