Searching for justice
Justice can turn up in the oddest places. I met it, most recently and unexpectedly, in an unfashionable adage connected with an ancient system of slavery.
I stumbled across the adage while reading a section of the Hebrew law recorded in the Book of Exodus. One particularly infamous passage stood out: “you shall appoint life for life, eye for eye, tooth for tooth” (Ex. 21:24-25).
It was once fashionable to denounce this adage as an example of the barbaric ancient practice of legal retribution. At the moment of my reading, however, I was not so much interested in retribution as in trying to understand how the Hebrew legislator was thinking and feeling as he inscribed the severe sentence.
I happened to glance at the context of the precept. It was then that I saw it. Justice. Not merely lurking in the shadows but sallying forth in shining armor from verses 22-25.
“If men struggle with each other,” writes the Hebrew legislator, “and strike a woman with child so that she has a miscarriage, yet there is no further injury, he shall surely be fined….But if there is any further injury, then you shall appoint as a penalty life for life, eye for eye, tooth for tooth,” etc.
What struck me suddenly in this passage was who gives whose eye for whom. The Hebrew legislator says nothing about what happens if two men fight and one man hurts another. The injured eye, hand, and tooth belong to a woman. Or, conceivably, they belong to a child that survives a miscarriage.
Either way, the Hebrew legislator has just made the astonishing assertion that the well-being of a woman and child is equal to that of a man.
Can the magnitude of “eye for eye” in this context be overestimated? From the legislator’s point of view, the man gives an eye precisely because the woman’s eye is as valuable as his. The logic is astonishingly clear. If the man paid less than an eye, it would be tantamount to saying that the woman was worth less than he. However, if he paid more than an eye, he would obviously be worth less than she. Our legislator therefore strikes a perfect balance: A woman’s eye demands neither more nor less than a man’s eye, and if justice means legal and moral equality between persons, it is hard to get more just than that.
The scope of this “equality precept,” however, grows much wider in light of its other applications in the nearby context of Ex. 21. Equality of persons does not apply only in the case of gender relations but—most astonishingly of all—to the case of a man and his slave.
“If a man strikes his male or female slave…and he dies at his hand, he shall be punished,” writes the legislator (21:20). What is the punishment? The same as it is for free men: “He who strikes a man so that he dies shall surely be put to death” (21:12).
In how many other societies during the time of the Hebrews could a master be executed for killing his slave?
Admittedly, things get trickier if the master’s offense is not murder but simply assault and battery. If a master injures a slave, is it truly practical to take retribution on the master, considering that the master would still have considerable power over the slave after the retribution? The legislator finds a short-cut through the issue. He does not require the master to pay exact physical compensation for injuring his slave. Instead, the master must set the injured slave free (20:26-27).
In all such cases, a single principle is discernible: Before God and the Hebrew law, all human life and well-being is equal. One case in the immediate context, however, remains to be considered, and it is perhaps the most difficult (and ironically satisfying) of all. It is the problem of the master who takes a female slave as a concubine.
The rules for keeping a concubine-slave are quite simple. The master may not sell her to a foreigner, but he also may not send her away when he frees his other (male) slaves in the seventh year (21:2, 7). If he takes another concubine or wife, he may not reduce the food, clothing, or conjugal rights of the first (21:10).
If the master is displeased with the concubine, he can allow one of her relatives to buy her freedom (21:8). Otherwise, if he treats her badly in terms of the three areas mentioned above, then he may simply leave him without being bought (21:11).
What is going on with these stipulations? The answer is that the legislator is dancing around a complicated issue but is determined to employ his principle—the absolute moral worth of all human beings—as strongly as ever. This can be seen by comparing our poor concubine-slave with a free-born wife.
On the surface level, the wife and the concubine are treated in the same fashion. The master-husband is obligated to give the same care to both of them. The only apparent difference lies in the fact that the wife enters the marriage freely, whereas the concubine-slave does not.
On second glance, however, the legislator has introduced a few differences between the wife and the slave—and the differences are not in favor of the wife. For example, we know from elsewhere that a husband can always arbitrarily divorce his free wife if she happens to displease him (Deut. 24:1), but here it is explicit that the master is never free to simply dismiss the concubine-slave.
In other words, the Hebrew law betrays a subtle irony: The man who binds a concubine to himself is bound to her forever, unlike to his free wife.
But the irony becomes more delicious. Nowhere in Hebrew law is a wife free to divorce or abandon her husband. Yet the law of the slave-concubine states that, if she is treated badly, she is free to abandon her master (21:11). Presumably, all she needs are witnesses of a single instance of maltreatment.
The result of this is that the Hebrew legislator has perpetrated a crowning irony. He has reversed the station of the lowly slave-concubine and given her a footing more advantageous, and in certain ways more powerful, than the one enjoyed by the free wife.
Another result is, of course, that slave-concubinage suddenly becomes very inadvisable for the man. I put myself in the position of a man with enough money to either buy a concubine or pay the bride’s-price for a free wife. If I take the wife, she is mine for life, and I have the escape-hatch of divorce. If I take the concubine, I can never get rid of her, and she has the escape-hatch of simply leaving in adverse conditions.
I am a practical man. I choose the free wife, provided that she chooses me, if for no other reason than that it is a better deal. Moreover, given that other men are as practical as I am, they all spend their money on free wives as well, and the practice of buying slave-concubines eventually dies out because the law has made it undesirable.
We may well ask whether the point of the Hebrew slave-concubinage laws is really to make it undesirable. If so, why does the clever legislator not simply ban the practice outright? Alas, the legal code yields us no answers. Perhaps concubinage was wildly popular at the time the legislator was writing, and perhaps he would have risked civil war or economic collapse for attempting to squash it in so blunt a fashion.
The real importance of the legislator is that he does indeed squash slave-concubinage, but with a higher degree of subtlety, delicacy, and irony than the alternatives offer. The reader can hear him chuckling to himself as the ink flows onto the papyrus.
And with this we may begin to sum up the character of this legislator. He insists on moral equality between humans, and he exudes an almost chivalric concern for the weak (i.e., women and children) in the shadow of the strong. He is slow to uproot and revolutionize society where it is not absolutely necessary, yet he holds tenaciously to certain non-negotiable principles of justice. When faced with complicated and diverse particular circumstances, he draws them into conformity with those principles by means of a great practical creativity.
In short, the legislator of the Hebrew law is a conservative.
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