Letter and Spirit

For the week ending 10 February 2018 / 25 Shevat 5778

Parshat Mishpatim

by Rabbi Yosef Hershman
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Social Justice

The Torah opens its discussion of social legislation with the law of the thief who must sell himself as a servant, and for good reason. From the “exception to a rule” we can learn a great deal about the rule.

This case of the thief is the sole instance in which the Torah imposes loss of freedom as a punishment. Apart from the occasional detention before trial, there is no such thing as a prison sentence in Jewish law. The only institution that resembles a prison sentence is this thief’s servitude. But even here, his sentence hardly resembles punishment. He is to be placed with a family, and the law is careful to protect his dignity. Neither is he to be given degrading work, nor lesser provisions than the master of the household. He is treated as a brother, not an underling. The Torah also ensures that his family remains intact. They are not to suffer distress because of his offense and its consequences. If he is married, his wife and children join him, and their care is the master’s responsibility. In depriving him of his freedom, and thus the ability to provide for his family, the Torah imposes that responsibility on those who benefit from his labor.

Prison sentences as we know them — with all of their attendant degradation and misery for the prisoner, his wife and his children — have no place in Torah.

But we still may ask: Why in this single case of the thief, does the Torah deprive him of freedom? A thief is liable for the value of the theft and a punitive fine, but he may be sold only if he does not have sufficient funds to pay the value of the theft, not for any statutory fine. In order for him to make this restitution, the law requires him to pay with his working capacity if he has no assets. Yet, in other cases where restitution is required for damage caused, this law does not apply — the offender does not lose his freedom in order to pay restitution. Why is the thief the exception?

Perhaps the reason is that the thief shows the most direct contempt for the idea of private property. Property ownership presupposes a level of public trust. If we cannot trust our neighbors, we could only “own” that which we could nail down. The thief, more than taking what is not his, undermines the public trust, the foundation of community. Other offenders who have damaged property are not required to forfeit their liberty to pay restitution, but because the thief has damaged this core value of society, he is required to pay with any means possible — even his very freedom.

His freedom is mortgaged only for six years; he goes free in the seventh. Six always represents the physical, material world, created in six days. Seven represents the spiritual, transcendent realm. The thief is to serve for six years, to rectify his having been sold to materialism, oblivious to the One above. By subordinating his physical existence for six years, he learns to recapture the element of the “seventh,” and having done so, is free to rejoin society. We are now confident that instead of breaching communal trust, he will contribute to it.

  • Sources: Commentary, Shemot 21: 6

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