Class Notes - Class #11

Mitzvot #42 – 46 concern an eved ivri, a Hebrew slave.  As we have said before, eved ivri is a kind of indentured servant; someone’s labor is sold for a period of time for a fixed price.  We will find mitzvot limiting the kind of work that a master can give an eved ivri much later in our study, and we will also see that the plight of an eved ivri is not an easy one.  Here, though, we have the basic rubric and the specific case of an “amah,” a Hebrew maidservant. 

First, some background:  The prime case of an eved ivri is an adult Jewish male.  He becomes an eved ivri because he is out of money.  He may be destitute and sells himself into slavery, or the court may determine he has to make restitution for something he has stolen and he cannot pay.  The court then sells the debtor into slavery the uses the purchase price to pay off the debt.  In both cases, the slavery is time limited.  An eved ivri can only be sold to men, not to women. Our author explains this institution as a form of hesed, loving-kindness.  We will have to figure out why he thinks that after we look at the other aspects of the relevant mitzvah/essays.

Mitzvah #42 is a positive mitzvah for an owner of an eved ivri to follow the appropriate rules concerning the rubric of servitude. 

The author includes some basic information about the mitzvah in the introductory section of the essay, and some less central questions for further study in the dinei hamitzvah section.  This is a more user-friendly format than we have seen before, although we will see he is still experimenting.

If the court sells him, the service of an eved ivri is time limited; it can last no more than six years. If he sells himself, he and the master determine the period of service.  In either case the service ends if the jubilee, “yovel,” intervenes.  And, if the eved raises enough money to pay off the rest of his servitude, the owner is required to accept the money in proportion to the remaining term of service and then release the eved.  If the owner dies leaving a son as heir, the eved’s remaining period of service belongs to the son; if there is no son to inherit, the eved goes free. The eved’s term of service cannot be sold by one master to another. There is also the case of an eved ivri who does not want to be freed.  In that case, the verses say, the eved and the master participate in a ceremony in which the eved’s ear is pierced.  The eved then stays with the master, although even that eved goes free when the master dies.  In the dinei hamitzvah section, the author outlines some other topics: the differences between and eved ivri who sells himself and an eved ivri who is sold by the court, the exact mechanisms for sale and release.

The person who becomes an eved ivri is destitute; he cannot support himself.  The limits put on the owner of the eved ivri mean that, although the eved has a difficult plight, he is better off than he would be if he were in some other type of servitude or if he could not afford to feed himself.  That is why our author identifies this institution with hesed.  Note that our author can barely imagine a Jew treating an eved ivri poorly.

This mitzvah applies to men, but not to women because women may not own an eved ivri.  The mitzvah applies only when yovel applies, that is to say it applies in Israel when Jewish people live in Israel, each tribe in the section allotted to it.  We will see many mitzvot that only apply in conjunction with yovel.  This collection of mitzvot may reflect the pieces of what the rabbis see as an ideal Jewish society.  We will build a picture of this collection of mitzvot as we got along.

            Mitzvot #43 – 45 define the institution of the amah, a young girl who becomes an eved ivri.  Older women cannot be sold into this sort of servitude.  The girl is sold into slavery by her father, and the money goes to her father.  According to Rambam in the Mishneh Torah, the father can only sell his daughter if the father has absolutely no financial resources remaining.  Also, the amah goes free when she shows signs of puberty, the halachic moment of adulthood for women.

            In some ways, the conditions of an amah are the same as an adult eved ivri.  The owner is required to allow her to redeem herself if she or her father raise the money to buy out the rest of her contract.  He must accept money exactly proportionate to the percent of the purchase price commensurate with the amount of service time that remains.  He cannot complain about his lost opportunity costs, that he might have made profit on the money had he invested it in something else rather than in the amah’s potential labor.  The owner is not permitted to re-sell her contract to a non-Jew or even to another Jew; if he does, the sale is void.

            But there are major differences.  The most important is in mitzvah #43:  the owner has a mitzvah to take the amah as a wife, or to marry the amah to the owner’s son, although the owner cannot be forced into the marriage.  And, once she has married into the family, she gets the same rights and status as any full wife.

            Let us put this into some social context.  First, the family was the basic economic unit of society.  The family worked together to support the members of the family.  The basic assumption was that an adult woman made a living by being married.  The default arrangement was that she did the housework and made the clothing (a huge job if it involved starting by making the cloth), and her husband provided food. It was not entirely impossible for women to have a different economic life, but it was difficult.

            It was the job of a girl’s father to arrange an appropriate marriage for her.  Mostly that meant finding a good economic match; finding a good social and personal match was usually secondary.  Often the girl’s family had to provide a dowry for the girl to bring to the marriage.

            Before we pass judgment, we should recognize the economic assumptions in our own society.  We take for granted that an adult will support him or herself with a job or a business.  There are people who do not do that.  They are retired, or are independently wealthy, or have someone willing to support them, or they cannot manage a job for some reason.  We do not find it odd that we have a norm, but our norm is different.  

            One more consideration.  What do women do when they are completely without economic resources? 

            Now let us return to the case of the amah.   We have a daughter of a destitute family.  Her father has no resources.  The family probably does not have enough to eat.  She will not be attractive as a marriage partner if she comes from that level of poverty.  If the girl survives the prospect of starvation, her marriage possibilities are very limited.

            So her father sells her as an amah.  He gets the money, so the rest of the family now has one fewer mouth to feed and some money to feed the rest of the family.  She is now living with a family that can afford to feed and clothe her.  She has to work, but she would have shared the housework in her parents’ home as well.  It is not wonderful, but there is a good chance this arrangement is better for everyone involved.

            How does this come to an end?  If she or her father comes into enough money to buy out her contract, she returns to her parents. If yovel comes, or she serves for six years, she is free.  If not, then, when she shows signs of puberty, either she marries the owner or his son, or she goes free.  If she doesn’t want to marry into the family that she now knows very well, according to Rambam, she doesn’t have to.  (Mishneh Torah, Hilchos Avadim 4:8) So she has a choice she probably would not have had if she had not been an amah.  She can marry into a financially viable family that she already knows, or she can turn it down. And if she does marry into the family, she is entitled to the status of a full wife that any other women would have. That is not a terrific array of good options, but it creates an opportunity she would not have had otherwise.  We can see why our author considered this institution a hesed and why he calls for blessings on the owner who fulfills these mitzvot properly.

            Why this arrangement might be attractive to the master is less clear.  The owner gets to rescue a girl and raise that girl in his own home for several years before she reaches marriageable age.  He gets the benefit of her labor for his money. The owner has a mitzvah to allow her to marry into the family, but he cannot be forced to do so.  So he gets to evaluate the potential bride much more carefully than he would be able to otherwise, and he would have some influence on her as she matures. 

            This is a complex institution, very different from what it might at first appear to be.

           

Now let’s return to mitzvah #46 which defines a husband’s obligation to his wife.  Actually, this is a negative mitzvah on the husband not to stint on the obligations.

The prime case here is the amah that has married into the family.  We learn that the same rules apply to any wife by the logical technique of kal v’homer, an argument a fortiori.  We draw a conclusion that is thought to be even more certain from a case that seems to be less certain.  If a disadvantaged wife like a girl who was an amah is entitled to all these rights, how much more so an ordinary, “full-fledged” wife. 

Let’s return to our social context for a minute.  It was the job of a bride’s father to arrange a marriage and provide a dowry.  The amount of the dowry was individually negotiated, as were other economic terms of the marriage.  The outcomes of all these negotiations were recorded in the ketubah, the marriage contract.   We will see later that a wife could hold property in her own name that never belongs to her husband.  She might inherit, or have property from before the marriage, or earn an income while married.  The halachah provides default rules for who controls the money in each of those situations, but those rules are usually subject to negotiation in specific cases.

A husband has three obligations to his wife.  He is required to provide food, clothing and regular sexual relations.  As to food and clothing, our author explains that the husband has to provide for her at the level of her father’s family or her husband’s family, whichever is greater.  As to regular sexual relations, that depends on how often the husband’s profession keeps him at home.  If she and her father agree that she should marry someone who travels often, the husband’s obligation would be less.  Our author alludes to the issue of what of all this may be negotiated and what may not be.  What if the wife agrees that her husband not support her, or if she offers to forego his support in return for her not doing all of the housework?  That belongs to the questions for further study.

Note that our author points out that the husband only violates this mitzvah is he fails to provide the requirements with the motive of making her life miserable.  If he can’t afford her food and clothing, that is a different story.  And failure to fulfill the mitzvah is not punishable because there is no action taken to violate the mitzvah.

There is no corresponding mitzvah outlining the obligations of a wife to a husband.  The Gemara assumes the wife is obligated to regular sexual relations.  As we mentioned earlier, the question of whether she can negotiate away housework is more complex. 

 

Mitzvah #48 prohibits hitting one’s parents.  If someone hits his or her parents and draws blood, that person has committed a capital crime.  Hitting parents without drawing blood is an assault for which the violent child is liable to pay damages. The prohibition applies even if the parents hit the child and the child hits back, but not if the parents are trying to kill the child.  Then the child is permitted to act in self-defense.

            Our author raises an analytical issue in relation to this mitzvah that applies to any mitzvah associated with capital punishment.  The rabbis expect such a mitzvah to be mentioned twice in the Torah, once as a warning, “azharah,” that prohibits the behavior, and second as a punishment, “onesh,” that defines the punishment.  (Our author might have explained this earlier, but he is introducing new concepts at a measured rate.)  This mitzvah does not seem to fit the required rubric.  The source verse this essay relies on is an onesh verse; it outlines the punishment.  Finding the azharah, the warning/prohibition verse is a harder.  The source is actually mitzvah #595, which prohibits punishing someone with malkos by administering more than the maximum allowed number of strokes.  Then apply the principle of kal v’homer.  If we are forbidden to hit a defendant deserving of punishment even once more than the requisite number of strokes, we certainly are forbidden to hit an innocent person even once for no good reason.  And if we cannot hit any person, we certainly are not allowed to hit our parents, to whom we owe an obligation of respect and honor.

            The dinei hamitzvah section here raises interesting issues in a straightforward tone.   One is not liable for hitting a parent’s corpse.  If someone hit a parent in the ear and caused deafness, he has committed a capital crime because we presume the hearing loss must have been associated with some bleeding.  One is not liable for causing a parent to bleed in order to provide medical care, but it would be better if someone other than the child could administer the medical procedure.  A child should not be asked to administer court ordered physical punishment to his or her parent.  If one’s parents are notoriously evil, this prohibition does not apply.  We could use a definition here.

            The author also raises two questions related to personal status.  A ger, a convert to Judaism, has a non-Jewish father and mother.  Normally, mitzvot governing a person’s relationships with various relatives do not apply to the non-Jewish relatives of the ger.  The author says that there is a rabbinic prohibition on the ger striking his or her non-Jewish father or mother.  Then there is the case of “shtuki,” someone whose mother either does not know who the person’s father is, or refuses to say.  For that person, this mitzvah prohibits striking only the mother. 

            We find two new concepts in the concluding paragraph.  The author introduces another punishment rule.  If an act can lead to the need to pay damages, then there are no malkos for doing the act.  Here, if the child strikes the parent without drawing blood, it is treated like an ordinary assault and subject to the child paying damages, so there is no punishment of malkos.  We also find our author explaining that this mitzvah applies to men, women, “tumtum” and “androgynus,” someone with secondary sex characteristics of both genders or neither gender.  These are categories of people the halachic literature deals with whenever some topic depends on gender.  I do not know why the author mentions them in relation to this mitzvah.

 

Last we have two of the four types of capital punishment, in mitzvot #47 and 50.  You can read the physical descriptions of the means of execution on your own.  Strangulation, “henek,” is the means of capital punishment unless the Torah specifies another means. 

            The shoresh of these mitzvot is deterrence.  If there is no system of justice, people will feel free to do awful things.  A court that hesitates to impose capital punishment when it is required is encouraging lawlessness.  There is a ranking of the four types of capital punishment, and strangulation is considered the easiest.  Hereg,” decapitation, is the next easiest. 

            Capital punishment is imposed by a Jewish court only in Israel. 

            Decapitation is the punishment for on owner murdering an eved c’na’ani, a non-Jewish slave of a Jewish master.  (The translation is confusing here.  The Hebrew text is eved c’na’ani; the translator says this is a “former heathen.”  We will learn a great deal more about eved c’na’ani later in our study.)  It is remarkable that when a master kills his eved c’na’ani, that is considered a murder and is subject to the death penalty.  It indicates that even an eved c’na’ani is considered a person and not just property.  The owner is also punished for his having given in to rage and cruelty.  He is so angry that he acts against his own economic interest. Our author cannot resist pointing out the loneliness of the eved c’na’ani, who has no one to protect him. 

            There seems to be a contradiction between what our author says in mitzvah #34, that a murderer is executed by decapitation, and what he says in mitzvah #47, that a murderer is executed by strangulation.  The translator goes on at length trying to reconcile or explain the contradiction.  We live in an age of easy, inexpensive printing, so we tend to assume that texts are reliable.  Our texts are probably less reliable than we think.  Manuscripts that were written and then recopied by hand developed problems and errors.  Sometimes it is relatively easy to retrace the different versions and reconstruct what the original likely was.  Sometimes that is not possible.  We need to be careful about assuming that difficult passages are transmission errors, though.  It is much easier to assume a difficult passage is an error than to actually try to explain the difficulty.  I certainly cannot shed any more light on it than the translator does. 

            The author points out that Rambam and Ramban disagree about counting these mitzvot.  Rambam counts each of the four types of capital punishment a separate mitzvah; Ramban counts all four as one mitzvah based on Deuteronomy 17:7.  The most interesting aspect of the author’s discussion is the final sentence: “The wise scholar will chose the answer that seems right to him.”  What notion is the author trying to convey?  Is he commenting on this particular dispute, or on the whole enterprise of counting the mitzvot?  He says “a wise scholar,” but is he really suggesting that, at least as some point, the reader could and should also make those sorts of choices?  Somehow, this sentence seems encouraging and enabling, although the precise message is not entirely clear.

            We have made it to mitzvah #50.  That is a milestone.  We are not beginners any more.

           

 

                                                 

Comments