Mishpatim: Vengeance is … Whose?

Last week, we read the Ten Commandments; this week, we read something more like a code of rules. Serendipitously, the word that gives this parashah its name is משפטים mishpatim, which means “rules.” And rules make up most of the first three chapters of this section. Scholar call the rules of Exodus 21–23 “the Covenant Code” after the covenant that is made at the end of the reading in Exodus 24.

The Covenant Code begins by telling the recently freed slaves what happens when you yourself acquire a slave, a remarkable law to put first at this moment in the story. In this week’s column, though, I am going to look at one of the slave laws that’s a little bit further along in the chapter, in Exod 21:20–21. There’s a somewhat unusual expression there that requires some thought to understand — not what the Hebrew words mean, but what kind of situation we are supposed to picture:

When someone strikes his slave (male or female) with a stick and the slave dies under his hand, the slave must be avenged. However, if the slave lingers for a day or two, he should not be avenged; the slave is his own property.

That is, you are allowed to hit your slave, apparently for any reason whatsoever. Even if you injure him so severely that he dies the next day, because you owned him, you are given the benefit of the doubt that you were not deliberately trying to kill him. After all, it costs you money to kill your own slave. But if he dies before the day is up, that is not okay. The assumption seems to be that you were indeed trying to kill him — and intentional killing is forbidden.

We do know from Exod 21:12 that someone who strikes another man with a mortal blow is supposed to be put to death. We also understand, from v. 21, that the text recognizes that this victim was the killer’s property — literally, kaspo “his silver.” That’s a very reasonable thing to say in a slave-owning society, as is the unfortunate fact he is entitled to be violent with him.

The difficulty that I’m having in understanding what the text means is not the general principle that the owner should not be so violent as to kill his slave, yet if he does so accidentally he is not punished. That is how things work when you have a slave-owning society; I understand that. What I don’t understand is what you’re supposed to do if the slave dies on that same day, when it’s presumed that the owner was trying to kill him.

Because what happens? נָקֹ֖ם יִנָּקֵֽם  naqom yinnaqem – “he must be avenged.” According to this same Covenant Code, that’s not what normally happens if you kill someone. V. 12 tells us that anyone who kills someone else מ֥וֹת יוּמָֽת  mot yumat — “must be put to death.” That is, he in turn is killed, but by the court, in some kind of orderly legal procedure. Our verse, however, does not say that the killer must be put to death; it says that the victim must be avenged.

That’s not something that you find in cases of murder in the Bible. English translations of Numbers 35 and Deuteronomy 19, sometimes use the word “avenger,” but the person there is really a “blood-redeemer,” a known person who is expected to retaliate after someone is killed. The Hebrew phrase is גואל הדם  go’el ha-dam, and ge’ulah is a family responsibility. This rule about the slave uses a different verb, נקם, which does indeed mean “avenge.” It is not obvious that a murdered slave would have a family member who could take on the responsibility of “redeeming” his blood.

The one place I’ve found נקם in the aftermath of a murder is in Genesis 4, the story of Cain and Abel. Cain, having killed his brother, is sentenced to be a wanderer on earth. He’s worried that whoever finds him will kill him. (Who else is there besides Mom and Dad? Not our question this week.) YHWH reassures Cain that this won’t happen, making him the following promise:

Anyone who kills Cain will be avenged [יֻקָּ֑ם yuqqam] sevenfold.

Subsequently YHWH puts a mark of some kind on Cain, warning anyone who might encounter Cain not to strike him — “strike” (הַכּוֹת hakkot) being the same verb that we have in Exod 21:20 when a man “strikes” his slave. Here too it’s not clear what’s meant to happen, but it certainly does not sound as if someone who kills Cain is going to be put to death via legal proceeding. Nevertheless, Cain’s death will somehow be avenged.

I think the link between these two stories is exactly the fact that in the story of Cain there is no way his killer could be put to death by a court. At this stage of history, according to the biblical story, there is no society and therefore no system of justice by which a killer could be executed.

Now in the case of Exodus 21 there certainly is a society, and there most certainly is a legal proceeding by which a killer could be executed. That’s what we read in v. 12: Anyone who strikes a man so that he dies must be put to death. The assumption is that a human court will judge the circumstances and find the man guilty (if he is guilty) and then execute him in some sort of legal proceeding. What is preventing a court from taking the case of the slave owner who kills the slave? There may have not been any courts in the time of Cain but there certainly are in view of the Covenant Code.

I would like to suggest that what’s preventing this kind of killing from being resolved through the courts is the slave’s very unusual and uncomfortable status as part human being and part property — or rather, simultaneously 100% human and 100% property. Rather than a gap between those two statuses, there is an overlap between them.

We learn from the beginning of the chapter that once the slave works for six years, his owner must free him. He doesn’t have to buy his freedom; six years of work have done that, and now, in a single moment, he is a free man, a human being just like his former owner. Similarly, vv. 26 and 27 tell us that if the slaveowner hits the slave in anger and puts out his eye or knocks out his tooth, the slave must be freed immediately.

How to solve this problem, resolve this legal conundrum? The solution of the Covenant Code is to open the door a crack, for vengeance. Although vengeance may not sound positive to us, everyone knows the biblical expression: “Vengeance is Mine, sayeth the Lord.” Even if that is a warning to human beings not to take vengeance, the reassurance that God will handle it means that some reaction that we would call vengeance is appropriate.

Maybe God is taking responsibility for this act of vengeance to keep it away from us. Psalm 58 presents a very violent situation which ends triumphantly in v. 11 by saying, “The righteous rejoice when they gaze on vengeance; they wash their feet in the blood of the wicked.” If that verse applies anywhere in the Torah, it applies to our verse, where the slaveowner has killed the human being whom, according to that same Torah, he owns as chattel. In such a case, even the righteous “rejoice when they gaze on vengeance.”