D’var Torah – Why is there a complete legal code in the middle of the revelation narrative?

Written by Rabbi Josh Levy — 2 February 2019

We all know the story.  Be it from Hollywood or Hebrew school, it’s a familiar part of our shared culture:  The Israelites, liberated from Egypt, arrive at Sinai, where Moses goes up the mountain and receives Torah from God, written by God’s hand.  He goes down, discovers the people worshipping a Golden Calf, and smashes the tablets.

Except, read this part of Exodus from beginning to end and you encounter nothing so straight forward.  At the beginning of Exodus 19, the people arrive at Sinai, but that is the last time you have a clear sense of the chronology of what is happening.

At various points over five chapters of Torah, Moses is up and down the mountain, normally on his own, at one point with the elders of the Israelites where they have an odd vision of God.  When the 10 commandments appear in the text, spoken by God, who is up the mountain? It’s not clear that anybody is.
On three separate occasions the people accept God’s commandments – once before any of the story has even really happened, and then later, more logically, when Moses sets up an altar at the foot of the mountain, and tells the people the laws which they accept.  But even that happens before Moses has been instructed to come up to get the tablets, and only then is he described as staying up for 40 days – that comes at the end of our portion.
And in the middle of the muddle is a section of three chapters of detailed laws, which make up the bulk of the weekly portion for this week. Apparently a complete, self-contained legal code, popped into the middle of the narrative.

As modern readers we can explain this complexity.  It is a product of the development of the text.  The Torah, our formative literature has a textual history, a history of transmission and reception and editing together that we cannot perfectly reconstruct, but which left it, well, messy.
Our text is composite, pulled together from hundreds of years of stories, poetry, legal codes drawn together over time – sometimes elegantly, and sometimes – as here – less so.
In the evolution of the text, a discrete legal code was, indeed, placed here – a code which has come to be called by academics the Covenant Code, which is distinguished by its mainly casuistic style – laws presented as ‘if, then’.  Noteworthy too is its clear relationship with other ancient legal codes – dependent upon, aware of, in conversation with –codes such as those of Hammurabi and Unammu, from the same milieu as those of Sumerians, Hittites, Assyrians.

But why here?  Why is it placed in this spot in the text – after the Ten Commandments, the reaction of the people and the instruction to Moses to build an altar?

Being able to explain is not the same as finding meaning.  For that, we need to look to the answers of the rabbis and the commentators.  They did not see the text as composite but as a unity, but were still very aware of the messiness, and sought to find meaning in it.

For them, the placing of this code here, within the revelation narrative, was to articulate an important idea – that they were part of the same revelation. An early midrash states that wherever the Torah says v’eileh – and these (as opposed to just eileh), the conjunction is to tell us to read the text as a continuation of that which came before.  That is, that these laws, too, were given by God on Sinai.  The important idea is that civil law – how society is ordered – is as divine as moral or ritual law, indeed, can sometimes supersede it.  The commentator Rashi adds that the Sanhedrin, the court, was to sit within the vicinity of the temple.  Not as a theocracy, though clearly this was the model, but as a statement that the legal process was also divine.

The commentator Nachmanides makes the link with the preceding text even more explicit.  He states that the next few chapters are an articulation of how to ensure that the 10 Commandments are kept.  Especially, he states, lo tachmod – thou shalt not covet.  Without a clear legal structure, human nature alone is not sufficient to ensure that we will behave morally.  We also need the detail, not just the moral injunction.

And we also need a legal structure, one that we can trust, that is set up to be just and honest.  Another midrash asks why the words v’eileh hamishpatim come immediately after the instruction to build an altar and that “lo ta’aleh v’ma’a lot” – you shall not ascend to the altar with strides.  It tells us that we are supposed to read the injunction “lo ta’aleh” as applying both to ritual life and to the application of law.  That is, that judges should never stride over the people, never overreach.

As I am sharing commentaries on v’eileh hamishpatim, one last one.  The Zohar, the formative text of kabbalistic mysticism states this: “Here is introduced the subject of transmigration of souls”.  We don’t normally think of reincarnation as a Jewish idea, but it is strongly there within texts like the Zohar and Kabbalah more broadly, as a system of reward and punishment.
But why does the Zohar tell us it is brought here?  The same idea is being explored.  The detail of our social and interpersonal relationships is the marker of who we are, and thus, if you believe in transmigration of souls, also of who we will be.

So why is a legal code here, in the heart of the messy revelation narrative?
We can explain it quite easily.  Ours is a composite text and a pre-existing legal code was placed into the body of the revelation narrative by a process unknown.
But why?  Finding meaning is different.

V’eileh hamishpatim teaches us one core idea – that religion is not just about ritual, nor just about morality.  It’s about the society we build – a society built on law and justice. The details of those laws that we seek to keep might be very different to those in our portion, coming as they do from a very different historical context – but that core idea remains.  To paraphrase a midrash – without the Rule of Law there can be no Torah.