Dëvar Torah – Parashath Mishpatim (Exodus XXI, 1-XXIV, 18)
The first two verses of our parasha:
And these [vë-élle] are the judgments [hamishpatim] which you will place before them. If you acquire a Hebrew servant [‘eved ‘Ivri], six years will he serve, and in the seventh he will go out to freedom automatically.
The alert reader who remembers last week’s parasha will note a slight peculiarity in the wording of the first verse. Last week’s parasha ended by detailing some of the laws concerning construction of an altar. As this week’s parasha deals with an entirely different topic, there is, appropriately enough, a clean break between the two (marked by a space at the end of the last line in parashath Yithro in the Torah scroll, and the letter pé in printed editions of the Pentateuch).
That said, it seems reasonable to ask why our parasha begins with the word vë-élle, “and these.” The “and” implies some continuity between the two parashoth, though they should rationally be (and are) divided.
Secondly (while we’re asking questions), as the name of the parasha and even a cursory glance at its contents reveals, it deals primarily with laws of civil torts and damages, which must be administered by courts and require the exercise of judgment, e.g. in the determination of guilt or innocence, in the assessment of damages, etc. So why does it open with laws governing an ‘eved ‘Ivri? What does this have to do with torts and damages, and (assuming that we find some connection) why should it be the very first topic addressed in our parasha?
Let us deal with the institution of the ‘eved ‘Ivri first. This is intended by the Torah to cover two situations:
1) The case of an Israelite who is so impoverished that he feels compelled to sell himself into slavery. As the Rabbis make clear in the Mëchilta, this is not the case under discussion in our parasha (cf. Leviticus XXV, 35-55, where it is covered).
2) The case of a thief. A thief who has turned himself in and admitted his wrongdoing must either return the goods or pay the principal value. If he has to be caught, tried, and convicted in a court though, he has to pay double the amount plus one-fifth to cover the expenses (cf. Rambam, Hilchoth Gëneiva I, 5). If he is found unable to pay at all, he is sold by the court for the amount due (Hilchoth Gëneiva III, 14, Hilchoth ‘Avadim I, 1).
This is the case under discussion in our parasha.
Whatever the reason that an ‘eved ‘Ivri enters servitude, this peculiar institution is not what it seems on the surface:
“Anyone who acquires an ‘eved ‘Ivri acquires a master for himself.” Talmud (Qiddushin 20a, Arachin 30b).
A stroll through Hilchoth ‘Avadim reveals that the ‘eved ‘Ivri cannot be employed in unusually harsh or degrading jobs (I, 6-7). His master must feed, clothe, and house him, his wife, and his children according to the same standard the master himself enjoys (ibid., 9, based on the wording of Deuteronomy XV, 16). When he is freed, the former master may not send him forth empty-handed, but provides him with the means to get started in a business and earn a living, so that he will no longer be in such dire poverty, or have to resort to thievery once again (ibid., III,14, based on Deuteronomy XV, 13-14).
In short, this is not an institution to provide landowners with cheap labor, nor is its purpose punitive per se; rather, it is charitable, redemptive, and rehabilitative in nature, an example of “tough love” in the Torah. The man has sunk to incredible spiritual depths, so much so that he is prepared to enter slavery; he must be “rebuilt,” as it were, through his master’s kindness and the discipline of honest labor.
It is this very spiritual nadir and state of dependence to which the ‘eved ‘Ivri has sunk which constitutes the greatest danger to him:
“And if the ‘eved says, I love my lord … I shall not go out free”, the master is required to present the ‘eved to the court, whereupon “he will present him to the door or the doorpost, and his master will pierce his ear with an awl, and he will serve him forever” (XXI, 6, cf. Rashi ad loc.).
Why, you may ask, is the ‘eved’s ear pierced at the door or the doorpost in particular and why the ear, as opposed to any other part of his anatomy? The Talmud provides the answer:
“The Holy One, Blessed is He, said: The door and doorpost which were witnesses in Egypt at the hour I passed over the lintel and the two doorposts and said, ‘For the bënei Yisra’él are My servants and not servants of servants, and I brought them out of slavery to freedom, and this one has gone and acquired a master for himself?! Let him be pierced before them.’” (Qiddushin 21b)
Similarly (ibid., 22b), it is the ear which heard at Mt. Sinai that Israel were no longer slaves that is pierced. This is one reason for beginning the parasha with “and,” as well as a reason why ‘eved ‘Ivri constitutes the first topic of the parasha. Rashi comments:
“Every place in which it is said vë-élle it adds to what has gone before; just as the first [commandments in last week’s parasha] were from Sinai, so are these from Sinai.”
The same G-d Who declared “I brought you out … from the house of slaves” (XX, 2) has decreed this redemptive measure of “tough love” for a thief who has dug himself a pit so deep that he can’t get out of it by himself. This institution is intended as a way out for him, a way to restore his dignity as a free man among free men, ready and able to earn his livelihood. The dependence is not meant to be permanent. If he insists upon it, his master is not allowed to be cruel and leave him to starve, but the Torah expresses its protest in no uncertain terms.
But there is another, yet deeper connection to be made. The Yërushalmi (Qiddushin I, 2) makes the protest even more tellingly:
“[It is] the ear that heard on Mt. Sinai, ‘you will have no other gods,’ and this one has gone and thrown off the yoke of the kingdom of Heaven from himself and accepted on himself the yoke of flesh and blood that should be pierced.”
Voluntary servitude is tantamount to idolatry! To try to fathom this, let’s look up a midrash:
“The Holy One, Blessed is He, said: Just as I created the world for seven days and rested on the seventh, so will the ‘eved ‘Ivri work for six years for you, and then go out a free man” (Shëmoth Rabba XXX,15).
Rabbi Ya‘aqov Kaminetsky in his Emeth lë-Ya‘aqov sees in the relationship between the six days of Creation and the period of the ‘eved ‘Ivri’s service a very deep truth, in his own words:
“ … all of the Torah’s mishpatim are enmeshed and intertwined with the chuqqim.”
The Torah’s commandments can be divided into two broad categories. There are those which are plainly chuqqim, i.e. laws which, even when an explanation is appended to them, are clearly in the class of “royal decrees” — orders which the loyal subject is simply compelled to obey, whether or not he understands why.
What we think of as the “laws of nature” all fall into this category. So does the sabbath. Even though the Torah deigns to inform us that it is a commemoration of and ongoing witness to G-d’s having created the universe, it is nonetheless not something we would have deduced or derived through human logic. The Romans in their day and the Muslims today have openly scoffed at the notion that working people should get a “day off,” that G-d should “rest” from His labors. Yet sabbath observance is viewed as the linchpin of Judaism, and one who is known to be a sabbath observer is generally believed to observe the other commandments as well.
Mishpatim, evident from the word’s very definition, are laws involving the exercise of judgment, and so may be deduced logically by the exercise of human intelligence.
Certainly there are equivalents, often very similar and sometimes identical, to the laws of torts and damages enumerated in our parasha to those in any system of law found among the nations, from the law-code of Hammurabi to the systems based on Roman law and English common law prevailing in the world today. Nevertheless, by revealing the relationship between the six days of Creation and the ‘eved ‘Ivri’s term, the Rabbis underscore the point that the mishpatim are not to be observed merely because of the superior social arrangement resulting from them, but because they are every bit as Divinely ordained as are the chuqqim, and are to be observed in the same spirit.
It is here, perhaps, that the immediate relevance of the ‘eved ‘Ivri may be found. As the Talmud rules (Qiddushin 21b), the institution of ‘eved ‘Ivri can only be observed when the 50-year cycle of the Jubilee is observed. Sadly, in one of the many signs that even in the Holy Land we remain in exile, this is not now.
However, in light of all the above, perhaps we can understand another Talmudic ruling tied to the first verse in our parasha:
“Every place where you find secular courts, even if the judgments are like those of Israel, [Jews] are not permitted to resort to them, for it is said, ‘And these are the judgments which you will place before them,’ and not before [a secular court]” (Gittin 88b).
This is decided Jewish law (cf. Shulchan ‘Aruch, Choshen Mishpat 27) whose observance in our exile requires strengthening. There are circumstances, precisely because we are in exile, under which we can resort to secular courts, but each instance requires the advice and counsel of a competent Orthodox rabbi. As the example of the ‘eved ‘Ivri shows us, to do otherwise is tantamount to throwing off the yoke of the Kingdom of Heaven and denying the veracity of Creation.