Biblical Commentary on the Old Testament, by Carl Friedrich Keil and Franz Delitzsh, [1857-78], at sacred-texts.com
The mishpatim (Exo 21:1) are not the "laws, which were to be in force and serve as rules of action," as Knobel affirms, but the rights, by which the national life was formed into a civil commonwealth and the political order secured. These rights had reference first of all to the relation in which the individuals stood one towards another. The personal rights of dependants are placed at the head (Exo 21:2-11); and first those of slaves (Exo 21:2-6), which are still more minutely explained in Deu 15:12-18, where the observance of them is urged upon the hearts of the people on subjective grounds.
The Hebrew servant was to obtain his freedom without paying compensation, after six years of service. According to Deu 15:12, this rule applied to the Hebrew maid-servant as well. The predicate עברי limits the rule to Israelitish servants, in distinction from slaves of foreign extraction, to whom this law did not apply (cf. Deu 15:12, "thy brother").
(Note: Saalschtz is quite wrong in his supposition, that עברי relates not to Israelites, but to relations of the Israelites who had come over to them from their original native land. (See my Archהologie, ֗112, Note 2.))
An Israelite might buy his own countryman, either when he was sold by a court of justice on account of theft (Exo 22:1), or when he was poor and sold himself (Lev 25:39). The emancipation in the seventh year of service was intimately connected with the sabbatical year, though we are not to understand it as taking place in that particular year. "He shall go out free," sc., from his master's house, i.e., be set at liberty. חנּם: without compensation. In Deuteronomy the master is also commanded not to let him go out empty, but to load him (חעניק to put upon his neck) from his flock, his threshing-floor, and his wine-press (i.e., with corn and wine); that is to say, to give him as much as he could carry away with him. The motive for this command is drawn from their recollection of their own deliverance by Jehovah from the bondage of Egypt. And in Exo 21:18 an additional reason is supplied, to incline the heart of the master to this emancipation, viz., that "he has served thee for six years the double of a labourer's wages," - that is to say, "he has served and worked so much, that it would have cost twice as much, if it had been necessary to hire a labourer in his place" (Schultz), - and "Jehovah thy God hath blessed thee in all that thou doest," sc., through his service.
There were three different circumstances possible, under which emancipation might take place. The servant might have been unmarried and continued so (בּגפּו: with his body, i.e., alone, single): in that case, of course, there was no one else to set at liberty. Or he might have brought a wife with him; and in that case his wife was to be set at liberty as well. Or his master might have given him a wife in his bondage, and she might have borne him children: in that case the wife and children were to continue the property of the master. This may appear oppressive, but it was an equitable consequence of the possession of property in slaves at all. At the same time, in order to modify the harshness of such a separation of husband and wife, the option was given to the servant to remain in his master's service, provided he was willing to renounce his liberty for ever (Exo 21:5, Exo 21:6). This would very likely be the case as a general rule; for there were various legal arrangements, which are mentioned in other places, by which the lot of Hebrew slaves was greatly softened and placed almost on an equality with that of hired labourers (cf. Exo 23:12; Lev 25:6, Lev 25:39, Lev 25:43, Lev 25:53; Deu 12:18; Deu 16:11). In this case the master was to take his servant האלהים אל, lit., to God, i.e., according to the correct rendering of the lxx, πρὸς τὸ κριτήριον, to the place where judgment was given in the name of God (Deu 1:17; cf. Exo 22:7-8, and Deu 19:17), in order that he might make a declaration there that he gave up his liberty. His ear was then to be bored with an awl against the door or lintel of the house, and by this sign, which was customary in many of the nations of antiquity, to be fastened as it were to the house for ever. That this was the meaning of the piercing of the ear against the door of the house, is evident from the unusual expression in Deu 15:17, "and put (the awl) into his ear and into the door, that he may be thy servant for ever," where the ear and the door are co-ordinates. "For ever," i.e., as long as he lives. Josephus and the Rabbins would restrict the service to the time ending with the year of jubilee, but without sufficient reason, and contrary to the usage of the language, as לעלם is used in Lev 25:46 to denote service which did not terminate with the year of jubilee. (See the remarks on Lev 25:10; also my Archologie.)
The daughter of an Israelite, who had been sold by her father as a maid-servant (לאמה), i.e., as the sequel shows, as a housekeeper and concubine, stood in a different relation to her master's house. She was not to go out like the men-servants, i.e., not to be sent away as free at the end of six years of service; but the three following regulations, which are introduced by אם (Exo 21:8), ואם (Exo 21:9), and ואם (Exo 21:11), were to be observed with regard to her. In the first place (Exo 21:8), "if she please not her master, who hath betrothed her to himself, then shall he let her be redeemed." The לא before יעדהּ is one of the fifteen cases in which לא has been marked in the Masoretic text as standing for לו; and it cannot possibly signify not in the passage before us. For if it were to be taken as a negative, "that he do not appoint her," sc., as a concubine for himself, the pronoun לו would certainly not be omitted. הפדּהּ (for הפדּהּ, see Ges. 53, Note 6), to let her be redeemed, i.e., to allow another Israelite to buy her as a concubine; for there can hardly have been any thought of redemption on the part of the father, as it would no doubt be poverty alone that caused him to sell his daughter (Lev 25:39). But "to sell her unto a strange nation (i.e., to any one but a Hebrew), he shall have no power, if he acts unfaithfully towards her," i.e., if he do not grant her the promised marriage. In the second place (Exo 21:9, Exo 21:10), "if he appoint her as his son's wife, he shall act towards her according to the rights of daughters," i.e., treat her as a daughter; "and if he take him (the son) another (wife), - whether because the son was no longer satisfied, or because the father gave the son another wife in addition to her - "her food (שׁאר flesh as the chief article of food, instead of לחם, bread, because the lawgiver had persons of property in his mind, who were in a position to keep concubines), her raiment, and her duty of marriage he shall not diminish," i.e., the claims which she had as a daughter for support, and as his son's wife for conjugal rights, were not to be neglected; he was not to allow his son, therefore, to put her away or treat her badly. With this explanation the difficulties connected with every other are avoided. For instance, if we refer the words of Exo 21:9 to the son, and understand them as meaning, "if the son should take another wife," we introduce a change of subject without anything to indicate it. If, on the other hand, we regard them as meaning, "if the father (the purchaser) should take to himself another wife," this ought to have come before Exo 21:9. In the third place (Exo 21:11), "if he do not (do not grant) these three unto her, she shall go out for nothing, without money." "These three" are food, clothing, and conjugal rights, which are mentioned just before; not "si eam non desponderit sibi nec filio, nec redimi sit passus" (Rabbins and others), nor "if he did not give her to his son as a concubine, but diminished her," as Knobel explains it.
Still higher than personal liberty, however, is life itself, the right of existence and personality; and the infliction of injury upon this was not only prohibited, but to be followed by punishment corresponding to the crime. The principle of retribution, jus talionis, which is the only one that embodies the idea of justice, lies at the foundation of these threats.
A death-blow was to be punished with death (cf. Gen 9:6; Lev 24:17). "He that smiteth a man and (so that) he die (whether on the spot or directly afterwards did not matter), he shall be put to death." This general rule is still further defined by a distinction being drawn between accidental and intentional killing. "But whoever has not lain in wait (for another's life), and God has caused it to come to his hand" (to kill the other); i.e., not only if he did not intend to kill him, but did not even cherish the intention of smiting him, or of doing him harm from hatred and enmity (Num 35:16-23; Deu 19:4-5), and therefore did so quite unawares, according to a dispensation of God, which is generally called an accident because it is above our comprehension. For such a man God would appoint places of refuge, where he should be protected against the avenger of blood. (On this point, see Num 35:9.).
"But he who acts presumptuously against his neighbour, to slay him with guile, thou shalt take him from Mine altar that he may die." These words are not to be understood as meaning, that only intentional and treacherous killing was to be punished with death; but, without restricting the general rule in Exo 21:12, they are to be interpreted from their antithesis to Exo 21:13, as signifying that even the altar of Jehovah was not to protect a man who had committed intentional murder, and carried out his purpose with treachery. (More on this point at Num 35:16.) By this regulation, the idea, which was common to the Hebrews and many other nations, that the altar as God's abode afforded protection to any life that was in danger from men, was brought back to the true measure of its validity, and the place of expiation for sins of weakness (cf. Lev 4:2; Lev 5:15, Lev 5:18; Num 15:27-31) was prevented from being abused by being made a place of refuge for criminals who were deserving of death. Maltreatment of a father and mother through striking (Exo 21:15), man-stealing (Exo 21:16), and cursing parents (Exo 21:17, cf. Lev 20:9), were all to be placed on a par with murder, and punished in the same way. By the "smiting" (הכּה) of parents we are not to understand smiting to death, for in that case ומת would be added as in Exo 21:12, but any kind of maltreatment. The murder of parents is not mentioned at all, as not likely to occur and hardly conceivable. The cursing (קלּל as in Gen 12:3) of parents is placed on a par with smiting, because it proceeds from the same disposition; and both were to be punished with death, because the majesty of God was violated in the persons of the parents (cf. Exo 20:12). Man-stealing was also no less a crime, being a sin against the dignity of man, and a violation of the image of God. For אישׁ "a man," we find in Deu 24:7, נפשׁ "a soul," by which both man and woman are intended, and the still more definite limitation, "of his brethren of the children of Israel." The crime remained the same whether he had sold him (the stolen man), or whether he was still found in his hand. (For ו - ו as a sign of an alternative in the linking together of short sentences, see Pro 29:9, and Ewald, 361.) This is the rendering adopted by most of the earlier translators, and we get no intelligent sense if we divide the clauses thus: "and sell him so that he is found in his hand."
Fatal blows and the crimes placed on a par with them are now followed in simple order by the laws relating to bodily injuries.
If in the course of a quarrel one man should hit another with a stone or with his fist, so that, although he did not die, he "lay upon his bed," i.e., became bedridden; if the person struck should get up again and walk out with his staff, the other would be innocent, he should "only give him his sitting and have him cured," i.e., compensate him for his loss of time and the cost of recovery. This certainly implies, on the one hand, that if the man died upon his bed, the injury was to be punished with death, according to Exo 21:12; and on the other hand, that if he died after getting up and going out, no further punishment was to be inflicted for the injury done.
The case was different with regard to a slave. The master had always the right to punish or "chasten" him with a stick (Pro 10:13; Pro 13:24); this right was involved in the paternal authority of the master over the servants in his possession. The law was therefore confined to the abuse of this authority in outbursts of passion, in which case, "if the servant or the maid should die under his hand (i.e., under his blows), he was to be punished" (ינּקם נקם: "vengeance shall surely be taken"). But in what the נקם was to consist is not explained; certainly not in slaying by the sword, as the Jewish commentators maintain. The lawgiver would have expressed this by יוּמת מות. No doubt it was left to the authorities to determine this according to the circumstances. The law in Exo 21:12 could hardly be applied to a case of this description, although it was afterwards extended to foreigners as well as natives (Lev 24:21-22), for the simple reason, that it is hardly conceivable that a master would intentionally kill his slave, who was his possession and money. How far the lawgiver was from presupposing any such intention here, is evident from the law which follows in Exo 21:21, "Notwithstanding, if he continue a day or two (i.e., remain alive), it shall not be avenged, for he is his money." By the continuance of his life, if only for a day or two, it would become perfectly evident that the master did not wish to kill his servant; and if nevertheless he died after this, the loss of the slave was punishment enough for the master. There is no ground whatever for restricting this regulation, as the Rabbins do, to slaves who were not of Hebrew extraction.
If men strove and thrust against a woman with child, who had come near or between them for the purpose of making peace, so that her children come out (come into the world), and no injury was done either to the woman or the child that was born,
(Note: The words ילדיה ויצאוּ are rendered by the lxx καὶ ἐξέλθη τὸ παιδίον αὐτῆς μὴ ἐξεικονισμένον and the corresponding clause יהיה אסון ואם by ἐὰν δὲ ἐξεικονισμένον ᾖ; consequently the translators have understood the words as meaning that the fruit, the premature birth of which was caused by the blow, if not yet developed into a human form, was not to be regarded as in any sense a human being, so that the giver of the blow was only required to pay a pecuniary compensation, - as Philo expresses it, "on account of the injury done to the woman, and because he prevented nature, which forms and shapes a man into the most beautiful being, from bringing him forth alive." But the arbitrary character of this explanation is apparent at once; for ילד only denotes a child, as a fully developed human being, and not the fruit of the womb before it has assumed a human form. In a manner no less arbitrary אסון has been rendered by Onkelos and the Rabbins מותא, death, and the clause is made to refer to the death of the mother alone, in opposition to the penal sentence in Exo 21:23, Exo 21:24, which not only demands life for life, but eye for eye, etc., and therefore presupposes not death alone, but injury done to particular members. The omission of להּ, also, apparently renders it impracticable to refer the words to injury done to the woman alone.)
a pecuniary compensation was to be paid, such as the husband of the woman laid upon him, and he was to give it בּפללים by (by an appeal to) arbitrators. A fine is imposed, because even if no injury had been done to the woman and the fruit of her womb, such a blow might have endangered life. (For יצא roF( to go out of the womb, see Gen 25:25-26.) The plural ילדיה is employed for the purpose of speaking indefinitely, because there might possibly be more than one child in the womb. "But if injury occur (to the mother or the child), thou shalt give soul for soul, eye for eye,...wound for wound:" thus perfect retribution was to be made.
But the lex talionis applied to the free Israelite only, not to slaves. In the case of the latter, if the master struck out an eye and destroyed it, i.e., blinded him with the blow, or struck out a tooth, he was to let him go free, as a compensation for the loss of the member. Eye and tooth are individual examples selected to denote all the members, from the most important and indispensable down to the very least.
The life of man is also protected against injury from cattle (cf. Gen 9:5). "If an ox gore a man or a woman, that they die, the ox shall be stoned, and its flesh shall not be eaten;" because, as the stoning already shows, it was laden with the guilt of murder, and therefore had become unclean (cf. Num 35:33). The master or owner of the ox was innocent, sc., if his ox had not bee known to do so before. But if this were the case, "if his master have been warned (בּבעליו הוּעד, lit., testimony laid against its master), and notwithstanding this he have not kept it in," then the master was to be put to death, because through his carelessness in keeping the ox he had caused the death, and therefore shared the guilt. As this guilt, however, had not been incurred through an intentional crime, but had arisen simply from carelessness, he was allowed to redeem his forfeited life by the payment of expiation money (כּפר, lit., covering, expiation, cf. Exo 30:12), "according to all that was laid upon him," sc., by the judge.
The death of a son or a daughter through the goring of an ox was also to be treated in the same way; but that of a slave (man-servant or maid-servant) was to be compensated by the payment of thirty shekels of silver (i.e., probably the ordinary price for the redemption of a slave, as the redemption price of a free Israelite was fifty shekels, Lev 27:3) on the part of the owner of the ox; but the ox was to be killed in this case also. There are other ancient nations in whose law books we find laws relating to the punishment of animals for killing or wounding a man, but not one of them had a law which made the owner of the animal responsible as well, for they none of them looked upon human life in its likeness of God.
Passing from life to property, in connection with the foregoing, the life of the animal, the most important possession of the Israelites, is first of all secured against destruction through carelessness. If any one opened or dug a pit or cistern, and did not close it up again, and another man's ox or ass (mentioned, for the sake of example, as the most important animals among the live stock of the Israelites) fell in and was killed, the owner of the pit was to pay its full value, and the dead animal to belong to him. If an ox that was not known to be vicious gored another man's ox to death, the vicious animal was to be sold, and its money (what it fetched) to be divided; the dead animal was also to be divided, so that both parties bore an equal amount of damage. If, on the other hand, the ox had been known to be vicious before, and had not been kept in, carefully secured, by its possessor, he was to compensate the owner of the one that had been killed with the full value of an ox, but to receive the dead one instead.