Parashat Mishpatim: A Hebrew Slave
Now these are the judgments which you shall set before them. If you buy a Hebrew slave, six years he shall serve, and in the seventh he shall go out free, for nothing. If he came in by himself, he shall go out by himself. If his master has given him a wife and she has born him sons or daughters, the wife and her children shall be her master's, and he shall go out by himself. And if the slave shall plainly say, “I love my master, my wife, and my children; I will not go out free.” Then his master shall bring him to the judges; he shall also bring him to the door or to the door post; and his master shall bore his ear through with an awl; and he shall serve him forever. (Shemot 21:1-7)
I. Who is a Hebrew slave?
The Torah commentators discuss the question of who the Hebrew slave referred to in these verses is. The Ibn Ezra cites an opinion that the Hebrew slave in our passage is a descendant of Avraham, who is called "Avram the Hebrew" (Bereishit 14:13); in other words, he is a descendant of Yishmael or Esav (or perhaps a descendant of Amon or Moav). According to this opinion, this is the only way can we understand how a Hebrew slave can be given a Canaanite maidservant as his wife so that she should have children who will be her master's slaves, for how could the Torah have permitted a Canaanite maidservant to a descendant of Avraham, Yitzchak, and Yaakov?
The Ibn Ezra himself rejects this view and understands the passage as did all the other commentators, and in accordance with halakhic tradition, that it is dealing with a slave who is a full-fledged member of Israel. As for the allowance to take a Canaanite maidservant, it may be suggested that the maidservant already immersed herself for the purpose of being considered Jewish – although this is immersion for the purpose of slavery, which is distinct from immersion for the purpose of full-fledged conversion – so that she is now obligated to fulfill the Torah's commandments like any other Jewess. Her designation, "Canaanite maidservant," relates to her origins, not to her current personal status, when she "marries" the Hebrew slave.
Support for this interpretation of the law in this passage can be adduced from the passage in Devarim that we will cite below, which speaks of "your brother the Hebrew." The laws cited there are similar to those appearing in our passage, although marriage with a Canaanite maidservant is not mentioned there. Additional support can be brought from the prophecy of Yirmeyahu:
After the king Tzidkiyahu had made a covenant with all the people which were in Jerusalem, to proclaim liberty to them, that every man should let his Hebrew slave, and every man his Hebrew maidservant, go free; that none should enslave any of them, namely a man of Yehuda, being his brother.
Thus says the Lord, the God of Israel: I made a covenant with your fathers in the day that I brought them forth out of the land of Egypt, out of the house of slavery, saying: At the end of seven years shall you release every man his brother being a Hebrew, who has been sold to you; and when he has served you six years, you shall let him go free from you. (Yirmeyahu 39:8-9, 13-14)
The reference here is to "a man of Yehuda, being his brother," which indicates that we are dealing with a full-fledged member of Israel.
The evidence is not absolutely conclusive, but we shall follow in the path of our Rabbis and the halakhic tradition.
2. The circumstances of the sale
In Parashat Mishpatim, we dive into weighty halakhic issues that have been discussed at great length in the Talmud and codes. We have nothing to add to the words of our Rabbis except for a few notes, like a drop in the sea.
According to the Torah, a free man can be sold as a slave in two situations. The first case is that of a man who stole something but is now unable to restore the stolen object or its value. We will discuss this case at length below in the context of the passage dealing with a thief. There we will deal with the question of why it is that the Torah is so severe in his regard. For now, we will focus on the law governing a person who is unable to pay back what he stole:
He shall make full restitution; if he has nothing, then he shall be sold for his theft. (22:2)
It may be possible to compare this law to the generally accepted law in the ancient world. In Babylonia, in ancient Greece, and in other places, a person who was unable to pay back a debt was sold for the debt into slavery – he, his wife, and his children. Remnants of this harmful practice are found even in Scripture, but it is considered a criminal offense. We will deal with this at greater length in its place in Devarim. For now, we will briefly cite two Biblical sources:
Now, a certain woman of the wives of the sons of the prophets cried out to Elisha, saying, “Your servant my husband is dead; and you know that your servant did fear the Lord: and the creditor is come to take to him my two sons to be slaves.” (II Melakhim 4:1)
There were also those who said, “We have borrowed money for the king's tribute, and that upon our lands and vineyard. Yet now our flesh is as good as the flesh of our brethren, our children as good as their children; and, lo, we press our sons and our daughters into slavery, and some of our daughters are pressed into slavery already, nor is it in our power to redeem them; for other men have our lands and vineyards.” (Nechemia 5:4-5)
The Torah strictly prohibits turning a free man into a slave for a debt, unless the debt came into being through the criminal offense of robbery (theft by way of breaking into a house).
The second case of a free man being sold into slavery is one in which a person is forced to sell himself as a slave because of his poverty. This is a different situation, which will be discussed below. It is not clear whether the laws of the two cases are the same; the matter is the subject of a Tannaitic dispute. We will not deal here with the differences between them in particular, or with their laws in general.
3. The slave in our passage
The very turning of a free man into a slave creates three main problems:
- Family difficulties caused by the enslavement, which cuts the husband off from his Jewish wife, as well as those caused by the Canaanite maidservant that the slave's master can give him to produce children, who will eventually become the master's property.
- The religious problem of being enslaved to another person, which weakens the slave's sense of subjugation to God, who took us forth from Egypt, since he has another, human master lording over him.
- The social, human, and economic problem relating to the depressed status of the slave.
This might be the reason that the laws governing a Hebrew slave are written in three different places. Our passage appears to deal primarily with the first problem, family difficulties that are likely to lead to the family's dissolution:
If his master has given him a wife and she has born him sons or daughters; the wife and her children shall be her master's, and he shall go out by himself. And if the slave shall plainly say, “I love my master, my wife, and my children; I will not go out free.” Then his master shall bring him to the judges; he shall also bring him to the door, or to the door post; and his master shall bore his ear through with an awl; and he shall serve him forever. (Shemot 21:3-7)
For our purposes, the main law in this passage is that the slave's wife comes with him and leaves with him. It may be assumed that during the years of her husband's enslavement, she too is hired to work for her living in the master's house, since it is inconceivable that she should work someplace else and her husband's master should still be liable for her maintenance. It is similarly inconceivable that she should do nothing during the years that her husband is a slave. Therefore, in practice, her husband's being set free is also her being set free, for as long as she is economically dependent upon the master, she is not truly free.
We further learn in this passage that despite all the concern about maintaining the integrity of the slave's original family, his master is permitted to give him a maidservant as a wife – a maidservant who, together with her children, will remain forever the master's property – and this can only be a Canaanite maidservant. Let us remember that this Canaanite maidservant immersed herself – as was noted earlier, this was immersion for the purpose of slavery, which is one level lower than immersion for the purpose of conversion – and she is obligated to keep the commandments like any other Jewish woman. The Hebrew slave has children with her, but these children and his Canaanite wife retain the status of Canaanite slaves. What is the halakhic status of the marital relations between the Hebrew slave and the Canaanite maidservant? This is learned from a different verse:
And whoever lies carnally with a woman that is a bondmaid, designated to a man, and not wholly redeemed, nor freedom given her; inquiry shall be made; they shall not be put to death, because she was not free. And he shall bring his guilt-offering to the Lord, to the door of the Tent of Meeting, a ram for a guilt-offering. And the priest shall make atonement for him with the ram of the guilt-offering before the Lord for his sin which he has done; and the sin which he has done shall be forgiven him. (Vayikra 19:20-22)
According to their plain sense, these verses appear to refer to a Canaanite maidservant who is married to a Hebrew slave. The law governing another man who has sexual relations with her is not the same as the law governing ordinary adulterers; instead, he must bring a guilt-offering to atone for his sin. This implies that the Canaanite woman is not the Hebrew slave's full-fledged wife, but she is also not considered an unmarried woman. As for the relationship between the plain meaning of the verses and the halakhot that are learned from them, we will deal with that in its place.
The limit on the duration of the slave's obligatory enslavement, his coupling with the Canaanite maidservant, and his relative detachment from his original family is six years. During the seventh year, he is supposed to return to his family, his Jewish wife and children.
It should also be noted regarding this passage that it applies only to a Hebrew slave, and not to a Hebrew maidservant. Below, with respect to the passage dealing with a thief who is found breaking into a house, we will see that the very act entails intent to kill (a thief who is found breaking into a house is liable to kill the owner, and the owner is therefore permitted to kill him), and it is not a woman's way to act in that manner. Moreover, a woman's detachment from her family, from her husband and from her children, for the purpose of enslavement to the master, and the possibility that she will be given over to a Canaanite slave for the purpose of producing children for her master, with the children remaining the master's slaves after she returns to her home, are so impossible that it is inconceivable that the Torah would allow them. Therefore, the passage dealing with a Hebrew maidservant is clearly different from our passage.
4. the slave whose ear is pierced in our passage
Another law in our passage is connected to the separation of the freed slave from the Canaanite maidservant who was his wife during the time of his enslavement and from his children who were born during that period. It is possible that he would not want this separation and that he would prefer to remain with his new wife and with the children that he had with her. The Torah does not force him to separate from his new family. He is permitted to declare that he wishes to remain with them and undergo a ceremonial rite involving the piercing of his ear, after which he remains his master's slave forever. This rite must be performed before the judges (elohim); in our passage, it is possible that the door or doorposts are at the city gate, where the judges sit.
It is also possible that the word "Elohim" in this verse does not refer to the judges, but rather to God. How should the master bring the slave before God? He brings him to the door or to the doorpost, to which are affixed two passages dealing with accepting the yoke of God's kingdom and accepting the yoke of His commandments, and before them he pierces the slave's ear. These passages that are written in the mezuza were not given until the fortieth year of Israel's wandering in the wilderness. Nevertheless, the fact that the Shekhina rests next to the doorpost seems to have been known already from the time of the original Pesach offering and from the smiting of the firstborns in Egypt, when the blood of the Pesach offering was placed on the lintel and the doorposts – similar to the placement of the blood of every offering on the horns of the altar in future generations:
Why were the door and doorpost singled out from all other parts of the house? The Holy One, blessed be He, said: The door and the doorpost, which were witnesses in Egypt when I passed over the lintel and the doorposts and proclaimed: "For unto me the children of Israel are servants," they are My servants, and not servants of servants, and so I brought them forth from bondage to freedom, yet this [man] went and acquired a master for himself — let him be bored in their presence! (Kiddushin 22b)
When a slave has his ear pierced and accepts upon himself a master of flesh and blood, he diminishes his status as a servant of God. Therefore, he can have his ear pierced and thus become the servant of flesh and blood only in God's domain, and before the mezuza, which represents that domain.
I would like to add a few words about the piercing ritual. We find in other legal systems that "treatment" of a slave's ear is indeed a sign of slavery:
If a slave says to his master, "You are not my master," and the latter proves that he is his slave, the master shall cut off his ear. (Code of Hammurabi, ed. Malul, sec. 282, p. 168)
According to ancient Babylonian law, it is necessary to mark a slave who denies his being a slave with a clear and brutal sign of slavery, namely, by cutting off his ear. The Torah recognizes, in different circumstances, a similar mark of slavery – piercing the ear with a small hole, a piercing that does not cause significant pain or damage. On the contrary! A master who cuts off one of his slave's organs must set him free.
Chazal explained that the slave's ear is pierced because he intends to violate the covenant made at Sinai, where Israel declared, "We will do and we will hear":
Why was the ear singled out from all the other limbs of the body? The Holy One, blessed be He, said: This ear, which heard my voice on Mount Sinai when I proclaimed: "For unto me the children of Israel are servants," they are My servants, and not servants of servants, and yet this [man] went and acquired a master for himself — let it be bored! (Kiddushin 22b)
And in greater detail in another midrash:
The ear that heard on Mount Sinai: "I am the Lord your God, who has brought you out of the land of Egypt, out of the house of bondage" (Shemot 20:1), and he accepted upon himself the yoke of the kingdom of flesh and blood. The ear that heard before Mount Sinai: "You shall have no other gods besides Me" (Shemot 20:2), and he went and acquired another master for himself – therefore, let the ear come and be bored, as it did not observe what it heard. (Pesikta Rabbati 21)
It follows from the Pesikta that the verse "You shall have no other gods besides Me" refers not only to idol worship, but also to a human master, who creates a barrier between the slave and his God, someone who is "besides Me."
Another midrash states:
The ear that heard: "You shall not steal" (Shemot 20:13), and he went and stole, it should be bored from among all his organs. (Mekhilta Mishpatim, Nezikin 2)
Here one might justifiably ask: If a slave's ear is pierced for theft, why was it not pierced six years earlier, when he stole and was sold for his theft? Two answers may be suggested:
1. The commandment of "You shall not steal" was understood by Chazal, by way of its context, as referring to stealing “souls” – that is, kidnapping – and not stealing money. Stealing a person turns a free man into a slave. It is possible that just as a person who commits suicide is liable for bloodshed, a person who decides to continue his slavery – not because of economic distress, but slavery "for its own sake" – becomes thereby a stealer of souls with respect to his own soul. His ear is thus pierced because he transgressed the prohibition of "You shall not steal."
2. It may be suggested that the midrash refers to the stealing of money that took place prior to his being sold into slavery, and for which he is punished with the piercing of his ear six years later. As for the delay in punishment, it seems that we do not pierce his ear after his first failure, the theft, and that he atones for this failure with his six years of slavery. But the minute he repeats his folly and continues to go willingly into the abyss that he entered by virtue of his theft, God punishes him for his original sin, and his ear is pierced.
5. THe Slave in the book of Vayikra
The problem raised by the midrash with respect to a slave who willingly turns himself into a slave forever – choosing full subjugation to a man of flesh and blood – arises from the plain meaning of the verses in Vayikra, which deal with a slave who sells himself into slavery out of economic distress:
And if your brother who dwells by you be grown poor, and be sold to you, you shall not compel him to serve as a bondservant; but as a hired servant, and as a sojourner, he shall be with you, and shall serve you until the year of Jubilee, and then shall he depart from you, both he and his children with him, and shall return to his own family, and to the possession of his fathers shall he return. For they are My servants, whom I brought out of the land of Egypt; they shall not be sold as bondmen. You shall not rule over him with rigor; but you shall fear your God… For to Me the children of Israel are servants; they are My servants whom I brought forth out of the land of Egypt; I am the Lord your God. (Vayikra 25:39-43, 55)
The passage emphasizes twice – regarding one who sells himself to a Jew and regarding one who sells himself to a non-Jew – that all of Israel went out to everlasting freedom when they left Egypt and accepted upon themselves the yoke of God's lordship, and therefore they cannot be slaves of flesh and blood. The emphasis in this section is on the nature of the work, the work of a hired servant, as opposed work with rigor. Rigorous work was what was experienced in Egypt:
And Egypt made the children of Israel serve with rigor. And they made their lives bitter with hard bondage, in mortar, and in brick, and in all manner of bondage in the field; all their bondage, wherein they made them serve, was with rigor. (Shemot 1:13-14)
From these verses we also learn the nature of work with rigor.
When a person sells himself into slavery because of economic distress, the limit of his servitude is not six years, as in the previous case, but rather the Jubilee year. Even one who has his ear pierced cannot exceed that limit, as he too is under oath from Sinai to be the servant of God. The Jubilee (yovel) is meant to bring to mind the revelation at Mount Sinai, about which it is stated:
When the horn (yovel) sounds long, they shall come up to the mountain. (Shemot 19:13)
The slave laws in this section are based on their "religious" dimension, which is linked to the commandment "I am the Lord your God, who has brought you out of the land of Egypt," and to the commandment "You shall have no other gods besides Me." Going free is necessitated by the Jubilee year and by the understanding that enslavement to a human master is like idol worship. Therefore, there is no mention here of piercing of the ear, which brings the slave to permanent slavery, and this is impossible because of God's prior claim of ownership over man.
6. The slave in the book of Devarim
And if your brother, a Hebrew man or a Hebrew woman, be sold to you, he shall serve you six years; and in the seventh year you shall let him go free from you. And when you send him out free from you, you shall not let him go away empty; you shall furnish him liberally out of your flock, and out of your threshing floor, and out of your winepress; of that with which the Lord your God has blessed you, you shall give him. And you shall remember that you were a bondman in the land of Egypt and the Lord your God redeemed you; therefore I command you this thing today. And it shall be, if he says to you: I will not go away from you, because he loves you and your house, because he is happy with you; then you shall take an awl, and thrust it though his ear to the door, and he shall be your servant forever. And also to your maidservant you shall do likewise. It shall not seem hard to you, when you send him away free from you; for he has been worth double a hired servant to you, in serving you six years; and the Lord your God shall bless you in all that you do. (Devarim 15:12-18)
This passage emphasizes the commandment to provide the slave with property upon his release, paralleling the property that the people of Israel took from their neighbors when they left Egypt. This rehabilitation grant allows the slave to build his economic world anew from scratch. Here the restriction of his work years to six is due to the great amount of work that he provides ("for he has been worth double a hired servant to you"), and not because of the destructive effect of slavery on his family, for there is no mention here of a Canaanite maidservant, nor of the problem of the slave's wife. Here, the desire to remain a slave is not because of the slave's love for the maidservant and her children, but because of his love for his master and his house, and therefore the law applies also to a Hebrew maidservant. The plain sense of the text indicates that we are dealing with an adult woman who wishes to be sold as a bondmaid just like a slave, and that there is no difference between a slave and a maidservant in this regard.
The passage is marked by the spirit of social justice and rehabilitation of the weak, as are the adjacent passages, such as the passage imposing an obligation to lend money to a poor person and the passage requiring the release of his debts in the sabbatical year.
The Halakha joins the various passages to one another, and the halakhic limitations that it imposes – like the negation of the law of a woman selling herself into slavery – stem from the need to comply with all three passages.
(The original appeared in the Shemot volume ofכי קרוב אליך: לשון מקרא ולשון חכמים. Translated by David Strauss)
 See, for example, M. Malul, Kovtzei Ha-Dinim Ve-Osafim Mishpatiyim Acherim min Ha-Mizrach Ha-Kadum (Haifa 5770), Code of Hammurabi, King of Babylonia (1750-1792 BCE) in sec. 54 (p. 122): "If he be not able to replace the corn [that was damaged when he failed to maintain his dam in proper condition, and the river flooded other people's fields], then he and his possessions shall be divided among the farmers whose corn he has flooded." Also there, in section 117 (p. 133): "If any one fail to meet a claim for debt, and sell himself, his wife, his son, and daughter for money or give them away to forced labor; they shall work for three years in the house of the man who bought them or the proprietor, and in the fourth year they shall be set free."
 My revered teacher, R. Mordechai Breuer, wrote something similar in general, but different with regard to the details and in style, in "Ama Ivriya Ve-Shifcha Charufa," Megadim 16 (Alon-Shevut 5752), pp. 19-36.
 Chazal explain that a slave whose ear was pierced, about whom it is stated "And he shall serve him forever," also serves only until the Jubilee year. But this is only because it says in Vayikra that every Hebrew slave must be released in the Jubilee year, even if the slave sold himself for more than six years (as one of the opinions of the Tanna’im in Kiddushin 15a-b). The piercing in and of itself obligates slavery forever, literally, as stated in our passage in Mishpatim. Therefore, piercing could not have been mentioned in Vayikra, which requires release of slaves in the Jubilee year. In practice, the passage in Vayikra takes precedence over the one in Shemot, so that even a slave whose ear was pierced is released in the Jubilee year. This was also the understanding of my revered teacher, R. Mordechai Breuer, in his book, Pirkei Mo'adot (Jerusalem 5746), pp. 16-22.
 My revered teacher, R. Mordechai Breuer, dealt at length with this issue as well in his aforementioned work (see previous note), but I have veered slightly from his approach.