2.10. The Legal Status of Israelite Female Slaves

An Israelite woman, just as an Israelite man, could enter into a condition of slavery on account of poverty, and like the Israelite man she had the right to release in the seventh year. “If your brother, a Hebrew man or a Hebrew woman, is sold to you, he shall serve you six years, and in the seventh year you shall let him go free from you” (Deut. 15:12). The further provisions regarding legal status during the period of slavery, regarding the gift upon release, and regarding the piercing of the ear in the event of unwillingness to avail oneself of freedom—are the same for male slaves and female slaves alike. “So also shall you do with your female slave,” the law says (Deut. 15:17), summing up its provisions regarding slaves. But among the provisions concerning female slaves, one provision stands out to scholars by reason of its distinctive character. This is the provision concerning the sale of a daughter by her father into a condition of slavery and her legal status in that condition.

“If a man sells his daughter as a female slave, she shall not go out as the male slaves go out” (Exod. 21:7)—that is, she does not have the right to release in the seventh or jubilee years. At first glance this law may appear harsh, incomprehensible in its motives, and contradictory to the general humane spirit of Mosaic legislation; in reality, however, it served to ease the helpless situation of female persons in households crushed by poverty. This law is essentially founded upon the ancient, unrestricted authority of parents over their children, but the lawgiver made such wise use of this ancient right that it became a means of providing security for both the household and the daughter. The very act of sale can only be supposed to occur under oppressive, inescapable poverty, when the father saw in the sale of his daughter the only way to save himself and his entire family from ruin. The sale thus first of all achieved security for the family. But by the same token the daughter was not sacrificed as a ransom for the family; on the contrary, it also achieved security for her own position. Even the condition of slavery into which she entered, under the influence of the lawgiver’s wise provisions, lost its true character—because the sale of an Israelite girl is presupposed by the law only with a view to the master’s purchasing her as a secondary wife for himself, with the obligation in every case to provide for her future. By this very fact her position ceased to be one of slavery; even the name used for her in this case — amah — is distinct from the name schiphchah, ordinarily applied to a female slave in the strict sense. Amah is a female slave who enjoys the particular favor and honor of the master in the household. The law surrounds such a female slave with the most attentive care. “If she does not please her master, who has designated her for himself, then he shall let her be redeemed (according to the Targum of Onkelos — liberam faciet eam); he shall have no right to sell her to a foreign people (according to the Targum of Onkelos — viro alii), since he has dealt faithlessly with her” (Exod. 21:8). From this law there flow for her rights to a status higher than ordinary slavery, since the law demands her immediate release (through redemption) if the master fails to fulfill his obligation toward her—namely, if he does not take her as his wife (si displicuerit domino suo ducere eam in uxorem — as the Arabic translation expresses it), or if he rejects her (deceives or defrauds her — deceperit, fraudaverit eam — according to the Syriac and Arabic versions). Regarding the redemption, the law does not specify upon whom it lays this obligation. But judging by the general provision by which the redemption of sold land or of an Israelite who has sold himself was laid upon kinsmen, one may suppose that this provision retains its force here as well. This is indicated among other things by the expression of the law: “he shall let her be redeemed,” which expression presupposes someone’s readiness to redeem her, if only permission were granted. This readiness is most naturally to be supposed on the part of kinsmen. To sell this female slave to a foreign people or even to a foreign man (according to the expression of the Targum of Onkelos) the master has no authority. Only to his own son—in the event that he himself did not wish to marry her—could he give her in marriage; but in this case she definitively ceased to be a slave: the master was obliged to treat her “according to the rights of a daughter,” and his son was to regard her as a free wife. “If he designates her for his son, he shall deal with her according to the rights of daughters” (Exod. 21:9). If the master or the son who married her were to take another wife, the first was not to be deprived of her rights: “If he takes another wife for himself, he shall not diminish her food, her clothing, or her marital rights.” “But if,” the law concludes, “he does not do these three things for her” (unum ex his tribus — according to the Arabic version), “she shall go out for nothing, without payment of money” (Exod. 21:11). Scholars differ in opinion as to what the expression “these three” refers to—whether only to the three items enumerated in the preceding verse (food, clothing, and conjugal cohabitation), or generally to all three of the obligations laid by the law upon the master with respect to this female slave. It is most natural to understand the expression in relation to the immediately preceding items rather than to the master’s general obligations toward the female slave, all the more so since the second interpretation—as expressed, for example, by Knobel—contains a contradiction, or at least an artificial strain. Knobel counts these obligations as: allowing redemption, giving in marriage to his son, and granting all the rights of a wife in the event of the son’s marriage to another woman—whereas, for example, “allowing redemption” is not an obligation accepted by the master upon purchasing the female slave, but rather a penalty for failure to fulfill his obligation. Moreover, it would be strange to suppose that for refusing to allow redemption the master was obligated to release the female slave “without redemption money”: knowing such a law, the master would in any case have permitted redemption rather than release the female slave for nothing. Such an interpretation is also illogical in that it attaches the final penalty—which the law assigns for failure to fulfill the last obligation toward the female slave—to failure to fulfill all the other obligations, whereas the law distinguishes the gravity of these obligations and imposes different penalties for their non-fulfillment. Thus for “unfaithfulness”—for the master’s disdaining the female slave and not betrothing her—the law requires permission for redemption; but for outright rejection of her, for humiliation before a second wife, for deprivation of “food, clothing, and conjugal cohabitation” as the ultimate degree of contempt, the law requires complete release without redemption money. Thus the interpretation by which the expression “these three” refers to the three items enumerated in the preceding verse—food, clothing, and conjugal cohabitation—has more logical grounds in its favor.

The law just examined concerning the legal status of a female slave appears to be in contradiction with another law, namely that in Deut. 15:12–17. According to that law, a female slave enjoys the same rights as a male slave—the right to go free in the seventh and jubilee years—whereas according to the law we have examined, she does not have this right: it is stated plainly there: “she shall not go out as the male slaves go out”—and yet both laws concern female Israelite slaves. Michaelis attempted to resolve this contradiction by pointing to the different times at which the laws under consideration were issued, with the law of Deuteronomy being, in his opinion, a step forward in humaneness compared to the law of Exodus. But such an explanation has no firm basis. “Quite the contrary,” Saalschütz rightly observes regarding such an explanation, “the law of Deuteronomy would represent a step backward in humaneness if the lawgiver had placed in the later law (Deuteronomy) in the position of a simple, ordinary slave one about whom the earlier law (of Exodus) required the master to care as for his own daughter, and who had the right to the fulfillment of all matrimonial obligations toward her.” The apparent contradiction is most naturally explained by the difference in purpose for which female slaves were purchased. The law of Exodus treats special cases in which a father sold his daughter (at a young age) with a view to the master’s betrothing her, either to himself or to his son, so that she would become a genuine member of the family, especially as the wife of the son. In such a case there are no grounds for her to leave the house “as the male slaves go out.” By contrast, in Deuteronomy the reference is to the sale of an Israelite woman for ordinary labor, on a par with male slaves; consequently she was also to leave the house in the same way “as the male slaves go out.” Mielziner additionally supposes that in the latter case the reference is to “older” Hebrew women who could no longer count on betrothal to the master or his son, and who hired themselves out for work out of need, to support themselves.