How Torah Undermines the Very Slavery It Permits

http://www.derekleman.com/musings/how-torah-undermines-the-very-slavery-it-permits/

5 February, 2013 · by Derek Leman

Is the written Torah a set of ideal laws or a constitution for a people? Is it a collection of timeless principles or time-bound laws for an actual people? Is it social legislation or a set of ethical ideals?

Many people want Torah to be something it is not. Many want Torah not to have commandments about owning slaves, taking war brides, and executing non-believers. But many people need to learn to see what is in Torah theologically, with eyes for the way Torah does reveal God’s ideal ways, as a scroll bringing real people from human evil on a trajectory toward perfect justice.

Before I get into some commentary on slavery and the Torah, let me describe the idea of following a trajectory in scripture rather than simply following literally each and every commandment and idea in the Bible.

• The Bible contains law-codes, histories, wisdom, and poetry which come from a specific setting in history and geography and culture.
• Some things in the writings of the Bible are pre-ideal, accommodations to their time and setting.
• Yet in matters which concern good and evil, the ways of God, the Bible does not settle for these pre-ideal accommodations.
• The Bible sets a trajectory toward perfect justice whenever the original law-codes permitted injustice.

Slavery was permitted. Not just indentured servanthood. Not just slavery as a punishment for thieves to make restitution. Not just Hebrew slaves. Owning human beings and even being allowed to will them to your children was once permitted in Torah. I will show this below without any shadow of a doubt.

Slavery is no longer permitted. I don’t mean that human laws abolished slavery. That is true also (yes, I know slavery still exists in the world, but I am speaking in general terms). I mean that slavery is no longer permitted according to Torah. But to accomplish that statement, I have to define Torah as something more than “what was written long ago.” Torah is not unchanging. Torah is not just what is written, but it is the way the community through tradition and ongoing commentary and conversation come to understand its ways over time.

If you’d like to see a Christian theologian tackling the idea of understanding the Bible as more than what is written, of taking a relational approach to the Bible and reading it with tradition, instead of insisting on an unchanging, literal text, take a look at Scot McKnight’s The Blue Parakeet.

If you’d like to see a Jewish concept of Torah as adapting and changing over time, being read in community and through tradition, and not as an unchanging, literal text, then simply start reading Jewish literature. Because Judaism is very straightforward about Torah including tradition and being a conversation that evolves over time toward God’s ideal ways in the world to come.

SLAVERY IN TORAH
 

There are two basic kinds of slavery in Torah: Hebrew temporary slaves and Gentile slaves. The matter of the kind of slavery an Israelite could enter into and its duration is very difficult because Exodus 21:1-11 and Leviticus 25:39-55 seem to contradict each other. My interpretation of the Torah’s laws on slavery is based on the work of Jacob Milgrom in his commentary on Leviticus 23-27 (see below, “Appendix: Milgrom on the Exodus 21 vs. Leviticus 25 Problem”).

The Hebrew slave is chattel (property) and not just an indentured servant (see Exod 21:21). He must be set free in the seventh year, however, unless he chooses to stay. At least this is the kind of Hebrew slavery indicated in Exodus 21 and Deuteronomy 15. Reasons for this type of slavery would include unpaid debts, extreme poverty, or (as posited by the rabbis) a court penalty for theft.

But the Hebrew slave’s condition is presented differently in Leviticus 25. He is forced to sell himself for a period of time to work off debt (vss. 39-40). He must be set free in the Jubilee year. He must be treated as a “resident hireling” (sakhir toshav) and not as a chattel slave. He is not to be treated ruthlessly, but as a brother. Nor can he be charged interest on his debt (Lev 25:36). Alternatively, following the Exodus 21 and Deuteronomy 15 paradigm, the Hebrew bondservant must be set free in the seventh year unless he/she decides to stay.

Daughters of poor families sold as slaves (Exodus 21:7-11) were to be treated as free women. This appears to be a Torah improvement on the custom of poor girls being sold as chattel slaves (as property), whereas in Israel daughters were sold to be wives or concubines and treated as free women. This amounts to an arranged marriage for a family that cannot afford a dowry to make a match for their daughter (and in agricultural economies, it was difficult to support many daughters economically).

But there was also permanent chattel slavery in Torah. A town that makes war with Israel, if it surrenders peaceably, is subject to forced labor (Deut 20:10-11). Is this permanent? The text does not say. If it resists, its males are to be killed and its women and children taken as property (chattel slaves, Deut 20:12-14). In Numbers 31, the Midianites were subjected to genocide, but their virgin daughters were kept as chattel slaves (Numb 31:14-18). But if a man desired to take a female slave as a concubine or wife, he had to allow her a period of mourning, had to let her shave her head (and thus be undesirable until it grew back), and then could not keep her as a slave but as a free woman (Deut 21:10-14). It seems, then, that sleeping with chattel slaves was not permitted (they would have to be set free as concubines or wives before there could be sexual relations).

In case there remains any doubt that written Torah permitted owning human beings as permanent slaves (only Gentiles), this scripture should lay all doubt to rest:

“Such male and female slaves as you may have — it is from the nations round about you that you may acquire male and female slaves. You may also buy them from among the children of aliens resident among you, or from their families that are among you, whom they begot in your land. These shall become your property: you may keep them as a possession for your children after you, for them to inherit as property for all time. Such you may treat as slaves. But as for your Israelite kinsmen, no one shall rule ruthlessly over the other.”
(Leviticus 25:44-46 JPS)

Don’t miss the terrible, literal message: Gentiles you may treat as slaves. Israelites you must not rule over ruthlessly.

FREEDOM FROM SLAVERY IN TORAH
 

In spite of all the facts in the previous section on slavery in the Torah, everything about the Torah spells freedom and abolition of slavery. How can we see this theme of freedom and then explain it in light of the reality of slavery in ancient Israel? How can we bring these two divergent trends in Torah together into a whole?

Let’s consider the prominence of freedom in Torah (some of these are adapted from Nahum Sarna’s commentary on Exodus in the JPS series):

• Israel is enslaved to God alone: For it is to Me that the Israelites are servants: they are My servants, whom I freed from the land of Egypt, I the Lord your God (Lev 25:55).
• The first commandment emphasizes freedom: I the Lord am your God who brought you out of the land of Egypt, the house of bondage (Exod 20:2).
• The Sabbath requires that slaves be given rest and not made to work: you shall not do any work — you, your son or daughter, your male or female slave, or your cattle, or the stranger who is within your settlements (Exod 20:10).
• The Hebrew slave (though not the Gentile) is called “brother”: Lev 25:39; Deut 15:12.
• A Gentile slave can be circumcised and is then considered an Israelite (a convert, essentially): any slave a man has bought may eat of it once he has been circumcised (Exod 12:44).
• If killed by his owner, his family may avenge (a court-sanctioned execution of his slayer): When a man strikes his slave, male or female, with a rod, and he dies there and then, he must be avenged (Exod 12:44).
• If he is injured in an assault to the point of being maimed or even losing a tooth, he must be set free (Exod 21:26-27).
• Refugee slaves must not be returned and must be allowed freedom: You shall not turn over to his master a slave who seeks refuge with you from his master. He shall live with you in any place he may choose among the settlements in your midst, wherever he pleases; you must not ill-treat him. (Deut 23:16-17).
• God frequently refers to himself as the one who set Israel free from bondage and the Exodus becomes the underlying act of God on which all of Torah is based.
• Many specific commandments of social justice in Torah remind Israel to treat the needy well since they were once slaves.
• They were commanded not to oppress hired workers or needy people, Israelite or gentile, nor to pervert justice or take pledges from resident aliens, widows, and orphans “but you shall remember that you were a slave in Egypt and the Lord your God redeemed you from there” (Deut 24:14-18).
• Torah commands: “love your neighbor as yourself” (Lev 19:18), which ultimately undermines slavery.
• In Exodus 11:2, “neighbor” (as in “love your neighbor”) includes Egyptians.
• Just to be clear, in Leviticus 19:34, the command is to love the resident alien “as yourself.”

How can we explain on the one hand Torah’s devotion to freedom and deeds of love for all neighbors and on the other hand its permission of and regulation of slavery?

Perhaps we can say it this way: God permitted and regulated the social evil of slavery from the beginning and at the same time he undermined it heavily with a platform in Torah of freedom, neighbor-love, and the story of God who sets free from bondage. Perhaps we can also say that God’s way of dealing with slavery works better at eliminating this social evil than if he had simply prohibited it with a commandment. In the end, those who reject the idea of owning other human beings as property do so because they recognize all people as brothers and sisters, made to be redeemed and elevated to the image of God.

Torah as law-code for ancient Israel permitted slavery. Torah as the timeless, evolving truth of God prohibits slavery. Israel was to learn this over time by experiencing the ways of “the God who brought you out of the house of bondage.” As Christopher Wright says in his excellent volume Old Testament Ethics for the People of God: “There is a link between moral ideas and law, but law tends to be a pragmatic compromise between the legislators’ ideals and what can be enforced in practice . . . ethics is much more than keeping the law” (pg. 324). He goes on to show in Nehemiah 5, Amos 2, and Isaiah 10 examples of God expecting more from his people than a literalistic justification of evil by citing the written Torah as permission.

For those who really want to get into the thorny issues, Jacob Milgrom’s proposals for understanding the changing laws of slavery in Torah are stunning . . .

APPENDIX: MILGROM ON THE EXODUS 21 VS. LEVITICUS 25 PROBLEM
 

If you simply read Exodus 21:1-11 and Leviticus 25:39-55 you can see the problems immediately. One posits a Hebrew slave going free in the seventh year and the other in the fiftieth year! 

That’s quite a difference.

Milgrom (in the Anchor-Yale Commentary on Leviticus 23-27) discusses proposed solutions. For the rabbis, all of the Torah was given by Moses and there cannot exist any un-harmonized discrepancies. They must find a way to read Exodus 21 and Leviticus 25 in harmony. Therefore, they proposed two solutions. One is that in Exodus 21 the slave is sold by the court (following theft) whereas in Leviticus 25 a person sells themselves willingly (due to debt, Kiddushin 1:2). Another harmonization suggested by the rabbis is that Leviticus 25 is not denying that the seventh year sets a slave free, but merely means that if the Jubilee year comes first, then the slave is released earlier than the seventh year.

Other solutions have been proposed over the years. Some have said that the “Hebrew” slave is not an Israelite (with Hebrew here meaning a landless person), so that Exodus 21 applies to foreign slaves while Leviticus 25 applies to Israelite slaves. Christopher Wright has proposed that the “Hebrew” of Exodus 21 is a landless Israelite and the “brother” of Leviticus 25 is a landed Israelite who has lost his land and needs a lifelong means of earning a living. But Deuteronomy 15:12 calls the slave both Hebrew and brother, which argues against Wright’s distinction.

The best solution — though one many will reject if they are not open to the Torah being the product of many generations (and thus being forced to assume that all this legislation comes from the time of Moses) — is that Leviticus 25 changes the law from Exodus 21.

This sounds like a terrible option. It seems, without considering the details, that this would mean the older part of Torah (Exodus 21) had a more lenient slavery law. Hebrew slaves were set free in the seventh year whereas in the later Torah law (Leviticus 25) they had to wait for the Jubilee (fiftieth). But the answer is Leviticus 25:40, “He shall remain with you as a hired or bound laborer.” Whereas the Hebrew slave in Exodus 21 (and Deut 15) was chattel (property, see Exod 21:21), in Leviticus 25 he is a hired or bound laborer (resident hireling). To put it in Milgrom’s own words:

H [Leviticus 25:39-44] rejects the septennate [7th year] manumission of Exodus because it abolishes the slave status of the Israelite outright. It insists that the Israelite who has to indenture himself must be treated as a sakhir toshav ‘resident hireling’ (vv. 40a, 53a). Moreover, since he pays no interest on his debt (reversing the Babylonian practice of personal antichresis [wherein all profit pays only interest and not principal]), all his earnings can be directed toward amortizing his debt. His family, therefore, is under no obligation to redeem him. . . . H, therefore, is a marked improvement on Exodus 21 (and Deut 15).