Following rules, breaking rules, and making rules / Parshat Mishpatim

Okay, I admit it. I have an antinomian streak. I hate stupid rules, a taste acquired in junior high school. When I got to high school, I was determined that stupid rules would enslave me no longer. Within a week, I broke a school rule. (More on that later.) I was summoned to the office of a vice-principal. I described my experience in junior high and hence my refusal to follow stupid rules. He asked me how I defined “stupid rules.” I told him that it was easier to define good rules that I was more than happy to follow: they are the ones that ensure an orderly learning environment where everyone’s rights are respected, and safety is protected. He sat quietly for a minute and said, “Good enough. I’ll back you up, but please - don’t violate them flagrantly, okay? That will make my life more difficult.” We had a deal and shook on it.

Parshat Mishpatim begins the Torah’s formal listing of commandments. Rules. There are 53 mitzvot in Mishpatim. Only Ki Tzeitzei has more.

Over the centuries, since the focus in Judaism is on “doing” rather than “faith,” more and more restrictions have been added to the compendium of laws that has come to be known as halakhah. The creative process of decision-making was transformed into a rigid and calcified list of rules with the writing of law codes (Mishneh Torah, Shulchan Arukh, etc.) culminating in Mishnah B’rurah, which gathers together the most rigid and restrictive opinions available. Dr. Rabbi Nathan Lopes Cardozo has written of the Mishneh Torah and Shulchan Arukh:

Both these great codes of Jewish Law are very un-Jewish in spirit. They present halakha in ways which oppose the heart and soul of the Talmud, and therefore of Judaism itself. They deprived Judaism of its multifaceted halakhic tradition and its inherent music. It is not the works themselves which are the problem but the ideology which they represent: The ethos of codifying and finalizing Jewish Law. (“Conversations,” Issue 7, May 2010)

This approach to halakhah has crowned rigidity king and bred judgmental subjects. It stifles the inherent creativity and flexibility of genuine halakhah.
Law codes have also had the undesirable effect of engendering observance for the sake of observance. Or worse: I once heard two women talking. One remarked that she had done a chesed (kind deed) for someone. How nice, her companion remarked. Yes, she agreed, I’ll have a bigger chelek (reward in the world-to-come). How appalling! In her mind, the reason to be kind to another human being is because God will reward her in the afterlife. We shouldn’t be surprised that the culmination of this corrupted understanding of halakhah is called halachipedia -- no joke, this one I couldn’t make up.

Such rigidity is among the factors that led to a rift in the Jewish community between those who are rigidly rule-oriented and those who, having rejected that approach, reject many wonderful Jewish observances. And of course, there are many Jews, Orthodox and Liberal alike, between these poles.

Halakhah does not mean an eternally fixed set of laws, however loudly some may proclaim it does. It’s not a set of rules: required, forbidden, and permitted. Halakhah is a process for deciding how to live in this world -- as a human being with ties to family, community, human kind, and God -- in response to the highest and deepest values our tradition has espoused: human dignity, compassion, justice, and the inherent worth of all God’s creatures, as well as God’s Creation. It involves sacred text, tradition, precedent, human reason, and human knowledge of the world.

By its nature, halakhah is a process of case law because every situation is unique. Here’s a question raised recently by a colleague: A person who is prepared to convert to Judaism is hydrophobic (afraid of water). The process of conversion involves total immersion in a mikveh (ritual bath). What to do?

One rabbi I know says the conversion may not go forward: without mikveh, no conversion. Another rabbi says that human dignity and compassion override the requirement of immersion. (Here’s the punch line: the first opinion belongs to a Liberal rabbi; the second belongs to an Orthodox rabbi.) The first approach -- forbidding the conversion without mikveh -- strikes me as Judaism reduced to rules; the second -- recognizing the circumstances of this unusual situation -- strikes me as genuine halakhah, a thorough consideration of all the factors and ethical values involved.

Parshat Mishpatim begins with laws concerning slavery and indentured servitude, a common practice in the ancient Near East that deeply troubles us today -- and with good reason. The thrust of the Torah is to move toward and encourage emancipation. Perhaps this is Torah’s way of telling us not to become enslaved by the mitzvot themselves. Keep the process of halakhah alive and vibrant, responsive and compassionate -- ensure it remains a process so it can respond to our deepest needs.

Back to my first violation of the rules in high school. I was assigned to a study hall third period in the typing room. Each desk was dominated by an enormous, heavy manual typewriter. There was no workspace. I found a quiet resource room where I could get a lot of studying done and had been going there every day instead. However, I’d been marked absent every day from study hall. When the vice-principal heard my explanation, he said it was fine with him. I’d rather have you study than fool around, he said. But he needed to change the room assignment on my schedule in the computer, or the problem would continue. Alas, the resource room did not have a room number because it wasn’t a classroom. I don’t think this is possible, he said glumly. So make something up and give it a number, I suggested. He entered a non-existent room number into my schedule and voila, I was free to study in the resource room during third period. Now that’s the creativity and responsiveness of genuine halakhah!

© Rabbi Amy Scheinerman