Yonatan Kohn - Notes on Mishpatim

After the clouds dissipate and the last echoes of the thunderclaps die away, the Children of Israel awaken to discover that they have experienced a national revelation. They are left to consider that Gd has appeared to them and, through His servant Moses, issued them commandments and engaged them in an eternal contractual covenant. And in the aftermath of this most monumental of moments, Gd tells Moses, “And these are the laws that you shall place before them” (Exodus 21:1). In concluding the account of events at Sinai, the Torah relates how Gd instructs Moses to present the people with a broad range of commandments. As a necessary capstone for the convocation, the people must learn the practical details of their new agreement; it is only through the observance of the commandments that Israel may fully realize the invocation, “You shall be for Me a kingdom of priests and a holy nation” (19:6).

And one would naturally expect that, just as the Decalogue before it, this list of commandments should begin with a unifying commandment whose meanings and implications reverberate throughout all the ensuing commandments. One would expect that the first commandment would be a cornerstone of faith and duty. It is, therefore, perplexing and confounding that the Torah begins its list of laws with the obscure law of the ‘Hebrew servant’, a law whose particular minutia have no apparent connection to the laws that follow it. What are the fundamental theological principles of the ‘Hebrew servant’, and why does this commandment precede all the other civil laws?
Of course, in order to best understand the laws of the ‘Hebrew servant’, it is necessary to fully explore the nuances of this commandment and the language with which the law is written.
“When you acquire [purchase] a Hebrew servant, six years he shall work; and in the seventh, he shall depart to freedom freely. If he will come with his body, with his body he shall leave; if he is a husband to a woman, his wife will depart with him. If his master will give him a wife, and she will bear him sons or daughters, the woman and her children will be for her master, and he will depart with his body. And if the servant says decidedly, “I love my master, my wife, and my children; I will not depart [to] freedom.” And his master will bring him to the judges, and he will bring him to the door or to the doorpost; and his master will pierce his ear with a piercing tool, and he shall serve him eternally” (21:2-21:6).
The following issues merit further consideration. 1) It is striking that the Torah describes acquiring a ‘Hebrew servant’ even before describing how one becomes a ‘Hebrew servant’.* 2) Why does the Torah use the conspicuous moniker ‘Hebrew’, rather than ‘Israel’ or some other equivalent term? 3) Why is his loyalty rewarded with having his ear pierced?** What is so bad about his desire to remain, and why is the ear piercing an appropriate consequence?
The challenge of Exodus is well documented, and we have explored it before here. Gd sent Moses and Aaron to convince Pharaoh to release the people, but He also instructed His emissaries to animate a numb and despondent nation, whose spirit and creativity was lost in bondage. Before they were released, Pharaoh knew the people as the Hebrews (*ivrim*)- descendants of transgressors (*’over*). But the slaves banded together and asserted an active belief, repudiating the local culture and earning redemption, thus becoming Israel. This was a feat of confidence, of empowerment, of independence and ethical pro-activity. Only through Israel’s achievements could they emerge from slavery, could they emerge free.
When the Israelite commits an act of theft in a context of exaggerated poverty and desperation, he regresses back to the state of servitude and servility. He demonstrates that he is still a slave to his impulses, that he has no choices, and that he can survive only through crime.^ He has made himself a slave, wholly subject to others’ control and whims. Note the Torah’s description- he comes in with nothing but his body, his physical person. There is no other significant and individual property, and there is no spirit. Similarly, the Torah begins its description with the owner, “When you acquire a Hebrew servant…” There is no mention of the servant choosing to be sold; all is done with or without his abandoned consent. His role is completely passive, though this passage in the Torah is all about him. But when he leaves, when he goes to his freedom, then the language focuses on his departure. The owner does not release him; only he can decide to assert his freedom, even after the term of six years.
Despite his mentality, why does the Torah fault him if he chooses to remain? At the end of the day, the Torah says, perhaps he will declare that he loves his master, his wife, and his children. Certainly, loving those around you, particular your family and those who provide for you- this is appropriate and laudable. Still, his statement indicates that he loves the totality of his life as it is. He finds comfort in the conditions of his life, something that transcends the individual elements and the individual players around him. This is far from laudable- he finds comfort in belonging, in irresponsibility and dependence. By now, he should have learned to desire his freedom. Worse yet, perhaps he is so absorbed by the details of comfort and love that he has forgotten the larger context and the fact that his own life is hardly a life at all. Perhaps he wants to stay because he loves everyone, but he has forgotten to consider his own state.
The Talmud (Babylonian Talmud Kiddushin 22b) notes that this servant ignores the divine declaration that Israel is to serve Gd, and not to serve His servants. His ear is pierced, because he did not hear the divine charge.^^ But the Talmud goes further- the servant’s ear is pierced next to the door or the doorpost, precisely where Israel smeared the blood of the Paschal offering. This act, rejecting Egyptian paganism, was one of two major acts that demonstrated Israel’s maturation and readiness to leave Egyptian servitude. His decision to stay with his master, to remain a slave, demands the drawing of new blood at the doorpost.
Ultimately, this is why the law of the Hebrew servant comes before all the other laws. Israel accepts the Torah only through rejecting the lives they led in Egypt. The nation must accept and assume independence and responsibility. They must assert control over their own lives and declare that they will make decisions, rather than submitting to comfort and/or desperate circumstances.

* This is outlined in 22:2; one who is unable to pay restitution for stolen goods is sold for his theft. Alternatively, one might sell himself when faced with utter destitution (Leviticus 25:39).
** Don’t get too excited. I remember discussing this once with someone- maybe my brother Elie- and he thought that the piercing was in the lobe of the ear, making it convenient for the servant to install an earring. When I asked my teachers, I was informed that the piercing was most definitely in the upper part of the ear, right in the middle of the cartilage. In such a spot, there is minimal convenience for decoration and jewelry, and maximal discomfort. By the way, though this is pure speculation, I suspect that very few men in history had their ears punctured in this context. First off, how many men were convicted of stealing something under circumstances in which they could not afford to repay the damages- to the extent that they were to be sold into servitude? Second, of that small minority, how many servants elected to stay in servitude after the requisite six-year period?
^ Theft is one way to become a Hebrew servant. The other route is through the decision to sell one’s self. When one is sold in this way, though he does not commit theft, he also demonstrates slave mentality. He is completely despondent, and he willingly sacrifices his independence. He has shunned every other avenue of income, including less desirable work and turning to charity funds. The active decision to become inactive is the ultimate statement of despair.
^^ This notion requires further exploration. What designates the ear as responsible for accepting Gd’s wishes? Isn’t the heart just as culpable? Couldn’t arguments also be made for the other limbs or sensory organs?