Mishpatim
Sholem aleichem,
[CW: discussion of slavery, abortion rights, and genocide (in particular, current events in Gaza)]
Mishpatim is one of the most jarring Torah portions, in both form and content.
We've been reading a story of slaves fleeing oppression and meeting haShem and then Mishpatim gives us...a sequence of laws.
We've been reading a story of slaves fleeing oppression and meeting haShem, and then Mishpatim gives us...
כִּ֤י תִקְנֶה֙ עֶ֣בֶד עִבְרִ֔י שֵׁ֥שׁ שָׁנִ֖ים יַעֲבֹ֑ד וּבַ֨שְּׁבִעִ֔ת יֵצֵ֥א לַֽחׇפְשִׁ֖י חִנָּֽם
When you acquire a Hebrew slave: six years he shall slave, and in the seventh he shall go free, without payment
The first laws of Mishpatim -- the first laws in the Torah after these slaves flee Mitzrayim and meet haShem and receive revelation -- are laws of slavery.
Now, it isn't surprising that liberated slaves would make laws about slavery. But it is maybe a little surprising when those laws permit slavery.
There are a variety of apologetic approaches to this that I've encountered in Jewish writing. Most revolve around the idea that the Torah here is incrementalist -- while slavery is not outlawed entirely, there are clear boundaries placed on the length of slavery and (later) on the treatment of slaves (or, at least, Hebrew slaves.)
But right now I'm less interested in the historical and political narrative, and more interested in the religious question:
What do we learn from davka this law being the first law of Mishpatim? What do we learn from the juxtaposition of the end of Yisro with this as the beginning of Mishpatim?
Okay. So.
Later on in the portion, Mishpatim contains one of the main sources used in Jewish tradition to argue for abortion rights. And there's a phrase that shows up all the time in debates over abortion, attributed I think originally to Gloria Steinem:
If men could get pregnant, abortion would be a sacrament.
Of course, men can and do get pregnant. But I think it is fair to say that the general premise behind this argument can be more accurately reformulated as follows:
Premise 1: if the people in power had personal experience of the oppressive system, they'd act differently
This premise is intimately connected, I think, to another:
Premise 0: if the people oppressed by a given system gained power, they would not maintain or re-enact that system
I'd like to think that this is true -- that the lived experience of oppression would lead people to make different choices. But I'm not sure it is so simple. The Hebrews, freed from slavery, maintained a system of slavery.
In 2023, 47% of men were pro-choice. Only 48% of men (a minority!) self-identified “pro-life” (to use the language of the poll – anti-abortion stances are in no way pro-life).
Women are better, it is true, but not by any astonishing gap: 55% of women were pro-choice, and 41% were “pro-life” (unfortunately, Gallup’s limited demographics require me to use “women” as a stand-in for “those who might want/need an abortion”). And when it comes to specific legal questions? A full 45% of women wanted abortion to be illegal in all or most cases, and only 40% wanted unrestricted legal access to abortions.
It is likely, I think, that abortion access would be better if the people who might need or want abortions were making the decisions (especially in an alternate universe where that was historically the case). But I'm not sure it is as simple as people would like to think, and I don’t think abortion as a sacrament is an obvious outcome.
Suffering can be a teacher. But it isn't always. Being oppressed can produce deep commitment to justice and empathy for other oppressed people, but it doesn't, always.
And all too often, oppressed people who do gain some small power are pressured to abandon solidarity, or to accept incremental changes (slavery - with limits, abortion bans - with exceptions) in place of genuine liberation.
“It’s simple”, Joe Biden says, making his case for us to support his re-election. “Restore the Protections of Roe v. Wade Once and For All”. Never mind that Roe was never enough. Never mind that the protections of Roe never protected the most vulnerable, and had been worn down to nothing across vast regions of this country before it was ever struck down.
A beautiful example of resistance: a couple weeks ago, Saba Saed, a Palestinian American voting in Michigan, was asked about reproductive rights and refused to sacrifice the reproductive rights of Palestinians in Palestine for her own:
Interviewer: Saba, you said reproductive rights are a huge factor for you but that you probably won't vote for President Biden
Saba: I think it would be hypocritical of me to use reproductive rights as a way to justify voting for Biden, when Biden is aiding and sending military aid to Israel, which is air striking Gaza and blocking humanitarian aid: leading to women there who are pregnant um either getting C-sections without anesthesia, not being able to be provided with prenatal care [interviewer cuts Saba off]
Israel is not a nonsequitur to the main idea we’ve been exploring. Indeed, the idea that a people who experienced oppression would not re-enact or sustain it has been central to defenses of Israel:
“The state of Israel is singularly aware of why the Genocide Convention, which has been invoked in these proceedings, was adopted,” Tal Becker, an Australian-Israeli international lawyer, said, in introducing Israel’s response to South Africa. “Seared in our collective memory is the systematic murder of six million Jews, as part of a premeditated and heinous program for their total annihilation.”
We experienced genocide, so (as Masha Gessen summarizes):
[h]ow can you call it genocide if it’s waged by us?
(How can you call it slavery, if instituted by former slaves? How can you call it slavery if it isn’t exactly the same as the slavery they experienced?)
Our Torah could have told an easy story. We could have had a holy book where we were liberated from slavery and immediately banned it. Where we were liberated from slavery in a way that no one else was hurt. Where we were liberated from slavery and certainly would not invade another land to murder and subjugate its people, no matter what hashem elokeinu told us to do.
But. As hard as it is. I'm thankful that our Torah is not this easy and self-congratulatory story. Because our Torah is our guide through this broken world. And to be that guide, our Torah must be a Torah of truth.
And the truth, the horrible truth, is that hurt people hurt people. That a people escaping from slavery can create a legal system with slavery. That a people who survived genocide can turn around and commit genocide themselves.
I wish this weren't true. But if I want to build olam haba, I need to know and live in olam hazeh. The case made by South Africa was strong. Stronger, in my opinion, that the Israeli defense.
Lately, I have been overindulging in daydreaming. Dreaming of a world where the Jewish people enacted zionist longings in order to, as one delegate to the Fourth World Zionist Congress later put it:
serve as a living challenge to the abominations of the earth, a task for which all [Judaism’s] teachings, customs, sufferings, and experiences had prepared it. To be a strong and universal people, the reviver of the dispirited of this earth, swimming against the currents of the world while trying to rescue the scattered remains of humanity's ethical possessions from beneath the smoking ruins
But to help build the world to come, I need to live in this world, with a Zionism that
is the very reverse of the sublime willingness to swim against the violence-and-persecution-filled currents of the world today. For political Zionism aspires entirely to swim with the stream and be assimilated to the nations.
Mishpatim may be jarring, but imagine this: all of Jewish history, culture, and tradition subjugated to a nation-state trading death for so-called security.
And I may be writing this dvar in galus, but is there an exile from Judaism greater than this: that we should form a nation-state to oppress others as we were oppressed?
It’s hard to daven these days. Images cut through my soul: of an IDF soldier holding a knife against a Torah scroll as a yad, of Jews davening Ma’ariv as Hawara burns, of IDf soldiers raising pride flags and printing the Tanya surrounded by the rubble of Gaza.
As Shaul Magid asked recently:
how does one utter words of contrition and then makes excuses why everything our people does, all the killing; children, women, even desecrating cemeteries, is all justified? How can we forget our liturgical selves so quickly and claim to stand for morality and justice? How can we be in one moment so contrite, and in another so arrogant and self-righteous. In one moment full of love and in another full of hate? How can we stand before the creator as our best selves, and then confront the world as our worse selves, and not see the difference. How can we wake up the next morning, and the next morning, and still say, “Turn from Your blazing anger and renounce the plan to punish Your people,” and then turn to the world and say “we have done nothing wrong?” I do not know. But I do know one thing. The vertigo is crushing me. Every single day.
And yet: I have nothing but prayers and prayers and prayers to the Name:
shomeia tefilah hear the prayers of the Palestinians and remember them when they cry out to you from bondage el male rachamim have compassion on me on us on your people yisrael on all your peoples oseh shalom bimromav may there be peace only peace from skies hamalkah...
hamalkah may you rule over us
you alone
speedily and at a near time
ada
p.s. have two things to do today after work: draft this dvar, and finalize my tax return. According to some estimates, about $25 of my taxes went to the Israeli military. There's a halachic rule of thumb in kashrus that if something non-kosher falls in a pot, it is nullified if it makes up under 1/60th of the pot. Bli neder, I will donate $25 to Palestinian aid every day of the 60 days from Rosh Chodesh Adar I to Rosh Chodesh Nissan.