Parashat Mishpatim: The Covenant at Sinai

  • Rav Yair Kahn


1.  The Sequence of Events


Immediately after the Torah documents ma’amad Har Sinai and the aseret ha-dibbrot, there is a lengthy legal section containing various “mishpatim.” This section deals with a wide range of civil laws, including the laws of slavery, damages, shomrim, and money lending.  The end of the parasha returns to the Har Sinai theme and narrates the Sinaitic covenant and the return of Moshe to Har Sinai to receive the Torah laws. 


A simple reading of the Torah indicates that after ma’amad Har Sinai and the giving of the aseret ha-dibbrot, Hashem gave the mishpatim section to Moshe, who presented these laws to the people.  After the people accepted the laws, Moshe recorded these mishpatim.  He then built an altar and erected twelve monuments for the twelve tribes.  Various animals were sacrificed on the altar; half of the sacrificial blood was collected in utensils, and half was sprinkled on the altar.  Moshe than read the “Sefer Ha-Brit” (book of the covenant) to the people, who subsequently accepted the covenant with the famous statement “na’aseh ve-nishma” (we will do and we will listen).  The covenantal blood collected in the utensils was then sprinkled on the people.  Moshe, the seventy elders, and two of Aharon’s children, Nadav and Avihu, climbed Har Sinai and had a profound religious experience.  Moshe alone was then summoned to return to Har Sinai for forty days to receive the Torah and tablets. 


            According to this reading, the mishpatim section separates the covenant from the Ten Commandments.  However, this separation is a bit strange.  Shouldn’t the Sinaitic covenant have taken place within the context of ma’amad Har Sinai and the aseret ha-dibbrot? Why did Hashem teach Moshe mishpatim in between the two?  


            Perhaps this is what led many commentators to apply the rule of “ein mukdam u-me’uchar ba-Torah” (the Torah is not necessarily in chronological order) to our parasha.  In Parashat Yitro, Rashi comments:


“And they should be ready for the third day” – which is the sixth of the month.  And on the fifth [of the month], Moshe built the altar at the foot of the mountain and the twelve monuments, the entire episode as stated in Parashat Mishpatim.  Ve-ein mukdam u-me’uchar ba-Torah.” (Rashi, Shemot 19:11)


Rashi echoes this position in our parasha as well:

“And to Moshe, He said, ‘Go up’” – this parasha was said prior to the aseret ha-dibbrot – on the fourth of Sivan, Moshe was told to go up.  (Rashi, Shemot 24:1). 


According to Rashi, on the fourth of Sivan, Moshe was commanded to make a covenant between Yisrael and Hashem.  The covenant took place on the fifth of Sivan, during the three days of separation and preparation for ma’amad Har Sinai, which transpired on the sixth or seventh of the month.  The mishpatim section was taught only after Moshe received the aseret ha-dibbrot.


            Rashi’s position allows for a seamless transition from the covenant to ma’amad Har Sinai.  The application to the Biblical narrative, however, is quite a challenge.  Why is the covenant documented at the end of Parashat Mishaptim and not as part of the ma’amad Har Sinai narrative in Parashat Yitro, if that is when it actually occurred?  


            In general, the rule “ein mukdam u-me’uchar ba-Torah” should not be applied arbitrarily.  The Ramban notes in the beginning of Parashat Korach (Bamidbar 16:1) that chronological order is the default assumption.  The non-chronological rule is applied only when necessary and only if there is a reasonable explanation for why the Torah departed from a chronological presentation.  Although there are commentators who seem more “trigger happy” than the Ramban when applying the principle of “ein mukdam u-me’uchar,” the Ramban’s position seems quite reasonable and convincing.


            It seems to be this lack of a compelling reason that the Torah would have documented an earlier Sinai covenant at the end of Parashat Mishpatim that leads the Ramban to argue with Rashi’s explanation, claiming that the order in which these parashiot are documented corresponds to the sequence in which they occurred (Ramban, Shemot 24:1). 


            There is an additional difficulty with Rashi’s interpretation.  In introducing the covenant, the Torah states, “And Moshe came and told the people all the words of Hashem and all the mishpatim” (24:3).  According to the Ramban, this is a clear reference to the beginning of the parasha, which begins, “And these are the mishpatim that you shall place before them” (21:1).  However, according to Rashi, these mishpatim had not yet been taught to Moshe! Rashi is forced to interpret “mishpatim” as referring to laws commanded before Har Sinai:  “‘And all the mishpatim’ - the seven laws of bnei Noach, Shabbat, honoring one’s father and mother, the laws of the red heifer, and other various laws previously given at Mara.” The difficulty of this interpretation is obvious. 


            Although the Ramban’s interpretation fits more smoothly into Scripture, Rashi’s position is the prevalent interpretation adopted by our Sages.  The gemara states:


R. Yossi said: On the second day [of Sivan], Moshe went up [to Har Sinai] and went down.  On the third day, he went up and came down… On the fourth day, he went up and came down.  On the fifth day, he built an altar and brought a sacrifice on it.  (Shabbat 88a) 


Another gemara (Chagiga 6a) states that the chagiga sacrifice pre-dates the command of Hashem.  The only sacrifice that can be considered a chagiga that was brought before the word of Hashem was revealed at Sinai is the shelamim sacrifice that was brought during the Sinaitic covenant.  (See Rashi, s.v. yeshna and Tosfot Rid for an alternate explanation).  This again indicates that the covenant took place prior to the commandments. 


            In his commentary on the Torah, the Ramban claims that the Tannaim actually debated this issue in the Mekhilta (Parashat Yitro).  While according to R. Yehuda, the altar and twelve monuments were indeed erected on the fifth day, R. Yossi ben R. Yehuda argued that “on that very day” all the actions were performed.  According to the Ramban, “on that very day” refers to the day that the aseret ha-dibbrot were given, and he argues that this opinion retains the chronological consistency of these parashiot.  Accordingly, the parasha of mishpatim was taught immediately following the Ten Commandments, and the covenant was made at the end of that day. 


            Nevertheless, Rashi’s position is clearly more prevalent, despite the textual difficulties.  We will therefore attempt to make a convincing argument to explain why the Torah chose to depart from chronological sequence in this case. 


2.  Accepting the Mitzvot


            According to the Ramban, the Torah separated ma’amad Har Sinai and the aseret ha-dibbrot from the Sinaitic covenant.  Why were these two events separated, and why was mishpatim section used for the separation?


            Ma’amad Har Sinai was a profound moment of divine revelation.  Revelation is fundamentally different than covenant.  Revelation is unilateral;  Hashem decides on His own, as it were, to reveal Himself to finite man.  It is an act of divine grace, and man is totally passive in the encounter.  Covenant, on the other hand, is bilateral.  Two parties are required to make a covenant; even a covenant between man and Hashem requires active human involvement. 


            The aseret ha-dibbrot were given to man by Hashem – man receives the Torah passively.  Our sages (Shabbat 88a) describe the dibbrot as being imposed on Yisrael. 


'And they stood at the bottom of the mountain' [literally - under the mountain].  Rav Avdimi the son of Hama the son of Hasa said: This teaches that Hakadosh Barukh Hu placed the enforced the mountain upon them like a tub and said to them: If you accept the Torah – fine and if not – there will be your grave.  (Shabbat 88a)   


This is ‘Matan Torah,” the giving of the Torah.  However, there is also an idea of kabbalat Ha-Torah, in which man actively accepts the Torah.  The Sinaitic covenant is based on the Children of Israel actively and freely accepting the Torah, as they loudly proclaim “na’aseh ve-nishma. 


            According to the Ramban, the covenant, in contrast to revelation, can only occur after “mishpatim.” There must be tangible content to the acceptance of the Torah, and to accomplish that, certain mitzvot must have already been given. 


            Furthermore, our Sages consider the Sinaitic covenant as completion of the collective “geirut” of Yisrael.  The gemara writes regarding the conversion process:


Rebbi says: “Like you, like your fathers” – just like your fathers only entered the covenant through circumcision, immersing [in a mikva], and sprinkling sacrificial blood [on the altar], so too, they [geirim] enter the covenant only through circumcision, immersing, and sprinkling sacrificial blood.  (Keritut 9a)


The gemara explains that we know that our ancestors entered the covenant through mila, as circumcision was necessary in order to participate in the korban Pesach.  How do we know that one enters the covenant through immersion and sprinkling the blood?


Sprinkling sacrificial blood – as it says, “And he sent the youth of the children of Israel [who offered burnt-offerings, and sacrificed peace-offerings].” But what is the source for immersing? As it is stated, “And Moshe took half the blood and sprinkled it on the people,” and there is no sprinkling without [prior] immersion.  (ibid.) 


The gemara’s source for the requirements of immersing and sprinkling blood is found in the Sinaitic covenant. 


            Once we define the covenant at Sinai as geirut, the necessity of the mishpatim is obvious.  In describing the process of conversion, the gemara includes, “You inform him of some easy mitzvot and some hard mitzvot” (Yevamot 47a).  In other words, entering a covenant of geirut requires knowledge of certain mitzvot.  Since very few mitzvot were actually taught in the aseret ha-dibbrot, before the covenant was made, a more comprehensive list of laws had to be taught to the nation.  This list is that of the “mishpatim.”  When Moshe taught Yisrael the mishpatim, the people collectively accepted them; only at that point could the collective covenant of geirut be made. 


            This idea is found explicitly in the Ramban’s commentary at the beginning of Parashat Teruma:


Upon telling the aseret ha-dibbrot to the nation of Israel face to face, and commanding them through Moshe certain mitzvot that are like paradigms to the mitzvot of the Torah…  (Ramban, Shemot 25:1)



3.  Revelation and Covenant


            Perhaps we can enlist the distinction between covenant and revelation to explain the position of Rashi as well.  The Torah intentionally separated the covenant from the revelation at Sinai in order to differentiate between these two distinct ideas. 


            The Torah begins with the revelation, which is of primary importance.  At Sinai, Hashem revealed Himself to Yisrael, and as we mentioned in last week’s shiur, the revelation at Sinai is the foundation for our trust in Moshe and our belief in the Torah.  It is a unilateral act of grace on the part of Hashem whose purpose is to eternalize the collective faith in Torat Moshe: “I hereby come to you in the thick of the cloud so that the nation should hear as I speak to you and also in you shall they believe for eternity” (Shemot 19:9).  Yisrael at the Sinai revelation are passive participants, absorbing the religious experience and the related divine messages.


            In contrast, the covenant of Sinai is a bilateral agreement.  Both sides make mutual commitments, and the children of Israel are actively involved.  They are taught laws and must be pro-active and accept them.  They issue the famous proclamation, “na’aseh ve-nishma” and immerse themselves in ritually pure water, sacrificial blood is sprinkled on them, and they collectively enter a covenant with Hashem. 


            These two distinct ideas touch upon a much broader issue.  When we worship Hashem, are we meant to passively accept divine will? Or are we perhaps charged by Hashem to be similar to Him – so that just as He is the Creator, so too we are meant to be creative? As we have seen above, there is no simple answer to this question.  There are areas in which the proper spiritual reaction is to surrender and accept, but regarding other areas, Hashem wills that we be actively involved.  For example, Torah She-Bikhtav, which contains the divine word and will of Hashem, cannot be altered at all.  Even the distortion of the corner of a yud renders a sefer Torah pasul.  The study of Torah She-Bikhtav is accomplished through reading the divine word accurately.  With pure faith, we accept the divine word we received at Sinai.  Torah She-Ba’al Peh (the Oral Law), on the other hand, is given to Yisrael to understand based on human intelligence; it is left to Yisrael to study and develop.  In fact, even divine signs do not influence its interpretation (Bava Metzia 59b).  It is noteworthy that the gemara (Gittin 60b) quotes R. Yochanan’s opinion that the covenant of Torah was made specifically with respect to Torah She-Ba’al Peh.    


            Based on the above, we can explain the Torah’s departure from chronological sequence according to Rashi.  Had the Torah described these events consistent with historical chronology, it would have been very difficult to isolate either of these distinct ideas.  The need to accurately identify the spiritual messages contained in the complexity and dualism of the Sinai experience is sufficient justification for presenting a chronologically inaccurate account.


            The default consistency of the Torah with historic reality applies only when the spiritual message of the Torah is not affected.  However, since the Torah is not a book of history, it is not bound by the historical chronology.  The Torah has a religious agenda, and whenever that agenda is negatively affected by the chronological account, the “ein mukdam u-me’uchar” principle can be applied.  The importance of clarifying the distinction between divine revelation and covenant is ample justification for a non-historical presentation.