Tunisia, Biblical Slavery, and the Contours of Rabbinic Fences

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Napoleon reported on a conversation he had with Polish serfs about liberty. “Certainly we should like to have it very much; but who will feed, clothe, and house us?” We are no longer amazed by how quickly men will cede their freedom for food, clothing, shelter, or even an opportunity not to have to make choices. Tunisia reminds us that when despots stop providing the trade-offs, the will to be free returns with a vengeance.

Despite the years of French rule, the young participants of Tunisia’s Facebook Revolution were not singing La Marseillaise. They had no leader. They did not install a beloved opposition leader or party. There was no platform, no ideology, no flag or song to rally around, and no plan for the future. It may yet turn out that the future will be even more glum for young Tunisians than the past. No matter. In effect, they declared, “We can put up with restrictions and tyranny if we could at least reap the benefits of progress and opportunity. You haven’t given us that. We will therefore take back our freedom, and make the best of it.”

Many have observed that Parshas Mishpatim begins with the theme of freedom. The Abarbanel sees this as a response to the complaint that the second of the two luchos is anticlimactic, because the last five commandments, dealing with interpersonal relations, are all intuitive. The Torah shows that this is not so, by introducing us to its definition of the first of the commandments on the second tablet, the prohibition against murder. Depriving a person of his freedom is tantamount to killing him. The Torah therefore legislates against mistreating the eved ivri. Depriving him of his time or dignity violates his personal freedom, and is therefore to be treated as a form of murder. Mess with people’s freedom, and by the Torah’s exacting standard, you violate lo sirtzach.

Why, then, doesn’t the Torah go the distance? Instead of just making the treatment of the indentured servant more gentlemanly, why not ban genuine slavery altogether? Rabbi Sir Jonathan Sacks offers some ideas worth mulling over. Here are some excerpts:

In 2008 economist Richard Thaler and law professor Cass Sunstein published a fascinating book called Nudge. In it they addressed a fundamental problem in the logic of freedom. On the one hand freedom depends on not over-legislating. It means creating space within which people have the right to choose for themselves.

How then do you stop people doing harmful things without taking away their freedom? Thaler and Sunstein’s answer is that there are oblique ways in which you can influence people. In a cafeteria, for example, you can put healthy food at eye level and junk food in a more inaccessible and less noticeable place. You can subtly adjust what they call people’s “choice architecture.”

That is exactly what G-d does in the case of slavery. He does not abolish it, but he so circumscribes it that he sets in motion a process that will foreseeably, even if only after many centuries, lead people to abandon it of their own accord.

G-d can change nature, said Maimonides, but He cannot, or chooses not to, change human nature, precisely because Judaism is built on the principle of human freedom. So he could not abolish slavery overnight, but he could change our choice architecture, or in plain words, give us a Nudge, signalling that slavery is wrong but that we must be the ones to abolish it, in our own time, through our own understanding…

There are some issues on which G-d gives us a nudge. The rest is up to us.

It seems to me that this model has more utility than Rabbi Sacks claims for it. It explains, in part, why the gezeros of Chazal have so many holes in them.

In the years that I have taught halacha to high school seniors in a modern Orthodox school, I have gotten more complaints about my leniencies than my stringencies. Students (and their parents) have often had little problem accepting – at least in principle, if not in practice – the need of Chazal to erect fences around the Law. They are visibly agitated when they discover all the exceptions they leave room for. If they are going to ban certain activities, let them at least be consistent! Why do they often construct prohibitions so narrowly? If they want to keep us away from error and sin, let them make their walls high and thick, rather than use porous chain-link?

I have always made the case for Chazal employing the Nudge rather than the Noose. Chazal understood that every limitation on freedom evoked a certain amount of push-back. When the benefits of their legislation were clear to a Klal Yisrael that loved the Law, rather than saw it as a burden, was willing to trade off some of their freedom for insurance against aveirah. But when the people were asked to pay too onerous a price, Chazal knew that they were asking for trouble. It makes more sense, they believed, to legislate in a way that was 85% effective, and left room for many exceptions that left life liveable, rather than aim for 100% efficiency, and create conscious and subconscious resentment.

Some of us would be well advised to take a cue from Chazal’s playbook. In meeting new challenges, too many people aim for higher and thicker walls, oblivious to the strength of the resentment that those walls produce. They neglect to factor in the Tunisian factor: You can suppress freedom for a while, even long periods of time, but the countervailing drive for freedom will eventually express itself.

Sometimes, it doesn’t even need a clear ideology or plan. It will just erupt, anarchically. And then our kids, too, take to the streets, even with no place to go.

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Yehoshua Friedman
4 years 6 months ago

RYA,
I am gratified that you referred to Rav Kook’s Letter # 89. I immediately thought of it and made a beeline to the comments section only to find you had already referred to it. In it the Rav zt”l points out that in some ways salaried workers (pre-union) are subject to worse mistreatment than slaves because a slave is a property investment that the owner has to protect, while a hired worker can be worked for a pittance, his health ruined and fired. He can also “owe his soul to the company store”. Of course labor legislation generated by organization of labor eliminated these egregious situations. Despite my preference for minimal government, I would not want to go back to those days, and I hope neither would anyone else. I am sure that R. Kook would agree that this development is part of the evolution of human life progressing toward the Geula as he says in many places. The abolition of slavery in the modern world can be seen the same way.

Bob Miller
4 years 6 months ago

Rav Adlerstein,

I meant, was the Netziv’s interpretation widely accepted among our highest level Torah scholars? This is a valid question.

[YA – Sure. But it is virtually impossible to determine an answer to that. Given the role that the Netziv played – Rosh Yeshiva of Volozhin for a half century; important link in the chain from the Gra – there is no gainsaying the fact that anything he wrote cannot be considered off the wall. Now, there are lots of things he wrote and that he believed that are not well known in yeshivos, but lack of knowledge is certainly not a repudiation.]

Shades of Gray
4 years 7 months ago

In broader terms, there is an issue of how to approach the entire family of questions of conflicts of Torah values versus contemporary moral sensabilities, namely, to what extent does one build up the question involved? R. Berel Wein(Jerusalem Post, February 09) writes regarding slavery, ” Many apologists have attempted to deal with this difficult nettle in the rose garden of the Torah…Even so, the matter does not rest easily for us for the concept of slavery itself remains somewhat repugnant to our sensibilities and society. I have no magic solution to this difficulty. My faith is not shaken by it and I can remain puzzled and yet a believer.” Other examples of this approach are R. Mayer Schiller’s response regarding slavery and the like on a recent Canadian TV series on ikkarei emuanh(8th principle), and in a case of greater extreme, R. Yecheil Yaakov Weinberg’s discussion of his struggle with the philosophy behind certain halachos involving non-Jews and the opinion of the Meiri(although there was controversy whether his private thoughts should have been published in the Torah Umaddah Journal).

The Yated recently repeated part of a 2007 article in which the author criticized a YCT rabbi who wrote(Jerusalem Report, 2004), ” As an Orthodox Jew, I have to struggle not just with G-d ’s presence in the world, but with His commandments as well…to pretend that these are not profound problems or that they are consistent with G-d’s goodness is, for me, not an option. I choose to take the path of Yisrael, to face these problems and to struggle with them…” The Yated author writes regarding this, “Did he forget the words of the Gemara and Shulchan Aruch that explicitly state, “After a bitter occurrence, we bless G-d as the True Judge, affirming that He is correct in what He does?”

Although I like the Yated writer’s other articles, and, in general, am not a supporter of the Left of Orthodoxy, I find myself agreeing with R. Nati Helfgot’s April 2007 response to the same Yated critique that, “struggling with difficult mitzvot that challenge our ethical notions and our conception of a just God (a conception that emerges from many parts of the Torah) is a badge of honor. God implanted within us a moral sensibility and did not want us to be morally insensitive or obtuse…”. There may be what to criticize–even devastatingly– the recent excesses of the Left of Orthodoxy, but criticizing them for what is arguably openness and honesty does seem to reflect a nuanced position. Interestingly, it is recorded in the preface to Toras Avroham, that R. Avraham Grodzinski of Slabodka, IIRC, waited a period of time before make the blessing “Dayan HaEmes” because he felt unable to honestly recite it “with a complete heart”, as Rashi says(Berachos 60b).

Shades of Gray
4 years 7 months ago

Rav Kook’s letter is quoted in article by R. Alex Israel(“The Ethics of Slavery”, available online):

“You should know,” says Rav Kook, “that slavery, as with all the moral, upstanding ways of God “in which the righteous walk and the evil stumble,” never in itself caused any fault or error. Slavery is a natural law amongst the human race. Indeed there is no difference between legal slavery and “natural” slavery [6]. In fact legal slavery is within the jurisdiction of Torah, and is legislated in order to control certain flaws, and this, because God anticipated the reality of “natural” slavery. Let me explain. The reality of life is that there is rich and poor, weak and strong. A person who has great wealth hires poor people – legally – in order to do his work. These employees are in fact “natural” slaves, due to their socio-economic standing. For example, coal miners. These people go to work in the mines of their own free will, but they are in effect slaves to their employers … and maybe if they were actually owned by their employer, they would be better off! … The rich, with their stone hearts scoff at all morals and ethics. They don’t care if the mines lack air and light even if this shortens the life expectancy of their workers, whose numbers run into the tens of thousands, many of whom become critically ill. They certainly won’t engage in any extra expense to improve working conditions in the mines, and if a mineshaft collapses burying workers alive, they don’t care. Tomorrow they will find new workers to employ. If these people were owned by the master by legal slavery, he would have a financial interest to look after their lives and well-being, because they are his own assets.” (Rav Kook. Letters – Igrot HaRaaya – vol.1 no.89)

Daniel Wohlgelernter
4 years 7 months ago

” The Nudge rather than the Noose ” – truly superb phrase-making !