When you acquire a Hebrew slave (21:2–11). Slavery was an accepted part of life in biblical and post-biblical times. Numerous Roman Empire documents and inscriptions demonstrate that Jews were slaves and slave owners. Slaves could be emancipated, but mostly within ongoing structured relationships between freed persons and their master’s/patron’s household. The provisions for treatment of slaves outlined in our parashah do not appear to have been applied by Jews in the post-biblical period, even when their slaves were also Jews.
Thus, female slaves in the post-biblical period did not enjoy the protections of Exodus 21:9–11, which considers female slavery as leading to marriage and refers to a woman’s conjugal rights. Rather, rabbinic legislation, like Roman law, considered slavery a deficient status. A Jewish slave woman could not form a legal marriage with her Jewish sexual partner, whether a slave or a free man, and the offspring of such a union were slaves (Mishnah Kiddushin 3:12). The likelihood of sexual relations between female slaves and various males in the master’s household was assumed. Rabbinic texts tacitly recognized that women slaves were sexually available to their owners, as in the maxim “the more women slaves, the more unchastity” (Mishnah Avot 2:7). This warning addresses the distraction that female slaves posed to the male scholar.
Emancipation affected men and women differently. The Jewish historian Flavius Josephus (1st century C. E.) described a Jew who was taken as a slave to Rome and married a captive virgin at the command of his master, Emperor Vespasian (Life 414–15). At the moment that the male slave was freed, they separated, and later he married again. The first woman was apparently an appropriate wife for a slave, but not for a free man.
Rabbinic law presumed that female slaves and freed women were no longer virgins. Thus, even if a slave woman was emancipated, the legal minimum value of her marriage settlement (k’tubah) would be half that of an unmarried free woman. Although the liberation story of Exodus was always a central focus of Judaism, few commentators have struggled with the larger issues of enslavement that continued for centuries in Jewish societies.
Rabbinic Judaism did place a premium on pidyon sh’vuyim, the redemption of Jewish captives who were at risk of being sold into slavery. BT Bava Batra 8a-b asks: “Since Rabbi Samuel ben Judah has laid down that money for tzedakah is not to be levied from the fatherless even for the redemption of captives,’ should we not conclude that redeeming captives is a religious duty of great importance?” The Rabbis insisted that in most cases women were to be redeemed from slavery before men, in order to preserve the women from dishonor (Mishnah Horayot 3:7; BT Horayot 13a). If a woman testified that a fellow female prisoner, the wife of a priest, was not raped in captivity, her testimony was believed, even though women’s testimony was generally not admissible in rabbinic courts (Mishnah K’tubot 2:6; BT K’tubot 27b). This meant the undefiled woman could return to her husband.
When [two or more] parties fight (21:22–25). The phrase if other damage ensues (v. 23) played a critical role in shaping rabbinic attitudes about abortion (Daniel Schiff, Abortion in Judaism, 2002). In the Torah, a miscarriage results, but no other damage (v. 22) is contrasted with the potential other damage (v. 23), an apparent reference to the death of the woman. This formulation suggests that only mortal injury to the pregnant woman is considered homicide. However, Jews who translated the Hebrew Bible into Greek (3rd century B. C.E.) understood the import of these verses differently. Instead of contrasting the death of the fetus and the death of the mother, the Septuagint (Greek translation) renders ason as “formed,” distinguishing the death of an “imperfectly formed” fetus (v. 22) from that of a “perfectly formed” fetus (v. 23). Thus, this translation considers the violently induced miscarriage of a completely formed fetus as homicide.
Rabbinic interpretation, however, follows the Hebrew text; therefore, the Rabbis drew a clear distinction between the monetary penalty for one who kills a fetus, and the capital penalty for one who causes a woman’s death. The Rabbis considered elsewhere the existence and formation of a fetus once it had reached forty days, but they stopped short of declaring it a nefesh, a legal human life. Despite the complexity and ambiguity in many of their discussions of abortion, the Rabbis specifically legislated aborting a fetus if its continued existence threatened the pregnant woman’s life (Mishnah Ohalot 7:6 and BT Sanhedrin 72b).
—Susan Marks