Janis Joplin sang that "Freedom’s just another word for nothing left to lose," but that’s not the perspective of the book of Exodus. From the moment that the Israelites are freed from slavery in Egypt, there is an important trajectory set in motion, leading to Sinai. Freedom from servitude to other humans means that now the Israelites can, and should, choose to bind themselves in a Covenant with God, which they do at the moment of the Revelation and the giving of the Ten Utterances. Moreover, both freedom from slavery and covenant with God are the opposite of "nothing left to lose," very much the opposite – with freedom comes the obligation to create a functioning society that can protect its members and keep peace between them. Revelation, then, is logically followed by this week’s parashah, Mishpatim – which means "Laws."
In fact, we might say the Israelites in the desert had it relatively easy. Being still completely new to the idea of functioning as a self-governing society, they had outside guidance. The laws by which they began to build their community were given to them by God, through Moses, the man who was closer to God than any other human has been or will be. But even the Israelites of the Exodus generation were already being prepared to establish a judicial system in which they would resolve legal matters for themselves. Thus it is that parashat Mishpatim, Ex. 23:2 includes the following warning (following Everett Fox’s translation):
You are not to go after many (people) to do evil.
And you are not to testify in a quarrel so as to turn aside toward many—(and thus) turn away.
In short, we are not to follow the majority when it is wrong, when doing so will lead to wronging someone. "Turning away" here has the sense of perverting justice.
Yet something strange happens to this verse in the hands of the rabbis. In rabbinic literature, the latter phrase of this verse, aharei rabim l’hatot, "toward the many—(and thus) turn away" takes on an entirely new, and different meaning. In Exodus this is a negative commandment – do not participate in a wrong judgment even when the majority is inclining in that direction. In rabbinic hands, however, this is a positive guideline for judicial procedure – in Mishnah Sanhedrin 1:6, one of the earliest rabbinic texts to cite the verse, it is read to mean that decisions should follow the majority!
Nor is this the only verse for which the rabbis create a new and radical rereading. Something similar happens to a phrase found in Deut. 30:11-12:
For the commandment that I command you this day:
it is not too extraordinary for you,
it is not too far away!
It is not in the heavens,
(for you) to say:
Who will go up for us to the heavens and get it for us
and have us hear it, that we may observe it?
Again, in context, the message is that God’s commands are not meant to be obscure, difficult, inaccessible, undoable. And once again, the rabbis do something very different with the statement lo bashamayim hi, "it is not in the heavens." In the Talmud, Bava Metziah 59b, the rabbis tell the story of a dispute between Rabbi Eliezer and the rest of the rabbis over whether a particular kind of oven (called an "Akhnai oven" or the "oven of Akhnai") is susceptible to ritual impurity. Clearly outnumbered, Rabbi Eliezer invokes miraculous events to prove that he is right. A carob tree uproots itself and moves 400 amot, a stream flows backwards, the walls of the study hall tremble and threaten to fall. Finally, a heavenly voice proclaims that he is right! At that moment:
Rabbi Yehoshua stood on his feet and said "It is not in the heavens!"
What does this mean, "It is not in the heavens"? Rabbi Yirmiah said, "Since Torah has already been given from Mount Sinai, we do not pay attention to a heavenly voice, for You have already written at Mount Sinai, "toward the many—(and thus) turn away." (i.e., follow the majority)
Torah in not in the heavens, because once given, Torah is human property. It is the responsibility of humans to discuss and debate and interpret it, and then to decide on the rules that they will take from it, which they do by majority vote. Even God can be outvoted by the human court!
The question of how the rabbis could presume to so (let us say) stretch the original meaning of the text (and then to quote that new reading back at God!) is a subject for another time. For the moment, let me cite the explanation of my teacher, Rabbi Gordon Tucker, as to why they did so:
Now, why in biblical Judaism was it so clear that a majority should not necessarily be followed, and why, in Rabbinic Judaism was it so clear that a majority must be followed? The reason, I believe, is this: from the point of view of biblical Judaism, there is a truth, quite independent of the majority, that can be gotten through a prophet, or perhaps through the priestly urim v’tumim. From the point of view of Rabbinic Judaism, however, the statement Ko amar Hashem [Thus said the Lord] is constitutionally forbidden…Rabbinic Judaism, in this understanding, is about the notion that we can’t get religious truth directly…And thus, the new reading of aharei rabim l’hatot and such well-worn phrases…must be seen for what they are: dramatic changes in the very definition of religious truth.
(
www.rabbinicalassembly.org/teshuvot/docs/19912000/tucker_defense.pdf)
The trajectory of the Exodus narrative continues. In our day, without direct communication from God, without a leader like Moses to lead us and intercede on our behalf, how will we take responsibility for creating a community among ourselves and a relationship between us and God? How will we know the best way to do so, the way that comes closest to approximating what God wants for us and from us? Only by working together, sharing our wisdom, trying to forge consensus, and ultimately, by being willing to submit to a fair and reasonable vote when we are on the losing side, knowing what we have to lose if we do not.
Shabbat shalom.