Are Jews Moral Without Restrictive Laws? Ki Titzeh

One of the examples I frequently hear as proof that we have the most moral army in the world is “our soldiers don’t rape.” However, this week’s Torah portion teaches that the instinct of Jewish soldiers with passions inflamed by battle could be to rape, just like any other army.

Unfortunately, the Torah doesn’t outright forbid a soldier from taking a “beautiful woman” captured in battle and forcing her against her will to become his wife.  However, the opening of our portion does command that if a soldier sees a beautiful woman, he can’t rape her on the spot.  He must take her home, give her a month to mourn her family, and he can than marry her. He incurs upon himself all the obligations of marriage.  He can’t have sexual relations with her, and then sell or enslave her.

On the one hand, what the Torah permits is awful enough, and entirely unacceptable according to our ethical standards today. The Torah essentially permits rape, insofar as all non-consensual marriages are essentially legal rape. Nevertheless, this commandment no doubt prevented many rapes. The soldier who wanted to rape in the heat of the moment probably did not want to take a woman home and incur all of the obligations the Torah imposes. Restrictions imposed by the Torah made us more moral, and perhaps ingrained in us something that impacts on the behavior of Israeli soldiers today.

Perhaps our soldiers have not raped, but Kfar Kassem taught us that our soldiers are capable of massacres. (With the outbreak of the Sinai Campaign in 1956, orders were issued to shoot to kill Israeli Arabs violating a curfew they didn’t even know about. In most cases this was not carried out. However, in Kfar Kassem, farmers were killed returning from their fields.) Thank God, our military court was able to convict the guilty soldiers and establish the principle that “just following orders” is not an excuse for carrying out a patently illegal order (“An order with a black flag waving above it.”). Just as the king was obligated to always have with him a copy of the Torah (more on this later), every Israeli soldier is still obligated to carry with him/her a copy of our army’s ethical code. They are supposed to be taught the code in basic training, although I am not sure that it is sufficiently emphasized or explained in depth.

We are not better than others without laws that educate and restrain us. Moses emphasizes this in his parting words to the Israelites that make up the bulk of Deuteronomy, “Do not say in your heart that Adonai your God has enabled us to possess this Land, saying ‘because of my righteousness Adonai brought me to inherit this Land.'” (Deuteronomy 9:4).

When I teach prayer I tell the students that our sages included prayers just before the morning and evening recitation of “Shema Yisrael” thanking God for giving us the commandments out of love, as an answer to those who said that we have a stern, angry and vengeful God. A loving God would free us from the “yoke of the commandments.” I ask them to think about what would happen on our streets if there were no traffic laws.  According to our sages, the fact that God gave us commandments is proof that God loves us.

In the elections in a few days we will be asked to decide whether we are still a nation that believes that bothersome laws restricting the popular will of the people are necessary for our own good. When Yitzhak Rabin said, “The Palestinian police will fight Hamas without “B’tselem,” the Israeli High Court, or “Mothers against Silence,” he may have been expressing his own desire to be freed of human rights organizations, the rule of law and civil society. However, he apparently understood that this is our way, and our greatness. Today we have politicians who are openly proud of what they have already done to undermine our court system, and are vowing to complete the task in the next government.

On election day we will also be determining whether our leadership should receive immunity putting them above the law. The number of ministers and other high placed politicians under investigation is simply astounding. In last week’s Torah portion (Shoftim) we are taught, “When he (a king) is sitting on his royal throne, he shall have a copy of this Teaching written for him on a scroll by the levitical priests. It will remain with him and he shall read from it all the days of his life, so that he will learn to revere Adonai his God, to observe and carry out all the words of this Torah and these laws. Thus he will not act haughtily in his heart toward his fellows, or deviate from this commandment right or left, so that he and his descendents may reign long in the midst of Israel.” (Deuteronomy 17:18).

Yes, it is depressing that we have had a president, a prime minister and a long list of additional high government officials who have served jail time. This is also something to be proud of. Our leaders are capable of being criminals, just as the leaders of other peoples. Their positions often give them the opportunity. At least we attempt to preserve both the principle that a person is innocent until proven guilty, and that nobody is above the law.

There are those who will say that we must make an exception for our leaders because they are under so much pressure. Perhaps we even need to allow them to take some forbidden pleasures that allow them to cope.  Parashat Shoftim addresses this as well.  The king is forbidden to own many horses, have many wives, or amass excessive wealth.  (Unfortunately, women were/are thought of as a sort of possession.) True, that because the prophet Samuel warns the people that a king will do these forbidden things, there is a debate among the Talmudic sages because some take this warning as permission.  However, the intent of both the Torah and Samuel is clear. We later read how the decision of King Solomon to have many wives leads to disaster.

Neither the law nor judges are above criticism.  Ultimately, God tells Samuel to honor the will of the people, despite Samuel’s reservations.  There are examples where our sages change or ignore or impose conditions on laws in the Torah, or adapt them to their times.  I believe that sometimes this was for the better.  However, our sages did this with extreme caution, and with great love and respect for the Torah.  Having lead human rights organizations for 24 years, I often have criticism regarding High Court decisions that do not honor God’s Image in every human being.  Despite the accusations that our Court is a left wing cabal, it has probably ruled contrary to my understanding of justice more often than it has ruled in accordance with my understanding.  However, my criticism is of the particular decision.  I don’t declare that I want to undermine this pillar of our democracy.  I recognize the need for the rule of law that is often annoying and restrictive, because it ideally preserves our morality as a people and as a country.  I of course work to challenge and change any laws that do not do so.

When we enter the voting booths on Tuesday, I hope and pray that these values will be in front of all of our eyes.  Hopefully we will vote for a government and Knesset that will zealously guard that which restricts all of us from doing whatever we wish in the name of “the will of the people.”

Shabbat Shalom.

About the Author
Rabbi Arik Ascherman is the founder and director of the Israeli human rights organization "Torat Tzedek-Torah of Justice." Previously, he led "Rabbis For Human Rights" for 21 years. Rabbi Ascherman is a sought after lecturer, has received numerous prizes for his human rights work and has been featured in several documentary films, including the 2010 "Israel vs Israel." He and "Torat Tzedek" received the Rabbi David J. Forman Memorial Fund's Human Rights Prize fore 5779. Rabbi Ascherman is recognized as a role model for faith based human rights activism.
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