Parshat Mishpatim תש”פ
“And these are the laws [“Mishpatim”] that you should place before them”:
“And”—Parshat Mishpatim starts off in a peculiar way. The Hebrew text begins with a “ו”, which translates as “And,” a word usually used to connect two ideas or concepts. But this is the beginning of a new Torah Portion!
“וְאֵלֶּה הַמִּשְׁפָּטִים אֲשֶׁר תָּשִׂים לִפְנֵיהֶם”
“And these are the laws (mishpatim) that you should place before them:”
What two things does the “And” connect? Where is this coming from?
Rashi provides the answer:
“מה הראשונים מסיני אף אלו מסיני”
“Just as the first ones are from Sinai, these, too, are from Sinai.“
In last week’s Parshah, Yitro, HaShem gave the Ten Commandments to the Jewish people at Sinai. The “And”, this week, connects these laws to those laws.
There is a subtle but significant connection between the Ten Commandments and the Torah Portion of Mishpatim.
Three of the Ten Commandments are logical and provide the framework for a working society. They are: 6. Do not murder, 7. Do not steal 8. Do not commit adultery. Although stealing anything is prohibited by the Torah, from context, the Sages derive that commandment Number 7 refers specifically to stealing another human being. Just as one found guilty of murder or adultery is punished by the court with the death penalty, so too in context, the crime of stealing mentioned here, must also be punishable by the death penalty. (This is an example of one of the “Thirteen Methods” for deriving the laws from the Torah called a “בנין אב” —“Binyan Av”.)
When does a thief receive the death penalty for stealing? The answer is in this week’s Torah Portion (21:16):
“וְגֹנֵב אִישׁ וּמְכָרוֹ וְנִמְצָא בְיָדוֹ מוֹת יוּמָת”
“One who kidnaps a man and sells him, and he was found to have been in his power, shall surely be put to death.”
One who steals a human being gets the death penalty. The victim is healthy and alive, yet the one who kidnapped him must be put to death for the crime of depriving a fellow human being of his freedom.
Rabbi Samson Raphael Hirsch provides us with the following explanation.
“Not only is the physical existence of a fellow protected by the Torah, but the whole personality, freedom and human dignity, must be inviolable in the Jewish national society. Therefore, if it becomes known to the court through witnesses, that a person treated his fellow man as though he was an object, and forcibly took control of him, took him into his possession, made him work for him, and finally sold him, this kidnapper is liable to the death punishment just as a murderer who takes physical life is liable to the death penalty.”
When someone kidnaps and sells another human being, subjecting him to the whims of his master, he is denying him the ability to express himself and his unique mission in the world. From a spiritual standpoint, he has essentially killed that person. Since it is through the choices one makes that he fulfills his mission in the world, when he does not have the freedom to make choices for himself, he cannot bring out his unique contribution to the world. His special life has been wasted.
In light of the above, how is it that the Torah has provisions for slavery of a Jewish person? The very first of the “משפטים” —“understandable laws”—is(Exodus 21:2):
“כִּי תִקְנֶה עֶבֶד עִבְרִי שֵׁשׁ שָׁנִים יַעֲבֹד וּבַשְּׁבִעִת יֵצֵא לַחָפְשִׁי חִנָּם”
“ If you buy a Jewish slave, he shall work for six years; and in the seventh he shall go free for no charge.”
The Torah punishes one who kidnaps and sells another Jewish person with the death penalty, yet at the same time, someone else is allowed to buy a Jewish person as a slave? How could this be—and from whom would he buy him?
The answer to these questions is in a verse later in this Torah portion (Exodus 22:2).:
“אִם בַּמַּחְתֶּרֶת יִמָּצֵא הַגַּנָּב וְהֻכָּה וָמֵת אֵין לוֹ דָּמִים”
“אִם זָרְחָה הַשֶּׁמֶשׁ עָלָיו דָּמִים לוֹ שַׁלֵּם יְשַׁלֵּם אִם אֵין לוֹ וְנִמְכַּר בִּגְנֵבָתוֹ”
“If a thief is discovered tunneling in, and he is struck and dies, there is no blood guilt on his account. 2) If the sun shone upon him, there is blood guilt on his account. He shall make restitution; if he has nothing he shall be sold for his theft.”
A “tunneling in” thief is one who breaks into a house in the middle of the night to burglarize it. He knows full well that people are there, and that if the owner discovers him, he will confront him to save his property. The Torah acknowledges that before attempting the break-in, the thief has already decided that if confronted, he will kill the homeowner. Hence, when the homeowner confronts him, the thief becomes a “rodef“—one who is about to kill an innocent person. Under these circumstances, “There is no blood guilt”, and the homeowner is in fact obligated to kill the thief—before the thief kills him. One who uses his life to take the life of an innocent person has forfeited his right to life. HaShem did not give him life to use it to kill an innocent human being. This is the source in the Torah for the concept of self-defense. “הבא להרגך השכם להרגו” – “When someone comes to kill you, kill him first.”
Verse 2: If, however, it is clear that the thief has no intention of killing the homeowner, such as a father who is breaking into his son’s house who we know will not harm his own son, if the homeowner should kill the thief, the homeowner is guilty of murder. If the thief got away with the burglary and was later caught and found guilty, he must repay what he stole. If he does not have ‘the funds to pay back, the court will sell him to raise the funds to repay his victim what he stole from him. The Torah mandates that he not be sold for less than six years, and that the sale price not exceed the amount he owes; yet at the same time, the maximum amount that he can be sold for, may be less than the amount he stole. Nevertheless, the thief may not be sold twice for the same theft.
The price of a slave is determined by his usefulness to his owner. The more benefit the owner can derive from the slave, the more he is worth. If he were a carpenter, he would be more valuable since he could bring his owner more income. Hence, a perspective buyer would expect to pay per year what the thief could earn on the open market.
According to the 2015 census, the average household income in the U.S. was $56,516. So, putting things into perspective, if the thief were an average Joe, selling him for six years would cost his owner a whopping $339,096.00 (six years of salary)! Maybe it would be a little cheaper for the six years, but this is the general ballpark figure. This means, that for a thief to be sold for his theft, he must have stolen at least this amount of money, or the court is not permitted to sell him. In that case, they will garnish his earnings to repay the victim, but will not sell him as a slave. Additionally, if the victim would accept a promissory note from the thief that he will repay him when he has the funds, the court will forgo the selling process entirely.
So, here’s the dilemma. A man has stolen an exorbitant amount of money, and has no way of paying it back. How can we restore the stolen money to the victim and, at the same time, rehabilitate the thief so he never does this again? Maybe he should be locked up in a prison for a few years? Will that pay his victim back? Will that help rehabilitate him in any way? And, what about his family? What will they do for sustenance while he is in prison? It may very well be that he stole to get money to feed them, and to pay back debts he accrued over time buying food.
In Hashem’s brilliance and mercy, the Torah gives us an ingenious solution to this issue.
He is to be sold as a “slave” for six years, to repay the victim for his loss. When the thief enters the household of his “master,” his wife and children come with him. The “master” must accept responsibility for their needs as well. The family unit is kept together, and does not undergo distress as a result of his crime. In depriving him of his liberty, and the means to earn a living for his family, the Torah puts this responsibility on the “master”. This takes care of paying back the victim, and his family’s needs while he is being “punished”.
A thief is someone who has no respect for the idea of “property rights”—wherein that which belongs to another is exclusively his, and off limits to anyone else. Placing the thief in a relatively well-to-do home with many valuable objects that he might desire but cannot take, will give him many opportunities to overcome his disregard for the “property rights” of his owner, and, over the course of six years, will completely rehabilitate him of his weakness. Additionally, being in a wholesome home environment, with all his needs taken care of, will give him a new start on life when he finishes his stint.
The Oral Torah teaches us many laws governing the sale of a thief as a slave and his treatment by his “master”, which are not obvious in the text. These laws are designed to preserve his dignity of the thief, even during the time of his enslavement.
When the court sells him, they do not sell him on an auction block. He is sold privately.
The “master” must treat him as his brother—an equal. Although the slave must act towards his “master” as a slave, the owner is not permitted to refer to him as a slave or call him a slave.
The “master” may not give him “busy work” or work below his pay grade. If he is a carpenter, he cannot force him to work as a gardener.
The “master” must give him the same quality of food that he himself eats.
The “master” must give him the same living conditions he has, the same type of bed, bathroom etc. So much so that the Talmud says, if the “master” has only two pillows, one good and one poor, he may not give him the inferior pillow, since he may not treat him inferior to himself! The only alternative left is for him is to take the poor one for himself and give his “slave” the better one . The sages expressed this irony when they said, כל הקונה עבד עברי קונה אדון לעצמו”” “Whoever has buys a Hebrew slave, has [really] bought a master for himself!
If the slave should come into money during the six years of his servitude, he may buy his way out, by subtracting the amount he worked from the original purchase price and paying off the rest.
When you analyze these laws, you realize that the “Jewish Slave” isn’t really a “slave” at all. The best way to describe him would be “a worker” with a six-year contract.
In light of this, what makes him a slave? Where is the downside to all of this?
There is one law which powerfully brings home to thief that he has done something wrong. That is what is explained in this verse (21:4):
“אִם אֲדֹנָיו יִתֶּן לוֹ אִשָּׁה וְיָלְדָה לּוֹ בָנִים אוֹ בָנוֹת הָאִשָּׁה וִילָדֶיהָ תִּהְיֶה לַאדֹנֶיהָ וְהוּא יֵצֵא בְגַפּוֹ”
“If his master gives him (the Jewish slave) a wife, and she has born him sons or daughters, the wife and her children remain with her master, and he shall go out by himself.”
Because the Torah uses the term “her master”, the only person to whom the Torah could be referring is a non-Jewish maid-servant, a “שפחה כנענית” . (A Jewish woman may not be sold for her theft) Generally speaking, a non-Jewish maid-servant is not permitted to marry a Jewish man. This is the one case where it is permitted, and only if the man is already married. The non-Jewish maid-servant will also be exclusively his “wife” for the duration of his stay; she is not permitted to anyone else. Since the “wife”, and his children from her remain with the master when the six years are up, we see that this is not a spiritual marriage, but rather a physical one. This is why the children assume the status of the mother and not the father.
Because this physical marriage is prohibited to a free Jewish man, it brings home to him how morally low he sunk through his act of stealing. He betrayed the trust of his fellow human being, and thus forfeited the moral height on which a Jew should stand. He has lowered himself to a merely physical existence, and, this type of marriage is therefore appropriate for him.
This may explain the deeper meaning behind the six years of slavery, and his freedom in the seventh year. The six years represent the six dimensions of every physical object in the world (A cube has six sides). The number seven always represents the invisible seventh dimension, that is: HaShem, Who gives existence to every physical object in the world. This thief has forgotten that seventh dimension, HaShem, and thinking that no one is watching, has stolen, has fallen prey to the six dimensions, as if they were all that exist.
Achieving his freedom in the seventh year will always remind him that six enslaves you, and that seven make you free. If a person caters to the passions and inclinations of his “six”—physical desires, he will always be a slave to them. On the other hand, if one subjects his “six” to the rules of HaShem’s Torah, that will free him of his physical desires, and unite his “six” with HaShem to make him “seven”—a free man.
The many benefits that come from this system further underscore the system’s merits. However, it is only through seeing the written laws in the Torah through the eyes of the Oral Torah that we are able to appreciate the many laws regarding how the master must treat his “slave”.