Parashat Mishpatim (Exodus 21–24)

Vengeance is … Whose?

Last week, we read the Ten Commandments (version 1); this week, we read the first of the biblical passages that can be considered something more like a code of law: rules as opposed to general “commandments.” Serendipitously, the significant word close to the beginning of the reading that gives this parashah its name is משפטים mishpatim, which means “rules.” And rules make up most of the first three chapters of this section. Scholar call the rules of Exodus 21–23 “the Covenant Code” after the covenant that is made at the end of the reading in Exodus 24.

As is well known, the Covenant Code begins by telling the recently freed slaves what happens when you yourself acquire a slave, a remarkable law to put first at this moment in the story. It is worth highlighting also that the perspective of this text is that of the owners and not of the slaves. In this week’s column, though, I am going to look at one of the slave laws that's a little bit further along in the chapter, in Exod 21:20–21. There’s a somewhat unusual expression there that requires some thought to understand — not what the Hebrew words mean, but what kind of situation we are supposed to picture:

When someone strikes his slave (male or female) with a stick and the slave dies under his hand, the slave must be avenged. However, if the slave lingers for a day or two, he should not be avenged; the slave is his own property.

There are lots of things one could talk about in the Hebrew here. For one, it’s quite interesting that there are different words for “slave” depending on whether the slave is male or female. For now we’re just going to look at the overall situation: You are allowed to hit your slave, to reprove him or out of anger or, apparently, for any reason whatsoever. Even if you injure him so severely that he dies the next day, because you owned him, you are given the benefit of the doubt that you were not deliberately trying to kill him. After all, it costs you money to kill your own slave.

But if he dies before the day is up, that is not okay. The text does not say this in plain Hebrew, but the assumption seems to be that you lost your temper at him so violently that you were indeed trying to kill him, at least in the heat of the moment — and intentional killing is forbidden.¹

Nowadays, whatever slavery still exists carries a different name; the idea makes us uncomfortable. For most of history, though, slavery was a standard part of society and the economy. The fact that a slave was a human being and also someone’s property led to contradictions as conflicting values always do.

We do know from Exod 21:12 that someone who strikes another man with a mortal blow is supposed to be put to death. We also understand, from v. 21, that the text recognizes that the slave is the person's property — literally, kaspo “his silver.” That’s a very reasonable thing to say in a slave-owning society, as is the unfortunate fact he is entitled to be violent with him. That is an inextricable part of the idea of slave-owning, a large part of why society has rebelled against this longstanding aspect of the human economy.

The difficulty that I'm having in understanding what the text means is not the general principle that the owner should not be so violent as to kill his slave, yet if he does so accidentally he is not punished. That is how things work when you have a slave-owning society; I understand that. What I don't understand is what you're supposed to do if the slave dies on that same day, when it's presumed that the owner was trying to kill him.

Because what happens? נָקֹ֖ם יִנָּקֵֽם naqom yinnaqem — “he must be avenged.” According to this same Covenant Code, that's not what normally happens if you kill someone. V. 12 tells us that anyone who kills someone else מ֥וֹת יוּמָֽת mot yumat — “must be put to death.” That is, he in turn is killed, but by the court, in some kind of orderly legal procedure. Our verse, however, does not say that the killer must be put to death; it says that the victim must be avenged.

That’s not something that you find in cases of murder in the Bible. If you do find it, you may be reading a Bible in English, specifically in Numbers 35 or Deuteronomy 19, where there is what I would call not an avenger but a “blood-redeemer” who is expected to retaliate after someone is killed. The Hebrew phrase is גואל הדם go’el ha-dam, and ge’ulah is a family responsibility. This rule about the slave uses a different verb, נקם, which does indeed mean “avenge.” It is not obvious that a murdered slave would have a family member who could take on the responsibility of “redeeming” his blood.

The one place I’ve found נקם in the aftermath of a murder is in Genesis 4, the story of Cain and Abel. Cain, having killed his brother, is sentenced to be a wanderer on earth. He’s worried that whoever finds him will kill him. (Who else is there besides Mom and Dad? Not our question this week.) YHWH reassures Cain that this won't happen, making him the following promise:

Anyone who kills Cain will be avenged [יֻקָּ֑ם yuqqam] sevenfold.

Subsequently YHWH puts a mark of some kind on Cain, presumably indicating this threat, warning anyone who might encounter Cain not to strike him — “strike” (הַכּוֹת hakkot) being the same verb that we have in Exod 21:20 when a man “strikes” his slave.

In the case of Cain, as well, it's not clear exactly what's meant to happen, but it certainly does not sound as if someone who kills Cain is going to be put to death through some sort of legal proceeding. Nevertheless, Cain’s death will somehow be avenged and, if you can imagine it, avenged sevenfold.

I think the link between these two stories is exactly the fact that in the story of Cain there is no way his killer could be put to death by a court because there are only three other people on the planet. At this stage of history, according to the biblical story, there is no society and therefore no system of justice by which a killer could be executed.

Now in the case of Exodus 21 there certainly is a society, and there most certainly is a legal proceeding by which a killer could be executed. That's what we read in v. 12: Anyone who strikes a man so that he dies must be put to death. The assumption is that a human court will judge the circumstances and find the man guilty (if he is guilty) and then execute him in some sort of legal proceeding.

When you have vengeance rather than legal proceedings, there is no one to say “The murderer is dead and that’s the end of it.” Otherwise, a single killing that is avenged could multiply exponentially; before you know it, you have the Hatfields and the McCoys. If you let the Hatfields and the McCoys fight each other long enough, then you have the Serbians and the Croatians, or whatever nations the families grow into, leading to centuries of war.

But what's preventing a court from taking the case of the slave owner who kills the slave? There may have not been any courts in the time of Cain but there certainly are in view of the Covenant Code.

I would like to suggest that what's preventing this kind of killing from being resolved through the courts is the slave’s very unusual and uncomfortable status as part human being and part property — or rather, simultaneously 100% human and 100% property. Rather than a gap between those two statuses, there is an overlap between them.

We learn from the beginning of the chapter that once the slave works for you for six years, you have to let him go — for free. He doesn't have to buy his way out; the six years of work have served as payment, and now all of a sudden, in a single moment, he is a free man, a human being just like his former owner. Similarly, vv. 26 and 27 tell us that if the slaveowner hits the slave in anger and puts out his eye or knocks out his tooth, the slave must be freed immediately.

How to solve this problem, resolve this legal conundrum? The solution of the Covenant Code is to open the door a crack, for vengeance. Although vengeance may not sound positive to us, everyone knows the biblical expression: “Vengeance is Mine, sayeth the Lord.” Even if that is a warning to human beings not to take vengeance, the reassurance that God will handle it means that some reaction that we would call vengeance is called for.

Maybe God is taking it into his hands to keep it away from us. If you look at Psalm 58 you'll see a very violent situation there which ends triumphantly in v. 11 by saying, “The righteous rejoice when they gaze on vengeance; they wash their feet in the blood of the wicked.” If that verse applies anywhere in the Torah, it applies to our verse, where the slaveowner has killed the human being whom, according to that same Torah, he owns as chattel. In such a case, even the righteous “rejoice when they gaze on vengeance.”

1. My friend Johanna Markind alerts me to the “year and a day rule” in Anglo-American common law, an interesting parallel to Exod 21:20–21 and perhaps in some sense even reflecting it.