I present my first D’var Torah as I am applying to become a rabbinical student, I happened to get one of the most difficult biblical portions in the Torah, the parsha known as Ki Teitzei. Although it appears to only address challenging subjects it also shows the rise of the moral code that developed into both the legal system of western thought and the religious law of middle eastern religions. The Sages of Blessed Memory known as the Chazal connected many of these subjects addressed in these passages with the immorality of different biblical characters such as Lamech. He is known for being the first polygamist and someone who committed crimes of passion that he justified as vengeance. (“And Lemech took for himself two wives…” Genesis 4:19 This entire narrative about his two wives, Adah and Zillah, serves an important purpose in the Torah: To teach and inform that when marriage is conducted properly, solely for the continuation of the species, then righteous children who observe God’s commandments will be born. However, when marriage is not for the continuation of the species but rather for beauty and to satisfy one’s desires, then alien children will be born to them — evil seed, destructive children…Kli Yakar on Genesis 4:19:1)
The rabbis of our tradition often justify the problematic text in this parsha as God makes concessions to our evil impulses known as the yetzer hara. The crucial question for a future rabbinical student like me is why should modern people concern themselves with what some would call barbaric or archaic laws?
To answer this we must look at some of the most troubling laws discussed in this Torah portion. Such as the concept of a ben sorer u’moreh-the wayward son and his punishment for misbehavior, as well as the instructions around the yefat toar- the beautiful captive taken during a raid against an enemy’s army.
The wayward son, was described in the text as a child in the Israelite community that disobeyed his parents. He is supposed to be brought to the elders to be stoned to death. According to the The Talmud this issue was never addressed or brought before the ancient council throughout the history of ancient Judaism. Tractate Sanhedrin (71a) calls it a lo hayah ve-lo nivra (an issue that never took place or was never enacted). The sages created an elaborate legal fiction around this topic to erase this commandment out of existence as they made it practically impossible to fulfill this Torah requirement. They believed that instead of ending someone’s life as a preemptive act to keep order in the community, this is meant to be a lesson on how dishonoring your parents can act as a warning to avoid self-destructive behavior. One way to look at it is that the parents were responsible to keep the child liable giving rise to what is known in our modern legal system as parents being held legally and financially accountable for a child's actions through civil liability. However, this moral turpitude which produces iniquity on the family does not always lead to future criminality of the child. It appears that parents would have to consider his behavior unacceptable making it a legal honor killing as stated in the text. In this case the sages considered this to be an overkill in religious law and soften the ability to ever bring about the punishment for this apparent shame brought to the family. They relegated the problem to a family dispute that can be solved in-house among its members. As someone who has worked with kids experiencing behavioral challenges I have seen many cases where authorities don’t want to get involved and see these conflicts as family quarrels outside of their jurisdiction.
However, when it came down to taking an unwilling bride as a spoil of war by an Israelite soldier, this marriage is not considered illegitimate or problematic in a first glance on the subject. The woman’s desires are not addressed at all specially as she is grieving the killing of her immediate family during battle. Somehow, wartime is seen as an opportunity to show mercy to her by not allowing for her to suffer the same fate as her community, the goal is for her not to become destitute or be exploited by others. This rationale possibly shows more about the writers of these texts and their biased interpretations than it being consistent with the divine character of our Creator. These mandates of the Torah are described in what we would perceive as not very spiritual ways to handle someone’s life. The very human reasoning is apparent showing an ever-developing code of ethics and community rules. In the rest of the Bible, before and after Deuteronomy G-d is experienced by our patriarchs as loving and compassionate as well as the protector of our human dignity being the one that gives every individual their worth and value.
Although commentators like Rashi (citing Kiddushin 21b) claim that the Torah permits this violation of the woman’s personal agency as a concession to the wickedness in the heart of the soldier; the teachings of Moses (originally dictated by G-d in Jewish tradition such as Sanhedrin 99a & Hilkhoy Teshuvah 3:8) around this subject are meant to regulate worse wartime misconduct. Instead as her being outright raped by the soldier (a common practice throughout history) she is given a period of mourning for her family before the forced marriage, as she is taken to the man’s home, she is forced to shave her head, trim her nails and is provided with new garments. After a 30-day waiting period, the soldier can choose to keep her or disregard her as unworthy without being able to sell her as a slave. The Rambam a foundational Sage in my tradition continues the principle of lo dibra Torah ela keneged yetzer hara (that the Torah spoke only in response to the evil inclination). In his Hilchot Melachim (Laws of Kings) he sees it as deterrent for a soldier to have their way with the survivors of the conquest of another nation. By asking the soldier to take responsibility and creating a time of reflection during her shloshim; it allows for passions to subside and possibly the soldier will choose to release the captive before taking on all these burdensome tasks. The challenge for traditionalist Jews is that the modern orthodox and religious folks who serve in the army at this time do not see these laws as outdated but as living halacha. David Resnick points out that the passage gives permission to the soldier to marry her by cohabitation rather than by contract if he chooses too. This makes the marriage illegitimate and if he chooses to let her go afterwards he has dishonored her in perpetuity. As someone that has been a member of a Beit Din in the past. There is another halakhic challenge, the woman never accepted the yoke of Torah and did not become an Israelite. By her not being accepted into the covenant his involvement with her is outside of the regulations of the biblical system making the cohabitation punishable as he violating older laws such as Genesis 28:1. Deuteronomy 7:3 and Deuteronomy 23:4 have many prohibitions regarding involvement with the people of Canaan, Ammon and Moab as equal parties to a marriage. Regarding the passage at hand, Isaac Abravanel’s (1437–1508) commentary on Deuteronomy emphasizes the man’s possible greed would bring about even more restrictions regarding the treatment of slaves in an Israelite context : “As for these six things, all of them are ways of removing his desire from her, so that he not take her as a wife. And the final law also is meant to have this effect, since when he realizes that once he has sex with her he can never sell her or treat her as one of his maidservants, he will separate from her, for it is the case with many men that their desire for wealth is more powerful than fulfilling their urges”
There is a possibility that by showing her mercy the soldier and the Israelite community might spur on her the desire to become an Israelite, providing a path for her to live a full life among the servants of the God of Israel.
The concept of living halacha is something that every modern Jew must grapple with, as my late professor Rabbi Doctor Byron Sherwin would surmise. His perspective was that the progressive movements often distort Jewish concepts to make them fit humanistic or politically liberal perspectives. His friends from the Union for Traditional Judaism and his mentor Abraham Joshua Heschel do not seem to take on some of these subjects directly in my research, other that making a case that Deuteronomy itself was written only by Moses (without G-d’s help) as he responding to already enacted divine decrees (Heschel, Heavenly Torah, 470). Like many contemporary groups that I am familiar with they rather focus on the shilu'ach haken (sending away the mother bird) when discussing this Torah portion. They often choose to give a lesson on empathy (based on the rules around hunting fowl) instead of tackling the more controversial commandments head on as I have attempted to do in this d’var Torah. I believe we must be honest and look deep for answers so we can inspire the next generation to do the same.
Our role as rabbis or spiritual leaders is to guide others through the complex system which is Jewish law as well as to bring to the surface the values, ethics and morality expressed in scripture. I heard someone say that intellectuals make complicated things simple and simple things complicated. The more we hide in academic debate and keep the public out of our own inner conundrums the more we isolate the Jewish community and allow for misconceptions to become common in the market place of ideas.
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