Mishpatim–משפתים
By Zwi Reznik, 29 January, 2022, 27 Shevat 5782
(Please see the notes at the end of this Drash)
I would like to start with a bit of a prologue that is not part of Mishpatim. In Numbers—במדבר, Chapter 27:4 four sisters pose a question to Moses, 4 Why should our father’s name be withdrawn from the midst of his clan because he had no son? Give us a holding in the midst of our father’s brothers! Moses takes this issue to God, who responds, 7Rightly do the daughters of Zelophehad speak. You shall surely give them a secure holding in the midst of their father’s brothers and you shall pass on their father’s estate to them. 8And to the Israelites you shall speak, saying, ‘Should a man die without having a son, you shall pass on his estate to his daughter. So God can, and sometimes does, change his mind. Please keep that in mind as we proceed through Mishpatim.
This Parsha’s importance may be noted by the fact that it is referred to as the “Book of the Covenant”. We notice that towards the end of the Parsha in Chapter 24:7, 7וַיִּקַּח֙ סֵ֣פֶר הַבְּרִ֔ית וַיִּקְרָ֖א בְּאָזְנֵ֣י הָעָ֑ם וַיֹּ֣אמְר֔וּ כֹּ֛ל אֲשֶׁר־ דִּבֶּ֥ר יְהוָ֖ה נַעֲשֶׂ֥ה וְנִשְׁמָֽע “And he took the book of the covenant and read it in the hearing of the people, and they said, “All that the LORD has spoken we will do and we will heed.” Note that in modern Hebrew we are residents of the nation הארצות הברית—the United States.
The Book refers to the bulk of this Parsha in Chapters 21 to 23 which contain a great many laws right after we have been introduced to the Ten Commandments, or Ten Divine Imperatives as Alter refers to them. The laws here cover many topics. The first is SLAVERY, appropriate for a group of relatively recently freed slaves. There is a single sentence which provides the basis of Jewish Law on abortion. The well known “Talon Law”—i.e. Life for Life, Eye for Eye etc., and the corollary idea of financial compensation for losses including injuries, or even in some cases loss of life. Causing injury through negligence, as in the case of an Ox that has a history of causing damage by goring. Financial restitution as the punishment for theft rather than execution. All of that is just Chapter 21. I’ll focus today on Slavery. My choosing that as my main topic is somewhat personal. As is true of others in our Kahal my parents were both Holocaust survivors who were slaves in the Lodz Ghetto and Nazi labor camps.
We begin with 21:1-2, 1‘And these are the laws that you shall set before them. 2Should you buy a Hebrew slave, six years he shall serve and in the seventh he shall go free, with no payment:. The text continues with subsequent phrases dealing with the issues of a married slave, a slave with children, are they the children of a wife he entered slavery with or a female slave provided as a wife by his owner. If the last is the case then the slave doesn’t get to take the wife and children with him. After all, the wife was just breeding stock for the owner. No problem. If the male slave doesn’t want to leave his wife and children there is a simple procedure to allow him to stay a slave FOREVER with his wife and children!
There is a large volume of commentary favorably comparing the rights of this Hebrew slave of a Hebrew master, to the truly unfortunate slave of a pagan master in one of the many other societies of the time. Alter for example notes that in reference to 21:2 “…and in the seventh he shall go free. What is clearly involved is not chattel slavery but what amounts to a kind of indentured servitude. The Bible does not question this institution but sets certain limits on it, and, as one can see in the subsequent laws, the slave retains basic human rights. Alter is clearly correct that some rights are better than none.
There are other slavery related matters intoduced, e.g. selling a daughter into slavery , and then the text moves on to crimes, in particular causing a death. The punishment for willfully causing a death is death but, there is a noteworthy exception for causing the death of a slave. 21: 20 And should a man strike his male slave or his slavegirl with a rod and they die under his hand, they shall surely be avenged. 21But if a day or two they should survive, they are not to be avenged for they are his money. I usually like starting with reading the relevant portions of Rashi when I prepare a Drash. Let’s see what Rashi, in the 11th Century and still surrounded by slave holding societies, says about this beating of slaves. Rashi on 21-21: לא יקם כי כספו הוא HE SHALL NOT BE AVENGED: FOR HE IS HIS MONEY — However, any other person who smote him (the servant) is subject to the death penalty although he lived 24 hours before dying. Rashi does get into some other discussion about the meaning of “…a day or two…” but not much else is said about the death of the slave. For the sake of modern sensibilities let me quote Alter again with his footnote to 21:21. 21. But if a day or two they should survive. The sad implication of this stipulation is that vigorous beating of slaves, male and female alike, was assumed to be an acceptable practice. If the slave lasted a couple of days and then died, the inference would be that the master had not intended the death but had merely overdone the beating. If the slave died on the spot, this would be evidence that the master had meant to kill him, or at least was guilty of involuntary manslaughter. for they are his money. That is, it would be counter to the master’s own interest to take the life of a slave after having purchased him to perform service, so the presumption is that unless the slave dies during the beating, there was no clear intention on the part of the master to kill him.
Even before Rashi we start seeing some changes in attitude. In Deuteronomy—דבורים we see some modification of the distinctions that we see in Mishpatim between the treatment of male versus female slaves. In Job we read the passage “Job 31:13-15 13If I spurned the case of my slave or my slavegirl in their brief against me, 14what would I do when God stands up, and when He assays it, what would I answer? 15 Why, my Maker made him in the belly, and formed him in the selfsame womb.”
The Alter footnote to Job 31—15: 15. the self same womb. Job, of course, does not mean that he and the slave had the same mother but rather that they share the same human condition, each having been formed in the womb. Hence, despite the economic disparity, an existential parity obtains between them.
I want to move on to some more modern Rabbinic commentaries. However, I would first like to make a comment on what I’ve learned in our Mishnah study group. In the time of the Mishnah, and the Roman occupation, we see that there are regular disagreements between our sages. What is also apparent are the serious efforts that were undertaken to adjust to a constantly changing world. That has continued to this day.
For now let’s move on to modern times—January 1861 in the United States—the Land of the Covenant, ארצות הברית. Firstly I need to provide an attribution. I have been making regular use of Sefaria. (Email me for more details). At Sefaria I found Sheets, as Sefaria calls them, of another user who has prepared a series of Lessons on Slavery and the Jewish Tradition. I will provide a footnote in the copy of this Drash that will be posted to the Library Minyan website.
What is referred to as the “Secession Crisis” occurred after the election of the great sage, Abraham Lincoln. The newly elected President had called for a day of Thanksgiving and Prayer as one attempt to deal with the crisis. As we all know the attempt failed. The Sefaria documents include statements from a number of Rabbis. I have selected some to use today. The first two are short selections from two much lengthier documents:
THE BIBLE VIEW OF SLAVERY
by Rabbi Dr. M.J. Raphall
Congregation B’nai Jeshurun
New York City
1861. Published in the New York Herald
My friends, I find, and I am sorry to find, that I am delivering a pro-slavery discourse. I am no friend to slavery in the abstract, and still less friendly to the practical working of slavery. But I stand here as a teacher in Israel; not to place before you my own feelings and opinions, but to propound to you the word of G-d, the Bible view of slavery. With a due sense of my responsibility, I must state to you the truth and nothing but the truth, however unpalatable or unpopular that truth may be.
___________________________________
The result to which the Bible view of slavery leads us, is—
1st. That slavery has existed since the earliest time;
2nd. That slaveholding is no sin, and that slave property is expressly placed under the protection of the Ten Commandments;
3rd. (NOTE: He is speaking of Human Beings as PROPERTY!).
That the slave is a person, and has rights not conflicting with the lawful exercise of the rights of his owner. If our Northern fellow-citizens, content with following the word of G-d, would not insist on being “righteous overmuch,” or denouncing “sin” which the Bible knows not, but which is plainly taught by the precepts of men—they would entertain more equity and less ill feeling towards their Southern brethren. And if our Southern fellow-citizens would adopt the Bible view of slavery, and discard the heathen slave code, which permits a few bad men to indulge in an abuse of power that throws a stigma and disgrace on the whole body of slaveholders—if both North and South would do what is right, then “G-d would see their works and that they turned from the evil of their ways;” and in their case, as in that of the people of Nineveh, would mercifully avert the impending evil, for with Him alone is the power to do so. Therefore let us pray. …
So what is Rabbi Raphall saying. That there is a kinder gentler slavery that the South should adopt. Also that the northern brethren should be more understanding of and bear less ill will towards the southern brethren. Rabbi Raphal’s statement was followed by outraged statements from both Jews and Christians. So consider another Rabbi’s response.
Rabbi David Einhorn
A brief history from Sefaria notes: He addressed Har Sinai Congregation in Baltimore. A response to this speech was a riot on April 19, 1861. After being threatened by a mob with being tarred and feathered he fled North. He first fled with his family to Philadelphia and became rabbi of Keneseth Israel Congregation. In 1866, they went to New York and he became rabbi of the Congregation Adath Israel. The congregation eventually merged with an orthodox congregation and was renamed Beth El. On July 1879 a ceremony for his retirement was held in his apartment due to his poor health. It was cross-denominations and Orthodox and Reform rabbis were present. He died 4 months later. This selection is from a lengthy response to Rabbi Raphall.
Jews! Where they are oppressed, they boast of the humanity of their religion; but where they are free, their Rabbis declare slavery to have been sanctioned by God, even mentioning the holy act of the Revelation on Sinai in defense of it. Whereas Christian clergymen even in the Southern States, and in presence of the nation’s Representatives in part, though admonishing to toleration—openly disapprove of it and in part apologize for it, owing to existing conditions!
I am no politician and do not meddle in politics. But to proclaim slavery in the name of Judaism to be a God-sanctioned institution—the Jewish-religious press must raise objections to this, if it does not want itself and Judaism branded forever. Had a Christian clergyman in Europe delivered the Raphall address—the Jewish-orthodox as well as Jewish-reform press would have been set going to call the wrath of heaven and earth upon such falsehoods, to denounce such disgrace, and חלול השם And are we in America to ignore this mischief done by a Jewish preacher? Only such Jews, who prize the dollar more highly than their God and their religion, can demand or even approve of this!
Rabbi Avraham Yitzchak Kook is a well known figure. He is noteworthy for being a supporter of Zionism. In addition he, along with a Sephardi Chief Rabbi, formed what is now known as the Rabbinate in Israel. If you keep up with religious affairs in Israel and how the Masorti movement is doing there you are of course familiar with the Rabbinate.
Iggerot HaRaaya, vol.1, no.89
Avraham Yitzchak Kook
21 Av 5664, August 2, 1904
You should know that slavery, as with all the moral, upstanding ways of God “in which the righteous walk and the evil stumble,” never in itself caused any fault or error. Slavery is a natural law amongst the human race. Indeed there is no difference between legal slavery and “natural” slavery. In fact, legal slavery is within the jurisdiction of Torah, and is legislated in order to control certain flaws, and this, because God anticipated the reality of “natural” slavery.
Let me explain. The reality of life is that there is rich and poor, weak and strong. A person who has great wealth hires poor people – legally – in order to do his work. These employees are, in fact, “natural” slaves due to their socio-economic standing. For example, coal miners. These people go to work in the mines hired of their own free will, but they are in effect slaves to their employers. And it is obvious that someone need to be humble and do this work… but maybe if they were actually owned by their employer, they would be better off! (Now this is where this gets interesting) And now, behold, we need to raise up and agitate ethically so that people worry about the conditions of living of those workers. The rich, with their stone and closed hearts, scoff at all morals and ethics. They don’t care if the mines lack air and light, even if this shortens the life expectancy of their workers, whose numbers run into the tens of thousands, many of whom become critically ill. They certainly won’t let the expenses to improve working conditions in the mines leave their pockets, and if a mineshaft collapses burying workers alive, they don’t care. Tomorrow they will find new workers to employ. If these people were owned by the master by legal slavery, he would have a financial interest to look after their lives and well-being, because they are his own assets, and for those poor workers would be happier and more cared for, with a better future.
I want to close with some words from the Rabbinical Assembly website. This is one of many articles I found when I did a search on the site for the word SLAVERY.
From the Rabbinical Assembly Website
Slavery Today
Posted on: Friday August 2, 2013
This page was updated in 2020.
By Rachel Kahn-Troster (adapted from T’ruah’s Fighting Modern-Day Slavery: A Handbook for Jewish Communities; the first paragraph is adapted from www.FreeTheSlaves.net/Judaism)
Slavery is illegal everywhere, but it is practiced everywhere, including in the United States and Israel. Today, tens of millions of people are enslaved around the world, a higher number but lower percentage than ever before. Slaves are also cheaper than ever. The cost to buy a human being as chattel is far lower now, adjusted for inflation, than it was before American Civil War.
Many modern slaves are not bought and sold directly. However, the readily available supply of cheap labor devalues human life: it is easier for employers to use violence, coercion, and fraud to keep workers from fleeing, knowing they will be unable to recoup fees paid for travel and housing or secure better work elsewhere. Poverty and migration are some of the leading drivers of modern-day slavery. As a result, freeing people directly from situations of forced labor is only the first stepping in solving this human rights atrocity. We must prioritize prevention of trafficking by addressing its root causes and work directly with the most vulnerable populations to understand their specific needs and community and worker-driven solutions.
Notes:
- The selections from Rabbis Raphall and Einhorn in this written copy are lengthier than what I presented to the Library Minyan. They are also lengthier in the original source documents than what appears here. See Note 2.
- I made significant use of Sefaria to find source documents e.g.: https://www.sefaria.org/collections/slavery-in-judaism
- I commend to you the book “Lincoln and the Jews” by Jonathan Sarna and Benjamin Shapell for further references regarding the positions of American rabbis on slavery. The introduction to that book opens with:
“In central Jerusalem, close by streets named for the medieval Jewish luminary Moses Maimonides and the modern Hebrew writer Peretz Smolenskin, and abutting the American consulate (note: now Embassy) lies a crooked street named for Abraham Lincoln. When questioned about what he did for the Jewish people to merit a street named for him in Jerusalem, even those Jerusalemites familiar with Lincoln’s biography shake their heads and shrug”. The street is also near the Fuchsberg Center for Conservative Judaism, Gershon Agron St 8, Jerusalem, Israel, and the Conservative Synagogue, Moreshet Yisrael.
