Welcome to the alliteratively and delightfully entitled Qontroversial Questions on the Parashah (it’s still pronounced “Controversial” – I just think I’m being clever). Subscribe to continue to receive these and please share with those you think would be interested.
I. The Torah’s Unoriginal Laws
When it comes to writing derashot, Parashat Mishpaṭim represents a watershed moment. Other than a few notable exceptions, the Torah shifts away from story-telling to being apodictic: it’s now primarily a book of laws.
But when considering the Qontroversial Questions a reader encounters, Parashat Mishpaṭim is also a watershed moment. Because its shift from story-telling to law-giving raises one of the great questions that all critical thinkers face – and often becomes a lightning rod for people struggling with their faith.
And it emerges from the fact that our parashah is devoted to a litany of less-than-exciting laws, such as:
When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment to be based on reckoning. (Ex. 21:22)
But if other damage ensues, the penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise. (Ex. 21:23–25)
But if the ox gores a slave, male or female, he shall pay thirty shekels of silver to the master, and the ox shall be stoned. ... If, however, that ox has been in the habit of goring, and its owner, though warned, has failed to guard it, and it kills a man or a woman-the ox shall be stoned and its owner, too, shall be put to death. (Ex. 21:29, 32)
If you managed to stay awake while reading those verses, you’ll have recognized them as some of the best-known laws in the Torah. Not only are the talion laws – “eye for eye, tooth for tooth, etc.” –some of the most iconic mitzvot, but any student of Mishnah and gemara becomes very familiar with oxen and their vast propensity and lust for violence.
Yet, it turns out, all of these laws are unoriginal.
Because there is another law code that is much more ancient than the Torah, dating back to around 1754 B.C.E., the period we consider the era of the Avot. Additionally, it was clearly known to Jews at some point in history, as copies of it have been found in the Land of Israel.
It’s called the Code of Hammurabi, and it’s a legal code written by Hammurabi, the sixth Amorite king of the Old Babylonian Empire. Within which a reader finds the following laws:
196. If a man put out the eye of another man, his eye shall be put out.
197. If he breaks another man’s bone, his bone shall be broken.
209. If a man strikes a free-born woman so that she loses her unborn child, he shall pay ten shekels for her loss.
251. If an ox be a goring ox, and it shown that he is a gorer, and he does not bind his horns, or fasten the ox up, and the ox gore a free-born man and kill him, the owner shall pay one-half a mina in money.
252. If he kills a man’s slave, he shall pay one-third of a mina.
Reading the Code of Hammurabi raises an unavoidable but disquieting notion. Because it seems clear that part of the Torah – the text that gives us the word of God and the laws that He wants us to observe – has been shamelessly borrowed, co-opted, or liberally copy-pasted from a law code already in existence.
II. How Some Jews Resolve (or Ignore) the Issue
Broadly speaking, there are three overarching approaches to the challenge presented by Hammurabi.
The first is flat-out denial. While this is a popular approach to challenging issues (“it’s heresy so not only can’t you read it, but we can’t talk about it”) it doesn’t really solve the problem. Because for all that a person wants to stick their head in the sand, the Code of Hammurabi is out there. Telling people to ignore it creates a religion that only the uninquisitive will find satisfying (as I talked about last week).1
The second approach is what I’d term the “open-minded-but-super-frum” answer. Because even though this approach isn’t my cup of tea, it’s the kind of answer that would appeal to a certain type of Jew.
In the broad strokes, the approach notes that the Seven Noahide laws were observed – or, at least, should have been observed – by everyone before the Torah was given. Maybe, then, Hammurabi was someone who not only observed the Seven Noahide laws but also took them so seriously that he studied them in the Yeshiva of Shem and Ever, where he learned to extrapolate the Seven Noahide laws into a larger set of principles – as the Seven Noahide laws are clearly far more numerous than just seven, as noted by the Sefer ha-Ḥinukh (§416) – leading him to enforce them upon his entire nation.
But the third approach recognizes a foundational aspect to how we read Tanakh as a whole. And it’s so obvious when you hear it but seems to be broadly ignored as a general methodology.
III. When Translation is Useless
There is a fundamental question to ask about the Torah: What language was the Torah given in? And while I know it sounds like a silly question, it really isn’t.
And yes, obviously, the answer is that the Torah was given in what we now call Biblical Hebrew. But the corollary to this is that the language that the Jewish people who first received the Torah spoke was also Biblical Hebrew – because if they weren’t familiar with that language, why would the Torah be given in a language the Jewish people didn’t speak?
But the fact that the Jewish people spoke Biblical Hebrew is a surprisingly important point. Because language is far more than just words – it captures many things beyond simply the words that people use to speak. And this means that even someone who understands the translation of all the words in a given language might not understand a term if they are unaware of the language’s context.
And I have a good example of this from something that I did the other week when discussing Parashat Bo. I used the term “Route 1” and included a footnote explaining what it meant (it’s a football term).
And even though all of you speak English fluently, most of you – especially those hailing from outside the UK – while well aware of what the words “route” and “one” mean, would have had no idea what the phrase meant, nonetheless. And look! I just gave you another example of the same thing in the paragraph above. I intentionally used the word “football” to explain the term “Route 1.”
But in this latter case, almost all of you would have grasped what I meant by “football.” Because, despite the fact that you do not naturally refer to the world’s most popular sport in which people use their feet to kick a ball as “football,” you’re still aware of the fact that almost every country around the world uses some combination of the words “foot” and “ball” to describe the sport – and that I am from one of those countries.2 In other words, understanding my use of the word “football” requires a great deal of context beyond simply knowing what the word means.
But imagine you didn’t know my country of origin and came across my explanation that “Route 1” has something to do with “football.” You may have still been able to figure something out. Because if you instinctively use the term “football” to refer to the sport only really played in America in which people use their hands to throw a non-ball-shaped-ball to each other to catch it, run with it, and get hit – with the odd moment of kicking the non-ball-shaped-ball taking place – you might know that “Route 1” has no context relevant to your football (elsewhere around the world called “American Football”).
So even if my use of the term “football” had foxed you, my use of it combined with a term unfamiliar to your football lexicon might have led you to revisit what I meant by the term “football” in explaining Route 1 – and you would’ve then figured out that I was referring to what you call “soccer.”3
And what all this illustrates is that not only is context essential, but different contextual awarenesses can still result in successful understanding. Sure, if you know something about me – that I’m from the UK – you can far more quickly grasp what I mean by “football” than if you don’t – but you can still get there.
But there’s a few more interesting quirks here. Because at this point you still haven’t figured out what “Route 1” means – other than the fact that it’s a colloquialism of some sort taken from a sport you’re unfamiliar with.
And it turns out that there’s a lot more context needed to unpack this. Because people from the UK with no awareness of or interest in football will still have no idea what “Route 1” means. And while die-hard soccer fans in America might recognize it, Americans with zero interest in American Football and no awareness of my country of origin are completely blind here. Even if an American is familiar with what a “Hail Mary” is, there are so many terms used in American Football that they might just assume “Route 1” is one of them.4
And I know that this was a lengthy example to make a point – but it’s important to grasp as it’s also one of the central ideas of reading Tanakh. Even when we know the meanings of words, even if we know quite a lot about the text itself, it might not be enough for us to truly understand it if we don’t also grasp the context.
And all of this means recognizing that the Jewish people who first received the Torah didn’t just speak a language unfamiliar to us – that language was from a world in which they lived but is completely unfamiliar to us.
IV. The World of the Torah
It’s only by appreciating the context of the Torah that the challenge posed by the Code of Hammurabi can be properly processed. Because what the Code of Hammurabi should make us realize is not that the Torah cribbed its ideas from elsewhere – but that the whole idea of “eye for eye, tooth for tooth, etc.” was never supposed to be the revolutionary aspect of the Torah here.
The laws in Mishpaṭim are like my use of the term “Route 1”: even though we understand the words easily enough, it doesn’t mean we can grasp the wider meaning. And that’s why the Code of Hammurabi is such a problem. Because the words are near-identical. So we think it’s copy-pasted. But that leads us to miss the actual point of Mishpaṭim.
And what often gets argued when making this point about Mishpaṭim vs. Hammurabi – is that there are significant “moral” differences between the two. When we read Mishpaṭim in 2025, we might not appreciate the revolutionary moral nature of the Torah here because our moral compass is now far more sensitive to certain things. But Hammurabi lets us recognize how much more value the Torah places on human life than other contemporaneous societies did.
And this is an important point and one that should not go ignored, but I’d rather focus on a different perspective – one stressed by the Harvard Theologian (and, for what it’s worth, Modern Orthodox Jew) Jon D. Levenson in his 2016 book, The Love of God: Divine Gift, Human Gratitude, and Mutual Faithfulness in Judaism. In noting the Torah’s collections of laws, he writes:
Those legal norms, of course, are in many instances paralleled in other collections of law, especially those from Mesopotamia, sometimes strikingly so. What is not paralleled there (as far as we currently can know) is the placement of law within a covenantal framework. (p. 14)
As he goes on to stress, the Torah’s constant emphasis on its laws containing a covenantal framework – in other words, being about the relationship between us and God – “is momentous. It means that the observance even of humdrum matters of law has become an expression of personal faithfulness and loyalty in covenant.”
And this creates an entire shift in how we can not only appreciate but embrace how the Torah “borrowed” Hammurabi for Mishpaṭim. Because it allows us to recognize that what the Torah wanted to do – as it also did with the early narratives of Sefer Bereishit – was take long-standing ideas, laws that were broadly familiar in the Jewish people’s wider culture,5 and twist them. Rather than inventing a whole new religion with alien ideas, God took ideas already in the ether and shaped them into ones He endorsed.
And what this means is that our simple ability to understand the individual words or sentences of the Torah is not enough because context is part of language. And when we fail to realize this, it leads to us mistranslating, misunderstanding, or even misinterpreting the Torah – an issue even more significant when it leads people to misrepresent what the Torah is trying to do.
There is a much better way to reject the challenge proposed by the Code of Hammurabi. Though its initial discovery seemed to present a text that the Torah had “copied,” further discoveries have led to the realization that the Code was not, well, a code. Rather, it’s a text recording various legal judgments given – perhaps by Hammurabi himself – that were rarely followed as explicit laws.
Quiz question! What country is the only one in which football is its most popular sport – and it’s regarded as one of the best footballing countries in the world – yet it doesn’t call it some combination of “foot” and “ball”? (The answer will be in the next footnote.)
Yes, I know, the term “soccer” actually originated in the UK. Also the answer to the Quiz Question is Italy. They call it “Calcio” – pronounced CAL-chio. (I recommend pronouncing it with your best attempt at an Italian accent that’s almost certainly a hate crime.) The “chio” part has a really quickly pronounced i – feel free to ask me in shul how to pronounce it authentically.
I tried this as an experiment. I asked the following people if they knew what Route 1 was: My brother-in-law in Manchester, who has no interest in football. A member of my shul, who takes an interest in soccer and a member of my shul who spent some time in England and has a certain affinity for the culture. None of them knew it.
I’m not saying the Jewish people knew of Hammurabi at Mt Sinai – but the thrust is that “eye for eye, tooth for tooth, etc.” was a well-known notion as a whole in that era.