Thursday, February 23, 2017

Slavery and the Eternal Law conundrum - Torah portion Mishpatim

Protesting child slavery, 1909 labor parade, NYC
The Torah portion opens with a set of laws about the treatment of Hebrew slaves: How long does a slave stay with you before he goes free? What happens if he's married when he comes into servitude? What if a man sells his daughter into slavery? (Ex 21:2-11) And further on: What happens to a slave-owner if he strikes his slave and the slave dies, or doesn't die? What if the slave's eye is blinded or tooth gets knocked out? (Ex 21:20-21, 26-27)

This is all part of what scholars refer to as the Covenant Code, the laws given to Moses at Sinai. There are other collections of laws in the Torah pertaining to slavery. One is Lev 25:39-46, another is Deut 15:12-18. I'm not getting into the issue of comparing these codes. (If you're interested, here's one analysis.) Instead, I want to talk about the fact of the Torah containing laws about slavery at all.

Though before I even go there, I might pose the question: Do we really even need to talk about this? After all, the Torah was written at a time when slavery was an economic and social reality, and clearly laws had to be put in place in order to address that reality: Slaves needed to be treated fairly, and everyday brutality toward slaves needed to be combated. People needed to know that even if a slave was financially-speaking their "property," he/she wasn't theirs to abuse.

Also, it's not as though the Torah was propounding a "philosophy" of slavery. Contrast that with say, Aristotle, who accepted the idea of "natural slavery":
“From the hour of their birth, some are marked for subjection, others for rule... And it is clear that the rule of the soul over the body, and of the mind and the rational faculty over the passionate, is natural and expedient.” (Politics 1:5)

“It is clear, then, that some men are by nature free, and others slaves, and that for the latter, slavery is both expedient and right.” (Ibid., 1:13)

Here's the thing though. There's the question of not "promoting" slavery per se, and legislating more humanitarian practices toward slaves. That's all well and good. But how about abolition?

At the tender age of 22, when I experienced my first in-depth exposure to Orthodox Judaism, I recall asking some believing folks I'd met: "What about slavery?" Meaning, how could the Torah allow it? And when presented with answers about protecting the rights of indentured servants and slaves, I retorted:
"But why doesn't the Torah simply say, 'Thou shalt not keep slaves'?"
Yes, slavery was a fixture of ancient society, an intractable institution. But so was idolatry. And the Torah managed to forbid that, as part of the ambitious task given to the Israelites of being a holy nation, a nation of priests. So why not abolish slavery as a nation? How difficult would that really have been for them, especially after having been slaves themselves in Egypt? Can you imagine what a shining example that would've been for humanity? All the suffering and brutality throughout the millennia that could potentially have been avoided?

I don't remember the response. (Which happens often. When you have a strong enough question, that's what you tend to remember, not people's answers.) In any case, here I am revisiting the question nearly 25 years later. My thoughts on it? I think it's a fair question vis-à-vis standard Orthodox philosophy, but a non-question in terms of the Torah itself. Let me explain.

I posed my "Thou shalt not keep slaves" challenge against the background of assumptions held by the Orthodox people I'd met. One of those assumptions is that the Torah's laws are eternal. Therefore they must be every bit as relevant to us nowadays as they were to those early generations who first heard them. So at least in terms of the law, there is nothing the Torah would have written any differently if it were given in our generation.

But the notion of an "eternal law" is, I believe, a grave mistake. Yes, it sounds pious. It even sounds logical. After all, if God is going to write a book, it should convey laws that have a shelf life of "forever," shouldn't it? No, I don't think that's realistic or necessary to posit.

First off, the laws of the Torah do not sound particularly eternal. In fact, they positively scream out: "Ancient Near East." And it's not just concerning slavery. Think about levirate marriage, or not allowing a witch to live, or how many sheep to offer as a sacrifice, or redeeming your firstborn male donkey, or giving the first of your wool to the priest, or not erecting a pillar for purposes of idolatry, or the laws of the Sotah, or not making oneself bald on behalf of the dead, or not uttering false prophecy, or stoning and burning as capital punishments. Examples like that go on and on. And that's not even getting into parallels within Sumerian, Babylonian, Ugaritic, and Akkadian law codes.

Which is not to say that there aren't things we can learn from some of these laws today. There are. It's not to say that there aren't ways we can extrapolate from these laws to things which are more directly relevant to us today. There are. But is there any doubt that they were written for the ancient world, addressing their specific set of concerns? Is there any doubt that if the Torah were written today, to address our specific concerns, that its laws would be formulated radically differently?

Why give us laws about sheep when we could have laws about organ donation, or blood-alcohol levels, or abortion, or artificial life support, or firearms ownership, or the colonization of planets, or cloning, or consuming trans fats, or social media and texting, or the right to privacy, or intellectual property, etc.? There are countless areas of immediate concern to us that an "eternal law" would presumably need to address.

The Torah presents the laws of slavery in "casuistic" (conditional, case law) terms, as in, "When you will acquire a Hebrew slave, [then do X]." And we no longer have those conditions, thankfully, so we no longer apply the law. The same could in theory have been done for laws whose conditions didn't exist yet at the time the Torah was first given, but which would come into play some millennia down the road. But the Torah wasn't written that way. It was written for its time.

But then what do we say about phrases in the Torah like chok olam ledorotam, "an everlasting statute for their generations"? Doesn't that sound as if the Torah is presenting its laws as eternal, as equally relevant to all generations?

Since we're talking about slavery, let's ponder the phrase eved olam (Deut 15:17, see also Ex 21:6). Is that to say the person is meant to be an "eternal slave"? Even beyond their death? After the sun turns into a red giant and consumes Earth? No, it means "continually," "in perpetuity." As opposed to a temporary situation. As opposed to a "horaat shaah" (temporary decree). Chok olam ledorotam then implies in perpetuity, i.e. until it ceases to be relevant.

But did the Torah possibly mean: Keep these laws as long as they make sense to you; after that, change them as you wish? No, I think that would be dishonest to say as well. However, to be fair, there is no law ever given which explicitly stipulates a finite shelf life like that. It's just assumed that people will adjust their laws and conduct according to the needs of the time. And we have. Think of the sweeping reforms of Chazal, the sages of the Talmud. Such is the purpose, and process, of Halacha. Torah is a living, breathing thing. The practices of the patriarchs and matriarchs would have been foreign to King David, as King David would've been to Ezra, Ezra to the sages of the Talmud, they to Medieval Jewry, and they to us.

Also don't forget that we live in a time of unprecedented accelerated change. At the time the Torah was given, it would have been entirely reasonable to think of a law being perfectly relevant "forevermore."

There's no such thing as a "perfect law for all time." Because people change, and law is designed to bring stability to society, and you will not have societal stability and cohesion if the law does not comport to some degree to where people are at.

Aside from distorting reality and making the Torah into something it's clearly not, the other problem with asserting "eternal law" is that we then have to jump through hoops to explain why the laws of slavery are likewise "eternal" on some level. If we say that they were meant to address life in the Ancient Near East, and have nothing to do with us today, that there is nothing whatsoever "ideal" or "eternal" about those laws, that's a much stronger moral position.

Which also explains why I view "Thou shalt not keep slaves" as a non-question in terms of the Torah itself. Because to expect that the Torah should have "seen ahead" to days of abolition and emancipation is asking way too much of the Torah! The laws of the Torah were no doubt formulated in an attempt to create a set of best practices for the various situations that presented themselves at the time. And that, incidentally, is precisely what we all need to do today - deal as best we can with what is in front of us.

In fact, we might even call that very principle a "rule for all time."

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