Mishpatim – Legal Fiction

We would like to expect that one who observes all of the laws of the Torah is also living an ethical life. Unfortunately, we know that this does not always seem to be the case. Perhaps the best expression of this conundrum can be seen in the laws pertaining to slave holding in this week’s Parashah. According to Torah law, it is permissible to own another human being. Torah regulations may lessen the horrors of slavery, but not the immorality of slavery itself.

I am certainly not the first to raise this question. Notably, figures such as Rav Kook and Rabbi Samson Raphael Hirsch struggled with how to understand the Torah’s slavery laws.  The general approach is to see the Torah’s slave laws as mitigating the cruelty of slavery, while asserting the necessary role it played in pre-modern society. For example, slavery could act as a way for a criminal to pay off a debt. It is also suggested that slavery (though perhaps not historically true) encouraged slave owners to treat slaves better than mere paid workers, for as their property they didn’t want them to be injured on the job.

Bernard Picart, The Passover of the Portuguese Jews, 1723

Bernard Picart, The Passover of the Portuguese Jews, 1723

Another suggestion that resonates is suggested in the recent ‘Recalling the Covenant’ by Rabbi Moshe Shamah. He posits that the Torah’s limitations on slavery were actually instituted to help wean Jews off of slave owning. The limitations meant that slaves would not be seen as simply chattel. Jews were therefore forced to recognize the innate divinity shared by all humanity, regardless of class. This would eventually distance Jews from this practice. This is similar to Rambam’s approach in Moreh Nevukhim concerning animal sacrifice.

While this recent explanation may strike us as mere apologetics, it actually reflects an important idea with much older antecedents. The Ramban in his commentary on Parashat Kedoshim coined the phrase ‘naval bereshut haTorah,’ which means ‘one who is vile while ostensibly remaining within the confines of Torah law.’ In other words, it is possible to fulfill all of the Torah commandments, and not transgress any of it prohibitions, but still not live up to the ideals of the Torah. While slavery may not be prohibited, that doesn’t mean it is ethical.

This means that a Jew must understand the Torah’s values, not just its technical laws, in order to fully observe God’s will. This of course can lead to differences of opinions and many grey areas for us to seriously ponder. Still, this is an incredibly important lesson. It means that one should never flippantly assert ‘if it is not prohibited, then it is permitted.’ We are required to contemplate God’s teachings and to try to learn from them His will. This is what some have called ‘the fifth volume of the Shulhan Arukh.’ We are therefore challenged to always live within the spirit of the law in addition to within the letter of the law. It is a mighty challenge which we must always pursue. Perhaps this is the meaning of the teaching in Pirke Abot (6:2), that ‘only one who delves into the Torah can truly be free.’

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3 responses to “Mishpatim – Legal Fiction

  1. Hi,

    I don’t think Rabbi Moshe Shamah hit the nail on the head. Jonathan Schorsch in Jews and Blacks has a much more forceful and thoughtful discussion on Jews and slavery, using the thoughts of Isaac Abravanel – who owned some slaves – a a starting point. The distance that Moshe Shamah perceives did not happen before the 19th century, which was a bit late, compared to others. Looks more like wishful thinking than like critical historical analysis to me.

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