The Goring Ox: Then and Now
Yesterday morning, I dropped my kids at school and continued driving straight to my first meeting of the day. Alone in my car, I turned on the radio to NPR, and found myself listening to live coverage of the Supreme Court's deliberations about whether Trump's name can appear on ballots in Colorado and other states. At issue, as you may know, is the question of whether a provision of the 14th amendment -- a law barring certain public officials from serving in the government again if they took part in an insurrection -- applies in light of the events of January 6, 2021. In the clip that I happened to catch, the justices were following different lines of questioning (how much power should be granted to a single state, do the words "office" and "officer" refer to the same thing, etc.). As I arrived at my destination, I lingered in the car to hear a little more, intrigued by the legal arguments at hand. And then, a specific pair of verses from this week's Torah portion, Mishpatim, leapt to mind for me.
The verses I was thinking about are Exodus 21:28-29:
When an ox gores a man or a woman to death, the ox shall be stoned and its flesh shall not be eaten, but the owner of the ox is not to be punished. 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.
At first blush, these verses don't seem particularly related to the oral arguments I had heard on the radio. The pair of Torah verses above deal with two different scenarios in which an ox kills a person. In the first, the ox gores a person with no warning; the owner of the ox seemingly had no reason to see this tragedy coming, and is not punished... after all, accidents happen, animals are animals, etc. The second scenario is different, in that the reader of Torah is told explicitly that this is an ox with a habit of goring -- that is, a pattern of violent behavior has already been observed. In this case, if the ox -- which is already known to be violent -- subsequently gores a person, the owner is indeed held liable, as he failed to note the pattern and take action to prevent future harm.
As Jewish law takes up the case, interestingly, most of the commentaries I know about these verses keep the meaning pretty literal... that is, they try to further understand the contours of goring oxen. The Mishnah names the ordinary ox (the one with no criminal history) as the "shor tam" and the habitually goring ox the "shor muad," and then the Gemara spills lots of ink parsing the qualifications for each category (e.g. how many previous goring incidents must the ox have engaged in, and within what framework of time, in order to qualify as a "shor muad"?). I spent an entire semester of Talmud class during rabbinical school learning sugyot from Bava Kamma pertaining to the related case of "shor she-nagach et parah," " an ox that gores a cow." There, the Talmud considers, for example, what happens if an ox has gored a cow and a newborn calf is also found dead at her side, but it's unknown whether she gave birth to the calf before the goring or as its result. My point is that, here, Jewish law seems to get sucked pretty far down a wormhole of legalese pertaining to oxen and their violent behavior.
Yesterday, however, I found myself wondering about what we might learn from these verses were we to read them more metaphorically. This is certainly a direction that rabbinic law takes in the wake of plenty of other Torah laws! (For example, "don't place a stumbling block before the blind" is applied to ethical business dealings about disclosure.) When I read the two biblical verses above through this lens, a clear take-away emerges. The key difference between the two situations of goring oxen in Exodus 21:28 and 21:29 is that in the second case, the owner clearly should have understood the real and present danger that the ox poses, based on the pattern of the animal's past behavior. In choosing not to take action to mitigate that threat, that owner is negligent and therefore becomes legally liable for the tragedy that ensues. With this broader framework of negligence -- the category of liability based on a failure to intercede to prevent harm -- I started wondering where else the "goring ox" phenomenon shows up in our world or might inform our thinking today.
One example -- yet another American legal case from this week -- is that a few days ago, a Michigan woman was found guilty of involuntary manslaughter because she failed to secure a gun and ammunition at home and neglected to provide her teenage son the mental health support he needed. Her son went on to carry out a school shooting. She is the first parent in the U.S. to be held responsible for a child carrying out a mass school attack. In this schema, she is like the "owner" of the ox: liable and convictable because she could have prevented the harm that happened on her watch but failed to do so.
Returning to the Supreme Court case I had been listening to on the radio, all of this got me thinking about the intense and wacky election year we are headed into. If it turns out that our country elected a leader who is capable of causing immense harm -- whose actions have already resulted in violence both against individuals and against the institutions of our democracy -- we might be able to say that the first time around, the responsibility lay not with the owner (the voters, the public, etc) but with the ox himself. But, now that the pattern of behavior is well established, who would be liable the next time around, for not failing to put the ox back into a position where he is capable of greater harm? Who is the "owner"? (Is it the Supreme Court? Us, the voting public? Congress? The media? All of the above?!?)
To be clear, as a non-profit organization, Kavana is restricted from engaging in political activity on behalf of a campaign or specific party. We can, however, speak from a place of religious values about issues of mutual concern, "encourage people to participate in the electoral process," and so on. With that frame in mind, I am most concerned with our collective desire "to safeguard the ideals and free institutions which are the pride and glory of our country" (this is a quote from Siddur Sim Shalom's "Prayer for Our Country," not a partisan political stance). If human dignity, democracy, fairness, and other ethical principles are our north star as Jewish Americans, this week I ask you to consider: how might the Torah of Parashat Mishpatim motivate us to think and act in this moment? What is our obligation to prevent a habitually-goring ox from inflicting future harm? What actions must we take in order not to be negligent or complicit?
Let us each do our part. And may the Torah of Mishpatim help draw us ever closer to our aspirational vision of a just society.
Rabbi Rachel Nussbaum
