Judging the Torah

-in memory of Nella Eskin, who judged the world and its people with kindness

Last week’s parsha, Shoftim, was about the need for judges. It calls for us to seek justice everywhere (Deuteronomy 16:20).

So how do we judge other human beings?

In the Talmud, Pirkei Avot (Ethics of the Fathers) begins by saying, “Be deliberate in judgment” (Pirkei Avot 1:1). A few verses later, Joshua ben Perahiah says to judge everyone favorably (Pirkei Avot 1:6). Rabbi Hillel later says, do not judge another until you have stood in their place (Pirkei Avot 2:4).

But how do we judge the law itself?

What if the Torah tells us something that seems unjust, even harsh to the point of brutality?

This week’s parsha, Ki Seitzei, speaks of a ben sorer u’moreh (stubborn and rebellious son) (Deuteronomy 21:18-21). His parents must bring him to the judges, and if he is a glutton and drunkard as well as rebellious, the judges shall sentence him to death. On first hearing, the passage might sound repugnant.

But suppose we judge the law the same way we judge human conduct under the law: with patience, positivity, and sympathy.

Let us begin by looking at the ben sorer u’moreh in its historical context.

The Torah often is aware of the laws and customs of the neighbors and then sharply departs from them. The Code of Hammurabi, which might have been earlier than Devarim, says that a father by himself can disown a rebellious son, though judicial consent is required for disownment (Hammurabi Laws 168-169, https://avalon.law.yale.edu/ancient/hamframe.asp; Parshat Shemot, shulcloud.com). The Torah, by contrast, requires that both the father and the mother must together indict the son.

How likely is a mother ever going to deliberately walk her own son to a judicial process that will lead to his execution?

The Talmud (in the Gemara) even says that the mother and father must be so similar in height and weight that their voices sound the same (Sanhedrin 71a, baraita of Rabbi Yehuda, Shulamit Jelen, Parshat Ki Tetzei: The Rebellious Son, sefaria.org). The Talmud here is elaborating a concept—of parental concurrence—that is already in the plain language of the Torah. The rabbis are not subverting the biblical concept.

The rabbis noticed even more restrictions. The ben sorer u’moreh must not be a child so young that he cannot be held criminally responsible. But he must not be so old that he is an independent adult (Sanhedrin 68b-69a). Hardly anyone ever fits both descriptions. In focusing on judicial concepts of responsibility, the rabbis are not merely inventing constraints on the Torah’s apparent harshness. The Torah itself demands that even if both parents cannot act impulsively, they cannot succumb to their own initial rage. They must bring the ben sorer u’moreh to the gates of the city and the judges, to a public process where impartial experts will engage in sober and impartial deliberation (Deuteronomy 21:19-20).

Notice: the ben sorer u’moreh passage is after the Shoftim parsha of last week, where Devarim emphasizes the need for judges to be unbiased and to act on evidence—and in the most serious cases, require the evidence of at least two witnesses (Deuteronomy 19:15).

Look again at the Code of Hammurabi provisions, and you will see that fathers are authorized to act against a son who strikes them, imposing severe punishment like cutting off a hand, without judicial oversight (Hammurabi Law 195). No concurrence of the mother, no need for deliberation by judicious third parties, no requirement that the punishment be inflicted in the sight of the community rather than in a dark corner of a home.

In the Code of Hammurabi, punishments often vary by social status, with elites (amelu), free but landless men (mushkenu), and slaves (ardu) facing different penalties for similar crimes (Hammurabi Laws 196-199). The Torah, by contrast, insists that everyone is equal under the law revealed by the Creator, who has made every single human being a descendant of the same Adam and Eve and in the image of that same Creator (Genesis 1:27; Deuteronomy 1:17).

The ben sorer u’moreh, says the Torah, must be both a glutton and a drunkard as well as rebellious (Deuteronomy 21:20). Even the most flagrant act of defiance does not trigger the severe punishments; the son’s entire character must be marked by an inability to control his elemental and immediate desires.

Would a mother and father ever want to insist in public that their child-rearing was such an all-encompassing failure?

The rabbis add that a child must have first been given a warning, not only by the parents but by the court (Sanhedrin 71a). Once again, the rabbis are not simply counterprogramming what the Torah itself has spoken. The operative phrase is sorer u’moreh (סורר ומורה) — stubborn and defiant. The Torah verbally doubles down on the concept of willful disregard of instruction, and it has placed the phrase in the context of a wider call for meticulous care in arriving at fateful judgments.

The Talmud is justified in stating that there never was and never will be a ben sorer u’moreh who meets all the criteria (Sanhedrin 71a).

Yet we can still learn from the passage.

You need not only contrast with Hammurabi of ancient times. Have a look at Prosper Mérimée’s 19th-century short story “Mateo Falcone,” set in the Corsica of his day. A father discovers that his young son, for a coin, has revealed the location of a fugitive relative to the authorities. The shamed father shoots him dead. The father ignores the anguished pleas of his wife. There is no deliberation, no involvement of the community, no judicial process.

And even today, you need not search far to find accounts of modern-day “honor killings.” In our most intense family conflicts, before we do anything harsh, we need to slow down and think; we might seek the advice of another family member; we may even wish to seek the advice of an impartial outsider.

We can apply the lessons of the ben sorer u’moreh to the ordinary turmoil of child-rearing. We are reminded that how we raise our children, we have responsibilities to the wider community.

We can be faced with painful choices when we wish to protect our own children when they are potentially harming outsiders. We can appreciate that we can be caught up in our emotions, and seek the advice of others in trying to bring peace within our own families and communities.

Reverence for scripture, in the Jewish tradition, is not abject and unthinking obedience.

Nor should it be about unthinking rejection of our past, including our most ancient scriptures.

When we study Torah, we do not shut off our critical reasoning, our emotions, or our imagination. Faithfulness, so our tradition requires, means that we bring out the best in ourselves. We do so in part by opening up our hearts and minds to the wisdom, compassion, and justice of our ancient heritage.

To be the best we can be—and in doing so, the best parents for the next generation—we do not need to view our most ancient traditions in the spirit of a ben sorer u’moreh.

We can engage with our tradition in a spirit of communion through time. We allow the past to speak to us with its own wisdom.

We do the most honor to the past when we bring to its contemplation our own experience and insight.

We can hope – we can pray –  that the integration of our past and present will lead to a more luminous future.