Last week, I posted about a passage in Parshat Mishpatim that is often used to show that Judaism does not equate the life of a fetus with that of a baby. There, I discussed how Christians use the same text to prove the opposite point. I promised at the end of that post to give a midrashic interpretation of these verses. I confess that I may have misspoken.

The interpretation that I am about to give is one that I came up with on my own, based upon a method of Torah analysis that I have heard attributed to the Vilna Gaon. I’ve said over this dvar Torah a few times in various contexts, and while a few people have told me that they heard or read it before, and attributed it to one Hassidic rabbi or another, I have never gotten a citation. If anyone has a citation, I’d love to hear it. If it turns out that this is my own learning, well, caveat lamdan!

First, the text, from Genesis Exodus 21:22: (Thanks Steg!)

כב וְכִי-יִנָּצוּ אֲנָשִׁים, וְנָגְפוּ אִשָּׁה הָרָה וְיָצְאוּ יְלָדֶיהָ, וְלֹא יִהְיֶה, אָסוֹן–עָנוֹשׁ יֵעָנֵשׁ, כַּאֲשֶׁר יָשִׁית עָלָיו בַּעַל הָאִשָּׁה, וְנָתַן, בִּפְלִלִים. 22 And if men strive together, and hurt a woman with child, so that her fruit depart, and yet no harm follow, he shall be surely fined, according as the woman’s husband shall lay upon him; and he shall pay as the judges determine.
כג וְאִם-אָסוֹן, יִהְיֶה–וְנָתַתָּה נֶפֶשׁ, תַּחַת נָפֶשׁ. 23 But if any harm follow, then thou shalt give life for life,
כד עַיִן תַּחַת עַיִן, שֵׁן תַּחַת שֵׁן, יָד תַּחַת יָד, רֶגֶל תַּחַת רָגֶל. 24 eye for eye, tooth for tooth, hand for hand, foot for foot,
כה כְּוִיָּה תַּחַת כְּוִיָּה, פֶּצַע תַּחַת פָּצַע, חַבּוּרָה, תַּחַת חַבּוּרָה. {ס} 25 burning for burning, wound for wound, stripe for stripe. {S}

We’ve already talked about how the words Ones and Veyatzu Yeladeah can be translated in a number of different ways, each of which significantly alters the fact-pattern of the case. At first glance perhaps we miss an obvious question, but now that we’re looking at our text a second time it’s a little easier to formulate the question: Why isn’t the Torah clearer about what exactly happened? The Torah could have written the facts of the case unambiguously, as it does through the rest of the cases in Parshat Mishpatim!

Perhaps the Torah has chosen to be somewhat mysterious because the verses relate to more than one case. It’s impossible to avoid reading Mishpatim as a halachic text, and in doing so we sometimes forget that it is also a narrative text that continues the story of the Exodus. My theory is that these verses are actually alluding to an early event in the story of the descent to, enslavement in, and redemption from Egypt.

The Vilna Gaon taught that the first time a word is used in the Torah provides insight into the word’s meaning. When I first began to explore this subject, I looked up the word Ason, and discovered that the word is used only five times; twice in Mishpatim, twice in Mikeitz, and once in Vayigash. We’ve already seen the pesukim in Mishpatim, so let’s take a look at the pesukim in Sefer Bereishit:

א וַיַּרְא יַעֲקֹב, כִּי יֶשׁ-שֶׁבֶר בְּמִצְרָיִם; וַיֹּאמֶר יַעֲקֹב לְבָנָיו, לָמָּה תִּתְרָאוּ. 1 Now Jacob saw that there was corn in Egypt, and Jacob said unto his sons: ‘Why do ye look one upon another?’
ב וַיֹּאמֶר–הִנֵּה שָׁמַעְתִּי, כִּי יֶשׁ-שֶׁבֶר בְּמִצְרָיִם; רְדוּ-שָׁמָּה וְשִׁבְרוּ-לָנוּ מִשָּׁם, וְנִחְיֶה וְלֹא נָמוּת. 2 And he said: ‘Behold, I have heard that there is corn in Egypt. Get you down thither, and buy for us from thence; that we may live, and not die.’
ג וַיֵּרְדוּ אֲחֵי-יוֹסֵף, עֲשָׂרָה, לִשְׁבֹּר בָּר, מִמִּצְרָיִם. 3 And Joseph’s ten brethren went down to buy corn from Egypt.
ד וְאֶת-בִּנְיָמִין אֲחִי יוֹסֵף, לֹא-שָׁלַח יַעֲקֹב אֶת-אֶחָיו: כִּי אָמַר, פֶּן-יִקְרָאֶנּוּ אָסוֹן. 4 But Benjamin, Joseph’s brother, Jacob sent not with his brethren; for he said: ‘Lest peradventure harm befall him.’

(Genesis 42:1-4)

We’re joining the story in the middle of the action. Yosef has already been sold and is in Egypt. With the arrival of famine in the land of Canaan, Yakov sends his sons to purchase food in Egypt, but keeps Binyamin at home. Note that although all of Yakov’s sons are referred to as Yosef’s brothers, but Binyamin is singled out from among his ten other brothers, even as he too is called Yosef’s brother. Let’s look at the next instance, where a pattern will begin to emerge.

לו וַיֹּאמֶר אֲלֵהֶם יַעֲקֹב אֲבִיהֶם, אֹתִי שִׁכַּלְתֶּם: יוֹסֵף אֵינֶנּוּ, וְשִׁמְעוֹן אֵינֶנּוּ, וְאֶת-בִּנְיָמִן תִּקָּחוּ, עָלַי הָיוּ כֻלָּנָה. 36 And Jacob their father said unto them: ‘Me have ye bereaved of my children: Joseph is not, and Simeon is not, and ye will take Benjamin away; upon me are all these things come.’
לז וַיֹּאמֶר רְאוּבֵן, אֶל-אָבִיו לֵאמֹר, אֶת-שְׁנֵי בָנַי תָּמִית, אִם-לֹא אֲבִיאֶנּוּ אֵלֶיךָ; תְּנָה אֹתוֹ עַל-יָדִי, וַאֲנִי אֲשִׁיבֶנּוּ אֵלֶיךָ. 37 And Reuben spoke unto his father, saying: ‘Thou shalt slay my two sons, if I bring him not to thee; deliver him into my hand, and I will bring him back to thee.’
לח וַיֹּאמֶר, לֹא-יֵרֵד בְּנִי עִמָּכֶם: כִּי-אָחִיו מֵת וְהוּא לְבַדּוֹ נִשְׁאָר, וּקְרָאָהוּ אָסוֹן בַּדֶּרֶךְ אֲשֶׁר תֵּלְכוּ-בָהּ, וְהוֹרַדְתֶּם אֶת-שֵׂיבָתִי בְּיָגוֹן, שְׁאוֹלָה. 38 And he said: ‘My son shall not go down with you; for his brother is dead, and he only is left; if harm befall him by the way in which ye go, then will ye bring down my gray hairs with sorrow to the grave.

(Genesis 42:36-38)
By now, the sons of Yakov have returned from Egypt, but without Shimon, who is being held in prison by Yosef, and whose release is conditional upon Binyamin journeying to Egypt. What’s notable for our purposes is that the word Ason is again used to describe what might befall Binyamin, and that Binyamin is again distinguished from his other brothers when Yakov says “My son shall not go down with you”, even as he is speaking to his other sons. Okay, on to the next instance of the word:

כה וַיֹּאמֶר, אָבִינוּ: שֻׁבוּ, שִׁבְרוּ-לָנוּ מְעַט-אֹכֶל. 25 And our father said: Go again, buy us a little food.
כו וַנֹּאמֶר, לֹא נוּכַל לָרֶדֶת: אִם-יֵשׁ אָחִינוּ הַקָּטֹן אִתָּנוּ, וְיָרַדְנוּ–כִּי-לֹא נוּכַל לִרְאוֹת פְּנֵי הָאִישׁ, וְאָחִינוּ הַקָּטֹן אֵינֶנּוּ אִתָּנוּ. 26 And we said: We cannot go down; if our youngest brother be with us, then will we go down; for we may not see the man’s face, except our youngest brother be with us.
כז וַיֹּאמֶר עַבְדְּךָ אָבִי, אֵלֵינוּ: אַתֶּם יְדַעְתֶּם, כִּי שְׁנַיִם יָלְדָה-לִּי אִשְׁתִּי. 27 And thy servant my father said unto us: Ye know that my wife bore me two sons;
כח וַיֵּצֵא הָאֶחָד, מֵאִתִּי, וָאֹמַר, אַךְ טָרֹף טֹרָף; וְלֹא רְאִיתִיו, עַד-הֵנָּה. 28 and the one went out from me, and I said: Surely he is torn in pieces; and I have not seen him since;
כט וּלְקַחְתֶּם גַּם-אֶת-זֶה מֵעִם פָּנַי, וְקָרָהוּ אָסוֹן–וְהוֹרַדְתֶּם אֶת-שֵׂיבָתִי בְּרָעָה, שְׁאֹלָה. 29 and if ye take this one also from me, and harm befall him, ye will bring down my gray hairs with sorrow to the grave.

(Genesis 44:26-29)

Here we have Yehuda appealing to Yosef for Binyamin’s release after Yosef plants a silver chalice in Binyamin’s pack, and then siezes him as a thief. Just as in the other two instances, we see Binyamin differentiated from his brothers, and we also see the occurrence of an Ason as a hypothetical possibility, not a description of an actual calamitous event.

Let’s try and put all the pieces together. It appears that the word Ason, as used in Bereishit, refers to the death of a woman and her children – in this case, Rachel, who died on the journey back to Israel from Padan Aram, Yosef, whom Yakov believes is already dead, and Binyamin, whose death would complete the Ason. How does this shed any light on our text in Mishpatim? I believe that the word Ason is telling us that the sample case presented in Mishpatim is not only a halachic text but a narrative text that is using the literary technique of allusion to layer an additional meaning on the text.

Consider: The story in Mishpatim tells of two men struggling with one another, but accidentally striking a pregnant woman. Perhaps the text is obliquely referring to Yakov and Lavan! They struggle over the very identity of Yakov’s family; Yakov cleaves to the God of his father Yitzchak, while Lavan carries on the Aramean tradition of the gods of Nachor. So ferocious is their struggle that the Torah later (Deut. 26) describes their interaction as אֲרַמִּי אֹבֵד אָבִי – an Aramean (Lavan) attempted to destroy my father (Yakov). This passage is later interpreted by the Haggadah to show that Lavan was in some ways worse than Pharaoh!

In the course of the struggle between Lavan and Yakov, an awful and dramatic moment changes the course of Jewish history. When Yakov packs up his family and leaves Lavan’s house, he is careful to take nothing that is not his, and admonishes his household to be equally fastidious. Unfortuantely for him, and for reasons not fully understood, Rachel steals the Teraphim, her father’s household idol-gods. After Lavan catches up to Yakov, he demands these idols back. Yakov responds with a curse:

לב עִם אֲשֶׁר תִּמְצָא אֶת-אֱלֹהֶיךָ, לֹא יִחְיֶה–נֶגֶד אַחֵינוּ הַכֶּר-לְךָ מָה עִמָּדִי, וְקַח-לָךְ; וְלֹא-יָדַע יַעֲקֹב, כִּי רָחֵל גְּנָבָתַם. 32 With whomsoever thou findest thy gods, he shall not live; before our brethren discern thou what is thine with me, and take it to thee.’–For Jacob knew not that Rachel had stolen them.–

(Gen. 31:32)

As Rashi and others tell us, the curse of a righteous man can take effect in unintended and unexpected ways. In this case, Yakov’s curse dooms Rachel, but God has mercy and takes her only after she gives birth to Binyamin.

Finally, the story is clear. The two men fighting in the pasuk are Yakov and Lavan. Yakov, through his curse, accidentally strikes the pregnant woman, Rachel, and kills her. What should be his penalty? According to the pasuk, assuming no Ason happens, then the husband of the pregnant woman evaluates the damage, but the actual penalty is determined by the court. In our case, the husband of the pregnant woman is Yakov, who already submitted that the penalty should be death, but the court, God, determines that Rachel should live long enough to give birth to Binyamin. By doing so, she fulfills the words veyatzu yeladeah, because now she has two children who have emerged alive (it’s an odd phrase in the halachic context, given that it is plural when the standard pregnancy is a single fetus).

When Yakov tries to resist sending Binyamin to Egypt, he recognizes that his own fate is in the balance. When Yakov lost Rachel, he at least had her children. Terrible though the loss was, it was not an Ason. With the loss of Yosef, Yakov found himself on the brink of a precipice. Should Binyamin be lost, the rest of the passage in Mishpatim would come into play – should an Ason happen, you must pay a soul in place of a soul. That’s why Yakov describes the consequences of losing Binyamin as resulting in sending Yakov to Sheol – the grave. For all that Yakov would still have many sons left to him, the deaths of Rachel and all her children would be laid at this feet, and Yakov would be chayav b’nafsho – guilty at the cost of his soul.

It’s notable that in this interpretation, which may be somewhat imaginative, the key word Ason shares the same meaning as in the halachic case – the death of the mother and the child (or children). Admittedly though, the words veyatzu yeladeah mean different things in the different contexts. In the halachic context it means the death of the fetus, while in the narrative context it means the survival of Yosef and Binyamin. The Christian interpretation is different still – Ason refers to the fetus, and veyatzu yeladeah refers to premature birth of a fetus.

It may be that this sort of analysis can be further extended. Chapter 21 of Exodus is quite suggestive – the laws of the Eved Ivri, the Hebrew manservant, are suggestive of Yakov’s experiences with Lavan, and the laws of unplanned killing and fleeing to refuge is reminiscent of Moshe’s flight from Egypt after killing the Egyptian taskmaster. Or I’m overreaching. But I feel pretty good about the section above, because of the word Ason. It’s the linchpin that holds everything together, especially because it isn’t used in any other context besides the two we mentioned.

So what do you guys think? Is this a reasonable way to approach Torah analysis? I like that it doesn’t do any violence to the halachic analysis even as it explains certain difficulties in the text. Does anyone have a source for this? How about other teachings in a similar style? Post in the comments, or email me at rejewvenator [at]