The Hebrew Slave: Reading the Law Collections as Complementary

Introduction: Three Law Collections in the Torah

The laws in the Torah are contained in three major collections:

1. The three chapters immediately after the theophany at Sinai (Parashat Mishpatim), consisting of Exodus 21-23.
2. All of Leviticus and much of Numbers, which seem to be connected.
3. The central core of Deuteronomy, chs. 12-26.

These are not three collections of different laws but three collections of laws with a significant percentage of overlap. Sometimes the overlapping laws seem to agree, and sometimes they appear quite different. How are we to understand this?

Many scholars look for systemic differences between the corpora, but these collections of law in the Torah are, like other ancient Near Eastern collections, neither systematic nor complete in the ways that modern legal codes are. Rather, they are collections that focus on specific matters and ignore others. Each represents just a portion of laws that probably existed. Although it is true that there may be some differences, nevertheless, some laws that appear contradictory reflect instead different emphases or foci. 

The Laws of Slavery

For a number of reasons, the laws of slavery present an excellent case study for studying biblical law: each of the major collections contains a slave law (Exod 21:2-11; Lev 25:39-45; and Deut 15:12-18); the law is basically secular, rather than religious; and the three formulations of the law share much in common even on the level of vocabulary and grammar, which allows us the opportunity to compare them closely.

For these reasons, the laws of the Hebrew slave are often held up as the best example of the need for a source-critical approach to the Torah. In this essay, I argue that this conclusion goes beyond the evidence, since it is based on certain assumptions about how to read biblical law. Knowledge of the social realities of slavery in the ancient Near East shows that, rather than being contradictory, the text is simply describing different kinds of slaves.

I will here focus on only two of the many differences between the slave laws of these collections:

1. The law of the female slave in Exodus and Deuteronomy.
2. The length of servitude in Exodus and Deuteronomy versus Leviticus.

Part 1

Female Slaves

Exod 21:7-11 separates the female slave, literarily and legally: “she shall not go out the way the [male] slaves go out.”^[1] The law in Deuteronomy begins, however, “If your Hebrew kinsman, male or female, is sold to you,”^[2] and in case the point was missed, the gender equity is repeated later in the law: “you shall do the same regarding your female slave.”^[3]

Thus, the laws regarding the female slave between Exodus and Deuteronomy seem to contradict each other.

Exodus

Let us look more closely at the Exodus passage. The two halves (male slave, 2-6; female slave, 7-11) are carefully constructed to specifically draw a contrast between the two, as summarized in this chart:^[4]

It is not just a tangential point that the male slave of 21:2-6 and the female slave of 21:7-11 differ; the entire text seems to be constructed to make exactly that point. This also shows the difference between  כי and אם, at least in Parashat Mishpatim, כי introduces the main condition, and אם (or ואם) introduces sub-conditions, details that offer subcases or variant cases of the original law.^[5]

Why does the text contrast these two types of slaves? As mentioned, the law is carefully constructed to contrast the law of the Hebrew slave and the female maidservant (אמה). This kind of organization is common in ANE law collections, and is referred to as “polar cases based on maximal variation.”^[6]

The contrast seems to lie specifically in the marriageability of the slaves in question. For the male slave, the law makes it clear that marriage to a member of his slave household makes no difference: “if his master gives him a wife, and she bears him boys or girls, the woman and her children shall still belong to the master, and the slave will go out alone.”^[7] But for the female maidservant, the entire point of the law is that she must marry a member of the household, and the problems arise when something gets in the way of this: “If he marries another woman…”

Deuteronomy

Deuteronomy 15, on the other hand, goes out of its way to stress that its law applies to both males and females. It is introduced awkwardly: “if your Hebrew kinsman, or kinswoman, is sold to you” (15:12). The end of the law, where the object (“your female slave”) is fronted before the verb (“you shall do”) emphasizes the object, and the particle “even” (’af) further contributes emphasis, yielding the meaning, “Even for your female slave, too, must you do likewise!”

Reading Deuteronomy in Light of Exodus

It looks like that the law in Deuteronomy is reacting to the law in Exodus. But this does not mean they necessarily disagree. Instead, Deuteronomy corrects an omission in the laws of Exodus, which treats a prototypical case of a male slave, and then a very particular type of a female slave: the dependent daughter who is sold by her father for purposes of marriage, either to the master or his son. Exodus does not, however, treat a “normal” type of female slave, namely a woman who was sold into slavery because of an outstanding debt she is unable to pay, as a man is.

It is this lacuna that Deuteronomy fills in. The law in Deuteronomy explains that if a woman is sold (for example) for outstanding debts, then she is governed by the same laws as a man in a comparable position. The point of Deuteronomy is that females could be sold into slavery like a male, while Exodus notes a different arrangement available only to females, such as a daughter sold as a maidservant who was then to be married to the buyer or a member of his household.

As noted, other Near Eastern law collections utilize the same literary principles. For example, the Laws of Eshnunna discuss two cases of the goring ox. The first (§53) discusses the case of a previously innocent ox (what the Rabbis will later call a שור תם) which gores another ox and kills it. The next law (§54) moves to the case of an ox known to be a gorer (rabbinic שור מועד) which gores a human to death. What about the rest of the range of cases, such as the innocent ox that gores a person, and the known gorer that gores an ox? These are not discussed, because only a single legal point is being made: the status of the ox matters for legal culpability.^[8]

Interestingly, a few decades later than the Laws of Eshnunna, the Laws of Hammurabi were compiled. Here, the scribes did address some of the cases omitted by the scribes of Eshnunna; §251 deals with the case of the known gorer which gores an ox. And centuries later, Mishpatim deals with the case of the previously innocent ox which gores a human (see Exod 21:28). A similar phenomenon can be seen here, as Deuteronomy addresses the laws of the slave, and fills in a gap left by Exodus.

Summary – Different Cases

Once we realize that no collection of laws is trying to cover all possible laws, it becomes obvious that there is no reason to believe that the different collections offer different decisions concerning the same situations. In this case, laws that sound at first like different treatments of parallel cases turn out to be addressing complementary cases.

Exodus specifically chooses two laws from among the many different cases of slavery in ancient Israel society. It juxtaposes these two laws to make a single point: for a male Hebrew slave, marriage makes no difference, while for a particular type of female Hebrew maidservant, marriage is the entire point. Deuteronomy discusses a different case of female slavery that has no sexual component, so her position is the same as that as a male slave.

Part 2

Length of Service: 6 or 49 years?

Another obvious difference between the collections is the length of the slave’s tenure. According to Exodus, “he shall work for six years, and in the seventh he shall go out into freedom, with no pay,”^[9] and Deuteronomy shares this view.^[10] Leviticus, on the other hand, allows slavery for up to 49 years, or more precisely, “until the Jubilee year.”^[11]

Reasons for Slavery in the Ancient Near East

We gave one example earlier of a reason why someone may be sold into slavery: inability to pay back a debt. It will be helpful to expand on this discussion, as it will provide the key to solving another one of our puzzles, the length of servitude.

In trying to untangle some of these issues, the key point will be an understanding of the reasons why a Hebrew might be sold into slavery; some Mesopotamian background will be helpful. The Bible contains few legal texts that give (partial) pictures of what it meant to be a slave. Our knowledge is only skeletal, especially when compared with our knowledge of Mesopotamian social reality, where we have more revealing material, including hundreds of actual contracts of people entering into slavery. These documents include many details of why people become slaves, what rights they are retaining and what rights they are forfeiting, and how long they are expected to remain slaves.^[12]

The materials at our disposal show at least three different scenarios.

1. Wife Slavery: A daughter may be sold by her father to work and then be married into her new household.
2. Debt Slavery 1: An individual can simply have a string of poor agricultural yields and find himself with no money with which to buy seeds to plant for next year or food to feed his family now, and may decide therefore to sell himself as a slave rather than starving to death.
3. Debt Slavery 2: An individual owes debts, either incurred through loans or through theft. Although he may hope to regain his financial footing, the creditors or courts have decided that time is up, and he is sold into slavery to pay his debt.^[13]

Reasons for Slavery in the Bible

We have biblical evidence for all of these cases. Wife slavery appears in Exodus 21:7-11, and was discussed in the previous section. Exodus 22:1-2 describes debt slavery 2, and prescribes that if a debtor, such as a thief, cannot pay back what he stole, “if he does not have it, he shall be sold because of his theft.”^[14] It further appears in a story in 2 Kings, where a woman complains to Elisha, “the creditor is going to come to take my two sons as slaves!”^[15] This story presupposes that in cases of debt, presumably for outstanding loans, the creditor could come and “take” the debtor – or, in this case, the deceased debtor’s children – as slaves.^[16]Most significantly for this section, debt slavery 1 is the subject of the slave law in Leviticus (25:25-54).

Slavery in Leviticus – The Jubilee Law

Leviticus 25 is an organic whole. The first half prescribes an idyllic situation, in which people leave their lands fallow every seven years. Every 49 or 50 years, the land will again lie fallow, and all rural lands sold in the interim period will return to their original owners.

The second half of the chapter (25:25-54) is ordered in a linear progression, focusing on an Israelite farmer whose economic status is sinking further and further. The context is agricultural, and thus begins with a farmer who had a bad crop or two. He will not have produced enough food to feed his family, nor have the means to buy seed for the following year. He does a reasonable thing: he sells his field, and hopes that with the cash he receives he will be able to turn a profit in some business and accumulate enough to buy back his field. (See Leviticus 25:25-28.) If the business venture does not work out well, though, he now has no cash and no real property to sell. His natural next move is to take out a loan, so this is what is discussed in the following law (Leviticus 25:35-38).

Presumably, he will try to use the loan to build up capital once again. But if he fails, he is out of options. The only thing left for him to do is to indenture himself and his family. This is the next law in the sequence: “If your kinsman is indigent, and sells himself to you.”^[17]

When, then, does it make sense to release him? After all, if he were released after, say, six years, he would be in precisely the same situation he was in six years earlier – and would have no choice but to indenture himself again. (Even the Deuteronomic haʻanaqa would not help, since that would be just a short-term injection of capital. The man still has no land and no source of income.) Since what started his downward economic spiral was the sale of his field, it makes little sense to release him until he can get his field back. But lacking the cash to redeem it, that will not happen until the Jubilee year – which is why the law dictates, “he shall work with you until the Jubilee year, and then he and his children with him will leave you and return to his family; to the inherited land of his ancestors he shall return.”

Exodus and Deuteronomy – The Seventh Year Release

Exodus and Deuteronomy are silent regarding the cause of the slavery. I submit that these laws may be discussing a different case, specifically, the case described in Exodus 22:1-2, that of someone sold by a court because of theft committed. This is the conclusion reached by the Rabbis, who comment in the Mekhilta de-Rabbi Yishmael:

“If you acquire a Hebrew slave”: Scripture speaks here of one who was sold by the court for his theft. … Or perhaps it is speaking of one who sold himself? No, that case is treated later, “if your kinsman is indigent and sells himself to you” (Leviticus 25:39). So what is being taught in the case of “if you acquire a Hebrew slave”? The case of one who was sold by the court for his theft.^[18]

It is likely, but not certain, that the slave was “sold” into slavery specifically in order to work off the outstanding debt.^[19] No matter how large the debt was, however, the Torah caps the length of servitude at six years. Again, rabbinic law reflects the same conclusion. The Mishnah rules that a Hebrew slave goes free with “reduction of the money,”^[20] which presupposes that the slave is working off a specific amount of money owed, and thus may even go free in less than six years.^[21]

Conclusions

The law collections in the Torah are collections and not codes. As such, none of them are comprehensive, and they partially overlap. This is reminiscent of the position of Yehezkel Kaufmann, who argued that the law codes were all independent crystallizations of a common legal tradition; each composition chose different laws and different emphases from a shared body of law.

Knowledge of the social and legal realities of the ancient Near East, often available only through study of other cultures, such as those of Mesopotamia, are critical for a full understanding of the world of biblical law. As I have tried to demonstrate, some apparent contradictions can be resolved once we understand the range of cases that could be discussed, and once we see that different laws could be addressing different cases. Other differences are real, but explicable as the results of the varying foci of the collections in which they are found.

Many readings of the legal texts in the Bible, both ancient and modern, are in fact acontextual, not attuned to the real world the laws were addressing and not aware of the range of legal precedents and realities open to the legislator. It is important to build our edifices on the basis of full knowledge of both textual and historical realities.

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