It seems paradoxical but the law of the eved Ivri the Hebrew slave which opens this week’s parshah is one of the noblest expressions of Torah law as a means of forward-thinking societal education. It demonstrates a fundamental belief in rehabilitation and rejects the idea that a sinner must be removed from society. Prisons have no place in this legal system. Denial of a person’s freedom goes against the spirit of Torah.
The Torah states “If you should buy a Hebrew slave he shall serve six years and in the seventh he shall go out free without charge… if he is husband to a woman his wife shall go out with him…” (Shemos 21:2–3).
“If we examine this law closely ” writes Rav Samson Raphael Hirsch “we see that there is no other law like it in terms of its power to show us the orientation of Torah law and its essential difference from the laws of the nations” (Rav Hirsch on the Torah).
In 1902 the Code of Hammurabi an ancient Babylonian monarch (who some scholars attribute to King Amraphel from the time of Avraham Avinu) was discovered and publicized. Because the code dealt with contracts transactions and liabilities – and predated the Revelation at Sinai by several hundred years some researchers assumed that Torah law was influenced by this legal code. This opinion is still popular today among some schools of Bible criticism. But a deeper study reveals a fundamental disparity between the two legal systems; even in places where the two systems share similar wording they are diametrically opposed in spirit. The world at that time was familiar with Hammurabi’s code as well as other societal codes including those based on the Seven Noachide Laws. But while the Code of Hammurabi is a body of secular law which serves economic interests and protects landowners and nobility as privileged classes Torah law — whose purpose is to elevate the conscience and spiritual sensitivity of the nation — supersedes these economic interests; the Torah’s protected citizens are the widows orphans the poor and the strangers.
Rav Hirsch continues explaining the difference between classical “punishment” and rehabilitation:
“Here we see the one and only instance where the Torah inflicts the punishment of denial of freedom — and we shall see that even in this instance denial of freedom is not actually a ‘punishment.’ What form does this denial of freedom take? The transgressor [who is guilty of theft and is unable to repay the owner] is brought into a family’s home in the way that we would deal with a delinquent child for the purpose of rehabilitating him.”
Thus the servitude of the eved Ivri is actually what we would call placing the transgressor in a foster home. It demonstrates belief in the basic goodness of a human being and the possibility of correcting his deviations by giving him the chance to live in the healthy moral climate of a stable family.
But lest one think that this rehabilitative “punishment” will bring irrevocable shame and humiliation to the transgressor Rav Hirsch goes on to explain:
“And we see that the Torah carefully defines the status of the Hebrew slave within the family so that the transgressor’s moral consciousness should not be depressed and so that despite his lowly position he should still feel he is treated with respect and brotherhood; he can still receive and give love! The Torah puts the master to great trouble to ensure that the eved’s family ties remain intact. His family is not abandoned to their fate because of his sin. While taking away his freedom and consequently his ability to support his family the Torah places that responsibility on those who derive benefit from his services during his term as an eved.”

If the slave is a married man the Torah requires the master to support the slave’s family along with him; they are not to be separated. This is the Torah’s answer to the question of conjugal visits allowing prisoners time alone with their spouses that troubles lawmakers until today.
“Prison terms with all the hopelessness and moral corruption found behind prison walls with all the suffering they bring upon the prisoner’s spouse and children have no place in Hashem’s Torah ” Rav Hirsch qualifies. “In Torah law detention exists only for purposes of investigation and this can be for a short time only in keeping with all the dinim of judicial proceedings especially in light of the fact that Torah law does not recognize circumstantial evidence.
“Indeed even in this singular instance where the Torah decrees denial of freedom due to a transgression it should not be viewed as a ‘punishment.’ A thief who is sold for his theft is obligated to repay only the value of what he stole; he is not required to work off the fine [the double payment] imposed on a thief. This indicates that the law of the eved Ivri is not meant to be punitive but to nullify the transgression for there is no atonement for a person who laid hands on another’s property until the value of the damage has been repaid. The moment someone lays hands on another’s property his assets are automatically frozen for the purpose of repaying the damage even without a ruling by a beis din. The act of theft itself freezes his assets and if he has no assets his own person and his ability to work are given over to the purpose of repayment.”
Still why does the Torah require the transgressor himself and not merely his property to be sold? And as a corollary why doesn’t eved Ivri apply to everyone who does monetary damage if he has no other way of paying? Rav Hirsch postulates that one who steals from his fellow man targeting his property deliberately is showing disregard for the very concept of private ownership. The concept of ownership is the foundation of a person’s standing in the world and a person’s respect for it is an expression of his character and his relationship to the world around him. Therefore only in a case of theft but not regarding other damages does the Torah seize the guilty person himself for repayment.
Rav Hirsch puts the entire subject in a radically new light. The Torah’s way of dealing with a thief he explains is not driven by anger at him for disturbing the social order. It is concerned with only one thing: how to restore a correct social perspective to his mind. How do we get him to comprehend what it means to respect another’s property? And why is it such a serious transgression to take what is not his?
“We see how the law of selling a man for his theft stems only from his obligation to repay and not from any punitive intentions ” he writes. “As the halachah states ‘If he stole 1 000 and his value is 500 he is sold.’ For only in this case is the whole person of the thief seized by his act of theft so that he may repay. But ‘If he stole 500 and his value is 1 000 he is not sold at all’ (Kiddushin 18). For if he were to be sold the beis din would be imposing servitude as it were on a portion of his person that is not liable to servitude. Furthermore the victim of the theft can waive his right to have the thief sold and accept a promissory note instead stating the thief must repay him when his circumstances improve.” (See the Mechilta.)
And so we have gleaned at least one major idea from the parshah: The Torah wishes to ensure personal freedom for every Israelite even a transgressor. Denial of freedom in the case of theft is intended solely for repayment of his debt and rehabilitation of the thief’s incorrect attitude regarding the property of others.
All the rest — such as how the transgressor’s mindset is rehabilitated; how the Torah preserves the slave’s freedom of spirit; what it does to restore his view of the value of work financial independence and personal responsibility; and how it teaches that all men are equal through the law of the Hebrew slave — will just have to wait for another opportunity. —