Mishpatim | Slavery

 

 

A. HEBREW SLAVE VS. CANAANITE SLAVE

It is easy to illustrate the Torah's essential opposition to slavery by reviewing the laws of the "eved Ivri" (Hebrew slave, or indentured servant) in our parasha and in parashat Behar (Vayikra 25:39-43). Indeed, the laws in both sources represent an almost total nullification of the institution of slavery WITHIN THE NATION OF ISRAEL. There is no comparison between the slave of the ancient world and the eved Ivri described by the Torah. In essence, the eved Ivri is simply somebody who is employed for a lengthy period – "he has been worth double a hired servant to you, serving for six years" (Devarim 15:18), and the only limitation that he has in common with a regular slave is that within the period of indenture to which he is committed he may not change his mind and leave.

It is no coincidence that our parasha introduces these laws with the declaration, "If you should acquire an indentured Hebrew servant – he shall work for six years, and in the seventh year he shall go free, for nothing." This is a declaration nullifying slavery in its traditional sense as pertaining to Am Yisrael, and it complements what the nation heard previously at Mt. Sinai (20:2), "I am the Lord your God Who took you out of the land of Egypt, from the house of slavery." Ramban explains (21:2):

"The first law (mishpat) given here is that of the indentured Hebrew servant, because the freeing of this servant in the seventh year serves as a reminder of the Exodus from Egypt mentioned in the first of the Ten Commandments, as it is written (Devarim 15:15, as the basis for freeing the servant after six years and for providing him with certain basic necessities upon his release), 'And you shall remember that you were slaves in the land of Egypt, and the Lord your God redeemed you, therefore I command you this thing today.'"

But the laws of the eved Ivri do not reflect the Torah's attitude towards the universal institution of slavery, since reflect the special relationship that must prevail amongst the Jewish nation itself – which in turn is based on God's relationship with them:

(Vayikra 25:42) "For they are My servants, whom I took out of the land of Egypt; they shall not be sold as slaves."

The Torah goes on to draw a distinction between the nullification of slavery amongst the nation of Israel, who are "the servants of God" and whom He took out of Egypt in order that they may His servants rather than slaves to any mortal, and the continued existence of the institution of slavery as pertaining to the other nations:

(ibid. 44-45) "And your slave and your maidservant that you may have from among the nations around you – from them you may acquire slaves and maidservants… and they shall be your property."

The proper way to clarify the Torah's attitude towards the institution of slavery is therefore to examine the laws of the GENTILE slave, known in rabbinic literature as the "Canaanite slave." It is specifically the laws pertaining to this slave that shed light on the Torah's fundamental attitude towards slavery in general.

Nevertheless, even the laws of the indentured Hebrew servant are of some significance in clarifying the Torah's stand on slavery. The almost complete nullification of slavery within Am Yisrael shows that slavery in itself is considered an improper social situation, and therefore it should not exist within the Jewish nation. Although the reason given is historical and religious – the Exodus from Egypt made Bnei Yisrael servants to God alone – the foundation for this reason may be broadened to include all of mankind. Everyone is worthy of being a servant of God on some level, by virtue of being His creature and by virtue of the obligation to serve Him. This being the case, there is theoretically no justification for the enslavement of someone who was created in the Divine image in order to serve God.

B. THE LAWS OF THE CANAANITE SLAVE

The laws pertaining to the "Canaanite slave" are addressed in three places in our parasha. The first law is:

(21:20) "If a person should strike his slave or his maidservant with a staff, and he/she dies by his hand, he/she shall be avenged.

(21) But if the slave survives for a day or two, then he/she shall not be avenged, for he/she is his (the master's) property."

The second law is:

(21:26-27) "If a person strikes the eye of his slave or of his maidservant such that he/she is blinded, then he/she is to be freed on account of his/her eye.

And if he causes the tooth of his slave or his maidservant to be knocked out, he shall send him/her free on account of his/her tooth."

The third law:

(21:32) "If the ox should gore a slave or maidservant, thirty shekalim of silver shall be given to the master, and the ox shall be stoned."

An additional law that is particular to the Canaanite slave appears in Devarim 23:16:

"You shall not give over a slave to his master if he escaped to you from his master. He shall remain in your midst, in the place that he chooses in one of your gates, as it suits him – you shall not oppress him."

C. THE ORDER OF THE LAWS

Let us now ask, why are all the laws pertaining to the Canaanite slave not concentrated in one place, but rather spread out in a seemingly disordered fashion? The prohibition of handing over a slave who has escaped clearly does not belong to the laws of damages addressed in our parasha. Its location in Sefer Devarim may be explained in a number of ways. But why are the three laws of damages mentioned in our parasha – all dealing with injury to a slave – not all grouped together in one place?

The answer to this question is related to the general structure of the parasha of damages, which I addressed in my shiur on parashat Mishpatim in 5760 (2000). The laws are arranged according to a categorization of THE INJURED PARTY and his status. The first half of the parasha of damages (21:12-27) deals with one person who injures another. The second half (21:28-22:6) also begins with injury to a PERSON (the causing of his death), however, not as a result of damage inflicted by another person, but rather as a result of being gored by his neighbor's ox. Thereafter the Torah deals with damage to a person's ANIMALS (a pit or an ox that caused damage to animals, or a person who steals the animals of his neighbor); damage to THE PRODUCE OF HIS FIELD (a person who frees his ox to cause damage to his neighbor's field or one who starts a fire that consumes his neighbor's field); and finally to HIS POSSESSIONS (a person who steals money or vessels from his neighbor). This is a VALUE-ORIENTED order, in accordance with the relative importance of the various injured parties, and it comes to teach us that a person's life and his freedom, his physical well-being and the well-being of his possessions – from the most important among them to the least important – are all worthy of protection from the actions or inaction of his neighbor.

Let us now return to the order of the injuries caused to the Canaanite slave. These are arranged in the parasha in accordance with the TYPE OF DAMAGE discussed in each case, corresponding to a similar damage caused to a free person: a blow that leads to death – what is the law if the slave dies immediately, and what is the law if he does not die immediately (free person: verses 18-19; slave: verses 20-21); a blow that causes him to lose a limb (free: 22-25; slave: 26-27), and the causing of one's death as a result of a goring ox (free: 29-30; slave: 31). The verses deal with these three types of damage in order, and in each type it addresses two cases: damage to a free person and to a slave. As a result, the laws specific to a slave are separated from one another.

But the separation between these laws pertaining to the slave is not at all similar to the separation in the laws of the thief discussed above. The thief is the INJURING PARTY, and it is therefore clear that the – whose internal orfollows the order of the injured parties – should separate the laws of the thief in accordance with the quality of the thing that he stole. The slave, in contrast, is the INJURED PARTY, and his laws should therefore seemingly be grouped together in their own place within the list of injured parties, in accordance with his relative importance and status within this list – i.e., after damage to a person, before damage to property. The order of the parasha would then be:

A) Damage to the person himself (damage to his life, to his freedom or to his physical well-being);

B) Damage to his property: slave, animal, produce, possessions

Why are the laws of the slave not grouped in this manner? The answer is clear: in the parasha of damages the slave is considered a person, an independent legal personality. The laws pertaining to him are admittedly different from those pertaining to a free person, but his damage or injury is not measured from the point of view of his master, concerning whom he represents property, but rather from the point of view of the slave himself. Out of the three laws of damages pertaining to the slave, the first two address damage caused by the master himself to the slave, and these correspond to the damage caused by one person to another ("If a person should strike his neighbor" – "If a person should strike his slave").

Thus, damages caused to a slave are not addressed as damage to property, but rather as damage to a person, and therefore they always appear in proximity to damage caused to a free person. The third law follows the same pattern: although the death of the slave is also addressed as damage to his master ("thirty silver shekalim will be given to HIS MASTER"), the parasha concludes with the words, "And the ox will be stoned" – for having killed A PERSON – and in this respect there is no difference between an ox that killed a free person and an ox that killed a slave.

D. A PERSON WHO STRIKES HIS SLAVE WITH A STAFF

In the following sections I shall address individually each of the two first laws of the Canaanite slave in our parasha. But first I must state that my intention is to clarify the Torah's attitude towards the institution of slavery, as expressed in these specific laws pertaining to the Canaanite slave. In our times, with slavery no longer practiced in our culture, it is difficult for us to understand the full significance of these laws. In order to properly understand the importance of these laws of the Torah AT THE TIME THAT THEY WERE GIVEN AND FOR SOME CONSIDERABLE TIME THEREAFTER, some familiarity is required with the general historical background – the laws of slaves that prevailed among nations in ancient times. Only then can we fully grasp the Torah's intention, and only then will the Torah's fundamental attitude towards the institution of slavery become clear.

The laws of slavery as practiced in the ancient world – both in the ancient east and in Greece and Rome – are well known. They were regarded as objects and treated with no consideration whatsoever.

(21:20) "If a person should strike his slave or his maidservant with a staff, and he/she dies by his hand, then he/she shall be avenged.

(21) But if he/she survives for a day or two then he/she shall not be avenged, for he/she is his (the master's) property."

Let us examine the details of this law. Firstly: what is the meaning of "he/she shall be avenged"? In the Mekhilta de-Rabbi Yishma'el we find the following:

"He shall be avenged' – i.e., the death penalty. Does this mean literally a death penalty, or just equivalent monetary compensation?

Rabbi Natan taught: Here the Torah mentions 'revenge,', and later on it also mentions revenge (Vayikra 26:25) – 'And I shall bring upon you an avenging SWORD to avenge the covenant' – just as there the reference is to the sword (i.e., physical death), so likewise here.

Rabbi Akiva taught: Here the Torah mentions revenge, and later on (in the war against Midyan, Bamidbar 31:2) we read, 'Avenge the vengeance of Bnei Yisrael….' Since this latter source refers to the sword, so likewise here."

Let us now turn our attention to the law with which the Rambam introduces his Laws of Murderers:

"Anyone who kills any fellow Jew is guilty of transgressing a negative command, as it is written, 'You shall not murder.' And if he murdered knowingly and intentionally, before witnesses, then he is to be put to death by the sword, AS IT IS WRITTEN, 'HE/SHE SHALL BE AVENGED' – it is a tradition passed down from Mt. Sinai that this refers to a death penalty by the sword."

This "revenge," serving as the foundation for the death penalty by the sword for any intentional murderer, has its source in the law pertaining to a master who strikes his slave and thereby causes his death!

Let us now ask: what is the relationship between the law of the slave who is struck by his master and the law of a free person who is struck by his neighbor, addressed previously in verses 18-19? The principle behind each law is the reverse of the other. If a person strikes his fellow free person, "he is tended until it becomes clear whether he will be healed" (Rashi on verse 19, based on Ketubot 33b). "And if he dies – even after a long time – the one who struck him shall die" (Rashbam ibid., based on the same gemara). Only if the injured party leaves his sick-bed and recovers is the person who struck him acquitted of the death penalty.

The opposite is the case in the event of a person striking his slave, as Rashbam explains there:

"But concerning his slave – he is guilty (and deserving of the death penalty) only if 'he dies by his hand' (i.e., immediately, as a result of the injury), but if the slave survives for a day or two, then the master is acquitted (even if the slave dies thereafter)."

What is the reason for this difference? Attention should be paid to the difference in weapons: a person who strikes his friend does so using "a stone or his fist," while one who strikes his slave does so using a staff, which is not a weapon designed to kill, but rather an acceptable tool in biblical times to discipline a child or, in the case of a slave, perhaps to force him to work:

(Mishlei 23:13) "Do not withhold moral teachings from a young child, FOR IF YOU STRIKE HIM WITH A STAFF – HE WILL NOT DIE!

(14) You shall chastise him with the staff, and thereby save his soul from Sheol."

How, then, does the slave die as a result of this blow? Ibn Ezra explains (Long Commentary, verse 21):

"God commands that when a master disciplines his slave, he should not enforce cruel discipline; if he sees that his slave will die from his blows, he should leave him. And if he does not leave him, then he is to be put to death on account of him!"

In other words, striking a slave with a staff was acceptable at times, and the Torah introduces here a measure of strict control on this practice. The master is striking his slave with a tool that is not an implement designed for killing and in circumstances where the use of the staff is theoretically permissible, since the slave is in his hands. However, the master might use this situation to practice cruelty towards him and to cause his death – even using a staff. Despite the seemingly mitigating circumstances, the master deserves the death penalty for this!

But how can we be certain that the master indeed meant to kill his slave, and not merely to discipline him? Here the condition of "a day or two" comes to serve as some indication: if the slave "dies by the hand" of the master who strikes him with the staff (or a short time later, the same day), then there can be no doubt that the master did in fact intend to kill him. But if the injured slave dies only "after a day or two," there is room to assume that the master did not mean to kill him, but rather only to discipline him – for he put away the staff when he saw the condition of the slave, and it is only as a result of additional factors that the slave later died. The actual blow that the master delivered to the slave does not represent sufficient grounds for the death penalty, "for he is his property" – Rashbam explains, and he isentitled to strike him as a means of rebuke."

Proofor this interpretation – that the "day or two" is not a leniency on the part of the Torah concerning the killing of a slave, but, on the contrary, an extra measure of strictness with regard to the one who struck him – may be found in the law pertaining to a master who strikes his slave "with a stone or with a fist" – tools designed to kill. The Rambam writes as follows (Hilkhot Rotzeach 2:14):

"It appears to me that one who strikes his slave with a knife or a sword or stone or fist etc. and he was diagnosed as being likely to die and he in fact dies, then the law of 'a day or two' does not apply to the master; even if the slave dies after a full year – he has died as a result of him (the master). It is for this reason that the text mentions 'with a staff' – because the Torah allows him to strike only with a staff, a stick, a strap, etc. – not with something that is designed to kill."

What is the law of a person who strikes someone else's Canaanite slave? Rashi writes, following the Mekhilta:

"'For he is his property' – Since he struck him [which he had no right to do, since the slave was not his], even though the slave may linger for some time before he dies – the person is culpable."

The Rambam writes (ibid. 2:11-12):

"What is the difference between [striking] his own slave and a slave belonging to someone else? He is entitled to beat his own slave… but one who strikes the slave of someone else – even if the slave dies as a result of the blow only after several days, he shall be executed on account of the slave as for a free man, because he struck him with the intention to kill."

We may thus summarize and say that the law pertaining to a slave is not fundamentally different from the law pertaining to a free person, and his life is not considered as having less value. The Torah law concerning one who strikes his slave arises from special circumstances that engender the need to ascertain whether there was intention to kill on the part of the master. Such circumstances exist only in the case of one who strikes HIS OWN SLAVE, WITH A STAFF. It does not apply to one who strikes the slave of someone else, nor to one who strikes his own slave with a stone or a fist. As the Rambam concludes (2:10):

"One who kills a fellow (free) Jew, or who kills a Canaanite slave, is to be put to death on his account. And if he kills unintentionally – is exiled."

Where is the source for this? At the beginning of the parasha concerning damages (21:12): "A person who strikes another and he dies – he (the perpetrator) shall surely die." The Mekhilta explains: "This includes also his slave or maidservant (if one of them is the victim)."

What did the laws of the ancient nations say about a master who killed his slave? They say nothing at all, since it presented no problem for them. A person could treat his property as he saw fit. Just as he could slaughter his horse or his donkey, so he could kill his slave if he so wished.

And what if someone's slave was killed by someone else? Here there was a problem. The Hittite laws, for instance, stipulated an exact monetary penalty to be paid to the master if the slave was killed with prior intent (double the slave's worth) or if he was killed unintentionally (the slave's worth). Likewise, a penalty was stipulated for various wounds inflicted on the slave of one's neighbor.

But the master-slave relationship was outside of the bounds of legal concepts: the master could not be punished for causing the death of his slave, nor for causing him any wound or blemish, since the slave was his property.

Even according to Plato (Laws 49, 856), the slave has no recourse for death or damage. The same situation prevailed in Rome, where some would punish a slave with a cruel death for unintentionally breaking a glass vessel. Even the Christian emperor Constantine protected in his legislation those masters who had beaten their slaves to death.

It is only against this background that we are able to appreciate the magnitude of the legal and philosophical revolution introduced by the laws of the Torah pertaining to the striking of a slave. Although the slave is his master's "property," this is true only in a contractual sense and in the sphere of work relations that prevail in a world where slavery is acceptable. But his independent human essence is retained. His life is not the property of the master, but rather of the One Who gives all life – and it is He Who demands his blood from the hands of those who spill it – whether this be the master or someone else.

The application of the laws of a murderer to one who kills a slave, INCLUDING THE SLAVE'S MASTER, undermines the basis of the entire perverted philosophy that justifies and obligates slavery. The declaration that the Divine image in man is equivalent in a slave and a master is the beginning of the demise of the institution of slavery.

E. THE SLAVE GOES FREE ON ACCOUNT OF A TOOTH OR AN EYE

(21:26) "And if a person strikes the eye of his slave or the eye of his maidservant and blinds him/her, he shall send him/her free on account of the eye.

(27) And if he causes the tooth of his slave or of his maidservant to be knocked out, he shall send him/her free on account of the tooth."

Hence, it is not only the life of the slave that is not considered the master's property. Even the slave's body and his limbs are not the master's, to treat as he sees fit. What, then, has the master acquired in the slave from a legal point of view? He has acquired only the slave's work power, but the slave's body – in the simple, literal sense – remains outside the sphere of human acquisition.

The Sages deduce from the law of the tooth and the eye that twenty-four additional limbs that do not grow back are likewise reason to free the slave (Kiddushin 24a-25a). In this case, the law pertaining to the slave is even stricter than the law pertaining to a free person. If someone strikes the limb of his fellow, he pays him only for the eye or for the tooth that was destroyed. However, the slave goes free on account of the eye or the tooth – and clearly, the value of the whole slave is greater than the value of the damage to a single limb. What, then, is the reason for this penalty that the Torah pronounces for the master?

The full significance of this law can only be understood if we familiarize ourselves, again, with the situation of slaves in the ancient world. The following lengthy description appears in "Kadmoniot Ha-Halakha," by Shemuel Rubinstein (Kovno, 5686), chapter 22:

"The gemara (Kiddushin 25a) teaches: 'There are twenty-four protruding limbs of a person, for all of which a slave is set free, and these are they: the tips of the fingers, toes, ears, nose, penis and breasts... Rabbi says: Also testicles. Ben Azzai says: Also the tongue.'

The situation of a slave in ancient times was truly awful. He was like an object owned by his master, who was free to do whatever he wanted in order to force the slave to perform hard labor day and night, and to use him for all kinds of perverted purposes. The master could beat his slave mercilessly for any major or minor wrongdoing; he could permanently maim his limbs without fear of any punishment. For any purpose desired by the master, the slave could be blinded. Herodotus writes (4:2) that the Scythians used to blind their captive slaves so that they would work in producing butter. And there were several other such purposes for which slaves would be struck with blindness, TO THE POINT WHERE PUTTING OUT EYES BECAME A SYMBOL OF SLAVERY. Likewise, prisoners taken in war were blinded as a sign of slavery, and this was done particularly to kings and officers of the defeated army, as a sign of revenge and enslavement. For the same reason Shimshon was blinded by the Philistines (Shoftim 16:21), and this is apparently also the meaning of the words of Nachash the Ammonite to the men of Yavesh Gil'ad: 'By this condition I will make a covenant with you: if you all put out your right eye' (Shemuel I 11:2), as if to say, 'in order that you will be slaves and prisoners of war to me.' For the same reasonKing Tzidkiyahu was blinded by Nevukhadnetzar (Melakhim II 28:7), and this is also the meaning of the words of Datan and Aviram to Moshe: 'Will you put out the eyes of those men?' - as if to say, 'Are we considered in your eyes as slaves, prisoners of war, that you will exert your power over us and to do us whatever you wish, to drag us wherever you decide?' This arrogance on the part of the enslavers seems to have lasted until much later times, explaining even Herod's blinding of Bava ben Buta (Bava Batra 4a).

For some wrongdoing in his work, or for breaking some vessel, the slave's fingers or hands could be cut off, and this was apparently also done to prisoners of war as a sign of enslavement. This explains the amputation of thumbs and big toes by Adoni Bezek, who testifies that 'Seventy kings with their thumbs and big toes amputated [would gather food under my table].' This was practiced among the Romans, too: Seneca reports that 'For breakage of a small vessel, the slave's hands would be cut off, or he would be put to death.'

THE AMPUTATION OF A SLAVE'S EARS WAS SO COMMONLY PRACTICED THAT IT WAS ESTABLISHED AS A PUNISHMENT FOR SLAVES. The Hammurabi Code stipulates: 'If a slave strikes a free person on the cheek, his ear is to be cut off' (205); 'If a slave tells his master, "You are not my master," and it is proved that he is in fact his master, then his master is to cut off his ear.' (282)

Slaves were routinely castrated in order that thoughts of women would not interfere with their work, and eunuchs were also used to serve women. This was so common that the term 'eunuch' came to be used for all kinds of servants, even those not castrated, like Potiphar, 'the eunuch of Pharaoh' (Bereishit 39:1), and the royal winebearer and baker who are referred to as Pharaoh's 'eunuchs' (ibid. 40:2)…

In summary, there was nothing that prevented a master from doing any of this to his slave; it seems that they would even make the slaves deaf in order that they would not talk among themselves during their work, or for other purposes. AND THEY WOULD STRIKE OR KNOCK OUT THEIR TEETH so that they would not be able to eat much. Cicero describes how 'it was common among the Romans that if a slave knew some evidence against his master, the master would cut out his tongue in order that he would not be able to testify.' And the maiming of slaves, either by purposeless beating or for some purpose desired by the master, was so common that BLEMISHES WERE INFLICTED ON THE EXPOSED BODY PARTS OF THE SLAVE IN ORDER TO MARK HIM AS A SLAVE, AND THE BLEMISHES WERE A SIGN OF SLAVERY.

It was against all of this that the Torah came to improve the lot of the slaves and their worth, as much as was possible in those days. For beating to death the Torah prescribes, 'he shall surely be avenged' – which, in the view of the Sages (Sanhedrin 52b), refers to the death penalty.

For causing blemishes to the exposed body parts in order to thereby signify that he was a slave – or even without such express intent – the Torah prescribes that 'he shall send him free,' which is the opposite of the purpose of creating these blemishes. From this we derive the laws stipulating that the master must set the slave free for causing blemishes upon the 'exposed' body parts."

Thus we learn that both of the laws of damages mentioned by the Torah, where the master is punished for harming his slave, represent overt opposition to the universal institution of slavery. The first law expresses opposition to the concept of ownership of the LIFE of the slave, and it raises the slave to the level of a person created in the Divine image, with One Who demands his blood. The second law expresses opposition to the concept of ownership of the BODY of the slave, and opposition also to the cruel methods employed in the ancient world to punish slaves or to mark them by means of permanent, visible maiming. Anyone attempting to maim his slave in this way, and thereby to establish his ownership of the slave's body, would achieve the opposite of his aim, "measure for measure" – his slave would go free, against the will of the master.

The ideals expressed here in the concise, legal language of the Torah are expressed more philosophically and poetically by Iyov, when he declares that he has conducted his life with righteousness:

(31:13-15) "If I have despised the just cause of my slave and my maidservant when they strove against me, then what shall I do when God rises up, and when He remembers, what shall I answer Him?

Did He Who created me in the belly not create him, and was it not the same One Who fashioned us in the womb?"

(Translated by Kaeren Fish.)