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Slavery and Liberty: Talmud and Political Theory in Dialogue

  • Benjamin Schvarcz (a1)
Abstract

While focusing on the concept of liberty, this article produces a dialogue between the Talmud and western political theory, and thus expands the canon of political thought. Equipped with three concepts of liberty—negative, positive, and republican—this article offers an original reading to Babylonian Talmud Giṭ 12a–13a. The talmudic passage's pivotal question—whether liberty is necessarily beneficial to a slave—enables us to reconstruct its fundamental, albeit implicit, understandings of both slavery and liberty. The talmudic approach to slavery and liberty emerges as concrete, and hence yields a thick and multi-faceted notion of liberty. Considering that a person might prefer the benefits of slavery reveals a paradox in Isaiah Berlin's negative concept of liberty. Therefore, as this article concludes, his conceptual distinction between two concepts of liberty is unsustainable and needs to be replaced by a concrete and thick notion of liberty.

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1 Constant, Benjamin, Political Writings (ed. and trans. Fontana, Biancamaria; Cambridge Texts in the History of Political Thought; Cambridge: Cambridge University Press, 1988) 327.

2 E.g. Law, Politics and Morality in Judaism (ed. Michael Walzer; The Ethikon Series in Comparative Ethics; Princeton, NJ: Princeton University Press, 2006); Novak, David, Covenantal Rights: A Study in Jewish Political Theory (New Forum Books; Princeton, NJ: Princeton University Press, 2000); The Jewish Political Tradition Throughout the Ages: In Memory of Daniel J. Elazar (ed. Moshe Hellinger; Ramat-Gan: Bar Ilan University Press, 2010) [Hebrew].

3 This is not to say that Berlin was the first to draw on the opposition between the two concepts. He, for example, acknowledges Benjamin Constant's excellent speech in 1819 on this matter. Berlin, Isaiah, Liberty: Incorporating Four Essays on Liberty (ed. Hardy, Henry; 2nd edition; Oxford, UK: Oxford University Press, 2002) 209.

4 Skinner goes further in praising Berlin's lecture as “the most influential single essay in contemporary political philosophy.” Skinner, Quentin, “A Third Concept of Liberty,” in 2001 Lectures (ed. Thompson, F. M. L.; Proceedings of the British Academy 117; Oxford: Oxford University Press, 2002) 237–68 at 238.

5 Throughout the article I follow Quentin Skinner who wrote: “Although the terms freedom and liberty are obviously not interchangeable, Berlin clearly thought of them as sufficiently synonymous for his purpose. . . . I have followed Berlin” (ibid., 238 n. 7).

6 Berlin, Liberty, 177.

7 Ibid., 169.

8 Ibid., 30. In an earlier version of his article: “Political liberty in this [negative] sense is simply the area within which a man can do what he wants” (idem, Two Concepts of Liberty: An Inaugural Lecture Delivered Before the University of Oxford on 31 October 1958 [Oxford: Clarendon Press, 1958] 7).

9 Idem, Liberty, 176, 208–12. Berlin adds in a footnote: “Indeed, it is arguable that in the Prussia of Frederick the Great or in the Austria of Joseph II men of imagination, originality and creative genius, and, indeed, minorities of all kinds, were less persecuted and felt the pressure, both of institutions and custom, less heavy upon them than in many an earlier or later democracy” (ibid., 176 n. 3).

10 Ibid.,177.

11 Ibid.,178.

12 Skinner, “A Third Concept,” 239–40.

13 Berlin, Liberty, 179.

14 Ibid.

15 Ibid., 208–12. “An equal right to oppress – or interfere – is not equivalent to liberty” (ibid., 209).

16 Cf. Constant, Political Writings, 312.

17 Berlin, Liberty, 212.

18 Ibid.

19 Skinner, “A Third Concept,” 237–268; Pettit, Philip, Republicanism: A Theory of Freedom and Government (Oxford Political Theory; Oxford: Clarendon Press, 1997).

20 Despite their differences they share one basic argument.

21 Cf. Berlin, Liberty, 200–208.

22 Cf. Podoksik, Efraim, “One Concept of Liberty: Towards Writing the History of a Political Concept,” Journal of the History of Ideas 71 (2010) 219240 at 224.

23 Skinner, “A Third Concept,” 250.

24 As Orlando Patterson stresses, it is only by consideration of slavery that human thought on liberty originated (Freedom, Volume 1: Freedom in the Making of Western Culture [New York: Basic Books, 1991], xiii). See also Finley, Moses I., “Between Slavery and Freedom,” Comparative Studies in Society and History 6 (1964) 233–49 at 236, 239, 249.

25 m. Giṭ. 1:6 (Kaufmann Mss.). All translations of rabbinic texts into English are mine, although in the process of translating the Babylonian Talmud's passage I consulted with the English translations of Soncino, Steinsaltz and Schottenstein. I follow the Vilna edition of the talmudic passage, seeing that the other printed editions and manuscript witnesses do not show variants affecting my article's argument. The Appendix below contains the Mishnah with the whole talmudic passage. I used the Talmud Text Database of The Saul Lieberman Institute of Talmud Research and the Online Treasury of Talmudic Manuscripts for reading and comparing manuscripts of these rabbinic texts.

26 M. Eruv. 7:11 (Kaufmann Mss.).

27 Cf. Maimonides, Commentary to the Mishnah (trans. Yosef Kapach; Jerusalem: Mossad HaRav Kook, 1964), m. Giṭ. 1:6 [Hebrew]; Hezser, Catherine, Jewish Slavery in Antiquity (Oxford: Oxford University Press, 2005) 158.

28 t. Giṭ. 1:5 (ed. Lieberman, 247).

29 Based on rabbinic and Greco-Roman literary background, my interpretation puts R. Meir in a better light than Shalom Carmy's presentation of him as “a poor utilitarian calculator” (“Why Should a Slave Want Freedom? A Literary and Theological Reflection on ‘Gittin’ 12b–13a,” in Mishpetei Shalom: a Jubilee Volume in Honor of Rabbi Saul (Shalom) Berman [ed. Yamin Levy; Riverdale, NY: Yeshivat Chovevei Torah, 2010] 111–26, at 114).

30 y.Giṭ. 1:6, 43d. Throughout the article I follow the Academy of the Hebrew Language Edition of the Yerushalmi, except when noted otherwise.

31 y. Giṭ. 1:6, 43d.

32 Ibid. In the Leiden manuscript it is written (she is his property) instead of (he is his property). It seems a mistake, though very small, of the scribe. See also: The Jerusalem Talmud: Third Order: Našim; Tractates Gittin and Nazir (ed. and trans. Heinrich W. Guggenheimer; Studia Judaica 39; Berlin: Walter De Gruyter, 2007) 45–46, n. 155.

33 Tosafot, b. Giṭ. 13a s.v. umah; Rashba, Ḥiddušey Harašba’ (ed. Yisrael Sklar; Jerusalem: Mossad Harav Kook, 1986) 107–108 [b. Giṭ. 12b s.v. ha].

34 See below, App. VII.m-n.

35 Bradley, Keith R., Slaves and Masters in the Roman Empire: A Study in Social Control (Oxford: Oxford University Press, 1987) 52.

36 Richard Price, the 18th cent. philosopher, writes: “Individuals in private life, while held under the power of masters, cannot be denominated free, however equitable and kindly they may be treated. This is strictly true of communities as well as of individuals” (Political Writings [ed. D. O. Thomas; Cambridge Texts in the History of Political Thought; Cambridge: Cambridge University Press, 1991] 77).

37 y. Giṭ. 1:6, 43d. R. Abin was apparently a disciple of Aaron Hyman, R. Yoḥanan, Toledot Tanna'im ve-Amora'im (2 vols.; Jerusalem: Boys Town Jerusalem Publishers, 1964) 1:90.

38 Cf. Albeck, Hanoch, Mishnah: Seder Zera‘im (Tel Aviv: Bialik Institute, 1988) 218 [Hebrew].

39 Finley, “Between Slavery and Freedom,” 244.

40 Martin, Dale B., Slavery as Salvation: The Metaphor of Slavery in Pauline Christianity (New Haven: Yale University Press, 1990) xxii, 35.

41 Epictetus, The Discourses as Reported by Arrian, the Manual, and Fragments (trans. William A. Oldfather; Loeb Classical Library 131, 218; Cambridge, MA: Harvard University Press, 1925) 255 [Book VI.1.37–38].

42 Exod 14:11–12; Num 11:4–6, 14:1–4, 20:5. Cf. 1 Sam, 8:14 (JPS).

43 Urbach, Ephraim E., “The Laws Regarding Slavery as a Source for Social History of the Period of the Second Temple, the Mishnah and Talmud,” Zion 25 (1960) 141189, at 163 [Hebrew].

44 Ibid., 157.

45 Job 31:15; y. B. Qam. 8:3, 6c; y. Ketub. 5:5, 30a; Hezser, Jewish Slavery in Antiquity, 154, 169.

46 Aristotle, Politics (trans. Harris Rackham; Loeb Classical Library 264; Cambridge MA: Harvard University Press, 1932) 29 [1.1255b; I.2.21].

47 Cf. Meḵilta’ deRabbi Šimon b. Yoḥay (ed. Yaakov N. Epstein and Ezra Zion Melamed; Jerusalem: Mekize Nirdamim, 1955) 161–162 [21:3].

48 Cf. Urbach, “The Laws Regarding Slavery,” 179.

49 Cf. b. B. Qam. 97a; Beer, Moshe, The Babylonian Amoraim: Aspects of Economic Life (Ramat-Gan: Bar-Ilan University, 1974) 327340 [Hebrew].

50 Dillon, Matthew and Garland, Lynda, Ancient Rome: From the Early Republic to the Assassination of Julius Caesar (London: Routledge, 2005) 315.

51 Ibid.

52 Cf. m. Ketub 8:6 (Kaufmann Mss.).

53 Cf. Maimonides, Commentary to the Mishnah, m. Giṭ. 1:6; Rashi, b. Giṭ. 12b s.v. ka mashma lan.

54 T. Mak. 2:8 (ed. Zuckermandel, 440).

55 Cf. Halivni, David Weiss, Introductions to “Sources and Traditions”: Studies in the Formation of the Talmud (Jerusalem: Magnes Press, 2012) 146 n. 5 [Hebrew].

56 Deut 4:41–43; cf. b. Mak. 10a.

57 Rashi, b. Giṭ. 12a s.v. la’ lišqol minney.

58 Cf. y. B. Qam. 8:3, 6c.

59 Cicero, Cicero in Twenty-Eight Volumes: De Officiis (trans. Walter Miller; Loeb Classical Library 30; Cambridge: Harvard University Press, 1913) 363 [Book III, § 89].

60 On sanctified slaves see: Dandamaev, Muhammad, Slavery in Babylonia: from Nabopolassar to Alexander the Great (626–331 B.C.) (ed. Powel, Marvin A. and Weisberg, David B.; trans. Victoria A. Powel; DeKalb, IL: Northern Illinois University Press, 1984) 469557.

61 Cf. t. Arak. 3:8 (ed. Zuckermandel, 546); Epstein, Jacob N., Introduction to the Mishnaic Text (3rd ed.; 2 vols; Jerusalem: Maness Press, 2000) 2:894 [Hebrew].

62 Cf. t. Mak. 2:8.

63 Rashi, b. Giṭ. 12b s.v. ta’ šema‘; idem, b. B. Met. 93a s.v. haniḥa’.

64 t. Giṭ. 1:5.

65 Cf. t. Hor. 2:11 (ed. Zuckermandel, 477).

66 The freed man's right to marry a free woman has the significant political implication of his being able to take part in social life and rising from slavery to a higher social status. See: Finley, “Between Slavery and Freedom,” 243; b. B. Qam. 88a; b. Qidd. 19a; Urbach, “The Laws Regarding Slavery,” 171, 174–175.

67 On the different levels of sexual license of Canaanite slave women, cf. b. Nid. 47a. See also: b. Pes. 91a–b. On the double meaning of the word hephqera’ see: Labovitz, Gail, “More Slave Women, More Lewdness,” Journal of Feminist Studies in Religion 28 (2012) 6987, at 81; b. Qidd. 72b.

68 y. B. Qam. 8:3, 6b; y. Ketub. 5:5, 30a; t. Arak. 3:8; Halivni, David Weiss, Sources and Traditions: A Source Critical Commentary on Seder Našim (Toronto: Otsreinu, 1993) 501 [Hebrew].

69 Plato, The Republic, Books 620 (trans. Paul Shorey; Loeb Classical Library 276; Cambridge, MA: Harvard University Press, 1935) 341. [9.572e]; (I thank René de Nicolay and Melissa Lane for pointing out to me that while Plato uses here eleutheria pejoratively he does not have a word equivalent to the Latin licentia.); Locke, John, Two Treatises of Governments and A Letter Concerning Toleration (ed. Shapiro, Ian; Rethinking the Western Tradition; New Haven, CT: Yale University Press, 2003) 102.

70 On the double meaning of the Aramaic word haruta, see: Shlomo Naeh, “Freedom and Celibacy: A Talmudic Variation on Tales of Temptation and Fall in Genesis and Its Syrian Background,” in The Book of Genesis in Jewish and Oriental Christian Interpretation (ed. Judith Frishman and Lucas Van Rompay; Lovanii: Peeters, 1997) 73–89, at 78, 82.

71 Cf. Labovitz, “More Slave Women,” 73.

72 Reines, Haim Zeev, Massot umeḵqarim bemusar uvemišpaṭ yiśra'el (Jerusalem: Reuven Mass Press, 1972) 49; Berlin, Adele and Zvi Brettler, Marc, “Psalms,” in The Jewish Study Bible: Torah Nevi'im Ketuvim (2nd ed.; Oxford: Oxford University Press, 2014) 1319, comment on n. 14; Labovitz, “More Slave Women,” 80; y. B. Bat. 1:4, 13a; Hezser, Jewish Slavery in Antiquity, 151; cf. m. Avot 2:7 (Kaufmann Mss.) and t. Hor. 2:11.

73 For an elaboration of a similar view, see: MacCallum, Gerald, “Negative and Positive Freedom,” The Philosophical Review 76 (1967) 312334.

74 This talmudic passage opposes slavery to liberty to stress both negative and positive components of liberty. Cf. Podoksik, “One Concept of Liberty,” 224; Pettit, Republicanism, 31–32.

75 It is also a “thick” concept in the sense that, as this section will show, it can motivate people to act to secure their political liberty better than abstract thin concepts of liberty. Cf. Williams, Bernard, Ethics and the Limits of Philosophy (Cambridge, MA: Harvard University Press, 1985) 140, 152.

76 Berlin, Liberty, 178–181.

77 Ibid., 30.

78 Ibid., 31.

79 Ibid., 32. Cf. Ibid., 177.

80 Augustine, City of God: Books 18.3620 (trans. Willian Chase Greene; Loeb Classical Library 416; Cambridge, MA: Harvard University Press, 1960) 191. [XIX.xv]; Hanna Arendt attacks the Stoic approach to liberty (“Freedom and Politics: A Lecture,” Chicago Law Review 14 [1960] 28–46; “What Is Freedom?” in Between Past and Future: Eight Exercises in Political Thought [Penguin Classics; New York: Penguin Books, 2006] 142–169).

81 Smith, G. W., “Slavery, Contentment, and Social Freedom,” The Philosophical Quarterly 27 (1977) 236248 at 238, 246.

82 Cf. Berlin, Liberty, 172–173, 195, 215.

83 Ibid., 179. In a footnote, Berlin criticizes T. H. Green's positive liberty: “Green was a genuine liberal: but many a tyrant could use this formula to justify his worst acts of oppression” (ibid., 180 n).

84 For information about the editions and manuscripts of the rabbinic texts which I follow, and about the English translation, see footnote no. 25.

*I would like to thank the Tikvah Fund for enabling me to work on this article during my year of Fellowship in New York. I am extremely indebted to Beth Berkowitz for her guidance, continual support and advice. This article also benefited from Dan Avnon's comments and insights. Previous drafts of this article were presented at the “Jewish Studies as Philosophy” Conference at Cambridge University, at the Hebrew University's “Jerusalem Seminar in the History of Political Thought,” at The Herzl Institute, and in the Israel Democracy Institute's Program on “Human Rights and Judaism.” I thank the participants in these forums for enriching my thoughts. I would also like to thank teachers and friends for their comments: Melissa Lane, Barak Cohen, Mark Gottlieb, Avraham Tsvi Shav-Arets, Eliezer Hadad, Johnathan Silver, Avital Hazony, Lev Marder, Robert Nicholson, and Daniel Caine. Thanks to the HTR’s anonymous reviewers for their very helpful comments and suggestions

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