The minor daughter sold to another man:parashat mishpatim asserts her rights.

 

“And if a man sell his [minor] daughter to be a maidservant (le’amah) she shall not leave as the male servants do. If she does not please her master who should be espoused to her/ who is not espoused to her, then he shall let her be redeemed.  He has no power to sell her on to a foreign people for he has dealt deceitfully with her. And if he espouses her to his son then he will treat her as he would treat a daughter. And if he takes another wife [having married her himself] he must not diminish her food, clothing allowance or conjugal rights. And if he fails to provide her with these, then she shall be able to leave freely, without any money to be paid” (Exodus 21:7-11)

Sometimes in bible we are taken aback at the worldview of the text, a perspective that is so far from ours as to seem it comes from a completely different universe.  One response has been to effectively excise some texts from the biblical canon, never going to far as to physically remove them perhaps, but certainly to ensure that they are not read or brought forward to support our current system of beliefs or actions.

At first reading the fate of a minor daughter seems to be that she is powerless and of use only insofar as money can be made from her. It appears that the daughter is an asset to be leveraged for the benefit of the father or the family. And this must have seemed to be reasonable to some, for otherwise why would we find in the Babylonian wisdom literature the maxim – “The strong man lives off what is paid for his arms (strength), but the weak man lives off what is paid for his children” which is surely warning people not to sell their children for profit.

Bible however is a subtle text and we cannot simply read the first half of the verse without the conditions required in the second half and the following verses on the subject. It begins with the presumption that a man may sell his daughter to be a maidservant   (AMAH ).  Immediately we note that this must be a minor daughter over whom the father has authority, which already limits the possibility for him to take this action. Then we see that while the word ‘AMAH’ is used and is posited against the male servants (AVADIM) the word that is NOT used is ‘SHIFCHA’ a word which is more servile in its usage. AMAH can be used of a free woman when speaking to a social superior; SHIFCHA is not used in this way. So she is being sold not as a slave but as an AMAH, a status that Hagar, Bilhah and Zilpah are also described as having, and as Ruth and Hannah, Abigail and Michal will also  describe themselves later in bible.

After this introductory phrase that must have been familiar to the original audience for the biblical text, that a many might sell his daughter to another, comes a set of conditions that make clear that whatever the girl is being sold for, her rights are clearly stated and they are tightly drawn and powerfully asserted.

First – she is not someone who is sold as a male slave for whom the sabbatical year of jubilee year will end the contract being made and from this we can clearly deduce that while the context of the narrative is the rights of the Hebrew slave, the rights of this minor girl are different. Something else is happening here and the contract is quite different.

The first clue is the expectation that she is being sold into the household of a man who will later expect to marry her and raise her status accordingly. What is she doing in his household? She is learning the business of becoming a wife and director of the household, something that for whatever reason she does not have access to in her own parental home.

The text then goes on. If the master of the house does not wish to marry her at the appropriate time of her maturity, then he must arrange that she is redeemed from the contract. Rabbinic law assumes that someone in her family will act as go’el and pay out the remaining debt her father has incurred.

The master of the house is expressly forbidden from passing her on to another family – she is not property to be sold on, she is not to be given in prostitution. The bible is absolutely clear – if he does not marry her then he has broken the original contract and so he now has no legal power or ability to direct her future.

The one curiosity here is that there is a kerei ketiv – that is the text is written in one way but understood differently. The negative LO (Lamed Alef) is written, but the text is read as if the word were LO (Lamed Vav). As written it would read “Her master who has not become espoused to her”, as read it is “Her master who has become espoused to her”.  It seems that the Masoretic text cannot imagine that her master did not begin by arranging the engagement, the first part of the marital contract, and instead they think he must have changed his mind once she grew up and was unwilling to go through with it. I think this underlines just how deeply the assumption was that the contract between the father of the girl and the master of the house was that she was being given up early to be married in the future – either because the father was too poor to offer a dowry at the time it would be needed, or too poor even to support her while she grew up. It may even have been done in order to settle the girl’s future in times of political unrest. We know that the Jewish marriage ceremonies which are nowadays done either in one day or at least very closely together were originally separated into the two ceremonies of betrothal and subsequent marriage and that these could take place years apart from each other, the ‘bride’ and ‘groom’ continuing to live in their respective homes after the betrothal for many years before the actual marriage took place and the couple came together as a new family.

Bible gives the possibility that should she not marry the father of the house, then she might marry the son of the house – something which may have delayed her future status but not otherwise significantly alter it. And if she did marry the son rather than the father, her rights as a full member of the family are once again asserted. She is to be treated in every way as a daughter of the house.

The passage then lays down the rights of the girl should she subsequently find that her husband takes another wife – something that might damage her status in the home and leave her marginalised and potentially poorer than before he did so. Thus bible clarifies that the rights of the wife to food, clothing and sex are absolute, and that nothing and nobody can diminish these rights.

It ends with the clear statement about the limits of the contract even if the man has broken it by espousing the girl to his son and therefore lost all rights of ‘ownership’ or privilege.

Should the girl find that she is not being given the full status of married woman, that she is not given the food, clothing and sex that are her rights, then she is free to go – the man has broken his contract and has no hold over her whatsoever – she does not need to be redeemed by a goel or even pay any remaining debt incurred by her father and by her own maintenance in the household – she is a free woman in every way

This passage, which on first reading appears to say that a minor girl can be treated as a chattel to be sold at the whim of her father to a man who would then establish his own ownership is nothing of the sort. The bible actually stops a man selling his daughter as a slave for the purposes of prostitution, and in this first and only legislation in the ancient near east to discuss the rights of a girl who is sold, the girl is protected by some quite draconian legislation, her rights and the obligations to her spelled out beyond the possibility that someone might try to reinterpret what is happening.  Interestingly any obligation of the girl is not mentioned. While we assume she will work to pay for her maintenance, this is not specified. The text is interested only in protecting her and putting boundaries around what the men in her life may think they are able to do with her.

While it would be nice to think that she would be consulted in the betrothal as Rebecca was (albeit without seeing Isaac) we must be grateful for what we get in the world view in which bible was formed. We have here the basis for the rights of all wives – to food, clothing and a home/ sexual relations. Rabbinic law took the text from here in order to provide a basic minimum for every woman who threw her lot in with a man in marriage, and thus protected women in a world which was otherwise potentially disrespectful and without care for her needs.

The unknown AMAH of Mishpatim is the beneficiary of quite phenomenally forward thinking law. Her personhood was respected far more than the mores of the time. There might even be a case to say that a girl from a poor family who might otherwise only be able to look forward to a life of hardship and work either married to a man too poor to offer her much or not able to provide a dowry in order to be married at all, would in this way be able to jump out of her impoverished setting into one of economic security.  One cannot help but think of the women from less economically thriving countries offering themselves in marriage on the internet to men from wealthier countries in order to better their own standard of living.

I cannot say I am thrilled by this passage, but we must be aware of the context of the narrative and the legal codes it comes to replace. The sale of minors was common throughout Assyria and Babylonia and there are documents to suggest it was also in practise in Syria and Palestine. And we see in the book of Kings (2K 4:1) that children might be seized into slavery by their dead parents’ creditors. Nuzi documents show that sale into a conditional slavery was practised, whereby the girl would always be married but not to the master of the house, rather to another slave. The genius of the biblical amendment was that the girl was to be raised in status and treated properly for her whole life, and that she would be freed if certain conditions were not met.

The minor daughter of a man who needed to be free of the economic burden she represented was vulnerable. To this day in some societies daughters are perceived as less valuable, less giving of status to the family, and as people who will never be as economically worthy as sons. It remains true of course that women’s work is not valued in the same way that work done by men is and sadly many women have bought into this viewpoint so even high flying career women will see an increasing gap between their remuneration and that of their male colleagues.

It would be wonderful for this perception to be erased. There is no intellectual or scientifically validated case for it to be held, and yet even in modernity it holds great power in society.  Bible cannot help us here, but it is something to hold on to – that bible restricts the rights of men over their vulnerable daughters and over the defenceless women in their household and it clearly and powerfully ascribes and asserts rights for those women, rights which Jewish legal codes have had to uphold even in highly patriarchal and paternalistic times and groups.

It looks to me from this text that God is aware of the problem humans seem to have with gendered power, and has set a model for dealing with it we could emulate. As the Orthodox Union just tried to curtail the rights of women in scholarship and leadership positions with a  responsum so out of touch and lacking respect for its own constituency, it is good to see that this ancient text gives a lead on the building of the status of women who may need such building, and does not try to either take advantage of them nor to diminish their place in the world.

 

To study further I recommend reading:

“Slavery in the Ancient Near East”. I Mendelsohn in “The biblical Archaeologist”  vol 9 number 4

Josef Fleischman in The Jewish Law Annual ed. Berachyahu Lifshitz. Taylor & Francis, 1 Sep 2000

http://www.jta.org/2017/02/02/top-headlines/ou-bars-women-from-serving-as-clergy-in-its-synagogues

 

 

 

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