(2011/5771)

Parashat Mishpatim begins with the laws of Eved Ivri, a Jewish slave. He is usually one who commits robbery and is sold into slavery in order to pay for what he stole. At the arrival of the Shemittah year, he is given the choice to either go free, or to remain in servitude. If he chooses to remain a slave, he must have his ear pierced. Rashi (on Shemot 21:6 s.v. VeRatza Adonav Et Azno BaMartzei’a) explains that the reason that specifically his ear gets pierced is that his ear is the one that heard the command “Lo Tignov” at Har Sinai, and nonetheless, he stole. Furthermore, Rashi explains that this command of “Lo Tignov” is the prohibition of kidnapping, while the commandment against monetary stealing is “Lo Tignovu.” The person in question does not violate “Lo Tignov,” because if he did, he would be killed and would not have his ear pierced. Rashi then continues by stating that an Eved who sells himself into slavery because he is very poor must also get his ear pierced, as he violates “Ki Li Bnei Yisrael Avadim,” “Bnei Yisrael are servants to Me” (VaYikra 25:55). However, when this type of Eved Ivri is mentioned in the Torah, it is never stated that he must get his ear pierced. From where does Rashi derive this law?

Many Posekim, finding contradictions between his first and second statement, have difficulty understanding Rashi’s distinction between “Lo Tignov” and “Lo Tignovu.” The Chizkuni attempts to resolve this contradiction by explaining that this inconsistency is really due only to a typist’s error, which left off the final Vav and thereby changed the quote from “Lo Tignovu” to “Lo Tignov.” However, no other commentary supports this solution even though many commentaries raise the contradiction.

The Alshich further challenges Rashi by pointing out that if ears get pierced as a punishment for violating commandments that Bnei Yisrael heard, violating any Mitzvah should result in having the sinner’s ear pierced. One might attempt to support Rashi, by saying that only Mitzvot that Bnei Yisrael heard directly from Hashem, and not through Moshe, result in ear piercing. However, Moshe also commands, “Ki Li Bnei Yisrael Avadim.” Additionally, only the first two Mitzvot of the Aseret HaDibrot, and not “Lo Tignov,” are given directly from Hashem to Bnei Yisrael.

The Mizrachi attempts to resolve this problem with Rashi’s explanation by quoting a statement of Rav Saadiah Ga’on. He explains that while the Aseret HaDibrot consist of only ten Mitzvot, all of the other 603 Mitzvot are subsets of those ten. For example, “Lo Tignovu” is a subset of “Lo Tignov.” Thus, a thief does in fact violate a part of “Lo Tignov” when he steals, and therefore he gets his ear pierced. He does not get his ear pierced until he chooses to remain in slavery because until then, he has not willingly violated “Ki Li Bnei Yisrael Avadim,” as he was forced into slavery. The Mizrachi, saying that “Lo Tignovu” was not given at Har Sinai, then rejects the Chizkuni because Rashi specifies that the thief violates the commandment of “Lo Tignov,” which he heard at Har Sinai. The fact that Moshe delivers “Lo Tignov” is not an issue because first Hashem commands all of the Aseret HaDibrot at once to Bnei Yisrael, then He repeats the first two separately to Bnei Yisrael, and finally He commands the last eight separately to Moshe to repeat to Bnei Yisrael. However, the Mizrachi does not explain why the slave does not have his ear pierced for every Aveirah he commits. Doesn’t every Aveirah violate at least one subset of at least one of the Mitzvot heard directly from Hashem?

In his commentary on the Torah entitled “Devash VeChalav,” the Tosafot Yom Tov proposes that there are 248 Mitzvot Asei and 365 Mitzvot Lo Ta’asei, which correspond to 248 Eivarim (organs) and 365 Giddim (tendons) in the human body. He furthers proposes that perhaps the right ear is pierced because it is the body part corresponding to “Ki Li Bnei Yisrael Avadim,” and not because it is the ear that heard the Mitzvah. However, the Tosafot Yom Tov himself rejects this position because the derivation that the right ear gets pierced is through a Gezeirah Shavah from the laws of a Metzora, a person afflicted with Tzara’at. If piercing the ear of the Eved Ivri corresponds to the right ear, it should be explicit that it is the right ear by Eved Ivri. The Gezeirah Shava should teach that the Metzora needs to pierce his right ear, and not the other way around.

The Divrei Peninim explains that in reality, the thief is deserving of getting his ear pierced when he first enters servitude, but his ear is not pierced at that time because he still has a possible defense for himself – he didn’t know what slavery really was. Had he known what slavery was like, he never would have stolen. However, once he has experienced slavery but still wants to remain a slave, he loses this defense, and has blatantly disregarded the Mitzvah of “Ki Li Bnei Yisrael Avadim.”

Although this answer explains why the thief’s ear is not pierced immediately, explains fewer than half of the questions raised on Rashi. Therefore, I would like to suggest that the ear gets pierced because there is something wrong with its method of hearing Mitzvot. Just seven weeks after hearing the Tza’akah Gedolah in Mitzrayim during Makat Bechorot and three weeks after first tasting the Mon, this theoretical person comes to Har Sinai. At Har Sinai, he hears first the commandment of “Anochi Hashem Elokecha Asher Hotzeiticha MeiEretz Miztrayim MiBeit Avadim,” “I am Hashem, your God, who took you from Egypt, from the House of Slaves” (Shemot 20:2). With the exception of members of Sheivet Leivi, all Jews had just experienced the harshness of slavery and should have been grateful enough to Hashem to promise to fulfill all His commands, above and beyond the letter of the law. Later, at the same mountain, this person hears other commandments, including “Lo Tignov” and “Lo Tachmod,” and should have promised to distance himself from anything that could be considered stealing, especially because it is morally clear that stealing is wrong and is forbidden to all people. Even if he tries to justify his actions by saying that he is a poor person who is stealing food to support himself, he nevertheless sins greatly because he should have trusted Hashem to support his basic needs, as evidenced by the Mon. This person, who steals blatantly, disregards both the commandment of Hashem and every moral code on the planet. He must not have heard the word “Lo,” so we puncture his ear. Other violations of negative commandments in the Aseret HaDibrot result in the death penalty, so although they too are worthy of getting their ears punctures, the Jewish practice is that if two punishments are deserved, only the harsher is administered.

People who commit other sins that do not result in the death penalty do not violate clear tenets of morality the same way that a thief does. Every civilization has laws protecting these clear tenets, such as prohibiting murder. The prohibition of stealing is included in these laws, but uniquely, is not punishable by death. Therefore, only stealing results in a pierced ear. A person who sells himself into slavery is just as bad. He has stolen one of Hashem’s slaves, whom Hashem frees from Egypt specifically for the sake of becoming His slaves. Clearly, he must have misheard when Hashem states the First Commandment because he believes his new master freed him from Egypt. Therefore, this slave also gets a pierced ear.

It is our job in life to always keep in mind, we are truly servants only to HaKadosh Baruch Hu. By doing so, we will fulfill “Ki Li Bnei Yisrael Avadim,” and respect “Anochi Hashem Elokecha Asher Hotzeiticha MeiEretz Miztrayim MiBeit Avadim.”