Slavery and the Civil Law

Parashat Mishpatim introduces the Torah’s civil law with an initial focus on laws of slavery, a subject which represents a source of great discomfort for many modern readers. Judaism Reclaimed discusses the Torah’s view of slavery as part of its analysis of Rambam’s axiom that the Torah presented its teachings in a manner which even its earliest students could relate to, while at the same time guiding them gently towards the ideal path.

It can be claimed, in accordance with Rambam’s approach, that slavery – like animal sacrifice - was so deeply ingrained within the popular Jewish psyche that it could not have been prohibited outright. A comparison between the Torah’s laws on slavery and those which existed in the surrounding Ancient Near Eastern societies, however, can provide a strong indication of the Torah’s overall view of the institution of slavery.

The Code of Hammurabi, for example, provided slaves with absolutely no rights, regarding them essentially as property. Viewed in this context, the Torah introduces severe limitations: it sets slaves free if they are abused by their masters, legislates a death penalty for their murder, and requires their inclusion in the Shabbat day of rest “so that your slave and maidservant shall rest just like you”. Blinding of slaves, a frequently performed means of controlling or punishing slaves in ancient times, results in a slave going free under Torah law. Rambam explains that the prohibition against returning a fleeing slave to his master displays empathy with the oppressed slave and sends out a powerful message to his master that his power over a slave should not be cruelly abused. This conforms with Rambam’s emphatic statement at the end of Hilchot Avadim that, while the letter of the law allows for slaves to be worked in difficult conditions, this is neither the way of the Sages, nor does it reflect the character traits that the Torah demands of the nation of Avraham, a nation that is exhorted to exhibit “Godly” kindness and compassion.

In his discussion of slavery in the Torah, Rabbi S. R. Hirsch writes that Jewish law does not allow a person to be transformed into a slave against his or her will. The only way individuals could become Jewish slaves was by willingly selling themselves unless, under the generally accepted rules of international law, they already had the status of slaves. Citing the “saddening experiences of our own times” in America and Jamaica, R’ Hirsch adds that transferal into the property of a Jew was the only form of salvation for a person previously stamped as a slave: “A Jewish home was a haven to a slave. There, he was protected by law against mishandling… He became a member of the household, like his master’s children, and like them he participated in the Pesach offering, on which God’s people was founded.”

Staying with R’ Hirsch, his commentary at the start of this parashah takes note of how the Torah’s civil law code commences with a detailed recitation of specific laws governing slaves. This beginning, he argues, would be inconceivable if the Written Torah was the primary source of Jewish law. It follows that a mass of laws and legal principles must have already been established and clarified before these exceptional cases could even have been considered. It is presumably upon the basis of the mass of laws and principles that Moshe had already received and transmitted orally that he had previously been “judging the people…from morning until evening…making known to them the decrees of God and His teachings,” (see Rashbam to Shemot 18). This forms the basis of R' Hirsch's analysis of the relationship between the Written Torah and the Oral Tradition (see chapter 11 of Judaism Reclaimed, summarised below in the Chaye Sarah post).

First posted to Facebook 15 February 2020, here.