Mishpatim | "If You Encounter Your Enemy's Ox"

Introduction

 

What does the Torah have to do with social contracts? What does the Torah have to do with relativistic moral laws that are dependent upon the social structure within which a community operates? In this shiur, we will take a closer look at two verses in this week's parasha of Mishpatim:

 

If you encounter your enemy's ox or his donkey going astray, you shall surely bring it back to him.

 

If you see the donkey of him who hates you, lying under its burden, and you hesitate to [or "desist from"] unload it – you shall surely unload it with him. (Shemot 23:4-5)

 

The first verse describes a situation in which a person encounters the ox or donkey of his enemy. The second verse speaks of a person seeing the donkey of someone who hates him lying under its burden. In both cases, the person is commanded to act: to restore the animal to its owner or to unload the burden. What legal logic underpins these commandments? What values serve as their basis?

 

Our discussion here must be expanded to include a parallel unit from Sefer Devarim that addresses these laws, rendering the picture more complex:

 

 

The skeleton of the commandments is similar, but there are significant differences. In Sefer Shemot, the Torah speaks about "your enemy's ox or his donkey" that "goes astray." In Sefer Devarim, the ox is "your brother's," as is "his sheep," and they are "lost." In Sefer Devarim, we find the addition of a negative command ("You shall not see"), as well as additional instructions – "And if your brother is not near to you, or if you do not know him, then you shall bring it to your own house" – as well as the extension of the law to include all lost property – "So shall you do with his donkey, and so shall you do with his garment…" The second law as formulated in Sefer Devarim discusses a beast that is lying down, as in Sefer Shemot, but here again there are differences. In Sefer Devarim, the animal belongs to "your brother" (rather than "him who hates you"); there is no mention of any burden; the animal is lying because it has fallen, rather than because it is crouching under a load; and the obligation is to lift it up, rather than unload it. What is the significance of these discrepancies?

 

Let us first seek the legal logic inherent in these laws through a careful reading of the unit, step by step.

 

The Law and its Logic

 

If you encounter your enemy's ox or his donkey going astray, you shall surely bring it back to him.

 

"If you encounter…" – (im tifga). Unlike “mifgash” (meeting) – a movement on the part of two sides coming together – the term “pegi'a”suggests unilateral movement. And while the associations of the word mifgash resound in many dimensions, pegi'a is more focused.[1]

 

"Your enemy's ox" – The seemingly appropriate grammatical expression in Hebrew would be "ki tifga be-shor oyvekha," with the preposition “be-“ indicating the direct object. The preposition would address the context of the ox and imbue the encounter with it with some measure of tangibility.[2] In its absence, the “encounter” here assumes a conceptual rather than concrete character. What is this meant to teach us? We must continue reading in order to seek an answer.

 

"Your enemy's ox or his donkey" – An ox is a beast of labor (plowing, turning a millstone, etc.), while the donkey is a beast of burden. The former is used by man in his labor, while the latter facilitates movement and communication with the world. It is a simpler matter for the Torah to command that an ox be returned to one's enemy for the purposes of his own personal use. A donkey, in contrast, when returned to its owner, remains active in the public sphere, and the act of returning it may thus have indirect ramifications for the finder – the owner's enemy.

 

"Your enemy's ox" – This formulation has two layers of meaning. This ox is a domesticated animal. It belongs to its owner, and in relation to the owner it has gone astray; it is seeking. The second layer relates to the relationship between the finder and the owner of the ox, who is perceived as his enemy. The situation would seem to be as follows: The first layer creates a living connection between the animal and its owner, and it is to this connection that the finder is committed. The animal has gone astray, it is wandering about, and the finder must ensure that this living connection will survive. Still, the text could speak of the ox as belonging to "someone," and it could then elaborate or hint to either a positive or negative relationship between the finder and the owner. Why, then, does it refer from the outset to "your enemy's ox"? Here again, we must wait patiently for the text to explain itself.

 

"Astray" – the ox is wandering about, seeking its owner; it is in a position of needing.

 

"You shall surely bring it back to him" – "Bringing back" (hashava) means returning something to its original place, to where it belongs. An ox has an identity and affiliation; its affiliation has become unraveled and it has gone astray. Failure to bring it back means ignoring this living movement, this connection, between the ox and its owner. Bringing it back means commitment to the nature of the world, or to the nature of Creation. In the same way, perhaps, as the prohibition, “You shall not take the mother along with the young” (Devarim 22:6) commands us not to sever the live connection between a mother and her young, here too, the connection between the animal and its owner has come apart – or is about to – and the instruction to whoever finds it is, “Do something to bind the connection together again.”[3]

 

"Bring back" (hashev) – This is the imperative form of the act of restoring (hashava). Then comes the repetition and reinforcement – teshivenu. As a first step, the person forces himself to return the article; as a second step, he identifies with what he is doing, perhaps even choosing it. Whereas the first part of the phrase, hashev, is abstract, the reinforcement and conjugation in the second person singular, serving to personalize the command, is also rounded off by the suffix indicating the object – "teshivenu". This indicates a connection between the person who is returning the ox and the ox that is being returned; the finder accompanies it until it is restored to its place and its affiliation.

 

Let us now go back to the questions we have raised so far. Why does the Torah speak of "your enemy's ox"? Why not just "someone's" ox? Apparently, this definition of the relationship captures the essence of the command. "Your enemy's ox" – the Torah places the hostility prevailing between the owner of the ox and its finder at center-stage. This is not a self-evident choice. Had the obligation been anchored in civil law, the mention of hostility would have been extraneous, since a monetary obligation ordinarily has nothing to do with the nature of the relations between the parties involved.

 

The additional references to the social relations involved ("your enemy," "him who hates you," or "your brother") would seem to indicate that the basis for the obligation of returning the article is precisely that relationship that exists between man and his fellow. A more precise formulation would point to the mutual responsibility that prevails within such a society.[4] When a society is built up and the relationships within it are well developed (as in the situation described in Sefer Devarim, where the ox is "your brother's ox"), then the obligation to return a lost article is an extensive and meaningful one. As long as the society is still in its more primal, embryonic stages, when members are "enemies" who "hate" one another, the obligation is significantly narrowed.

 

Nevertheless, we must ask: What is the basis for the obligation in which the relations are characterized by hostility or hatred? Would it not seem that in such a situation of lack of mutual security, the obligation has nothing to rest upon? The formulations "your enemy's ox" or "the donkey of him who hates you" would seem to answer these questions. Even when the owner of the ox is your enemy, mutual responsibility does not fall away. To put it differently: There is a fundamental framework of responsibility in the world; there are moral laws between man and his fellow, and these are the most basic infrastructure, underpinning everything – even where there is hostility or hatred between the parties involved.[5] Its implementation in this unit comes in the form of the instruction that one perform the obvious moral act, an act based on the proper mutual responsibility among people, even when the person concerned is one's enemy.

 

We might now say that the absence of the prepositional bet serves to intensify the focus on the subject of the parasha. In contrast to a description containing the letter bet, which would imply a physical collision with an ox which happened to belong to my enemy, the Torah is presenting a matter of principle, a concept: when you encounter your enemy's ox – when you find yourself in a situation in which these two values are reflected (the ox's belonging to its owner and the fact that its owner is someone who hates you), then the degree of mutual responsibility will approximate that set forth in this unit.

 

As a summary of this verse, let us go back to our original question: why should a straying ox or donkey be returned to its owner? We now understand that the basis of the law is not a monetary obligation within the framework of Choshen Mishpat.[6]In this unit, the Torah presents a social vision that points to fundamental moral laws that cannot be tampered with, even when the person concerned is "your enemy." These sorts of moral laws exist in different cultures, and what seems to be special here is the fact that no "red line" is presented in terms of vandalism or destruction. Rather, there is positive action, an act that testifies to values such as responsibility and caring as the basis for social existence.

 

A Second Law

If you see the donkey of him who hates you lying under its burden, and you hesitate to [or "desist from"] unload it – you shall surely unload it with him.

 

"If you see" – from afar. Unlike the previous law, in which a person is required to return the item upon encountering it, here his obligation is extended to include a situation where he is at some distance from the article. What is the reason for this change? Even before we continue reading, in light of the discussion thus far, we may propose an explanation. The subject of the unit is the mutual responsibility amongst members of society, but here we must identify a change in attitude that has occurred.

 

"The donkey" – The subject is a beast that is crouching under its load, and in this context, the focus on a donkey as a beast of burden is quite appropriate. The previous law already established that the same law applies to an ox and a donkey, and this equation remains valid.

 

"The donkey of him who hates you" – In contrast to "your enemy", a designation that finds expression in acts of hostility, hatred is an inner feeling. In this sense, there is some softening in relation to the previous description. The Torah is suggesting, as it were, that once we are no longer speaking of active hostility but rather only of negative feelings, then the mutual responsibility expands outwards, and a person is obligated to deal with the animal in distress even when he sees it from afar.

 

"Lying under its load" – The donkey's distress is focused; there is a specific problem, requiring a specific solution.

 

"And you hesitate to unload it [or "you shall desist from unloading it"] – you shall surely unload it with him (azov ta'azov imo)”[7] – At first glance, the Torah seems to be issuing two contradictory instructions. The first is to desist from occupying a position of unloading; the second is to take up a position of unloading.

 

Why is the law not formulated as a command to help the donkey to stand? Our unit describes a donkey lying under its load. Its problem is the load, and the moment the load is removed, it will be able to stand up.

 

The first position – "you resist/desist from unloading it" – is a description of a situation, which is also the continuation of the story. When you see the ox of someone who hates you lying under its load, your expected reaction is that you will refrain from unloading it, not that you will draw nearer and help him to unload the donkey. This is an altogether natural reaction; in describing it in this way, the Torah allows it room, as it were.[8] Nevertheless, the text goes on to command, "You shall surely unload it with him." Extricate yourself from that position and unload the beast.[9]

 

Where is the owner of the ox? Until now the text has ignored him, but now he becomes part of the picture: "you shall surely unload it with him" – with the owner, and with his assistance.[10]Perhaps the initial silence on his part during the first stage of the description serves to focus the passerby more objectively on the reality that he has stumbled upon. The question that immediately arises in his mind is whether the owner, who hates him, is present at the scene. This question is answered, as it were, with a wave of the hand: why is that of any importance? At the same time, beneath the surface, the text gives rise to a subtle process that goes on between the two parties. At first, the presence of the owner, who "hates," is ignored, as a precondition allowing the one who "sees" to draw closer to the beast and offer help. Finally, once he has committed himself to this problem, he solves it in cooperation with the ox's owner – and they find themselves unloading the burden alongside one another.

 

Let us now take a step backwards and ask: what fundamental innovation is introduced in this verse, which had not been part of the previous verse?[11]

 

The key to answering this question would seem to lie in the nature of the responsibility involved in each situation. In the first situation, the danger is the loss of an ox, and the command is, "You shall surely return it to him." Take care of the animal, seek its owner, and return it to him. The commitment to the owner creates an extensive obligation of returning,[12] but in practice the interface between the two parties is limited to the moment when the article is handed over. It is a responsibility that creates commitment to another person but entails no real encounter between them. In the second situation, the owner is present alongside his donkey lying under its load. (For reasons discussed above, the text at first ignores the presence of the owner.) This entails a more focused and limited obligation of commitment, but on the other hand also more tangible communication and cooperation. The passerby must join the owner of the donkey and engage together with him in unloading the beast.[13]

 

Let us now address the relationship between the unit in Sefer Shemot and its parallel in Sefer Devarim.

 

Sefer Shemot vs. Sefer Devarim

 

There are many different units in the Torah that appear somewhere in the different Chumashim and are then repeated in Sefer Devarim, in Moshe's speech on the eve of the entry into the land. Close examination reveals that these are not really repetitions. In each appearance, the context is different, as is the formulation, the focus, and the details specified. This gap exists in every sort of unit, encompassing even descriptions of facts and even some of the laws involved.

 

You shall not see your brother's ox, or his sheep, lost, and hide yourself from them; you shall surely bring them back to your brother.

 

And if your brother is not near to you, or if you do not know him, then you shall bring it to your own house and it shall be with you until your brother seeks it, and you shall restore it to him again.

 

And so shall you do with his donkey, and so shall you do with his garment, and so shall you do with every lost article of your brother's, which he has lost, and you have found; you may not hide yourself.

 

You shall not see your brother's donkey, or his ox, fallen down by the wayside, and hide yourself from them; you shall surely lift [them] up again with him. (Devarim 22:1-4)

 

In these verses, Moshe comes back to the two instructions familiar to the student from Sefer Shemot, but this time the level of obligation is much higher. In Sefer Shemot, there is a basic obligation to return a stray ox when encountering it; Sefer Devarim imposes the obligation even if one only sees it from a distance. Sefer Shemot conveys a positive command to return it, while Sefer Devarim adds a prohibition – "you may not hide yourself.[14] Furthermore, in Sefer Devarim, the command is expanded beyond the ox and the donkey to include a garment or "every lost article of your brother's which he has lost, and you have found." The finder is required to keep the lost article at his home "until your brother seeks it," and he is likewise obligated to lift, or load, the beast along with its owner. All of these elements are derived from the fact that the unit is talking about "your brother," rather than about an enemy or someone who hates you.

 

The two units share a similar skeleton and basically address the same situations, but the difference between them is considerable. This gap is the tip of the iceberg, hinting to the unique character of each of the Chumashim. In Sefer Shemot, Am Yisrael are just starting out; they are not yet consolidated as a nation, their social pledge is not yet firm, and their mutual responsibility is still in its embryonic stages. Sefer Devarim, in contrast, is conveyed by Moshe during the fortieth year of their wanderings. In it, he repeats many units and narratives that were conveyed previously, but this time they embody a perspective that reflects their forty years of journeying, as well as their state of preparation for entry into the Promised Land. Viewed in this light, the distinctions that we have discussed between the two units are not localized phenomena; in fact, they repeat themselves in many different forms and in many different places throughout Sefer Shemot and Sefer Devarim.[15]

 

We might therefore say with regard to our unit that up until the fortieth year, Moshe and Am Yisrael were aware of the message that they had been given close to the time of the revelation at Sinai in Parashat Mishpatim. There, the obligation to restore a lost object concerned one's enemy or a person who hated him; it laid a foundation, but as yet without any expression of a higher level of social pledge leading to a greater measure of commitment. This form of conduct matched the position of the people, who still maintained much of the mentality of their servitude in Egypt; they were far from maturity and many levels of their spiritual world had yet to be built. Following their long journey in the desert and a forty-year process of maturity, and in view of the new generation that is about to enter the land, there comes a new spiritual position of mutual pledge and responsibility, and this allows the people exposure to a new plane of Torah and of social and spiritual experience.

 

Afterword

 

We introduced our study with the question: What does the Torah have to do with social contracts, or with relativistic moral laws that are dependent upon the social structure of a given community? Along the way we learned about returning an ox and other lost property, about unloading and loading burdens. What does all of this have to do with the questions we posed at the outset?

 

The answer is that while the commandments of the Torah are admittedly formulated as practical instructions, assuming the form of concrete situations and behaviors, they are animated by values and life principles. In depth study of the plain level of the text exposes the student to a system of values, principles, and spirituality, with ramifications that extend far beyond any particular practical instruction. In this study, we addressed two commandments that present a moral infrastructure – a sort of social contract that represents the most fundamental common denominator, even when the other party involved is one's enemy or someone "who hates you". In addition, we encountered moral laws that reflect a basic level of mutual responsibility among people, as reflected in Sefer Shemot, and alongside them later laws, expressing the process of development that the nation has undergone, and readiness for the entry into the land that will create a new and different level of mutual responsibility and morality.

 

In light of the above, two avenues of study open themselves up. One involves turning to the Oral Law to examine the nature of the dialogue between the Written Law and the Sages of the Oral Law. The point of departure here is that the Sages read the verses of the Torah with great care. In their midrashim, they address the essence, rather than matters of marginal or secondary importance. They identify the principles and values embedded in the text and expand on them, drawing new directions of thought, ramifications, and insights.

 

The other avenue, in the wake of the Written Law and of the Oral Law, is to translate the picture that arises into a Torah that contains life principles, a system of values, one that is not limited to the four amot of Halakha. In the wake of such a process, we might come back to respond to the challenge posed in the deepest sense of the question with which we began: Torah and morality; Torah and life – can they go together?

 

Translated by Kaeren Fish

 

 

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