ראה

The New Dimension of Shemitta in the Book of Devarim

As with the narrative portions of Devarim, the legal sections contain numerous apparent contradictions and discrepancies when compared to the earlier books of the Torah. Some laws are mentioned earlier and not repeated in Devarim, whilst others are mentioned for the first time in Devarim with no earlier reference. Of those which are repeated there is almost always some form of modification, whether that be additional detail, change in scope, or shift in focus. The fact that such differences exist should come as no surprise. On the contrary, where an earlier law seems to reappear with no change in form or content, that poses a far more difficult question in terms of understanding the purpose of the repetition.

When it comes to Shemitta, however, the point is particularly acute (and I would suggest, unique). The notion of Shemitta is already mentioned twice in the earlier books, yet the description in Devarim bears no practical resemblance to the earlier passages. In the earlier passages the exclusive focus was the land – prohibiting working the land and rendering it ownerless - whereas the Devarim passage is about the release of loans with no mention of any land related obligations. The shift in focus away from the land is especially striking in view of the centrality of the forthcoming conquest in the surrounding chapters.

To understand the new focus, we need to briefly consider the wider progression of social-ethical law across the different books of the Torah.

Social laws in Shemot and Vayikra

The first time that the Torah lists a stream of social laws (excluding the ten commandments) is in parashat Mishpatim. If we consider the list as a whole, it seems clear that the focus is on judicial and legal outcomes. Each case is introduced with a situation or circumstance (כי... אם) followed by the applicable law. This format repeats itself about eighteen times, depending on how one counts. Moral obligations may of course be inferred, but only indirectly. Only right at the end of the list are there a handful of moral laws which deviate from this model, but these are either: related to the judicial system in general (e.g. bribery, false testimony, cursing a judge);[1] or specific exceptions where usual rights should not or cannot be enforced (e.g. restrictions on certain types of loan collateral and charging interest).[2]

This is in stark contrast to the next list in parashat Kedoshim where the focus is on the moral instruction rather than situational law. A few examples ought to illustrate the point.

1)  Mishpatim speaks about the law if someone steals whereas Kedoshim warns against theft and other acts of appropriation:

כִּי־יִתֵּן אִישׁ אֶל־רֵעֵהוּ כֶּסֶף אוֹ־כֵלִים לִשְׁמֹר וְגֻנַּב מִבֵּית הָאִישׁ אִם־יִמָּצֵא הַגַּנָּב יְשַׁלֵּם שְׁנָיִם׃ (שמות כב:ו)

לֹא תִּגְנֹבוּ וְלֹא־תְכַחֲשׁוּ וְלֹא־תְשַׁקְּרוּ אִישׁ בַּעֲמִיתוֹ׃ (ויקרא יט:יא)

2)  Mishpatim discusses the liability of one who is negligent whilst guarding someone else's property; Kedoshim demands one be meticulous with the handling of weights and measures.

עַל־כׇּל־דְּבַר־פֶּשַׁע עַל־שׁוֹר עַל־חֲמוֹר עַל־שֶׂה עַל־שַׂלְמָה עַל־כׇּל־אֲבֵדָה אֲשֶׁר יֹאמַר כִּי־הוּא זֶה (שמות כב:ח)

לֹא־תַעֲשׂוּ עָוֶל בַּמִּשְׁפָּט בַּמִּדָּה בַּמִּשְׁקָל וּבַמְּשׂוּרָה׃ מֹאזְנֵי צֶדֶק אַבְנֵי־צֶדֶק אֵיפַת צֶדֶק וְהִין צֶדֶק יִהְיֶה לָכֶם (ויקרא יט:לה-לו)

3)  Mishpatim speaks about the law if someone swears falsely; Kedoshim warns against false oaths and lies.

שְׁבֻעַת ה' תִּהְיֶה בֵּין שְׁנֵיהֶם אִם־לֹא שָׁלַח יָדוֹ בִּמְלֶאכֶת רֵעֵהוּ וְלָקַח בְּעָלָיו וְלֹא יְשַׁלֵּם... (שמות כב:י)

וְלֹא־תִשָּׁבְעוּ בִשְׁמִי לַשָּׁקֶר (ויקרא יט:ב)

4)  Mishpatim sets out the law for someone who smites a parent; Kedoshim requires people to fear their parents and respect the elderly.

וּמַכֵּה אָבִיו וְאִמּוֹ מוֹת יוּמָת (שמות כא:טו)

אִישׁ אִמּוֹ וְאָבִיו תִּירָאוּ (ויקרא יט:ג) מִפְּנֵי שֵׂיבָה תָּקוּם וְהָדַרְתָּ פְּנֵי זָקֵן (ויקרא יט:לא)

This model holds true even for very first law in parashat Mishaptim related to the Hebrew slave which intuitively one thinks of as a moral instruction. The Torah first describes a 'neutral' situation in which one acquires a slave. It then discusses the law that he goes free after six years from does so the perspective of the slave – it is his right to go free after six years:

כִּי תִקְנֶה עֶבֶד עִבְרִי שֵׁשׁ שָׁנִים יַעֲבֹד וּבַשְּׁבִעִת יֵצֵא לַחׇפְשִׁי חִנָּם׃ (שמות כא:ב)

The verse does not say that the master has an obligation to free him after six years but that the slave 'goes' free. Naturally, this is followed by a discussion of what happens if he waives that right and who has the 'rights' over the wife and children.

These differences can be ascribed to the more elevated focus on Kedusha which characterises the book of Vayikra. Whilst Mishpatim provides instruction for the enforcement of rights and justice, the book of Vayikra speaks of societal obligations and civil responsibilities.

Social responsibility in Devarim

When it comes to the social laws in the book of Devarim the bar of moral responsibility is raised even higher. The obligation is not just to avert harm and to promote a free and fair society. Now the requirement is to bring the needy into one's orbit and make them feel part of society.

Again, a number of examples to illustrate this point:

1)  Devarim instructs that the tithes of every third year must be given to the poor. The tithes of the other years may be consumed by the owner, but is it emphasized that the needy must also participate.

מִקְצֵה  שָׁלֹשׁ שָׁנִים תּוֹצִיא אֶת־כׇּל־מַעְשַׂר תְּבוּאָתְךָ בַּשָּׁנָה הַהִוא וְהִנַּחְתָּ בִּשְׁעָרֶיךָ׃ וּבָא הַלֵּוִי כִּי אֵין־לוֹ חֵלֶק וְנַחֲלָה עִמָּךְ וְהַגֵּר וְהַיָּתוֹם וְהָאַלְמָנָה אֲשֶׁר בִּשְׁעָרֶיךָ וְאָכְלוּ וְשָׂבֵעוּ לְמַעַן יְבָרֶכְךָ ה' אֱלֹקיךָ בְּכׇל־מַעֲשֵׂה יָדְךָ אֲשֶׁר תַּעֲשֶׂה׃ (דברים יד:כח-כט)

This tithe requirement for the poor is strikingly absent in the earlier books. We do find instruction regarding Leket, Shikchah and Pe'ah but those are of a very different nature. The produce which falls to the ground during the reaping, which is forgotten in the field, or which lies at the very edge of the field, are portions of produce which an owner may be inclined to leave behind in any event. The Torah merely commands him to 'leave' these for the poor and not collect every last grain. Interestingly, the Levite tithe is mentioned earlier (Bamidar 18:21-24), but it is presented as consideration for his services in the Mishkan rather than an act of charity. It is thus referred to it as being given from God rather than from the owner.[3]

2)  In the earlier books the pilgrimage festivals are a purely religious affair. In Devarim, however, we are told time and again to celebrate together with the needy. The scope of the command is not just to sustain them, but to make them part of the social circle:

וְשָׂמַחְתָּ בְּחַגֶּךָ אַתָּה וּבִנְךָ וּבִתֶּךָ וְעַבְדְּךָ וַאֲמָתֶךָ וְהַלֵּוִי וְהַגֵּר וְהַיָּתוֹם וְהָאַלְמָנָה אֲשֶׁר בִּשְׁעָרֶיךָ (דברים טז:יד)

3)  We already discussed the Hebrew slave in the Mishpatim context and his 'right' to go free. In Devarim, not only is it the master who actively sets him free, but the master must also provide him with gifts:

וְכִי־תְשַׁלְּחֶנּוּ חׇפְשִׁי מֵעִמָּךְ לֹא תְשַׁלְּחֶנּוּ רֵיקָם׃ הַעֲנֵיק תַּעֲנִיק לוֹ מִצֹּאנְךָ וּמִגׇּרְנְךָ וּמִיִּקְבֶךָ אֲשֶׁר בֵּרַכְךָ ה' אֱלֹקיךָ תִּתֶּן־לוֹ׃ (ויקרא טו:יג-יד)

Part of the function of these gifts is to retroactively reclassify the slavery as a paid service. It is important that the slave should not feel the stigma of having been a slave, nor retain a mental state of slavery:[4]

לֹא־יִקְשֶׁה בְעֵינֶךָ בְּשַׁלֵּחֲךָ אֹתוֹ חׇפְשִׁי מֵעִמָּךְ כִּי מִשְׁנֶה שְׂכַר שָׂכִיר עֲבָדְךָ שֵׁשׁ שָׁנִים וּבֵרַכְךָ ה' אֱלֹקיךָ בְּכֹל אֲשֶׁר תַּעֲשֶׂה׃ (ויקרא טו:יח)

4)  One of the well-known differences between the ten commandments is the reason provided for Shabbat. In Yitro it is exclusively a religious obligation whereas in Va'etchanan it is cast as a social obligation. Though the social aspect of Shabbat is also referred to in Mishpatim there is a critical difference:

שֵשֶׁת יָמִים תַּעֲשֶׂה מַעֲשֶׂיךָ וּבַיּוֹם הַשְּׁבִיעִי תִּשְׁבֹּת לְמַעַן יָנוּחַ שׁוֹרְךָ וַחֲמֹרֶךָ וְיִנָּפֵשׁ בֶּן־אֲמָתְךָ וְהַגֵּר׃ (שמות כג:יב)

וְיוֹם הַשְּׁבִיעִי שַׁבָּת  לַה' אֱלֹקיךָ לֹא תַעֲשֶׂה כׇל־מְלָאכָה אַתָּה וּבִנְךָ־וּבִתֶּךָ וְעַבְדְּךָ־וַאֲמָתֶךָ וְשׁוֹרְךָ וַחֲמֹרְךָ וְכׇל־בְּהֶמְתֶּךָ וְגֵרְךָ אֲשֶׁר בִּשְׁעָרֶיךָ לְמַעַן יָנוּחַ עַבְדְּךָ וַאֲמָתְךָ כָּמוֹךָ׃ (דברים ה:יד)

The subject of the command in Mishpatim is the master. As a consequence of his resting, his dependents – even the animals – likewise rest. In Va'etchanan, on the other hand, it is emphasised that the servant and maidservant should rest 'like you' (note the absence of the animals in this phrase), thus putting everyone on level footing and pressing the ideal of social equality.

Release of loans - breaking the social hierarchy

Now we can address the point specifically in relation to Shemitta. As noted earlier, Shemitta as a concept appears three times in the Torah. The first reference is in parashat Mishpatim:[5]

וְשֵׁשׁ שָׁנִים תִּזְרַע אֶת־אַרְצֶךָ וְאָסַפְתָּ אֶת־תְּבוּאָתָהּ׃ וְהַשְּׁבִיעִת תִּשְׁמְטֶנָּה וּנְטַשְׁתָּהּ וְאָכְלוּ אֶבְיֹנֵי עַמֶּךָ וְיִתְרָם תֹּאכַל חַיַּת הַשָּׂדֶה כֵּן־תַּעֲשֶׂה לְכַרְמְךָ לְזֵיתֶךָ׃ (שמות כג:י-יא)

Consistent with our earlier discussion the poor person is given certain 'rights' in the field to consume the produce, but there is no direct command for the farmer to feed the poor.

The second reference is in Behar. The focus is again on the land but now the emphasis is on the 'shabbat' element – the obligation to rest from working the land. This aspect is not explicitly mentioned in Mishpatim which was focused on the ingathering[6] – namely that one must not gather the produce for himself (at least not as an exclusive owner). The instruction in Behar is more intense as compared to Mishpatim and contains an added dimension. By not working the land the farmer and expressing his ownership, the farmer acknowledges that the land belongs to God. Due to the fundamental importance of the command, the curses which speak of potential exile from the land are pinned on transgressing the Shemitta. If one refuses to recognise the true owner of the land then the fitting punishment is exile.

Finally, in the book of Devarim, the social-ethical dimension of the command reaches its climax. As discussed above, one of the most notable features of the description of the Mitzvot in Devarim relate to the requirement to give to the needy and include them in one's social circle. This is exemplified by the new dimension of Shemitta. The release of the debts of the poor person represents a direct act of charity – a transfer of value direct from the owner to the poor person.[7] Not only is the debt released but one is commanded not to hold back from lending despite the approaching Shemitta:

הִשָּׁמֶר לְךָ פֶּן־יִהְיֶה דָבָר עִם־לְבָבְךָ בְלִיַּעַל לֵאמֹר קָרְבָה שְׁנַת־הַשֶּׁבַע שְׁנַת הַשְּׁמִטָּה וְרָעָה עֵינְךָ בְּאָחִיךָ הָאֶבְיוֹן וְלֹא תִתֵּן לוֹ וְקָרָא עָלֶיךָ אֶל־ה' וְהָיָה בְךָ חֵטְא׃ נָתוֹן תִּתֵּן לוֹ וְלֹא־יֵרַע לְבָבְךָ בְּתִתְּךָ לוֹ כִּי בִּגְלַל  הַדָּבָר הַזֶּה יְבָרֶכְךָ ה' אֱלֹקיךָ בְּכׇל־מַעֲשֶׂךָ וּבְכֹל מִשְׁלַח יָדֶךָ׃ (דברים טו:ט-י)

This goes further than protecting someone from descent into slavery which was the concern in parashat Behar (see Vayikra 25:36). Here one is obligated to support someone who lacks, even if they are not on the brink:

כִּי־פָתֹחַ תִּפְתַּח אֶת־יָדְךָ לוֹ וְהַעֲבֵט תַּעֲבִיטֶנּוּ דֵּי מַחְסֹרוֹ אֲשֶׁר יֶחְסַר לוֹ׃ (דברים טו:ח)

Through a series of tautologies, the passage highlights the 'giving' aspect of the command:

פָתֹחַ תִּפְתַּח... וְהַעֲבֵט תַּעֲבִיטֶנּוּ... נָתוֹן תִּתֵּן לוֹ

This is distinctly different from the process described earlier whereby one is commanded to forsake the land or render it ownerless and, only as a consequence, the poor enter and take.[8]

Most importantly, however, the release of the loans acts as a social equaliser. A person who is indebted to another person is psychologically, and often practically, subservient to them. Such a person cannot regard himself as a social equal to his creditor. As the verse in Mishlei states:       

וְעֶבֶד לֹוֶה לְאִישׁ מַלְוֶה (משלי כב:ז)

Not only is physical slavery denounced, but also virtual servitude between the different rungs of society.

Shemitta and the Tochacha

As mentioned before, the Mitzvah of Shemitta in parashat Behar is paradigmatic of the covenant of Sinai and therefore isolated as the cause of the exile in the Tochacha. This is because Shemitta represents the basic belief that the land belongs to God and we live in the presence of God. This notion underpins the commandments of Vayikra which are rooted in the concept of Kedusha.

Interestingly, in what is perhaps parallel fashion, the Tochacha in parashat Ki Tavoh seems to also allude to Shemitta – but this time to the loan aspect relevant to the Devarim context:

יִפְתַּח ה'  לְךָ אֶת־אוֹצָרוֹ הַטּוֹב אֶת־הַשָּׁמַיִם לָתֵת מְטַר־אַרְצְךָ בְּעִתּוֹ וּלְבָרֵךְ אֵת כׇּל־מַעֲשֵׂה יָדֶךָ וְהִלְוִיתָ גּוֹיִם רַבִּים וְאַתָּה לֹא תִלְוֶה (דברים כח:יב)

The reference here matches the blessing which attaches directly to the Shemitta commandment:

כִּי־ה' אֱלֹקיךָ בֵּרַכְךָ כַּאֲשֶׁר דִּבֶּר־לָךְ וְהַעֲבַטְתָּ גּוֹיִם רַבִּים וְאַתָּה לֹא תַעֲבֹט וּמָשַׁלְתָּ בְּגוֹיִם רַבִּים וּבְךָ לֹא יִמְשֹׁלוּ׃ (דברים טו:ו)

(The fact that there is such a mini set of blessings are attached to Shemitta specifically is itself a unique feature which we do not see with any of the other laws in Devarim.)

This reinforces the point that the release of loans during the Shemittah is central to the message of Devarim which demands social equality and seeks to prevent the development of a hierarchy.[9]

לְפִיכָךְ נִבְרָא אָדָם יְחִידִי... שֶׁלֹּא יֹאמַר אָדָם לַחֲבֵרוֹ אַבָּא גָדוֹל מֵאָבִיךָ (משנה סנהדרין ד:ה)

To summarise, the passages in Mishpatim dealt with legal rights whilst Kedoshim focused on the underlying moral obligations and civil duties to safeguard those rights. Devarim then goes further in demanding we provide the needy with dignity and bring them into our circle. It is specifically the release of loans during the Shemitta which exemplifies this new dimension of social responsibility which is the focal point of the Mitzvot in Devarim.

 

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[1] In this category I would include the prohibition against oppressing the 'stranger' and afflicting an orphan or widow. God warns that if these people are not protected, He will hear their cries and avenge them - effectively replacing the judicial system which failed them.

[2] Clearly this requires further elaboration, and God willing will try do so on another occasion. It should be noted that even the prohibition against charging interest is set within a neutral situation consistent with the form of the earlier law passages in parashat Mishpatim:

אִם־כֶּסֶף  תַּלְוֶה אֶת־עַמִּי אֶת־הֶעָנִי עִמָּךְ לֹא־תִהְיֶה לוֹ כְּנֹשֶׁה לֹא־תְשִׂימוּן עָלָיו נֶשֶׁךְ׃ (שמות כב:כד)

This contrasts to the later references where the issuance of the loan in the first place is a moral imperative.

[3] See also the tithe reference in Vayikra 27:30 where there is similarly no reference to the poor and needy.

[4] As we know, escaping an inner state of slavery was a challenge too far for the first generation

[5] Shemitta is mentioned alongside Shabbat at the transition point between the list of social laws and short list of religious laws. This is unsurprising given the dual nature of both Shemitta and Shabbat as both social and religious obligations. The cycle of seven thus bookends the social laws in Mishaptim as it starts with the Hebrew slave who goes free in the seventh year and finishes with Shemitta and Shabbat.

[6] See Rashbam and Ramban (contra Rashi). See also Rambam Hilchot Shemitta VeYovel 1:1 and 4:24 as well as Sefer Hamitzvot, postive commandments #134 and #135. The Rambam understands the prohibition against working the land derives from the verse in Behar whereas the earlier verse in Mishpatim requires one to treat the produce as ownerless.  

[7] For our purposes it is not material whether the loan is formally released or whether it exists but cannot be claimed through the courts, as some have argued (see R. Elchanan Samet's article here). Incidentally, the common law definition of a debt requires the 'sum certain' to be capable of legal recovery.

[8] One might suggest that this progression to a more active social responsibility in Devarim is also symbolised in the switch from Zachor to Shamor in the description of Shabbat. Clearly, the latter has a more active association (some might refer to it as the difference between the attributes of Yirah and Ahavah).

[9] It is worth noting that the role and uniqueness of the Kohanim is generally downplayed in Devarim. It would seem to me this is also related to the goal of Devarim to neutralise the social hierarchy. See also the post here which discusses a similar point with respect to marginalising the standing of the tribe in favour of the nation.