“Chattel or…?”: Laws Relating to Female Slaves in Ancient Israel

Society in Ancient Israel consisted of three large social groups: free, semi-free, and slaves. The “free” population worked primarily in their own fields and craft workshops. The “semi-free” consisted of natives as well as captives who worked part-time on their own and part-time in palace and temple households; other semi-free groups worked full-time for public estates. The term “slave” designates both an actual slave and dependence or servility in the broad sense (all the subjects of the king, including even highly placed officials, were regarded as “slaves” of the king). Most slaves were foreigners, mainly prisoners of war.¹ Male and female slaves were essentially subject to the same rules, although there were special rules for female slaves because of their reproductive capacity. The laws that governed female slaves were a mixture of family law (which applied to slaves as persons), and property law (which applied to slaves as chattel). Sometimes family law prevailed; sometimes contract law prevailed; and sometimes the laws represented a compromise between the two.

A subset of the female slave laws are those which apply to concubines.² Scholars agree that the meaning of the Hebrew noun pilegesh (which is usually translated as “concubine”) is more complicated than the English translation suggests. Several biblical texts suggest that a pilegesh grows up to become an enslaved woman with no other function but to sexually please her master and produce his children. An obvious example is the story about David’s ten concubines who were slaves serving the king’s sexual and progeny needs.³ According to II Samuel, concubines were raped by a king’s son as a challenge to royal authority.⁴

Beginning with female Israelite slaves, the meaning and usage of the Hebrew term ʾamah, used in Exodus 21, differs from that of the Israelite male slave (’eved) since her status is quite different from that of the male. The Biblical laws safeguard her rights and protected her from sexual exploitation.

In Ancient Israel, a father, driven by poverty, might sell his daughter into a well-to-do family in order to ensure her future security. The sale presupposes marriage to the master or his son. The Torah stipulates that the girl must be treated as a free woman; should the designated husband take an additional wife, he is still obligated to support her. A breach of faith gains her freedom, and the master receives no compensation for the purchase price:⁵

When a man sells his daughter as a slave, she shall not be freed as male slaves are. If she proves to be displeasing to her master, who designated her for himself, he must let her be redeemed; he shall not have the right to sell her to outsiders,⁶ since he broke faith⁷ with her. And if he designated her for his son, he shall deal with her as is the practice with free maidens.⁸ If he marries another, he must not withhold from this one her food, her clothing, or her conjugal rights. If he fails her in these three ways, she shall go free, without payment (Ex. 21:7–11).

On the other hand, it was common practice for a master to mate a slave with a foreign female slave solely for the purpose of siring “house born” slaves.⁹ Since a female slave was property, her owner could exploit or dispose of her sexuality like any other aspect of property. She could be made her owner’s slave or could be given to another at her owner’s command. In such instances, no matrimonial or emotional bond was necessarily involved, and the woman and her offspring remained the property of the master. However, the slave might be accorded some qualified protection from the consequences of her status as property.

Rabbinic interpretation restricted the power of the father to dispose of his daughter in this way. He could do so only as long as she was a minor, that is, below the age of twelve years and a day, and then only if he was utterly destitute. She could not sell herself into slavery nor could she be sold by a court as an insolvent thief, as could a male, in order to make restitution for stolen articles. Further, she could not be designated to be the wife of the master or his son without her knowledge.¹⁰ Unlike biblical law, the Laws of Hammurabi¹¹ provides that her status could be reduced to that of a slave:

If a man take a wife and she give this man a slave as wife and she bear him children, and then this maid assume equality with the wife: because she has borne him children her master shall not sell her for money, but he may keep her as a slave, reckoning her among the slaves (Laws of Hammurabi, 146).

Biblical law extends this protection to the slave girl and specifies the three basic necessities of life to which she is entitled based on the word ʿonah, which has generated scholarly debate. The Septuagint, Peshitta, and Targums all understood it to refer to the woman’s conjugal rights. This interpretation is found also in rabbinic sources.¹² If this interpretation is correct, it would reflect a recognition that a wife is legally entitled to sexual gratification.

If the slave bore children for her mistress and then tried to place herself on an equal footing, she normally could not be sold, although she could be expelled with her child: She said to Abraham, Cast out that slave-woman and her son, for the son of that slave shall not share in the inheritance with my son Isaac (Gen. 21:10).

An interesting aspect of slave law in Ancient Israel was the widespread right of redemption. It was a measure of social justice, for the benefit of native citizens, whereby a sale under pressure of debt was treated as if it were a pledge. The right appears to have been limited principally to two cases: family land and members of the family sold into slavery.¹³

The woman’s situation in the Biblical text differed from that of the female slave under the Laws of Hammurabi¹⁴ in that the slave in Israel was a free woman who had been sold by her father into debt-slavery, as the reference to redemption reveals. The father would normally have the right to redeem his daughter, but that right was lost because her enslavement was for the purpose of reproduction. The right of redemption returned only if the purchaser failed to abide by the special purpose of the contract to consummate the assignment himself or to assign her for concubinage. In order to have legal consequences, his displeasure must have some external manifestation and a concrete act (or omission). Accordingly, the provision is unlikely to refer to a change of attitude after consummation. This eventuality is covered by v. 10, where he takes another slave in preference to her. It is possible, however, that his displeasure could be manifested through an attempt to sell her to a third party, which again would contravene the purpose of a concubinage contract. In either case, the purchaser had treated the contract as one of ordinary servitude, not concubinage, and denied the slave-woman the possibility of gaining the protection available to a slave through motherhood. In those circumstances, the ordinary right of redemption applied notwithstanding the fact that the slave is female. Biblical law provided a second measure of protection: her master “shall not have authority to sell her to a foreign people.” If the woman were sold abroad she would be a foreign slave for her purchaser, who would not be obliged to respect her rights under Israelite law.

Because she could bear children, the female slave was a special economic asset. A child born to an unmarried slave-woman was a house-born slave. Like its mother, the child would be the property of her owner, no different from the offspring of the owner’s herds. If her master had children with his slave, his rights over the issue of the union would be those of an owner, not of a father.

Ancient Israel law, unlike Roman law, recognized the marriage of slaves as legitimate, whether with other slaves or with free persons. With regard to marriage between slaves, Exodus reflects the conflict between the principles of family law and property law that resulted from recognition of slave marriage. The law distinguishes between marriage prior to enslavement and marriage during slavery. If a married couple enters into debt-slavery, then release of the husband after six years’ service automatically includes release of his wife. There is no theoretical difficulty in this case, since the debt for which they both were enslaved is deemed extinguished. If, on the other hand, the master gave a female slave of his own in marriage to the debt-slave, the latter’s release has no effect on his wife’s status. The master’s property rights take precedence over the husband’s marital rights:

When you acquire a Hebrew slave, he shall serve six years; in the seventh year he shall go free, without payment. If he came single, he shall leave single; if he had a wife, his wife shall leave with him. If his master gave him a wife, and she has borne him children, the wife and her children shall belong to the master, and he shall leave alone. But if the slave declares, “I love my master, and my wife and children: I do not wish to go free,” his master shall take him before the judges. He shall be brought to the door or the doorpost, and his master shall pierce his ear with an awl; and he shall then remain his slave for life (Ex. 21:2–6).

The Laws of Ur-Nammu reflected the same rule: If a slave marries a slave-woman whom he loves and that slave is freed, she shall not go out from the house (Laws of Ur-Nammu 4).

Ancient Near East marriage laws between free persons and slaves differs. In ancient Israel, enslavement did not affect the validity of the marriage or the husband’s exclusive sexual rights over his wife:

If a man has carnal relations with a woman who is a slave and has been designated for another man, but has not been redeemed or given her freedom, there shall be an indemnity; they shall not, however, be put to death, since she has not been freed. But he must bring to the entrance of the Tent of Meeting, as his guilt offering to the Lord, a ram of guilt offering. With the ram of guilt offering the priest shall make expiation for him before the Lord for the sin that he committed; and the sin that he committed will be forgiven him (Lev. 19:20–22).

By way of comparison, the Laws of Hammurabi lay down the principle that both the woman and her offspring remain free; the slave owner has no claim to either (Laws of Hammurabi 175-176). The Laws of Ur-Nammu is similar to Hammurabi as regards the woman, but requires one male child of the marriage to be placed at the owner’s disposal (Laws of Ur-Nammu 5). Hittite Law also adds provisions concerning “bride price” and divorce: if a slave brings the bride-price for a woman and takes her for his wife, no one shall change her social status; if a steward or a herdsman causes a free woman to elope and does not bring a betrothal payment for her, she shall become a slave for three years (Hittite Laws 34-35).

The juxtaposition of these two provisions would suggest that making a betrothal payment changes the woman’s status immediately, whereas in its absence, three years must elapse. In the absence of any background to these laws, it is impossible to do more than speculate as to their rationale, or the parties or interests involved. The purpose might be to distinguish a betrothal payment from a loan, which would allow the recipient a right of redemption. Another possibility is to regard the release as being from the marriage, not from slavery.

Another provision in Hittite law considers the case of a slave-woman married to a free man in the arrangements in case of divorce (it is important to note that the wife receives only one child because she is a slave, not because she is a woman): if a free man and a slave-girl are lovers and they cohabit, he takes her for his wife, they found a family and have children, but subsequently, they quarrel or they reach a friendly agreement, they break up the family; the man receives the children, but the woman receives one child (Hittite Law 31).

Most women captives in Ancient Israel became slaves, but in some cases a soldier found one whom he wanted to take as a wife. There is a detailed discussion in the Biblical text concerning marriage to a woman captured in war. The terminology is rather specific, and a significant aspect of this law is its respect for the personhood of the captive woman and the obligations created by initiating a sexual relationship with her. Deuteronomy requires a soldier who wishes to marry a captive woman to show consideration for her feelings. He must allow her to adjust to all that has happened by bringing her back to his home and waiting a month before marrying her. Since verse 13 does not mention a husband, for whom a married captive would surely mourn, the law appears to apply only to unmarried women.¹⁵ Establishing a sexual relationship imposes obligations on the husband. If he should later change his mind about the captive, he must treat her as a free woman and release her; he may not sell her or treat her as a slave.¹⁶

When you take the field against your enemies, and the Lord your God delivers them into your power and you take some of them captive, and you see among the captives a beautiful woman and you desire her and would take her to wife, you shall bring her into your house, and she shall trim her hair, pare her nails, and discard her captive’s garb.¹⁷ She shall spend a month’s time in your house lamenting her father and mother; after that you may come to her and possess her, and she shall be your wife. Then, should you no longer want her, you must release her outright. You must not sell her for money: since you had your will of her, you must not enslave her (Deut. 21:10-14).¹⁸

The Deuteronomic law is reminiscent of the Covenant Collection’s law of the Hebrew maidservant: when a man sells his daughter as a slave, she shall not be freed as male slaves are (Deut. 21:8). If she proves to be displeasing to her master, who designated her for himself, he must let her be redeemed; he shall not have the right to sell her to outsiders, since he broke faith with her (Ex. 21:7).

The connection between these two laws highlights an important point: these protections are specifically for Israelite women or, at least, women who are part of Israelite society. The law in Exodus protects the daughter of an Israelite man who is destitute enough to have to sell his daughter to another man, who will marry her when she comes of age. The beautiful captive law specifically protects a captive foreigner whom an Israelite man wishes to marry, but only once she sheds her foreign identity.

Deuteronomy’s law of the beautiful captive woman protects the non-Israelite woman taken in war from rape and from being re-enslaved after marriage. At the same time, it discourages the man from marrying her, in order to preserve the interests of the Israelite family. This law modifies a verse in an earlier war law, which states that when a foreign city refuses to surrender, the males should all be killed, but women can be taken as booty,¹⁹ bringing the question of sex and marriage to the fore. As Alexander Rofé argues, the law of the beautiful captive should be understood as part of the war laws.²⁰ Deuteronomy is forbidding what was commonplace soldier behavior in the ancient Near East.²¹ Reflecting on this point, Robert Alter writes in his commentary that throughout the ancient Mediterranean world, captive women of vanquished peoples were assumed to be the due sexual prerogative of the victors, and that this law exceptionally seeks to provide for the human rights of the non-Israelite woman who falls into this predicament.²²

When the soldier brings this captive home, she removes her captive clothing, pares (or grows) her nails, cuts her hair, and may (or must) mourn her relatives for thirty days. Commentators have debated the purpose of this provision, and have offered varying suggestions: that these rituals give her time to process what happened to her (mourning); that transition away from her past facilitates her adoption of an Israelite identity²³ (transition); or that this is a cooling-off period for the man, who has to wait thirty days while his passions die down, during which he must allow her to cry and be mournful while she wears unattractive clothes and cuts her hair and nails short or lets them grow long²⁴ (disincentive).

According to Resnick’s interpretation, which is ubiquitous in traditional Jewish commentary, the goal is to encourage the man not to marry her at all. The beautiful captive law ends with a final protective provision: but should you not want her, you must release her outright; you may not sell her for money; you cannot treat her as a commodity since you have debased her (Deut. 21:14).

The final phrase, “that he debased her,” is connected to his having had sex with her.²⁵ While this verb is generally used for illicit sex, in this case, it seems to refer to the sex after marriage mentioned in the previous verse, as noted by Rashbam: “you have debased her” through marital sex, according to the simple meaning. Rabbinic tradition records a debate about whether he is actually permitted to have sex with her once he decides to marry her, before bringing her back to his house.²⁶ Carolyn Pressler notes the unusual nature of using this term for licit sex, and suggests that it may be that the drafters of the law viewed the marriage as an imposition on the woman since she was a captive, or that they regarded marriage by cohabitation rather than by contract as not quite valid.²⁷

Read this way, the provision only applies to her once he has married her, since the language “you shall send her on her own” is the same language Deuteronomy uses for an Israelite divorce (Deut. 24:1). After the month is up, and then gets tired of her, he must divorce her as he would a free Israelite woman. Capturing this foreign woman, taking her as a wife, and then discarding her when he loses interest is what debases her.²⁸ This implies that if he does not marry her after the thirty days, then he hasn’t actually “debased her,” and therefore he may keep her as a slave.

Deuteronomy is likely wary of this marriage for several reasons. First, Deuteronomy may not look favorably on the marriage of an Israelite to an outsider.²⁹ While Deuteronomy does not explicitly extend this to other groups of foreigners, it certainly would not see them as equivalent to Israelites.³⁰ Second, it may have been concerned about whether they would bring their foreign practices and gods to the Israelite home. Third, Deuteronomy’s concern that he will try to re-enslave her when he loses interest in being married to her implies a fear that the man, and perhaps his family, will always see the woman as a slave and never treat her like an Israelite wife. Fourth, as a foreigner, she has no family in Israel to protect her from such treatment. By talmudic times a formal procedure of religious conversion had been created, and the Halakha permitted such marriages only if the woman agreed to convert to Judaism. But the rabbis took a dim view of marrying captives, regarding such unions as motivated by lust and the law as a concession to the likelihood that they would take place whether permitted or not. In their view, verses 12–13 are designed to delay and, ideally, discourage such a marriage.³¹

Conclusion

The legal systems of the Ancient Near East provided that the female slave, no less than her male counterpart, was property. The special features of her gender were property interests of her owner, to be exploited or disposed of as the owner saw fit. That is, the owner’s interest in her sexuality was protected against interference by outsiders through the rules of property law, just as the integrity of any asset might be protected. At the same time, however, the female slave’s sexuality and reproductive capacity brought into play the rules of family law, either through special applications of the principles of social justice, which tempered the condition of slaves in general, or directly through the status of marriage. In certain circumstances occasioned by the exercise of her sexual and reproductive functions, the principles of social justice could override the owner’s property rights to render her inalienable, redeemable, or protected from physical abuse. The status of marriage, if with the owner himself, altogether excluded the application of property law to her person.

The question of which set of laws, property or family, was to prevail varied according to circumstances, and sometimes was resolved by compromise. Where marriage was to a third party, there was a wide range of possibilities: if the slave was married to another slave of her owner, the owner’s property rights prevailed, but if to a free person, the slave and her offspring enjoyed some of the consequences of a free marriage.

Biblical law appears to have afforded a greater measure of compassion to female slaves than other ancient Near Eastern cultures. As Dr. Rabbi David Resnick points out, the Torah is concerned with the soldier’s integrity both at war and back home: at war he must not rape the captive women, and at home, once he marries the woman, he must treat her like an Israelite; the text is interested in the female captive as well as the male soldier, since in both instances she is given a level of humanity.³² While the Torah is far from egalitarian, it does not see the woman here as chattel; it worries about her treatment both as a captive and as a wife.