(2008/5768)
Parashat Mishpatim opens with a discussion of civil law in Jewish society, starting with details of Eved Ivri and Amah HaIvriah, Jewish male and female slaves (Shemot 21:2-11). Considering the negative associations the nation had with slavery at this time, it seems quite odd that the first rule given institutionalizes slavery. So why does it come first? And how could the Torah prescribe something as immoral as slavery?
Before moving on, it should be noted that this second question really needs no answer. In his Sefer Tiferet Yisrael, the Maharal goes to great lengths to demonstrate that we follow the Torah not because it makes sense to us, but rather because it is the word of Hashem, the “decree of the King,” and we trust Him to make all the ethical calculations. This is an important tool to maintain in our arsenal of thought patterns, as not every detail of every Mitzvah will seem rational or moral to us, and some may seem deeply troubling, intellectually and emotionally. We must realize that any problems arise simply because we lack the perspective that Hashem has - we are limited mortals and He is the omniscient, omnipotent, timeless, infinite Creator and Sustainer of all physical and spiritual existence. That being said, it still helps from our perspective to find explanations for Mitzvot and Halachot that initially trouble us in order to affirm the truth and wisdom of the Torah to ourselves.
The ideas surrounding the concept of the male slave are well-known, and they make it clear that he is more of a servant than a slave and that the arrangement is far from demeaning. In short, he is well-treated (to the extent that his living conditions may be better than his master’s – see Kiddushin 20a), his family is cared for in the meantime (Kiddushin 22b, quoted in Rashi 21:3), and he is rewarded handsomely at the conclusion of his period of service (see Devarim 15:13-14). Overall, it seems to be a way for one in debt to arrange for the receipt of a lump sum prior to a few years of work, thus paying off his debts immediately. Then, since he has already used his salary for the next few years, his employer is responsible for his and his family’s welfare during that period. In the end, to help the servant restart his life, the employer gives him a large bonus, intended to tide him over until he gets back on track.
However, the concept of the Amah HaIvriah, the female slave, seems much more difficult. A male slave can be sold only as an adult, while a female slave can be sold only as a minor. She does not sell herself into slavery; rather, her father receives the money while she has to work. Additionally, the master has the right to force her to marry him or his son. How could it be that the Torah seems to treat girls so unfairly in this case?
The first point we must deal with is the circumstances surrounding the sale. The Rambam (based on Kiddushin 20a) writes, “A father is not permitted to sell his daughter unless he has become poor and retains nothing – neither land nor movable objects, and not even the garment he wears” (Hilchot Avadim 4:2). In the words of Rav S.R. Hirsch (loosely translated from the Hebrew edition): “All we know from our national literature... leads us to the clear assumption that one would not sell his daughter except out of desperation in extremely pressing circumstances” (commentary to Shemot 21:7). We can see already that this sale is intended to take the daughter out of the dire economic situation of a starving family and place her in an environment where her material needs can be met. In order to accomplish this goal, of course, she has to earn her keep, thus giving the master a reason to purchase her in the first place. And since she is cared for while her family is left behind, the purchase price goes to her father, who desperately needs the money.
However, the Torah does not stop at simply placing this girl in a financially stable environment; it also gives her the opportunity to marry into the upper class and escape the pauper’s life to which she otherwise would be condemned. The master has a special Mitzvah, Yi’ud, to either marry her or have his son marry her. In fact, the Pesukim seem to indicate that this option generally would be pursued; as opposed to discussing the idea of Yi’ud as a possibility, the Pesukim talk about what happens should he decide not to fulfill Yi’ud (21:8). The Halachot of Amah HaIvriah indicate that marriage was really the main goal of the arrangement. For example, the father may not sell his daughter to one who cannot marry her (Kiddushin 19b). Additionally, if the master decides not to marry her, he must sell back the girl and take a loss (see Rashi 21:8 s.v. VeHefdah). Finally, it is worthy of note that the main responsibilities of a husband to his wife – food, clothing, and relations – appear specifically regarding the Amah HaIvriah taken as a wife (21:10). This further emphasizes the centrality of marriage in the purchase of an Amah HaIvriah, while simultaneously warning that he must treat her on the same level as he would had they married through normal means.
All this is a tremendous advantage for the girl for two reasons. One is that, as a future member of the family, she will receive much better treatment during her period of servitude. The other is that she is given a chance for a good marriage; otherwise, she will have tremendous difficulty marrying altogether, considering that she has no possessions to her name. Very likely, someone unworthy would take advantage of her difficulty in finding a spouse and convince her to marry him.
Still, why does the girl have no say in the decision whether or not the marriage is carried out? Perhaps this also is an advantage. Her father, knowing that this sale would most likely lead to marriage, would take care to choose a master who would arrange a fitting match. This is therefore almost certainly the best chance she will get to marry with the decision made by someone with her best interests in mind – as opposed to her taking whomever she can get. However, as she is young and probably incapable of accurately assessing her situation, she will not comprehend the consequences of refusing such a proposition. Thus, she is not allowed to make the final decision in this regard. However, it should be noted that not all Poskim hold that the girl is unable to choose. Though the Mishneh LaMelech (Hilchot Avadim 4:8) cites Tosafot (Kiddushin 5a s.v. SheKein) and the Rashba (Kiddushin 19a s.v. Melameid), who maintain that she cannot choose, the Kesef Mishneh (4:8) writes that she must agree to the marriage.
It thus emerges that the concepts of Eved Ivri and Amah HaIvriah are intended to take people in desperate circumstances and grant them a new opportunity to live happily and respectably. Based on this understanding, we can appreciate why they were placed at the head of the section concerning laws that shape and direct society.
The Ramban (21:2) writes that the laws of slavery are connected to Yetziat Mitzrayim; after we were slaves in Mitzrayim, we understand the pain of the slave and treat him in a much fairer manner. We can elaborate further: unlike in Mitzrayim, where we started out free and were pressed into servitude, we take someone saddled with overwhelming financial struggles and help him recover. Unlike in Mitzrayim, where the Egyptians attempted to kill the males and keep the women for themselves to marry (see Ohr HaChaim Shemot 1:16), we give girls who might be forced into marriages not right for them the opportunity to find respectable husbands. This teaches Bnei Yisrael that they cannot walk into a Torah way of life while maintaining past assumptions; that which one might instinctively perceive as immoral and wrong may in fact be the most ethical move in certain cases. Each of us has intrinsic biases that prevent him from viewing situations accurately; only the lenses of Torah and Halacha can give us a true perspective on the correct way to approach and grapple with moral questions.
Perhaps one more idea can be added. Due to our subservience to Torah, we are called Hashem’s “Avadim” (VaYikra 25:55), His slaves, yet Chazal say that “Ein Lecha Ben Chorin Ela Mi SheOseik BeTalmud Torah,” “There is no free man except one who engages in Torah study” (Avot 6:2). This is not a contradiction; the fact that we submit ourselves to Torah makes us free. The Torah is our guide to attaining meaning in life, a sense of spirituality, a healthy and productive society, positive relationships with family, community, and Klal Yisrael as a whole, and of course, our shares in the World to Come. The only true satisfaction in this world or the next is through Torah. Hence, although by accepting the Torah we accepted a form of slavery upon ourselves, it is one that provides us with the greatest benefits; like the Eved Ivri, we are provided for in this world in exchange for our work (as is mentioned several times throughout the Torah, including the second paragraph of Shema), and we receive a bountiful bonus in the next world. The discussion of slavery is thus a fitting introduction to the first large body of Mitzvot, as the Jewish conception of slavery parallels the way we relate to Mitzvot. True, they are obligations that may seem overwhelming at times, but by keeping the ultimate rationale in mind, we understand that we are not bound by chains that weigh us down; we are enslaved to freedom.