Mishpatim: The Ideal and the Real
Why, then, in the absence of all control over the subject of African slavery, are you agitated in relation to it… Who gave them a right to decide that it is a sin? By what standard do they measure it? Not the Constitution; the Constitution recognizes property in many forms, and imposes obligations in connection with that recognition. Not the Bible; that justifies it. (Jefferson Davis, speech at Faneuil Hall Boston, 1858)
Last year, I took a trip to Gettysburg, a sobering place if there ever was one. My son and I stood at the place where Lincoln gave the Gettysburg address and then walked amongst the thousands of memorial monuments dedicated by both Union and Confederate States. The founding of this country, which greatly depended upon the labor of African slaves tore this country apart, with a higher death toll than any war Americans ever fought. We followed up on the following day traveling to Independence Hall in Philadelphia, and then toured the Constitution Center, the Liberty Bell, and a newer museum dedicated to the American Revolution. In all these places, what struck us both was the gap the museums tried to highlight between the truth that ‘all men are created equal’, and the ongoing struggle to make those ideals real in the light of horrible injustices, starting with the most fundamental one of all- slavery, an injustice allowed in the Constitution itself until the 13th Amendment in 1865.
That same gap is sensed when reading this week’s parashah. It opens with a constitution of sorts, what is known as sefer habrit, the ‘book of the covenant’. If the Ten Commandments are a preamble laying out the values of this new nation of Israel, this week provides the laws upon which these values are realized. Given that the nation has just been freed from bondage, it is hard to ignore that the opening verses of our parashah introduce us to the Eved Ivri, the Hebrew indentured servants, who sell their labor for a fixed amount of time, generally because of economic equality and impoverishment. However, even more troubling is the gentile slave, the eved k’naani. These people are considered chattel, clearly the property of the master (e.g. Exodus 21:21). They are bequeathed from one generation to the next. Maimonides rules in his book of Commandments (Positive mitzvah 235) that it is in fact a violation to free a Canaanite slave (quoting Lev. 25:46), although he qualifies the statement in his code that one in fact can manumit a slave ‘for the sake of a mitzvah’, even a rabbinic one (Hilkhot Avadim 9:6). More unfortunate still, many have invoked these very texts to justify the institution, like the future president of the Confederacy, Jefferson Davis, quoted above. Speaking for state rights and property, he denied the federal government any role in regulating private property, and a slave was simply that- property. To a modern reader, these sections not only seem to be incongruous, but downright jarring. How does the same God who creates each person in the Divine image, and is a liberator of slaves, then allow these same people to enslave others?
There have been many approaches in addressing the institutions of Hebrew and Canaanite slavery throughout Jewish history; no shabbat reflection will be able to give a comprehensive explanation, as this is a book length topic deserving its own treatment. Indeed, I would only like to bring a few insights which I believe significant to consider.
Maimonides notes there are several types of mitzvot. We have both positive and negative commandments, and then we have the categories called dinim, laws which he states include “the laws of the Hebrew servant or maidservant, the various laws of those who guard or borrow objects…It is possible that one would live their entire life and not need to consider these laws, or be obligated in their details” (end of his summary of positive commandments in his Sefer HaMitzvot). In other words, in no way does the Torah obligate one in taking a slave, but rather recognizes a preexisting institution, in which the Torah attempts to regulate. In his philosophical work the Guide to the Perplexed, he mentions that while some commandments point to a utopian ideal, other mitzvot recognize the context and the moral and religious stage of development of a particular people or culture, and within that legislates accordingly (Guide 3:52). Based upon this concept, Rabbi Nachum Rabinowitz z”l, a significant scholar in the religious Zionist community, argued that “because of the reality at the time, the Torah needed to defer the ultimate goal [of human liberation and freedom for all], the ideal. The Torah preferred to advance society step by step, until the ideal would be realized. (Mesilat Levavam: Pirkei Hagot [Hebrew], Yidiot Books: Israel, 2021, p. 40- translation mine.) In essence, slavery in the time of the Bible was the foundation of the entire agrarian economy; a world without slavery could not be imagined. Hence, while admitting to the institution, the Torah attempted to mitigate its more dehumanizing aspects. A few examples will suffice.
For example, a Hebrew indentured servant must be freed on the seventh year, a sabbath of sorts. Thus, in reality, a fellow Israelite is not selling their person, but rather their labor. Because the primary reason for Hebrew indentured servitude was extreme penury, the Torah commands that one must not only free them at the end of their service, but provide them with funds to begin anew. In other words, the Torah expects the master to work to rehabilitate the one who served him. A relative or fellow kinsman is actually commanded to do everything possible to redeem him, and in no scenario must a fellow Israelite be sold to a gentile for profit. The people that heard the voice of God, that they are God’s servants, are not to be servants of another.
It is true that there is a different ethical standard for the gentile slave, as they are seen as being property of the master, but even here there are various laws which are explicitly intended to mitigate the suffering a slave might experience. A few examples: First, if a master strikes the slave in such a way that they are permanently injured, they are to be immediately freed (Ex.21:26-27). If one is beaten in such a way that it is clear the person died from these wounds, we do not say the slave is his chattel. Rather, it is a capital offense and the master is charged with murder (Ex. 21:20-21). Secondly, unlike the American south, a runaway slave is not to be returned to the previous owner, but is given sanctuary. Third, when a person (assumed pagan) becomes part of the Israelite household, they are to take on the negative Torah commandments and cannot be ever returned to their former pagan life. Similarly, if the master manumits a slave they are not only freed, but their manumission is considered an act of conversion to the Jewish people. In essence, when a person becomes part of the Jewish household, their existence in a way is seen as ennobled, as they have left their former life of paganism. (To be sure, this explanation was used in the American South as an apologetic for slavery. It was good for their souls to be exposed to the Christian faith, leaving behind their ‘barbarous and pagan ways’.) Most significantly, all members of the household must rest on the Shabbat. Shabbat is a testimony that all are creations of God, and at least on the Sabbath, the slave is no different than the master. Shabbat points to a world in which hierarchy and power yields to a more sacred order.
While there are substantial differences between the ethical obligations towards the Israelite indentured servant and Canaanite slave, in both cases there is an underlying thrust which underscores an ultimate ideal of freedom with a simultaneous recognition that the world is what it is. Just as individuals develop, so do societies. In this and other commandments, there is a recognition of the need to regulate human relationships in the present, not some imagined utopia. While we say that ‘we hold these truths to be self-evident that all men are created equal’, we are all very aware that this is an aspirational statement and not descriptive; for most of human history this self-evident truth has not been born out.
Of course, today slavery is anathema to any enlightened people. However, oppressive behavior on systemic levels continues. Modern industrialized economies require millions upon millions of unskilled laborers to produce the raw materials upon which our economy depends. Unjust labor practices and the lack of worker protections are rampant in many countries. The gap between labor and corporate executives is larger than at any time in human history. If in the ancient period people were enslaved, in our generation people’s inherent dignity are controlled by faceless economic forces which dehumanize.
In our personal lives we hopefully mature, becoming more self-aware and our moral sensibilities become deeper. The same is true for societies. Many of the mitzvot in our parashah may not reflect the idealistic visions for which we may hope, but consider the real lives of people, directing us to deepen our moral sensibilities. Perhaps the utter revulsion we feel towards the entire institution of slavery emerged in part from the Biblical and post-Biblical traditions.
Utopian revolutions often fail, descending into their own oppression and corruption, because for an external revolution to be successful, there must also first be an internal revolution in the human heart. In this way, the ethos of the denim / laws presented in our parasha are as relevant today as they were then. If the Ten Commandments articulates the ideal to which we aspire, parashat Mishpatim grapples with the real lives of the people, regulating appropriate behavior. Without regulating our daily interactions with one another, we cannot hope to bring about that more idealistic world for which we all hope.
 This principle of Maimonides engendered considerable debate, as it was said in the context of the Jewish sacrificial system, as Maimonides in the Guide seems to argue the entire system is meant to wean the Jewish people from idolatry.
 For this reason, halakhic authorities expressed reservations in freeing Canaanite slaves, as one never knew if they would truly accept the Torah and the commandments. Nonetheless, rabbinic text affirms that for the sake of a ‘mitzvah’ one can free a slave. Maimonides gives the example that if a tenth man is needed to a prayer quorum, one is able to free the slave. There are multiple texts in which rabbis are have said to free slaves.