The Na'arah Problem
We read in Exodus 22:1 that if someone steals something, then that person needs to return the object or its value, and also pay a fine, which varies depending on what was stolen. The exception is kidnapping, stealing a Jew and selling him, which is punishable by death.
These laws are for all of the people, be it for the man, or woman, or the stranger who is residing among them (Lev. 18:26).
Speaking of Leviticus, you also have verse 19:29 that commands you not to prostitute your daughter.
Now, hold those thoughts for a moment.
An overview of Exodus 21:7-11
In this weeks parashah, we read in Exodus 21:7-11 about a man who will sell his daughter to another Jew. This is not to be confused with a Jewish male paying the father for his daughter to be a wife, but the father selling his daughter into servitude for a period of time.
Not his son, but just his daughter.
Verse 7 goes onto tell us that she should not be freed like the gentile slaves, meaning, through the loss of an eye or a tooth. In fact, she would still remain in servitude if that happened.
Now, if she is a bother, is seen as a bad idea in the eyes of her new master (verse 8), and he has not yet designated her as his (or his son's) woman, then he can get a refund and give her back. He cannot sell her to somebody else just to get rid of this problem.
If he designates her as a woman for himself or his son, then he has to no longer treat her as a servant, but as a proper member of the family (verse 9).
And if he find a nicer woman later on and decides to take that one as well, he cannot diminish the provisions for the prior woman, be it food, clothing, or "time" (a euphemism for sexual relations). (Verse 10).
But if he decides not to provide these three things to her, she shall go free, without charge. (verse 11).
Ancient Apologetics
The Jewish sages had a problem with some of this. The idea of having an unmarried woman living with her master, providing service, and being his property for a period of time seemed too much like prostituting one's daughter, which is forbidden in Leviticus 19:29.
And so, the redefined a few things. But instead of making it better, they actually made things worse.
In Hebrew, a na'ar (or the feminine na'arah) means a "youth". In the first page of Tractate Kiddushin, the sages made "youth" into a "prepubescent youth", meaning, before three pubic hairs have grown. Let's say, pre-teen, to simplify it.
Based on some nuances in the language in Genesis, after the "binding of Isaac" followed by the section talking about his mother, depending on how you read these two adolescent stories, Rebecca would be either three years old, or an adult. And so, from that it was determined that the youngest age of a na'arah is three years old.
Or to be more explicit:
The Sages' idea to have the daughter of the man be a na'arah, prepubescent, in order to make selling her less creepy, actually created the opposite. And by taking naarah in Deuteronomy 22:21 and applying their definition, you end up with the possibility of a man bedding a child. Furthermore, it is apparent that if the man is able to bed a child, then selling a little girl or an adult woman really isn't very different.
Remember when I wrote that a thief who cannot repay for his theft gets sold into servitude in this week's parashah? And that the laws of the Torah are for all Jews and those who reside among them?
What happens to a woman who steals and cannot repay, an orphan with no family. What happens to her?
According to the Talmud...well, the Talmud is silent on this. While it goes into all of the nuances of all types of crimes and people, the idea of a girl or a woman being sold into servitude to pay off her debt, which is similar to her father selling her into servitude, is never discussed.
Not a word.
Woman versus Conjugal Maid
Earlier I used the term "woman". This is based on the word "isha" And this is typically rendered as "wife". There is another relationship where the woman is not a wife, but a sheficha. A sheficha is a maid who will have relations with her master, produce offspring, and this offspring is vicariously associated as the offspring of the man and his wife, with the sheficha as the tool for doing this.
This is the difference between Jacob and his wives, Rachael and Leah, and his sheficha Bilha and Zilpah. The wives would name them and be the mistress of those who gave birth to them.
So in the family dynamic, you had the husband ("ba'al" means "lord", "master", "owner", and "husband"), and his woman of two possible statuses. You also had slaves who were even below the status of a sheficha. And as we read in this week's parasha (21:4), conjugal slaves were often given to the Hebrew male slaves to increase their workforce, and to entice the male to remain a slave forever.
Modern Apologetics
Why would a man sell his daughter?
The Torah is silent on this. The authors of this chapter of Exodus simply stated that the father has the right to do that, for whatever reason he considers to be valid.
Period.
Modern apologetics, ignoring the roles of a conjugal maid or a conjugal slave, have come up with a long list of why this was a good thing.
Why is selling her into servitude better than selling her into marriage?
If the master isn't pleased, he can send her back for a full refund.
If the master was pleased, and designates her for his own, but finds a better one, and if he just ignores the previous one, she can leave, but she gets nothing. (This verse would seem to imply that the Rabbinical status of an agunah would not apply to such a woman).
I have heard, "If the father was poor, and could not provide a dowry, she would have no future."
Where does the Torah speak of the father paying for the marrying off of his daughter? That was something instituted much later, long after fathers no longer sold their daughters.
Also, "It was another form of marriage". The man could choose, after a few years that he didn't want her. Or, he could give her to his creepy son that nobody wanted anything to do with, as a conjugal maid (sheficha).
There is a story in the Talmud (Tractate Avodah Zara), about a brutish man who had a sheficha, caused her to miscarry, and tossed the fetus into the pit in the yard for the vermin to eat and dispose of it.
Not all masters were good. And not all breeding maids celebrated their lives.
Conclusion and Intent
Apologetics is all about creating intent, where none was specified, and making that intent appear ethical, when one can imagine opposing scenarios.
In the Torah, daughters are a burden. Fathers have to constantly protect them from thieves and rapists. Selling them as early as possible eliminates this burden.
The positioning of these verses with those of the master providing a conjugal slave to his other property, and the ending verses with the idea that after he had taken the maid, but he has stopped providing for her, giving her his "time", indicates that this certainly prostituting one's daughter.
So how do you explain the prohibition in Leviticus to what is permitted in Exodus?
They were different authors at different times.
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