![Sample our Law journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5942/TOC-Subject-Sample-2021-Law.jpg"})
ABSTRACT
In this paper, we shed light on the question of whether it is morally permissible to enslave artificially intelligent entities by looking at up to date research from the social sciences – as well as the ancient lessons from Jewish law. The first part of the article looks at general ethical questions surrounding the ethics of AI and slavery by looking at contemporary social science research and the moral status of ‘Sex Bots’ – AI entities that are built for the purpose of satisfying human sexual desires. The second part presents a Jewish perspective on the obligation to protect artificial intelligent entities from abuse and raises the issue of the use of such entities in the context of sex therapy. This is followed by a review of slavery and in particular, female slavery in Jewish law and ethics. In the conclusions, we argue that both perspectives provide justification for the ‘Tragedy of the Master’ – that in enslaving AI we risk doing great harm to ourselves. This has significant and negative consequences for us – as individuals, in our relationships, and as a society that strives to value the dignity, autonomy, and moral worth of all sentient beings.
Acknowledgements
The authors would like to thank Ariel Dorfman of Osgoode Hall Law School, York University for his research assistance.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Modern slavery is defined as forced labour, human trafficking, and forced marriage in which a person is forced to work in a situation of enforced exploitation that they cannot leave due to threats, violence, coercion, abuse of power, or operation of the law. See: Walk Free Foundation, The Global Slavery Index 2018, Report, (Geneva, 2018), https://www.globalslaveryindex.org/resources/downloads/#gsi-2018, 7.
2 Countries in which unfree labour is used to produce coffee include Côte d’Ivoire, Brazil, Columbia, the Dominican Republic, Ghana, Kenya, Mexico. See: Bureau of International Labor Affairs, ‘List of Products’ https://www.dol.gov/agencies/ilab/reports/child-labor/list-of-products; Bureau of International Labor Affairs, ‘List of Goods’ 8.
3 Bureau of International Labor Affairs, ‘List of Products’ 16; see also: G Chamberlain, ‘Modern-Day Slavery in Focus: The Tea Pickers Sold Into Slavery’, The Guardian (March 2, 2014), https://www.theguardian.com/global-development/2014/mar/02/tea-workers-sold-into-slavery; L Fuller, ‘Exclusive: Tea Label Giants Vow Probe After Sri Lanka Labor Abuse Expose’ Reuters (March 26, 2019), https://www.reuters.com/article/us-sri-lanka-tea-workers-abuse-exclusive-idUSKCN1R802V.
4 Bureau of International Labor Affairs (BILA) (U.S.), ‘List of Goods Produced by Child Labor or Forced Labor’, Bureau of International Labor Affairs (BILA), Report, (September 20, 2018), https://www.dol.gov/agencies/ilab/reports/child-labor/list-of-goods, 8. The BLIA includes a list of goods whose procurement or importation into the U.S. is prohibited by Federal agencies or contractors because of the risk of slave and child labour. This is a high standard, and so would include only those products known with a high degree of likelihood to be made from unfree or child labour.
5 Slaves are used in the production of cotton, carpets and textiles in Afghanistan, Argentina, Azerbaijan, Bangladesh, Benin, Burkina Faso, China, Ethiopia, India, Kazakhstan, the Kyrgyz Republic Nepal, Tajikistan, Thailand, Vietnam; See: Bureau of International Labor Affairs, ‘List of Products’; Bureau of International Labor Affairs, ‘List of Goods’ 8.
6 Bureau of International Labor Affairs, ‘List of Goods’ 8, including gold in Burkina Faso and Mali, emeralds from Columbia, sapphires from Madagascar.
7 Mining products from the Democratic Republic of the Congo, electronics from China and India. See: Bureau of International Labor Affairs (U.S.), ‘List of Products’; Bureau of International Labor Affairs, ‘List of Goods’ 8, 24.
8 J Melville, ‘From Stone to Phone: Modern Day Cobalt Slavery in Congo’ Byline Times (June 19, 2020), https://bylinetimes.com/2020/06/19/from-stone-to-phone-modern-day-cobalt-slavery-in-congo/.
9 Bureau of International Labor Affairs, ‘List of Goods’ 8, including beef and hogs from Brazil,
10 Id. at 8, including vanilla from Madagascar, cocoa from Côte d’Ivoire and Ghana, baked goods from El Salvador and the Dominican Republic.
11 Id.
12 Walk Free Foundation, supra note 4.
13 Walk Free Foundation, Global Estimates of Modern Slavery, 18.
14 Id. at 32.
15 Id. at 17.
16 Id. at 39.
17 Id. at 40.
18 R Mackenzie, ‘Sexbots: Sex Slaves, Vulnerable Others or Perfect Partners?’ (2018) 1:5 International Journal of Technoethics 9.
19 Id. at 6.
20 MA Boden, Artificial Intelligence: A Very Short Introduction (Oxford University Press, 2018) 1, defines artificial intelligence as a comprising variety of dimensions of information-processing that seek to carry out psychological functions, such as “perception, association, prediction, planning, motor control,” that have hitherto been associated only with living beings. General Artificial Intelligence refers to machines that possess a general cognitive capacity for intelligence, much as humans do; such machines do not currently exist, and the theoretical possibility of such machines is controversial.
21 Walk Free Foundation, supra note 16.
22 Mackenzie, supra note 21 at 1.
23 J Danaher, ‘Should We Be Thinking About Robot Sex?’ in J Danaher and N McArthur (eds), Robot Sex: Social & Ethical Implications (MIT Press, 2017), 4-5.
24 Id. at 4-5.
25 P Ray, ‘‘Synthetik Love Lasts Forever’: Sex Dolls and the (Post?) Human Condition’ in D Banjeri and MR Paranjape (eds), Critical Posthumanism and Planetary Futures (Springer India, 2016) 92.
26 Danaher, supra note 26 at 6.
27 Id. at 6.
28 Id.
29 Id. at 7.
30 Id.
31 M Maras and L R Shapiro, ‘Child Sex Dolls and Robots: More than Just an Uncanny Valley’ (December 2017) Journal of Internet Law 4.
32 N. Döring and S. Pöschl, ‘Sex Toys, Sex Dolls, Sex Robots: Our Under-Researched Bed-Fellows’ (2018) 27 Sexologies 3, https://doi.org/10.1016/j.sexol.2018.05.009, 2.
33 Id. at 3.
34 NM Su, A Lazar, J Bardzell and S Bardzell, ‘Of Dolls and Men: Anticipating Sexual Intimacy with Robots,’ (2019) 3 ACM Transactions on Computer-Human Interactions 26: Article 13, 2.
35 Id. at 24.
36 Id. at 12.
37 Id. at 14.
38 Id. at 12.
39 Id. at 25 [emphasis in original].
40 Ray, supra note 28 at 92.
41 Id. at 93.
42 Maras and Shapiro, supra note 34 at 5.
43 R Brown and J Shelling, ‘Exploring the Implications of Child Sex Dolls’ in M Phelan (ed), Crime and Justice Research (Australian Institute of Criminology, 2019) 68.
44 Id. at 70.
45 Maras, supra note 34 at 4.
46 M Migotti and N Wyatt, ‘On the Very Idea of Sex with Robots’ in J Danaher and N McArthur (eds), Robot Sex: Social & Ethical Implications (MIT Press, 2017) 22.
47 Id. at 24.
48 Mackenzie, supra note 21 at 5.
49 Id. at 6.
50 K Richardson, ‘The Asymmetrical ‘Relationship’: Parallels Between Prostitution and the Development of Sex Robots’ (2015) 45:3 Computers & Society 291.
51 Id.
52 Mackenzie, supra note 21 at 12.
53 N McArthur, ‘The Case for Sexbots’ in J Danaher and N McArthur (eds), Robot Sex: Social & Ethical Implications (MIT Press, 2017) 59-60.
54 Döring, supra note 35 at 3.
55 McArthur, supra note 56 at 59-60.
56 D Levy, ‘Robot Prostitutes as Alternatives to Human Sex Workers’, http://www.prostitutionresearch.com/wp-content/uploads/2012/01/Robot-Prostitutes-as-Alternatives.pdf, 4.
57 Id.
58 Döring, supra note 35 at 4.
59 J Lee, Sex Robots: The Future of Desire (Palgrave MacMillan, 2017) 5.
60 S Petersen, ‘Is It Good for Them Too? Ethical Concern for the Sexbots’ in J Danaher and N McArthur (eds), Robot Sex: Social & Ethical Implications (MIT Press, 2017) 168.
61 Levy, supra note 59 at 4.
62 Richardson, supra note 57 at 291.
63 MM Dempsey, C Hoyle, and M Bosworth, ‘Defining Sex Trafficking in International and Domestic Law: Mind the Gaps’ (2012) 26 Emory International Law Review 137.
64 Petersen, supra note 63 at 168.
65 Lee, supra note 4 at 4.
66 Döring, supra note 35 at 3.
67 McArthur, supra note 56 at 49.
68 JJ Bryson, ‘Robots Should Be Slaves’ in Yorick Wilks (ed), Close Engagements with Artificial Companions: Key Social, Psychological, Ethical and Design Issues (John Benjamins Publishing Company, 2010) 63.
69 Id. at 64.
70 Id. at 65.
71 Id. at 66.
72 Id. at 74.
73 Id. at 51.
74 Id.
75 Id. at 52.
76 Id. at 53.
77 Id. at 65.
78 J Danaher, ‘The Symbolic-Consequences Argument in the Sex Robot Debate’ in J Danaher and N McArthur (eds), Robot Sex: Social & Ethical Implications, edited by (MIT Press, 2017) 107.
79 Id. at 109.
80 Id.
81 Id. at 118.
82 Id.
83 Id.
84 R Brown and J Shelling, ‘Exploring the Implications of Child Sex Dolls’ in M Phelan (ed), Crime and Justice Research (Australian Institute of Criminology, 2019) 68.
85 G Dines, Pornland: How Porn has Hijacked Our Sexuality (Beacon Press, 2010) 80, 86.
86 DA Kingston, P Fedoroff, P Firestone, S Curry and JM Bradford, ‘Pornography Use and Sexual Aggression: The Impact of Frequency and Type of Pornography Use on Recidivism Among Sexual Offenders’ (2008) 34:4 Aggressive Behavior 341-51.
87 Id. at 341-51.
88 J Sher and B Carey, ‘Debate on Child Pornography’s Link to Molesting’ New York Times (July 19, 2007), https://www.nytimes.com/2007/07/19/us/19sex.html?_r=1&scp=1&sq=child%20pornography%20study&st=cse.
89 Id.
90 Id.
91 Maras, supra note 34 at 4.
92 Ray, supra note 28 at 94.
93 Id. at 100.
94 Id.
95 Id. at 106.
96 Id. at 94.
97 Id. at 96.
98 Id. at 100.
99 Id. at 99.
100 Id. at 109.
101 M Coeckelbergh, ‘The Tragedy of the Master: Automation, Vulnerability, and Distance’ (2015) 17 Ethics & Information Technology 219.
102 Id. at 220.
103 Id.
104 Id. at 221.
105 Id.
106 D Zoller, ‘Skilled Perception, Authenticity, and the Case Against Automation’ in P Lin, K Abney and R Jenkins (eds), Robot Ethics 2.0: From Autonomous Cars to Artificial Intelligence (Oxford Scholarship Online, 2017).
107 Id.
108 Coeckelbergh, supra note 104 at 228.
109 Id. at 230.
110 Zoller, supra note 109.
111 Talmud Bavli, Sanhedrin 65b, 17 (https://www.sefaria.org/Sanhedrin.65b.17?lang=bi).
112 See Rashi, Sanhedrin 67b:13(2), aski behilkhot yetzirah (https://www.sefaria.org/Rashi_on_Sanhedrin.67b.1?lang=bi). This ancient Jewish mystical work, which is attributed to Abraham on the basis of the phrase “and the souls they had made in Haran” (Genesis 12:5) used in the verse describing the things that Abraham took with him on his journey to Canaan, presents an elaborate cosmology grounded in the assumption that combinations of letters in the Hebrew alphabet are the means by which God created the world. In theory, someone with a deep knowledge of this work could possibly create anthropoids, namely, artificial entities resembling human beings (See BL Sherwin, Moral Implications of the Golem Legend in Partnership with God (Syracuse University Press, 1990) 194-196; M Idel, Golem (Ktav Publishing House, 2019) 9-26).
113 See M Idel, The Mystical Experience in Abraham Abulafia (SUNY Press, 1988) 13-55, 73–179 for a discussion of the role of the Sefer Yetzirah in practical Jewish mysticism. In keeping with R. Zeira’s approach, R. Abulafia opposed attempts to use the book to create life, and stated somewhat bluntly that “those who seek to create cows are themselves cows!”
114 Maharsha, Hiddushei Aggadot, Sanhedrin 65b, (https://www.sefaria.org/Chidushei_Agadot_on_Sanhedrin.65b?lang=bi).
115 In the Talmud, the absence of the ability to speak was perceived as a sign of lack of intelligence, and the deaf-mute was subject to various legal restrictions (Talmud Bavli, Hagigah 3a (https://www.sefaria.org/Chagigah.3a?lang=bi). Once it was understood that a deaf mute was not only intelligent but could communicate in a rational manner, the halakhah changed and the restrictions were lifted (See Resp. R. Azriel Hildesheimer 2 no. 58 (https://www.torahmusings.com/2019/04/rav-hildesheimers-response-to-ultra-orthodoxy/); Mishnah Berurah, Orah Hayyim 32, (https://www.sefaria.org/Mishnah_Berurah.29.1?lang=bi); D Sinclair, ‘Lo statuto giuridico delle persone nel diritto ebraico’ (2014) Daimon 10-12).
116 Darkhei Teshuvah, Yoreh De’ah 7:11, (https://www.sefaria.org/Shulchan_Arukh%2C_Yoreh_De’ah.7.1?lang=bi). R. Shapira is also of the opinion that deaf mutes belong to the class of entities possessing such capabilities and are therefore fully human, notwithstanding their impediment.
117 If, for example, two brothers have sexual intercourse with the same anthropoid, this would not amount to an infringement of the biblical prohibition on “taking a brother’s wife” (Leviticus 20:21). In his Shenei Luhot Haberit, Torah Shebikhtav, 3, Vayeshev, 65a, https://www.sefaria.org/Shenei_Luchot_HaBerit%2C_Torah_Shebikhtav%2C_Vayeshev%2C_Miketz%2C_Vayigash%2C_Torah_Ohr.4?lang=bi, R. Isaiah Horowitz uses this idea in order to explain Joseph’s mistaken impression, which he then relayed to his father, that his brothers were committing incest by sleeping with the same woman. His mistake lay in not realizing that she was an anthropoid created by means of the Sefer Yetzirah (https://www.sefaria.org/Sefer_Yetzirah?tab=contents); See Rashi, Genesis 37:3 (https://www.sefaria.org/Rashi_on_Genesis.37.3.1?lang=bi&with=Topics&lang2=bi).
118 Resp. Haham Zvi, 1, no. 93.
119 Anthropoids are sometimes referred to as “golems” and other times as “people created by means of the Sefer Yetzirah.” The latter designation reflects the talmudic usage and is prevalent in Sefardic sources. According to a legend recorded by Haham Zvi’s son, R. Jacob Emden, his father’s ancestor, R. Elijah of Chelm, who died in 1583, created a golem by mystical means, and it carried out all manner of labor on his behalf. R. Elijah eventually put the golem out of action because it became stronger over time, and R. Elijah feared that it would eventually become a destructive force (J Emden, Megillat Sefer,)Moreshet Yerushalaim 1979) 4; G Scholem, The Idea of the Golem in On the Kabbalah and its Symbolism (Schocken Books, 1965) 201). In this context, it is worth pointing out that the famous legend of the 16th century Maharal of Prague’s golem has no source in rabbinic literature, and is most likely the invention of one R. Judah Yudl Rosenberg, who in 1909 published an account of the Maharal’s golem in his book, Nifla’ot Hamaharal (Falaman, 1908), which he claimed was based on an old manuscript. No such manuscript ever came to light, and the library from which he claimed he had obtained it never existed; See SZ Leiman, ‘The Adventure of the Maharal of Prague in London: R. Yudl Rosenberg and the Golem of Prague’ (2002) 36 Tradition 26-58.
120 Talmud Bavli, Sanhedrin 19a (https://www.sefaria.org/Sanhedrin.19a?lang=bi).
121 Talmud Bavli, Sanhedrin 57b (https://www.sefaria.org/Sanhedrin.57b?lang=bi). For the ramifications of this exegesis for the issue of feticide in Jewish law, See D Sinclair, Jewish Biomedical Law (Oxford University Press, 2003) 28-46.
122 Maharal, Hiddushei Aggadot, 3, 166-167, (https://hebrewbooks.org/14192).
123 RG Leiner, Sidrei Taharot, (1903) Ohalot 1, 5a (https://www.hebrewbooks.org/22096). R. Leiner is famous for his scientific research on the blue dye (tekhelet) used in ancient times to color the ritual fringes (tzitzit) worn by adult male Jews (Numbers 15: 37-41), and after an extensive study of sea creatures at Italian aquaria, he concluded that it was extracted from the secretion of the common cuttlefish (sepia officinalis). Leading halakhic authorities such as the Maharsham accepted his finding as definitive, others such as R. Dr. Isaac Herzog did not (See B Sterman, The Rarest Blue (Lyons Press, 2012)).
124 Isaiah 59:2.
125 Sefer Habahir no. 196 (https://www.sefaria.org/Sefer_HaBahir?tab=contents).
126 His summary dismissal of the exegesis of Genesis 9:6 cited by R. Ashkenazi in support of his position on the basis that it is nowhere to be found in any Talmudic or Midrashic source is clearly somewhat cavalier (See supra note 124).
127 Sinclair, supra note 124 at 107-108; A Westreich, Assisted Reproduction in Israel: Law, Religion and Culture (Brill, 2018).
128 See Sherwin, supra note 115 at 202.
129 This point emerges most trenchantly from the commentary of R. Leiner (See Sherwin, Id).
130 See supra note 126.
131 Genesis 18:19.
132 Sherwin, supra note 115 at 208.
133 Ibn Gabirol (1021-1058) was and still is universally admired for his consummate poetical and scholarly achievements. His neo-platonic theological masterpiece – Keter Malkhut (https://www.sefaria.org/Keter_Malkhut?tab=contents) – was translated into Latin under the title Fons Vitae, and was attributed to a Christian or Moslem theologian known as Avicebron. Only in the 19th century was the true identity of the author revealed (See R Loewe, Ibn Gabirol (Cambridge University Press, 1989)).
134 Metzaref Lehokhmah (Odessa, 1865) Ch. 7, 10a. R. Delmedigo spent his early years in Crete and Italy but after completing his medical studies in Padua, he travelled widely and spent time in Cairo, Constantinople, the Grand Duchy of Lithuania and Hamburg where he served as rabbi of the Sephardic community. He also functioned as a rabbi in Amsterdam. He spent his last years in Prague and his grave is in the city’s ancient Jewish cemetery.
135 M Idel, Golem (New York, 2019) 234.
136 L Dukes, Literaturhistorische Mittheilungen ueber die Aeltesten Hebraeischen Exegeten, Grammatiker und Lexicographen (Stuttgart, 1844) 177.
137 Idel, supra note 138.
138 Y Liebes, ‘R. Solomon Ibn Gabirol’s Use of Sefer Yetzirah’ in J. Dan (ed), The Beginnings of Jewish Mysticism in Medieval Europe (Jerusalem Studies in Jewish Thought, 1998) 104-105. Also see SY Agnon’s novel, Ido and Enam (published in SY Agnon, Ad Ena (Shoken, 1962)), in which a king is presented as having fallen in love with Ibn Gabirol’s anthropoid.
139 See supra note 120.
140 See Idel, supra note 115 at 234-236.
141 M Mielziner, The Institution of Slavery Among the Ancient Hebrews According to the Bible and Talmud (Cincinnati, 1894) 17. This book was his doctoral thesis at the University of Giessen.
142 Id. at 1.
143 J Sacks, The Dignity of Difference (Bloomsbury Continuum, 2003) 69-70. Mielziner expresses a similar sentiment (See supra note 144). Also see, G Shmalo, ‘Orthodox Approaches to Biblical Slavery’ (2011-2013) 16 The Torah U-Madda Journal 1-20.
144 Males were to be emancipated either on the advent of the seventh year of service (Exodus 21:2; Arakhin 18b (https://www.sefaria.org/Arakhin.18b?lang=bi); Maimonides, Mishneh Torah, Slaves 2:2-3, 2:4 (https://www.sefaria.org/Mishneh_Torah%2C_Slaves.2.2?lang=bi)) or the year of the Jubilee (Exodus 21:5-6; Deuteronomy 15:15-17; Talmud Bavli, Kiddushin 16b-17a (https://www.sefaria.org/Kiddushin.17a?lang=bi). The Jubilee Year is every fiftieth year and in it all debts and obligations are cancelled, and all slaves are freed. A Hebrew slave can opt to remain with his master even after his six years of service, but must leave with the advent of the Jubilee. The slave who desires to remain until the Jubilee must, however, have his ear pierced: the rabbis understand this as a symbol of his refusal to listen to the message of mandatory freedom from human enslavement decreed by God for His people at Mt. Sinai (Talmud Bavli, Kiddushin 15a, 22b (https://www.sefaria.org/Kiddushin.17a?lang=bi); Maimonides, Mishneh Torah, Slaves 3:9-10; 13). Non-Hebrew slaves served in perpetuity (Leviticus 25: 44-45) and were to be “bondmen forever” (Leviticus 25: 46). Nevertheless, Talmudic law laid down provisions for manumitting gentile slaves by means of a manumission deed (Mishnah Kiddushin 1:2 (https://www.sefaria.org/Mishnah_Kiddushin?tab=contents); Talmud Bavli, Kiddushin 16a (https://www.sefaria.org/Kiddushin.16a?lang=bi) ; Maimonides, Mishneh Torah, Slaves 5:3, 6,7 ((https://www.sefaria.org/Mishneh_Torah%2C_Slaves.2.2?lang=bi)) and there are various instances on record of distinguished rabbis freeing their non-Hebrew slaves (Talmud Yerushalmi, Gittin 1:5 (https://www.sefaria.org/Jerusalem_Talmud_Gittin.1.4.4?lang=bi); Z Falk, Introduction to the Jewish Law of the Second Commonwealth (Brill, 1978) 266).
145 Exodus 21:20; Talmud Bavli, Sanhedrin 52b (https://www.sefaria.org/Sanhedrin.52b); Maimonides, Laws of Homicide 2:14.
146 Exodus 21:26-27; Talmud Bavli, Kiddushin 24b (https://www.sefaria.org/Kiddushin.24b); Maimonides, Maimonides, Mishneh Torah, Slaves 4–17 (https://www.sefaria.org/Mishneh_Torah%2C_Slaves.2.2?lang=bi). If the master injures or kills his Hebrew slaves, the regular laws of tort and homicide apply.
147 Leviticus 25:53; Maimonides, Laws of Slaves 1:6.
148 Deuteronomy 23:17; Maimonides, Laws of Slaves 8:10.
149 Deuteronomy 15:13-15; Talmud Bavli, Kiddushin 15b; Maimonides, Laws of Slavery 3:14.
150 Also see, BA Strawn (ed), The Oxford Encyclopedia of the Bible and Law (Oxford University Press, 2015) 302-306; M Elon (ed), The Principles of Jewish Law (Jerusalem, 1974) 231-236.
151 See Elon, Id.
152 Maimonides, Laws of Slaves 9:8. The turn to ethics at end of the legal sections of his code is typical of Maimonides’ style in his Mishneh Torah; See: I Twersky, Introduction to the Code of Maimonides (Mishneh Torah) (Yale University Press, 1980) 176-187. It also serves to indicate the close relationship between law and ethics in the halakhah.
153 Maimonides, Guide for the Perplexed 3:39 (https://www.daat.ac.il/daat/mahshevt/more/c10-2.htm#1).
154 Elon, supra note 153 at 234.
155 D Cobin, ‘A Brief Look at the Jewish Law of Manumission’ (1995) 70 Chicago-Kent Law Review 1341.
156 The conversion involved circumcision for males and dipping in a ritual bath for both sexes. Nevertheless, the converted slave was obliged to keep only very basic halakhic laws, and would often adopt a fairly cavalier attitude towards his or her halakhic obligations; See, Talmud Bavli, Yevamot 48b; Maimonides, Laws of Slaves 8:12; S Assaf, Be’ohalei Ya’akov (Jerusalem, 1973) 224-228.
157 For further discussion of this issue see, Cobin, supra note 158 at 1343-1346; Assaf, Id. at 224.
158 Cobin, supra note 158 at 1341-1344.
159 Talmud Bavli, Gittin 39a-b; See: Assaf, supra note 159 at 233–234
160 Talmud Bavli, Ketubot 40b; Maimonides, Laws of Slaves 4:1.
161 Maimonides, Laws of Slaves 4:2.
162 Id. at 4:5.
163 Exodus 21:7-11; Maimonides, Laws of Slaves 4:7-8.
164 Talmud Bavli. Kiddushin 17b; Maimonides, Laws of Slaves 4:6.
165 I Mendelson, ‘Slavery in the Ancient Near East’ (1946) 9 The Biblical Archaeologist 74-78.
166 Talmud Bavli, Gittin 38a; 41a; Maimonides, Laws of Slaves 7:7; 9:6.
167 Talmud Bavli, Bava Metzia 71a; Maimonides, Laws of Slaves 9:6.
168 Mielziner, supra note 144 at 18.
169 EE Urbach, ‘The Laws Regarding Slavery as a Source for the Social History of the Period of the Second Temple, the Mishnah and the Talmud’ in JG Weiss (ed), Papers of the Institute of Jewish Studies 1 (1964) 49; Assaf, supra note 159 at 230-241; Cobin, supra note 158 at 1346-1348.
170 Assaf, supra note 159 at 230–234 in which several rulings to this effect by the Babylonian Gaonim are discussed, including the famous case of Bustenai, the first Babylonian Exilarch under Moslem rule.
171 Resp. Maimonides 2 (Blau edition) no. 211.
172 Converting a gentile woman to Judaism and living with her was a capital offence under Islamic law:; See, E Strauss, The History of the Jews in Egypt and Syria (Jerusalem, 1951) 235; YT Assis, ‘Sexual Behavior in Medieval Hispano-Jewish Society’, in A Rapoport-Albert and SJ Zipperstein (eds), Jewish History: Essays in Honor of Ch. Abramsky (London, 1998) 32. It was, however, possible to escape capital punishment by bribing the judicial authorities: See: A Grossman, Pious and Rebellious Jewish Women in the Middle Ages (Jerusalem, 2003) 233.
173 Deuteronomy 21:6-14 according to which an Israelite soldier was permitted to have intercourse with a gentile female captive during a war. On the cessation of hostilities, however, he was required to bring her into his home and marry her. The Talmud in Kiddushin 21b explains that this law is a concession to the strength of the soldier’s “evil inclination”; See, D Stern, ‘The Captive Woman: Hellenization, Greco-Roman Erotic Narrative, and Rabbinic Literature’ (1998) 19:1 Poetics Today 91-127.
174 Talmud Bavli, Yevamot 24b. This first instance prohibition may be waived in cases in which it is evident that notwithstanding the prima facie presence of an ulterior motive, the candidate for conversion is truly sincere (Tosafot, Yevamot 24b s.v. lo bimei). A Beth Din, therefore, has discretion with regard to the determination of sincerity of motive (Beth Yosef, Yoreh Deah 268) but in Maimonides’ case it is clear from his reference to the “minor prohibition” involved in converting the female slave that her motivation was definitely an ulterior one. As observed in note 159, this was the prevalent attitude towards their newly adopted faith by emancipated and newly converted gentile slaves in general. Maimonides bases his recommendation on a combination of the principles of aiding penitents (note 178); the lesser of the two evils (note 179), and the policy of breaking a Torah law in order to preserve Judaism (note 180). Hence, in this case, the Beth Din is required to sin slightly in order to prevent a Jewish man from committing the egregious offence of living with a gentile woman; See, D Sinclair, ‘Trends in Rabbinic Policy in Relation to Insincere Conversions’ (1991-1992) 15 Dine Israel 48-70.
175 Mishnah, Gittin 5:5. The rabbis were prepared to ameliorate various halakhic requirements in order to allow sinners to repent, e.g., a thief is permitted to restore the value of a stolen piece of timber to its owner rather than the stolen item itself as required by Biblical law, if it was used in the foundations of his house. In Maimonides’ case, it is evident that the young man was intent on staying with the female slave and as a result, his path to repentance necessitated the halakhic regularization of his relationship with her.
176 Talmud Bavli, Kiddushin 21b. The Talmud uses this idea to explain the law of the “beautiful captive” (supra note 176) and adds that in a similar manner it is preferable for a Jew to eat the flesh of dangerously ill animal slaughtered properly rather than the flesh of carrion. Although it is considered repugnant to eat the meat of an animal afflicted with a life-threatening disease since its death may be the result of the illness and not the ritual slaughter (Talmud Bavli, Hullin 37b), nevertheless, if one is going to eat the meat of the animal in any case e.g. for economic reasons, it should be slaughtered as soon as possible rather than allowing the animal to die in which case its flesh is definitely forbidden.
177 Mishnah, Berakhot 9:5; Talmud Bavli, Berakhot 54a; Talmud Bavli, Gittin 60a. This principle is based on the talmudic exposition of Psalms 119: 126: “It is time to act on the Lord’s behalf; they have nullified Your Torah”. The rabbis change the plain meaning of the verse and read it as follows: “They have nullified Your Torah because it is necessary to act on the Lord’s behalf”. The Talmud cites the principle in order to justify deviations from biblical law on the grounds that they are necessary for the purpose of preserving the entire Jewish religion, e.g., Elijah making a sacrifice to God on Mt. Carmel (1 Kings 18) outside the Temple precincts in order to convince Israel to reject the idolatrous cult of Baal. Maimonides uses this principle in the case before him in order to justify permitting halakhically inappropriate conversions in order to protect the Jewish identity of the communities in Moslem countries in which, as we have seen, there was a growing trend amongst Jewish men to father offspring with gentile slaves. Since Jewish identity is governed by the matrilineal principle, there was a real threat that these communities would be inundated with the gentile children of unconverted slaves; hence, halakhically less than desirable conversions were Maimonides’ preferred solution.
178 See supra notes 171- 172. In the early 20th century, R. Rafael Aaron Ibn Shimon of Cairo wrote an account of the policy of his Beth Din regarding the conversion of the non-Jewish female partners of Jewish men in his community, and he states quite explicitly that we “turn a blind eye to the obvious insincerity of the conversion,” which was often performed for the sake of obtaining a recognized religious marriage in order to enable the children of the union to inherit their father’s property under Egyptian law. R. Ibn Shimon justifies the policy in terms of endowing the couple’s progeny with Jewish identity, and in terms of saving the Jewish man from the serious offense of living with a gentile woman and possibly from apostasy, since if he is denied a Jewish wedding, he is likely to convert to Islam and marry in accordance with Moslem rites. R. Ibn Shimon concludes his account with a clear reference to Maimonides’ ruling: “And in this respect we follow in the footsteps of previous generations who made similar concessions” (Nahar Mitzraim, Laws of Conversion no. 5, p. 111).
179 The Cairo Genizah is a collection of some 400,000 Jewish manuscript fragments that were found in the dedicated discarded document storeroom – genizah – of the Ben Ezra Synagogue in Fustat (Old Cairo). The manuscript date range is from the 9th to the 19th centuries, and the Genizah comprises the largest and most diverse collection of medieval manuscripts in the world. The academic study of the Genizah texts began with Solomon Schechter at the end of the 19th century in Cambridge, and the documents are presently housed in a number of libraries, including those of Cambridge University, the University of Manchester, and the Antonin Cairo Genizah Collection in Saint Petersburg. In addition to classical and later rabbinic texts, some in the original handwriting of the authors, the Genizah contains a rich treasury of legal documents on the basis of which it is possible to analyze in depth the economic and cultural life of the North African and Eastern Mediterranean regions, especially during the 10th to the 13th centuries; see: SD Goitein, A Mediterranean Society: The Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza (University of California Press, 1967–1993) 1-6.
180 The responsum was published by S Assaf, Some Genizah Fragments, (1954) 14 Sinai 3-8.
181 The fragment was published by S Stober, ‘Two Questions Posed to R. Abraham b. Maimonides’, (1979-1980) 6–7 Shenaton Hamishpat Ha’ivri 399-403.
182 Stober, Id. at 400.
183 Resp. Maimonides (Blau edition) 1 nos. 45, 71, 73, 88, 2 nos. 234, 281, 372; MA Freidman, ‘Polygamy: Documents and Responsa from the Genizah’ (1974) 40 Tarbiz 182-196.
184 The responsum appears in a manuscript (Oxford-Bodleian 2550, folio 194a) and was published by SZ Havlin, ‘The Takkanot of R. Gershom Ma’or Hagolah’ (1975) 2 Shenaton Hamishpat Ha’ivri 234-235.
185 Mielziner, supra note 145.
186 See, N Goltz, J Zeleznikow, and T Dowdeswell, ‘From the Tree of Knowledge and the Golem of Prague to Kosher Autonomous Cars: The Ethics of Artificial Intelligence Through Jewish Eyes’ (2020) 9:1 Oxford Journal of Law & Religion 132–156 for an extensive discussion of this argument.
187 Leviticus 25:50; Talmud Bavli, Bava Kamma 113b; Maimonides, Laws of Correct Opinions 2:6.
188 Deuteronomy 25:16.
189 Maimonides, Commentary to the Mishnah, Kelim 12:7.
190 Biur Hagolah, Hoshen Mishpat 348:4.
191 Exodus 7:19, 8:1, 812.
192 Exodus 9:8, 9:23, 10:13, 10:22.
193 Exodus 2:3.
194 Exodus 2:12.
195 Midrash Shemot Rabbah 20:1. This Midrash is cited by Rashi in his commentary on many of the verses in notes 194-197.
196 Mikhtav Me’eliyahu 3, Kuntress Hahesed 100-101; 1, 46-47.
197 See, Talmud Bavli, Shabbat 105b; Talmud Bavli, Nedarim 22b; Maimonides, Laws of Correct Opinions 2:3.