A Muse: Mishpatim 2009

Mishpatim is a fascinating portion in that it is the foundation of hilchot nizikin. However when examining the text and then studying the relevant Mishna and Talmud, there seems to be a total disconnect. Understanding the commandment of an “eye for an eye”, through the lens of the Mishna and Talmud, means financial compensation based upon pain, damage, medical expenses and humiliation. Or when to begin the counting of the Omer so as to have the exact dating of the celebration of Shavuot is dependent on whether you understand the text literally or interpretively.

The oral tradition is what gives to the rabbis the ability to interpret text and keep it relevant to us Jews of the 21st century. To say that the oral law is the authorized interpretation of the written law is erroneous. To make this assumption would be to proscribe the rabbis’ ability to make halacha current. In essence it would ossify halacha. Halacha, by definition refers to movement. It assumes that our world is dynamic and ever changing requiring the constant upgrading of halacha. Oral Torah wasn’t originally intended t be written because the sages were afraid that the written word would prevail, limiting subsequent generations from making appropriate adjustments. The Ketzot Hachoshen, a commentary on Shulchan Aruch writes that rabbis have the right and obligation to rule in accordance with their understanding of Torah. We were given Torah to use as we understand it; for God didn’t give us everyday halacha – He left it to us to figure that out.

Thus rabbinic Judaism understands the oral tradition to be autonomous of the written Torah, relying upon, but it is the oral torah that ultimately will decide halacha. It is therefore our responsibility to study it, develop it and apply it in accordance with our understanding, contouring it to the circumstances that we live in.