The Punishment For Theft1
If you acquire a Hebrew servant, he shall work for six years.
Prisons aren’t us. They are conspicuously absent in the routine practice of
Jewish criminal law. The selling of the thief is the only instance we know
of a statutory deprivation of freedom as punishment for a crime. We shall
see that it is not much of a punishment in the conventional sense.
The thrust of the six years of indentured servitude for the thief is not
incarceration but rehabilitation. Its aim is to uplift the spirit of the
criminal, not to break it. Halacha cautions us to treat the servant as one
of the family, eating and sleeping on a place equal to the other members of
the household. He is treated as a brother, not an underling.
His suffering of his family is not dismissed as unfortunate collateral
damage to society’s need to exact retribution from a criminal offender. To
the contrary, his family members become wards of the master who acquires his
services. While the master enjoys the fruits of his labor, they are
supported at his expense.
Too many details in this parshah make it unlikely to regard it as a kind of
punishment. To begin with, the sale of the criminal is limited to the crime
of theft, but not any other kind of crime or indebtedness. His sale seems to
be more a fulfillment of his obligation to make good on what he stole. It is
restitution, plain and simple! Yet while there are many situations in which
people need make restitution, only the thief need go to the extreme of
forfeiting his liberty to pay compensation for the damage he caused. Only
the thief shows contempt for the very idea of property. On a practical
level, property ownership is bound up with trust of the public. Were it not
for this trust, we could not really own anything not nailed in place. We
could not take our eyes off anything we owned, for fear that others would
steal it while our glance is averted. We are able to enjoy the right of
ownership only because we trust the majority of our neighbors to
reciprocally respect that right. When the thief steals, he not only deprives
some owner of his property, but he strikes a blow at the trust in the public
that makes property possible, and communal life a reality. No other
indebtedness violates this core value of civilization; it is only for theft,
then, that the criminal must make amends by any means possible, including
placing his very freedom in the service of restitution.
This is born out by yet other details. The thief may be sold only if the
value of his theft equals or exceeds the value of his work. He cannot be
sold if his labor is worth more than what he stole. In that case, rather
than deprive him of his freedom, the court simply attaches his earnings, and
directs them to the plaintiff. The thief may only be sold to pay for what he
stole – but not for any statutory fine (e.g. the doubled payment imposed
upon a thief caught with the illicit goods in hand). Should the victim of
the crime waive his right to compensation, and accept a signed promise by
the thief that he will pay back the plaintiff whenever he comes into some
money, the thief will not serve - a surefire indication that the thief
doesn’t serve to “pay” society for his crime, but simply to make restitution
for what he stole. The Torah does not easily impose such a heavy burden as
loss of a person’s freedom!
We can find only one element of the treatment of the thief that resembles
punishment, and a rather unusual one at that. So long as the thief is sold
and in the domain of his new master, he can be given (if already married) a
new consort. He can be assigned a semi-spouse of a slave-woman, who would
ordinarily be forbidden to him. Children born of this “union” become the
property of his master, not his true children. His relationship with the
female slave is thus entirely physical, having none of the spiritual
component of the bond between ordinary husband and wife. He becomes a
reproduction technician, not a husband.
This might seem to some not the harshest form of punishment, but it in fact
is a powerful reminder to him that holiness can be compromised and lost.
Holiness is, and ought to be, the birthright of every Jew. It is not a
burden, but a privilege. This holiness does not allow him to consort with a
slave-woman. By stooping to theft, by striking a blow at the system of trust
that enables us to enjoy our property, he sacrifices that holiness, and can
be treated as a reproductive machine, rather than a human being. While he is
treated with love and concern during the years of his servitude, we cannot
pretend that he is no different from all others. We will treat him with
respect – but as a person who has seriously tarnished his moral luster.
His punishment, in a word, is learning that he has deprived himself of
holiness, and is the lesser person for it.
When he steals, he effectively sells himself to the world of the physical,
the world symbolized by the six days of creation. He turns his back on the
values tied up in the number seven, the transcendent Power that it
responsible for the existence of the six, and that elevates it to a higher
place. It is perfectly fitting, then, that he toil for six years to strive
to recapture the element of “seven” in his life. When the seventh year
arrives, he goes free, always to remember what he has learned in the years
of his rehabilitation: “six” enslaves; “seven” sets free.
Roadmap to Holiness2
Men of kedushah you shall be to Me. Flesh torn in the field you shall not
Theories abound concerning the laws of kashrus, especially among scholars
who would love to justify their own refusal to comply with them. Different
outside critics have imputed rationales for these laws ranging from sound
dietary practice to forced separation from non-Jews. All these rationales
share a common deficiency – they entirely ignore the reason given by the
Torah itself in the pasuk cited above! Kashrus has nothing to do with any
of the reasons commonly used. The Torah quite clearly describes it as an
adjunct to holiness, not any of the conjectures of modern scholars.
While these scholars overlook the entire verse, we sometimes ignore the
nuance. Seeing the word “kedushah,” we jump to the conclusion that keeping
kosher makes us holy. This is also an error. If this were true, the pasuk
would have to read “אנשים קדושים/ holy people you shall be to Me.” The Torah
does not tell us that abiding by the laws of kashrus will make us holy It is
far from that simple, and not at guaranteed!
The Torah tells us instead to be people concerned with, preoccupied with
holiness. Abiding by the laws of kashrus will help us attain our goal more
efficiently, because eating non-kosher will confound our quest. One who eats
treifah animals will have a more difficult time elevating himself to the
place of spiritual greatness that we should all aspire to. One who
scrupulously follows the laws of kashrut does not become holy by doing so,
but puts himself in a better position to achieve his goals of spiritual
1. Based on the Hirsch Chumash, Shemos 21:2
2. Based on the Hirsch Chumash, Shemos 22:30