Rape is an act of religious worship amongst adherents of the Islamic State. There but for the grace of rabbinic interpretation go I.
By the grace of God’s written word alone, there is no question that the same conclusions could be reached from chapter 21, the opening verses of Parshat Ki Tetze. Once God has given the nation over into your hands, the rabbis might have suggested, it is a mitzvah to assert your superiority by taking the women captives and forcing them to marry you.
Instead of pursuing this line of interpretation, the sages introduced a fundamental principle for understanding morality in the Torah. “The Torah only spoke in response to the evil inclination, for if God didn’t permit her, he would take her in a prohibited way” (Kiddushin 21b). The Torah does not always present us with the moral ideal. At times, taking into account the moral weakness of its audience, it legislates an immoral law as a lesser evil. Rambam is well known for his explanation (in the Guide to the Perplexed) of the sacrificial service along the same lines. This principle is one of the most powerful proofs of the critical need for a healthy sense of natural morality to shape our understanding of Torah. If the Torah’s legislation is not proof positive of what constitutes the moral ideal, because it makes concessions to human weakness, there must be some other way to determine what the ideal is.
Perhaps the most explicit rabbinic example of this other way relates to the rebellious son, at the end of this chapter. “Could it be that because he ate a measure of meat and wine that the Torah says he is liable for stoning?” (Sanhedrin 72a) The simplest, most ‘traditional’ answer would be- apparently, yes. Apparently the Torah sees this as such a serious sin that it warrants the death penalty- and who are you to argue? If the Torah deems it worthy, who are you to mount a moral challenge? What moral system are you judging the Torah in light of, and how dare you do that?
But this isn’t the Talmud’s response. The mere presence of a law in the Torah does not automatically assign it impeccable moral credentials. And we are not meant to bend and mold our own moral intuition so that they fit better with the ‘plain’ meaning of the text. Rather, moral intuition acts as a check on the written word given to us at a particular time and place, to a particular group of people. Thank God for that.