Original Torah: Ancient Words in a Modern Light

This week’s parashah continues last week’s theme of creating a legal system. The laws here are organized in three categories: Criminal (Exodus 21:2-22:19), Societal/Ethical (Exodus 22:20-23:9), Divine Service/Agricultural (23:10-23:14). The criminal section includes crime whose punishment is death, damages, or other. However, the list begins with a devaluation of life that isn’t a crime: slavery (21:2-11). Yes, even though slaves’ lives are valued less than their owners’, before the Torah lays down the top four capital crimes, it lists slavery. Given that the laws here protect slaves rights, it would not be inappropriate to see the Torah as saying that as all Men are created in the image of God(בצלם אלהים, Gen 9:10, 1:27); slavery is wrong (cf. Leviticus 25:42, God is our only master, see Sifra).

Ex 21:12-22:5
           similar        different
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| death || murder,  | strike parents, kidnap, |
|       ||kill slave|insult parents, ox warned|
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|damages||injury,   |kill fetus,              |
|       || ox gore  |       eye for eye       |
|       ||ox warned |seducing a virgin        |
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|other  ||ox injure | homicide->banished      |
|       || ox ->    |                         |
|       ||divide    |                         |
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The Torah sees parents as God-figures, which makes assaulting them akin to assaulting and devaluing God. So, you forfeit your life for rejecting God. Kidnapping a man and making him a slave (Olam haTanakh p. 134) is a capital crime because it devalues human life, an image of God. And the Torah sees the ox as your responsibility once you’ve been warned, so you are guilty of manslaughter, but still put to death. Bestiality, idol worship, and sorcery are also capital crimes because they devalue God or Man.

Slavery bad. Murder bad. Devaluing human life bad. Punishment: Death

However, if your ox kills another ox, the punishment is either damages or dividing the value. If you kill a freeman on accident, you can flee the avenger of blood. He has the right to kill you, but you have the right to hide in a safe place. Human life is valued, but here the punishment is compromised where the killing is accidental.

Lastly, damages to property such as slaves, fields, or stealing are settled with financial compensation as expected. The seduction of a virgin is seen to be a crime of damage to property, by decreasing the woman’s value to a husband. Today, we see rape as a crime of assault punishable by prison, not damages. Why prison? Because we see the devaluing of life as something that money cannot compensate. (See Numbers 15:32-34 for imprisonment until punishment for gathering sticks on Shabbat, though they may just have not known how to kill him, Olam haTanakh p95).

Now, for the controversial part. This is one of my favorite passages to point out to Bible-thumping pro-lifers:

כב וְכִֽי־יִנָּצ֣וּ אֲנָשִׁ֗ים וְנָ֨גְפ֜וּ אִשָּׁ֤ה הָרָה֙ וְיָֽצְא֣וּ יְלָדֶ֔יהָ וְלֹ֥א יִֽהְיֶ֖ה אָס֑וֹן עָנ֣וֹשׁ יֵֽעָנֵ֗שׁ כַּֽאֲשֶׁ֨ר יָשִׁ֤ית עָלָיו֙ בַּ֣עַל הָֽאִשָּׁ֔ה וְנָתַ֖ן בִּפְלִלִֽים׃ כג וְאִם־אָס֖וֹן יִֽהְיֶ֑ה וְנָֽתַתָּ֥ה נֶ֖פֶשׁ תַּ֥חַת נָֽפֶשׁ׃ כד עַ֚יִן תַּ֣חַת עַ֔יִן שֵׁ֖ן תַּ֣חַת שֵׁ֑ן יָ֚ד תַּ֣חַת יָ֔ד רֶ֖גֶל תַּ֥חַת רָֽגֶל׃ כה כְּוִיָּה֙ תַּ֣חַת כְּוִיָּ֔ה פֶּ֖צַע תַּ֣חַת פָּ֑צַע חַבּוּרָ֕ה תַּ֖חַת חַבּוּרָֽה׃

Exodus 21:22 When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment to be based on reckoning. 23 But if other damage ensues, the penalty shall be life for life, 24 eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burn for burn, wound for wound, bruise for bruise.

It’s clear from line 24 that the punishments are “measure for measure” and from 22 that the “payments are based on reckoning”, meaning the “value of an eye for an eye”. Thus, when causing a woman to abort her fetus is punished by damages, the punishment is the same as if he had injured her body(see עובר ירך אמו, the fetus is the loin of his mother) In fact, in Jewish law, we don’t even mourn a dead baby unless it’s been alive 30 days (בר קיימא). Clearly, the Jewish tradition begins in the Torah where a fetus does not have the rights of a free person until born. (see Rashi, Sanhedrin 72b on head coming out). In the Code of Hammurapi, a miscarriage is also covered as damages, but differs where killing the woman forfeits not your life but your daughter’s.

It should become clear now that the Torah has somewhat different values of life and property than we do in America today. This section, the ancient Sefer haBrit, sees denigrations of the dignity of God as capital crimes, whereas we might just give our children a time out if they insult us. The Torah also sees you as so responsible for your animals, that if they have a history of violence, your life is on the line to control them. Lastly, while the Sefer haBrit doesn’t discuss abortion, it does assert that a fetus is not an independent life with its own rights. Perhaps spreading knowledge of this Biblical fact will help to bring peace to our country.

Shabbat Shalom.

2og: If a seignior struck a(nother) seignior’s daughter and has caused her to have a miscarriage,”‘ he shall pay ten shekels of silver for her fetus. 2io: If that woman has died, they shall put his daughter to death. :2ii: If by a blow he has caused a commoner’s daughter to have a miscarriage, he shall pay five shekels of silver. 2i:z: If that woman has died, he shall pay one-half mina of silver. 213: If he struck a seignior’s female slave and has caused her to a have a miscarriage, he shall pay two shekels of silver. 2I4: If that female slave has died, he shall pay one-third mina of silver.

See Table of comparisons with Hammurapi at bottom of Chapter 13: J and the Law

See Myth: The Bible Forbids Abortion