Parshat Mishpatim – פרשת משפטים

Parshat Mishpatim – פרשת משפטים
Parshat Mishpatim – פרשת משפטים
February 22, 2020 – כז שבט תשפ
This essay is sponsored by Sisterhood in honor of the birth of Reuven Zalman Horowitz, son of Dr. Andrea & Josh Horowitz, grandson of David & Barbara Horowitz.
Contradictory Verses
The standard term of service for a Hebrew slave was six years.  A slave who loved his master and preferred not to be emancipated could voluntarily extend his term.  Rejecting freedom is, however, contrary both to the Divine will and to fundamental human impulse.  Before the law would recognize the legitimacy of his accepting extended indentured servitude, that slave had to undergo a painful ceremony:  having his earlobe pierced with an awl.
For how long did such a pierced slave retain his lowly status?  Scripture offers seemingly contradictory answers.  Exodus 21:6 reads: “And he shall serve him forever ועבדו לעלם.”  Deuteronomy 15:17 similarly reads: “And he shall be thy bondman forever והיה לך עבד עולם.”  But Leviticus 25:40 speaks of an eventual end to servitude: “He shall serve with thee unto the Jubilee year עד שנת היובל יעבד עמך.”  One could interpret Leviticus 25:40 as referring only to those Hebrew slaves whose standard six year terms had not yet expired before the onset of the Jubilee, not to those whose ears had been pierced. However, that interpretation is untenable because, earlier in the chapter, the Torah makes clear that the Jubilee heralds liberty for all inhabitants of the land (25:10).  Thus, Exodus and Deuteronomy do appear to be directly at odds with Leviticus.
How to reconcile these passages?  For those critical scholars who embrace the Documentary Hypothesis of multiple authors of the Bible, no need for harmonization exists.  They may simply assume that societal practices changed and that the disparate writers recorded the law as it was observed in their own times.
But for those for whom, for theological and doctrinal reasons, the unitary authorship of the Pentateuch and the immutability of the Law are first principles, that answer cannot suffice.  Accordingly, a plausible reconciliation of the conflicting Torah passages must be advanced.
Rabbinic halakhah calls for the release, during the Jubilee, of all Hebrew slaves, including those whose ears had been pierced.  The Midrash reasons this way:  Though money can purchase many things, it cannot be used to acquire a Hebrew slave for longer than a six-year term.  The piercing ceremony is ineffective, legally, as a mode of acquisition for anything other than a Hebrew slave.  One might believe that, at most, the piercing ceremony could effectuate, seriatim, one or more further six- year terms.  To counter such a conclusion, Scripture uses the word “forever” to teach that piercing is not necessarily limited to these six-year blocks, and that it has longer term consequences. But, to counter the conclusion that the word “forever” was meant literally כמשמעו, Leviticus instructs, explicitly, that the slave is to be emancipated during, and as a result of, the Jubilee (Mekhilta d‘Rabbi Ishmael, Mishpatim, Nezikin 2).
[In his description of slavery in Israel, Josephus similarly concluded that even those Hebrew slaves who had earlier voluntarily extended their terms are manumitted during the Jubilee (Antiquities, 4:273).]
It will be readily observed that our Midrash does not at all reconcile the contradiction between Leviticus, on the one hand, and Exodus and Deuteronomy on the other.  It simply rules in favor of Leviticus.  It comes as no surprise, therefore, that many traditional commentators offer interpretations of לעולם in Exodus 21:6 as connoting a finite period of time, not “forever.”  The interesting ideological (and methodological) point here is that their concern was not that the Bible contradicted itself.  Instead, it was the unacceptability of the proposition that rabbinic halakhah incorrectly understood the Bible.
Pseuo-Jonathan renders l’olam as עד יבלא, “until the Jubilee.”  Saadia Gaon renders it as אלי אלדהר, “for a generation.” Plainly, neither translation bears any relation to the literal meaning of that Hebrew combination of preposition and noun, which is, indeed, “forever” or “eternity.”
Ibn Ezra commented that the longest cycle of time recognized by and in Torah law is the Jubilee.  Hence, he argued, that cycle could reasonably be regarded as “forever.”  He further noted that olam means “world.”   He offered the metaphorical observation that, from the point of view of an emancipated slave, the old “world” has ceased, and a new “world” has replaced it.
Furthermore, Ibn Ezra invoked other passages from Tanakh as supporting his position that לעולם can mean a finite, and possibly even a definite, length of time.  Kohelet says: “Is there a thing whereof it is said ‘See this is new’? – it hath been already, in the ages (לעלמים) which were before us (Ecclesiastes 1:10).”  Ibn Ezra argues that, since Kohelet here refers to multiple ages before his own time, the word לעולם cannot, at least in this passage, mean “forever.”    Ibn Ezra also cites Hannah’s words regarding the fate of her son, Samuel: “Until the child be weaned, when I will bring him, that he may appear before the Lord, and there abide forever עד עולם (I Samuel 1:22).”  Ibn Ezra understood Hannah’s words to mean that Samuel would be an apprentice in the Tabernacle for a definite period of time.  Yerushalmi understood עולם as referring to the productive lifespan of a Levite עולמו של לוי.  At age fifty, the Levite must retire from active service in the Temple.  Samuel was weaned at the age of two and died at age fifty-two (Yerushalmi Berakhot 7b).
Ramban alludes to a kabbalistic notion that the world will exist for 50,000 years.  Accordingly, the world עולם can be interpreted as meaning fifty or Jubilee.  Recanati notes that the words חפשי freedom and חמשים fifty have the same numerical value.  Both have a gematria of 398.
These attempts to connect the word עולם with the number fifty are not especially convincing. They are undermined by a verse about the fate of Canaanite slaves: “And ye may make them an inheritance for your children after you, to hold for a possession; of them may ye take your bondmen forever לעולם בהם תעבדו (Leviticus 25:46).”  Emancipating a Canaanite slave was regarded as a sin (Berakhot 47b).  A Canaanite slave did not attain freedom by reason of the Jubilee (Kiddushin 22b).  His fate was to remain a slave indefinitely.  The word לעולם, forever, was, for him, certainly meant literally.  In blatantly inconsistent fashion, both Pseudo-Jonathan and Saadia Gaon render our Levitical verse about the Canannite slave according to that plain meaning.  This is itself strong proof that the various non-literal renderings discussed above and concerning the identical word in Exodus 21:6 about the Hebrew slave were based not on textual analysis but on perceived ideological need.
There is, however, a way to reconcile Exodus and Deuteronomy with Leviticus without having to strain credulity by forcing the word “forever” to refer instead to the commencement of the Jubilee.  That way is to read the word “forever,” in both Exodus 21:6 and Deuteronomy 15:17, as referring to the lifetime not of the slave but of his owner (Yerushalmi Kiddushin 59d).  Were an ear-pierced slave to live long enough, he would achieve his freedom in the Jubilee year.  But, were his master to die before the Jubilee, that slave would not have to wait for the Jubilee in order to secure his freedom. This aspect of the law is logical.  The slave would have agreed to remain in servitude beyond his initial six-year term only because he found his circumstances pleasant and had an affinity for his particular master.  Both circumstances could easily evaporate once that master died.  (The master’s heirs could, for example, be cruel and abusive.)  Fairness dictates that the slave be liberated upon the master’s death (Torah Temimah).  This interpretation convincingly explains why Leviticus 25:46 explicitly states that Hebrew children do inherit their fathers’ Canaanite slaves; it underscores the contrast to their non-inheritance of long-term Hebrew slaves.
Rashbam was the only medieval commentator willing to interpret Exodus 21:6 according to its plain reading (i.e., that the Hebrew slave whose ear was pierced must serve for the rest of his life).  For the opposite conclusion, he cites the same verse from I Samuel that Ibn Ezra did.  Rashbam’s reading of Hannah’s promise is that, after he had been weaned, Samuel would be deposited at the Tabernacle, and would remain a dedicated servant of God for the rest of his life.  Rashbam here ignores that his interpretation is contrary to the undisputed halakhah.  He merely says that his is the peshat.  Unstated by Rashbam, but implied, is that, at the exegetical level of derash, the verse means “until the Jubilee.”
Rashbam was a maverick exegete who preferred the sensus literalis and occasionally interpreted Scripture quite differently from others in the rabbinic tradition.  Most famously, his view was that “And there was evening and there was morning, one day (Genesis 1:5)” meant that day preceded night in the sequence of creation.  Many yeshiva students are shocked when first encountering these words.  (The standard printed editions of the Mikraot Gedolot do not include the comment.  Some people have regarded it as a forgery.  However, the interpretation appears in the Rashbam manuscript at the Bodleian Library.)
The Vilna Gaon went even further than Rashbam in his willingness to challenge centuries of interpretative tradition.  As Professor Rabbi Eliyahu Stern notes in his biography of that great Jewish figure, “The Gaon interpreted the Mishnayot (early rabbinic rulings) against the Talmud (later rabbinic statements) and the Zohar against later kabbalistic writings.” The Gaon understood Exodus 21:6 to mean that the slave remains unemancipated forever משמע לעולם ממש.  He recognized the contradiction among the three passages in Scripture, but he felt no need to harmonize them.  The Gaon accepted that the ultimate arbiter of the law is the Oral Tradition.
How should we approach the Biblical text?  Some are tempted to interpret and translate according to the plain meaning, ignoring what they may know from extra-Biblical sources.  This is not an easy endeavor.  It can lead to cognitive dissonance, especially for those well-versed in rabbinic literature.  It can also be dangerous.  Despite his comments on the day-night timing of creation, Rashbam himself (properly) ushered in the Sabbath by making Kiddush on Friday night, not on Saturday morning.  However, someone willing to act directly on his own radical interpretations might cause serious damage to Jewish observance.  For many students, the “true” understanding of Scripture is what Solomon Schechter called the “Secondary Meaning.”  The religious center of gravity is distanced from the text; it is found, instead, in the way our sages, and our pious and believing predecessors, lived the Bible throughout Jewish history. Such a Secondary Meaning cannot always claim to be the simple rendering or even the philologically or historically correct one.  But it is the truly Jewish reading.