Friday, January 28, 2011

Parshat Mishpatim - פרשת משפטים

" כִּי תִקְנֶה עֶבֶד עִבְרִי, שֵׁשׁ שָׁנִים יַעֲבֹד; וּבַשְּׁבִעִת--יֵצֵא לַחָפְשִׁי, חִנָּם - When you buy a Hebrew servant, six years he shall serve; and in the seventh he shall go out free for nothing."
(שמות כא:ב)

Growing up as a religious Jew, I never thought to question the ethics and morals of slavery within Judaism. Of course I knew that slavery was "wrong," but I never stopped to consider how it could be that a Jew could be a slave to his fellow Jew. Now that I think about it, the question seems glaring; how could such a thing be defensible on any level?

One of my favourite books, the Yalkut Leckach Tov, quotes Rav Simcha Zissel of Kelm, Lithuania, who explains that we must pay attention to the circumstances of these slaves. He points out that it wasn't possible to simply elect to become a slave; slaves were people who had been found to be thieves but didn't have the means to pay back the victim of their crime. Instead, they would have to effectively loan themselves out on a long-term contract so that they would be in a position to repay their debt. This raises another question, though - who would willingly take a thief into their home? With a distinct possibility that this person (a convicted criminal, no less) would be tempted to take the opportunity to pilfer from his house, what kind of homeowner would knowingly take a slave who was liable to steal?

In order to understand this, we must understand the Torah's concept of punishment. Here we learn something very interesting. Torah law does not condone incarceration as a punitive measure. This stands in stark opposition to almost every (if not every) other judicial system in existence. Hunting around on the web, I found an essay by a certain Rabbi Naftali Silberberg (click here for the full text,) where he explains the rationale: "A person who does not deserve to die must be allowed to be productive in the fullest sense, a prospect which is impossible when confined in prison.

"Indeed, it can conceivably be argued that long term incarceration violates the Eighth Amendment of the [American] Constitution which prohibits 'cruel and unusual punishment.'" Is depriving individuals of the most basic human desire, freedom, any less cruel than inflicting physical pain, he asks, before stating, "I believe that any prison inmate will answer that question in a nanosecond."

The point is well made. The Jewish way of thinking dictates that we don't want a thief to be in prison for a number of reasons. First of all, there is a very real chance that he may be influenced and learn from the other inmates. Moreover, by staying in an environment such as a prison, the convict remains unable to get away from his crime - the stark surroundings are a constant reminder to his mistake. After leaving the prison, it is a well-document a phenomenon that criminals have trouble adjusting to a new way of life and find it hard to go back to work. In addition to all this, a prisoner's family will be left to fend for themselves for the time that he is locked up. If the going gets tough for them, it is eminently possible that they will also turn to a life of crime. All in all, prison has many negative effects and so it seems quite understandable that Jewish law doesn't utilise this option.

Instead, in our case, the thief is taken into somebody else's home. When he is in close proximity to decent, honest people, it is almost assured that he will learn from their proper conduct. Moreover, many laws govern how a homeowner may treat his slave. Indeed, "slave" is hardly a fitting description for the position the former thief fulfills. For example, we learn in the Talmud Yerushalmi that if the homeowner only has one pillow available between the two of them, he is commanded to give it to his "guest" and sleep a little rougher than he usually might.

Yes, all this sounds rather altruistic, but apparently it worked to good effect in days gone by. It is also interesting to think now that the slavery described above is actually a good and moral way of correcting a person's character instead of forcing them through the purgatory that is prison. The concept of "Kol Yisrael Areivim Zeh laZeh - All of Israel are responsible for one another" is one that echoes deeply in Jewish thought. There is no distinction between Jews; we are not allowed to think merely for ourselves. If we see that another Jew is having trouble in some way, it is our duty to come to his aid. And that holds true for both physical and spiritual needs.

I can't offer a full explanation as to why someone would choose to take a slave in, but it seems clear that the chance for restitution and rehabilitation is something that we must be careful to permit.

Wishing you a Shabbat Shalom!


  1. Thanks Elan for responding to my post on Oy Va Goy. We have never met as I've been in our native London for only two (fabulous) years of the last 15 and will visit Israel for the first time this year - the original "wandering goy" if you will pardon the expression. Your posts here are wonderful, so please keep this blog going! Peter

  2. Thanks as always Elan for your insight, this topic is covered this week by Chief Rabbi Sacks, who offers his explanation as below. Shabbat Shalom, Mark
    First in Yitro there were the aseret hadibrot, the “ten utterances” or general principles. Now in Mishpatim come the details. Here is how they begin:
    If you buy a Hebrew servant, he is to serve you for six years. But in the seventh year, he shall go free, without paying anything . . . But if the servant declares, ‘I love my master and my wife and children and do not want to go free,’ then his master must take him before the judges. He shall take him to the door or the doorpost and pierce his ear with an awl. Then he will be his servant for life.
    (Ex. 21: 2-6)

    There is an obvious question. Why begin here? There are 613 commandments in the Torah. Why does Mishpatim, the first law code, begin where it does?

    The answer is equally obvious. The Israelites have just endured slavery in Egypt. There must be a reason why this happened, for G-d knew it was going to happen. Evidently he intended it to happen. Centuries before He had already told Abraham it would happen:

    As the sun was setting, Abram fell into a deep sleep, and a thick and dreadful darkness came over him. Then the Lord said to him, “Know for certain that for four hundred years your descendants will be strangers in a country not their own and that they will be enslaved and mistreated there. (Gen 15: 12-13)
    G-d began again, this time not with all humanity, but with one man, one woman, one family, who would become pioneers of freedom. But freedom is difficult. We each seek it for ourselves, but we deny it to others when their freedom conflicts with ours. So deeply is this true that within three generations of Abraham’s children, Joseph’s brothers were willing to sell him into slavery: a tragedy that did not end until Judah was prepared to forfeit his own freedom that his brother Benjamin could go free.


    If G-d does not want slavery, if he regards it as an affront to the human condition, why did he not abolish it immediately? Why did he allow it to continue, albeit in a restricted and regulated way? Is it conceivable that G-d, who can produce water from a rock, manna from heaven, and turn sea into dry land, cannot change human behaviour? Are there areas where the All-powerful is, so to speak, powerless?

    In 2008 economist Richard Thaler and law professor Cass Sunstein published a fascinating book called Nudge. In it they addressed a fundamental problem in the logic of freedom. On the one hand freedom depends on not over-legislating. It means creating space within which people have the right to choose for themselves.
    How then do you stop people doing harmful things without taking away their freedom? Thaler and Sunstein’s answer is that there are oblique ways in which you can influence people. In a cafeteria, for example, you can put healthy food at eye level and junk food in a more inaccessible and less noticeable place. You can subtly adjust what they call people’s “choice architecture.”

    That is exactly what G-d does in the case of slavery. He does not abolish it, but he so circumscribes it that he sets in motion a process that will foreseeably, even if only after many centuries, lead people to abandon it of their own accord.


    G-d can change nature, said Maimonides, but He cannot, or chooses not to, change human nature, precisely because Judaism is built on the principle of human freedom. So he could not abolish slavery overnight, but he could change our choice architecture, or in plain words, give us a Nudge, signalling that slavery is wrong but that we must be the ones to abolish it, in our own time, through our own understanding. It took a very long time indeed, and in America, not without a civil war, but it happened.

    There are some issues on which G-d gives us a nudge. The rest is up to us.

  3. see Chief Rabbi Sacks this week for his take