The Rational Believer

A Five Volume Series on Jewish Faith

Vol. 2, The Oral Law: G-d-Given or Rabbinic Fabrications?

Does the Oral Law Reject the Literal Understanding of the Verse?

Overview: Going through instance by instance, we will make the case and point that rabbinic Judaism is not in conflict with the literal understanding of the Written Torah.

In this lengthy chapter we will go through a number of passages often quoted by anti-rabbinic scholars to invalidate the rabbinic interpretations of Scripture. They view the rabbinic interpretations of these verses as a turn-away from the literal obvious meaning of the verses. We will now take a better look at these frequently citied passages.

  • An eye for an eye
  • Cut off her hand
  • Counting the Omer
  • Naming the child
  • Forty lashes
  • Reuben did not sin
  • King David did not sin
  • Do not cook a goat in its mother’s milk
  • Writing a Torah scroll for each individual
  • Reciting Shema and Torah study
  • The Rebellious Child

 

Note that this chapter is different than the chapter titled “What’s Up with the Far-Fetched Interpretations?” because these interpretations weren’t intended to be taken as asmachtas or hints (as discussed in that chapter), or at least don’t seem to be taken as asmachtas and hints. They were intended to be taken literally, which raises the question of whether the rabbis are infringing on the literal understanding of the verses.

 

An eye for an eye

Fracture for fracture, eye for eye, tooth for tooth. The injury he inflicted on another shall be inflicted on him.” (Leviticus 24:20)

Rabbinic Law[i] explains this “eye for an eye” (as well as “tooth for tooth” etc.) to be a monetary payment of the value of an eye (i.e. the difference between a slave in the market with an eye to one without an eye).[1]

Now, the question is how this can fit in the words of the verse. The verse doesn’t say money, and it actually seems to imply a literal execution from the wording “as the infliction that he gave his friend, so shall be done to him.” For this reason, bible critics and liberal Jews tend to believe that the bible indeed was “brutal” and commands the same injury to be done to him.[2] They believe that afterwards the rabbis felt that it was too stringent of a punishment and therefore “disordered” the verse to lighten its weight and soften its sense of morality.

For starters, it makes more sense to pay for the damage done, an act which would actually compensate the victim. In contrast, simply executing revenge doesn’t return anything to the victim. Yes, it will scare people from doing it in the future, but it still doesn’t compensate. For this reason, monetary payment is currently the law in virtually every court of law universally. This is especially since this law would assumedly be as well to one who injures involuntary (from the fact that the verse doesn’t differentiate between doing so willingly or unwillingly, and of course, because the skeptic is “only biblical,” only relying on scriptures, he cannot make this differentiation). There is no reason for “justice” or “deterrence” in such a case where the damage was accidental.

Note that the literal translation of the verse would be “an eye instead (or “in place”) of an eye.” This would more closely resemble a monetary compensation that substitutes the eye than will the common translation of “an eye for an eye.”

I would like to suggest that that the objective of the verse is not teach us with what you pay, but rather how much you pay. You see, back in those primitive times, the justice system was cruel, barbaric, and un-proportional. If one would inflict an injury on a “noble,” say, he would need to pay an extraordinary compensation beyond the actual cost of his damage.[3] The general treatment of a criminal was disproportionate to his act and harsh retaliation was done to him. Also, some laws in certain countries had a fixed standard amount for specific injury-damages (without calculating the actual value of the victim and the damage done).[4]

Thus comes the Torah to clarify that the monetary payment is only that of which he damaged—and not more (and also not a fixed, standard amount). An eye for an eye, and not the value of two eyes; a tooth for a tooth and not the value of two teeth. The exact amount which he damaged shall he pay (“as the infliction that he gave his friend, so shall be done to him”—but not any more!). The Torah also comes to negate the practice found in the Code of Hammurabi which had many different laws depending on the social status of the victim (in addition to negating the fixed fines found in other cultures). This is why the Torah clearly states immediately after the ruling that: “You shall have one standard ruling for the stranger and citizen alike; for I the Lord am your G-d” (that no matter what your social standard is you have the same standard rule that an eye for an eye etc).

Just like now it is a given in every law and culture that injury-damage is compensated with monetary payment and is not simply executed on the attacker in revenge—so too it was back then. It was practiced in almost every court of law.[5] The Torah hasn’t come to tell us that you are obligated to pay monetary value; it came to say how much monetary value must be paid. The former was unanimously accepted and practiced even back in those days, but the latter is what the Torah needed to address. So when reading the Torah, it goes without saying that it is a monetary payment.

Now, with regards to the question of how much you should pay, comes the Torah to warn that only the value of an eye and nothing more, since it was the common practice in many cultures when the Torah was written to pay more than the actual damage.

This practice of negating other cultures’ laws is found elsewhere in the Torah as all. If a man’s ox gores a human, there are certain laws that are done, mentioned in the code of Hammurabi. One of the specific laws is if a man’s ox gores a fellow’s son or daughter to death, then the owner’s child must be killed. In order to negate this, the Torah has the following mysterious verse after its discussion of the monetary compensation in the event of one’s ox goring: “whether it (the ox) kills a son or a daughter, shall it be done according to the former laws” (Exodus 21:31). Up until recently, this verse seemed trivial, if not strange. Upon the discovery of the code of Hammurabi, however, it became evident that Torah’s intentions were to negate the disproportionate Sumerian law.

A piece of evidence for the rabbinic interpretation of “an eye for an eye” is from a verse in Numbers 35:31 “You may not accept a ransom for the life of a murderer who is guilty of a capital crime; he must be put to death.” This verse implies that it is only by a murder that we cannot accept a monetary ransom, yet in other places we would be able to, assumedly ours.[6]

 

Cut off her hand

If two men get into a fight with each other, and the wife of one comes up to save her husband from his antagonist and puts out her hand and seizes him by his genitals, you shall cut off her hand; show no pity.” (Deuteronomy 25:11-12)

The Talmud[ii] explains this law to mean monetary compensation and even uses it as the source for the payment for “embarrassment” (of the victim of being humiliated in public). The question is obvious and strong: how in the world does “cut off her hand; do not pity her” mean the monetary value of embarrassment? What connection is there between her hand being cut off to her paying for embarrassing him?

For this reason, it is best to understand the literal understanding of the verse to be not a judgment that is done in the court house after the act. Rather it is the law that is to be done during the act of her seizing his genitals. Because such an act has the potential to possibly kill the man (especially because it is a woman who has no understanding or way of measuring how sensitive the genitals are), she is considered a potential killer, labeled a rodef in halachic terms. Many Jewish scholars actually use these verses as a source for the law of a “potential killer” (i.e. a man chasing another with the intent to possibly kill him), that it is permissible and mandatory to subdue the killer by all means needed, even if it requires to cut off his hand or even if it means to kill him.[iii] These rabbinic sources bring this verse as the source for this law.

Obviously, these sources understood the verse to be in the midst of the act, that it is permissible to “cut off her hand” in order to prevent the possible death of the victim. For practical purposes, any act that would stop her is allowed and should be done, for example a blow to the face. The verse isn’t saying that it must be done specifically through “cutting off her hand” (which would require a knife which is usually not available at hand) but is basically saying “take any measures needed” including but not limited to literally cutting off her hand.

Another possibility beyond what these sources say is that the law is even if, theoretically, there was no imminent danger to the man himself. The more common and likely danger of her action is the potential-children of his that may now become non-potential. This law would, in effect, attempt to spare or reduce the consequences of her actions. This would explain why the Torah would give this seemingly strange example to tell us the ruling that these sources give concerning a potential-killer.

Based on this, why would the rabbis learn the “embarrassment payment” from a verse not even talking about compensation payment in court?

They haven’t learned it out from there; they knew it from a tradition from Sinai or from a logical legislation. The verses were only used as a “hint”—see chapter “What’s Up with the Far-Fetched Interpretations?” above.[7]

 

Naming the child

After prescribing the wife to marry the brother of her deceased childless husband, the Torah continues:

The first son that she bears shall be accounted to (lit. shall rise to the name of) the dead brother, that his name may not be blotted out in Israel.” (Deuteronomy 25:6)

The rabbis do not understand the verse to mean that the child must be named after the deceased, but that the son will acquire the name of the deceased in terms of his estate that he will acquire. What is the basis for this rabbinic understanding?

It is not clear whether this law was a tradition from Sinai or a law derived by the rabbis using the derivation tools and logic, but one thing is clear: Genesis 48:6 clearly use the term “name” concerning acquiring property:

But progeny born to you after them shall be yours; their name shall be called under their brothers regarding their inheritance.”

Furthermore, this rabbinic understanding was apparently practiced by the biblical characters of Boaz and Ruth themselves! See Ruth Ch. 4 where this very procedure is done, and the child’s name is not that of the deceased. The skeptics are therefore picking a fight with biblical character Boaz rather then with the later rabbis.

 

Forty lashes

Forty lashes shall he receive, but not more, lest being flogged further, to excess, your brother be degraded before your eyes.” (Deuteronomy 25:2)

The verse warns against giving an extra lash (seemingly both because of health reasons and because of dignity reasons). Understandably, a weaker person will be prescribed by the court for less lashes, lest he die as a result. Hence the verse is telling us that the max is forty. But what about the fact that the rabbis say that the max is thirty-nine?

Maimonides[iv] answers this question rather simply:

“How do we whip the liable for lashes? According to his strength, as is written (Deuteronomy 25:2) “according to his wickedness by count.” And this that it says “forty,” is that even if he is as strong as Samson the Mighty we do not whip him more than forty. However, we do minus for the weak, for if he will receive much, he will certainly die. It is because of this reason that our sages said to not whip more than thirty-nine, lest one by mistake whip an extra one—it will come out that he only received the forty that he deserves, and nothing more.”

There are other rabbinic commentators who argue with Maimonides and believe that it is biblically thirty-nine lashes. So why does the Torah say 40? Ritva (a mediaeval Jewish scholar) suggests[v] that the Torah was rounding up the number as is common to do (there are many other instances where it is clear that the Torah rounded up), and in tradition we received that it is 39.

 

Reuben did not sin

On the verse “while Israel stayed in that land, Reuben went and lay with Bilhah, his father’s concubine; and Israel found out,”[vi] the sages[vii] comment that Reuben didn’t actually sin literally as it would seem from the verse; rather he did a minor transgression that G-d considered as harsh as the literal sin. The is a major turn-away from the literal reading of the verse. So let’s get onto this case.

First and foremost, this is only one rabbinic opinion as there are those who argue and take the literal understanding of the verse at face value. See R’ Eliezer and R’ Yehoshua in that discussion in the Talmud who seem to argue. Also see commentators Ibn Ezra, Radak, Unkelos, and Midrash Beraishis Rabbah 83:10.[8]

It would seem that other commentators, such as Rashi, would rather take the non-literal approach of the verse because Reuben was only 14 years old at the time—an age highly unlikely to commit such violations. Though, in my humble opinion, it seems that the literal understanding of the verse is the factual reality of what happened. I believe that the Torah isn’t to be taken metaphorically unless the terminology suggests so (such as the parables and poems written by King Solomon).

Yet even for the Talmudic opinion that does not take the verse literally, there’s the possibility that they themselves didn’t intend for their very statement to be taken literally. As explained in chapter “Did the Wild Stories of Midrash Actually Happen?”, Midrash and Aggadah are so frequently not to—and cannot—be taken literally but they rather represent metaphorical and homiletical meanings. Here we can suggest the same thing.

I’d like to bring once again a comment from the Tosfos Yom Tov on Nazir 5:5 regarding Aggadah in general. Due to the limitations of Aggadah and interpretations (those that are not based off the Oral Tradition from Sinai), we may argue with a statement of the such. Of course, as stated earlier, we must take caution with such a tool not to overuse it or misuse it.[9] [10]

 

King David did not sin

II Samuel Ch. 11 & 12 speak of David’s sin with Bathsheba, wife of Uriah. Here as well our sages comment[viii] that he didn’t actually transgress a biblical violation because she was technically divorced because her husband was drafted to the army (and all conscripts, according to a tradition, were required to give their wives a divorce-document as per the prevention of Agunos). So when he laid with her, she was technically considered a widow. Also, David hasn’t fully transgressed with intentionally causing the death of Uriah, for he was considered a rebel to the king for not obeying the king’s command in chapter 11. A rebel to the king is legally bound to the death penalty in Torah-law.[11]

Is this all a neglection of the literal understanding of the verse?

No, it’s not. This is an interpretation of the events which doesn’t deny or manipulate the episode as recorded. Yes, David did sin and that’s why Nathan the Prophet rebuked him. Except that the sin wasn’t of idolatry or of murder, as explained earlier. Notice how there is no mention of “idolatry” in the chapters.

It is unclear if this interpretation given in the Talmud is a hypothesis or a tradition dating back to the actual narrative. Either way, this is no turn-away from the literal meaning of the verses. If it was a hypothesis, it would seem that it was preferred because of the depiction David is given, especially in his psalms, as a righteous individual.

If so, what was David’s sin that Nathan the Prophet came to rebuke?

His sin was a big sin, especially according to his high standards (G-d is stricter with the righteous of whom more is expected from)—but it wasn’t a sin of idolatry. His sin was a moral one. Even though technically speaking Bathsheba wasn’t Uriah’s wife as long as he’s out in the battle field (which is why King David hasn’t committed idolatry), for all practical purposes she was still regarded as his wife (which explains why the verse as well calls her the wife of Uriah).[12]

Hence, David stole his wife and thereby committed a moral sin, of which he was rebuked for and later repented for. Regarding the killing of Uriah as well—even though it technically isn’t murder for he was a rebel, still on the moral level it was still considered a sin. Despite that Uriah was indeed liable for the death penalty, the king can—and under normal circumstances does—forgive and bypass the prosecution of a rebel unless it’s a serious offense to the king (which wasn’t the case with Uriah). In our case, David pulled through with the death penalty just for the sake of fulfilling his lust and attraction to Bathsheba. This was a deep moral sin.

 

Now, if indeed the sin of David isn’t as bad as it sounds at first glance at the verse, why then did the verse hide this crucial information?

This style of writing (i.e. neglecting crucial information) is found in other places in Tanach as well (e.g. II Kings 22 and Nehemiah 8) implying that it was apparently the writing-style of the prophets or perhaps the style of those day’s writings in general. It is possible that the prophet relies on the tradition of the episode to explain its interpretation. Moreover, another possibility is that the primary focus of the prophet here is to teach is the idea of repentance. This is expressed and highlighted much more powerfully the stronger the sin is. Now although David hasn’t committed the full scope of idolatry, in G-d’s eyes it is considered as if he has committed full-fledged idolatry due to the high standards G-d holds him accountable for.[13]

Rabbinic commentator Abarbanel, apparently in a lone position, takes this Aggadic teaching in a spiritual sense (or holds that it’s an individual opinion—see chapter “Did the Wild Stories of Midrash Actually Happen?”).[ix] Most other commentators seem to argue with him. Be as it may, it is certainly no contradiction to the literal translation of the verse.

 

Do not cook a goat in its mother’s milk

An innocent small verse in the Torah—“do not cook a goat in its mother’s milk” (Exodus 23:19)—turned into books upon books in Jewish Law regarding the Kosher Dietary Laws. Where do these laws come from? And more importantly, how does “do not cook a goat in its mother’s milk” refer to a prohibition of cooking and consuming milk and meat together?

In regard to the reason of the prohibition, many commentators suggest various theories. Unfortunately, none of them seem fitting. It rather seems that the Mitzvah of Kosher Dietary, just like many others, is one which is above and beyond a physical explanation.

The Jewish Nation received in tradition that this verse came to forbid the cooking and consumption of milk and meat. That’s how we know how to interpret the verse; it was not from the sages’ own understanding or derivation. But why indeed did the verse not just clearly spell out “do not mix milk and meat”?

The answer is that the Torah speaks of the typical case as an example for the broader qualifications. The most classic example of mixing milk and meat in those days was cooking a goat in its mother’s milk. Those days, people didn’t have the luxurious taste-buds and dishes that we have today. There were no cheeseburgers or anything beyond the simple dish as it is; meat wasn’t dressed (much). Food was just as simple as life in general was back then.

The only practical, common time milk and meat were mixed was if the actual meat was being cooked in milk. Now, most meats are heavy and require a far longer time to cook than milk. So cooking them in milk would burn the milk. The only practical meat to cook in milk was the soft fast-cooking meat of a goat.[x] Goats give birth to two kids at a time on average, and sometimes even more.[xi] So it was the custom to cook one or both of the goats in the extra milk that the mother produced by pregnancy.[xii] Another possibility is that goat’s meat dominated the markets in that time and region.[xiii] The Torah mentions the most common example where milk and meat were eaten together and by doing so it prohibits the consumption of any milk and meat.[14]

The Torah only mentions its cooking, but the same law certainly applies to eating the mixture as well as Halacha mandates.[xiv] The term chelev (which can either mean milk or fats) means milk in this context because the consumption of fats was already prohibited in Leviticus 7:23.

Under biblical law, one must not cook or eat them together; but according to many opinions one may eat them consecutively one after another (provided that he rinses his mouth to clear out the remanences).[xv] It is only a custom to wait specific amount of times after the eating of either milk or meat. The custom is an extra precaution, lest one belch out some of the food still digesting in the stomach and thereby mix it with the food they are chewing at the moment. Another possibility is that some of the food remained between their teeth and will mix with the food they are presently chewing.[xvi]

 

Writing a Torah Scroll for each individual

“And you (Moses and Joshua) shall write this Song and teach it to the children of Israel” (Deuteronomy 31:19).

This verse turned into the source for a “biblical” command that each individual write a Torah scroll for themselves.[xvii] A loophole found was that every individual contributes to a Torah scroll by having one letter written for their sake[xviii] (and because any missing letter disqualifies a Torah scroll, it is as if he wrote the entire scroll).

But there are some obvious issues with this interpretation of the verse. The verse speaks of Moses and Joshua writing “the Song” brought in Deuteronomy 32; not a command for each individual to write a personal Torah scroll! Another issue is that if this commandment was indeed a purely biblical one, we would not be finding loopholes to get around it (e.g. everyone writing one letter).

Because no rabbinic commentators really address this issue (as far as I’ve seen), I will introduce my own suggestion (even though it is perhaps a novel idea). The Torah has an unwritten command that is obvious without the Torah needing to write it. From the fact that the Torah was written and is intended to be kept, it follows that we all have a responsibility to write and publicize copies of this Torah. It’s not a technical Mitzvah, but a spirit and moral that goes along with the Torah.[15] Perhaps this can be likened to the Mitzvah to “Love the Lord”[xix]—which isn’t a technical Mitzvah that is limited to a specific time of the day or specific level of love. It’s a Mitzvah with spirit—the more the merrier. The Mitzvah to write Torah scrolls is also not a technical Mitzvah with qualifications and minimums; the more the merrier.

Came along the sages some few centuries after the giving of the Torah and enacted a Mitzvah whose origins and spirit can be found in Torah (not in an actual verse but the spirit of Torah as a while, as just explained). They said that in order that we all contribute to writing a Torah scrolls, we will all give at minimum one letter of a scroll.[16] Hence, this Mitzvah is sort of a mixture of biblical and rabbinic origins. Now, because there’s no official verse that says “everyone should help writing and publicizing Torah scrolls,” the sages used that verse as a mere “hint.”[17]

Perhaps this explains the opinion of the Rosh[xx] that the writing of a Chumash (a Torah book—not scroll, which is invalid to use for Torah-readings in the synagogue) is sufficient to fulfill the obligation.[18]

 

Reciting the Shema daily and learning Torah

“Hear, O Israel: The Lord is our G-d; the Lord is one. And you shall love the Lord, your G-d, with all your heart and with all your soul, and with all your means. And these words, which I command you this day, shall be upon your heart. And you shall teach them to your sons and speak of them when you sit in your house, and when you walk on the way, and when you lie down and when you rise up. And you shall bind them for a sign upon your hand, and they shall be for ornaments between your eyes. And you shall inscribe them upon the doorposts of your house and upon your gates.” (Deuteronomy 6:4-9)

The bolded verse is the source for the biblical Mitzvah to recite the Shema prayers once in the morning and once at night. But many issues arise with this rabbinic interpretation.

(1) Is the passage going on Torah study (since the sages use the passage “and you shall teach them to your sons” as the source for Torah study) or on reciting the Shema (since the sages use the passage “and speak of them… when you lie down and when you rise up” as the source for reciting the Shema)? The verse cannot be disordered to be partially referring to Torah-study and then bouncing right back to Shema?!

(2) If the verse is going on Shema, why then is the Mitzvah Halachically only “when you lie down and when you rise up”? It should have also been “when you sit in your house and when you walk on the way”?

(3) The terminology expressed here seems to indicate that this is not a bunch of technical Mitzvos with specific times but a spirit of living with love for the Lord and living with His Holy Words to the point that it is always said (using the expression “when you sit in your house and when you walk on the road, when you lie to bed and when you awaken”) and written everywhere (using the expression “it shall be tied to your hand as a sign and on your forehead as a remembrance… and on the doorposts…”—referring to the bracelets of the hand and the head-crowns customary to wear in those days[xxi]). Why then do we make this chapter into a bunch of technical Mitzvos?

 

Having not found any rabbinic commentators who address the issues (as far as I’ve seen), I will offer my personal novel suggestion. Indeed, the chapter speaks only regarding the Shema.[19] The reference to Torah-study that is connected to this chapter (“and you shall teach your children”) was only said as an asmachta (hint). Let’s elaborate on this point first.

How do we know there’s a Mitzvah to learn Torah? Simple; from the fact that Torah exists with the intent to be kept, that tells us that there’s an inherent Mitzvah to learn the Torah. No specific verse is needed for this Mitzvah. Torah study is a means to be able to keep all the other Mitzvos. Additionally, with the realization that Torah is G-d’s Wisdom, who even needs an explicit commandment to know that they should learn it?! So in essence, the entire chapter is indeed speaking of the Shema—tackling the first question.

The third question answers the second. We will admit that the chapter is indeed speaking more of the spirit of the Mitzvah while specific qualifications (e.g. the timing to recite Shema) were not presented in the chapter. All the chapter is doing is encouraging to live with the Shema (a statement of faith in the One True G-d). After multiple centuries, however, the sages set minimums in order to get the people back on track with this Mitzvah. That minimum was to recite the Shema chapter twice daily; once in the morning and once at night. It wasn’t because the verse says “and when you lie to bed and when you arise,” but because of the rabbinic qualification added to the Mitzvah whose spirit is sourced in this chapter. That part of the verse was only used as an asmachta (hint).[20]

However, the later part of the chapter “and you shall tie it to your hand as a sign…” doesn’t seem to be the spirit of the Mitzvah but an actual technical one. It actually seems to imply to tie something to our hands and head, and to place something on the doorposts, as a symbol for G-d’s unity. That is because its terminology simply isn’t that which would be used by people to describe the spirit of living with something. That’s what makes this part of the chapter different than the first part. Although this wouldn’t necessarily have been the literal meaning of the second half, our tradition from Sinai tells us that it is a literal and technical Mitzvah of Tefillin and Mezuzah.

This explanation perhaps can shed light on an opinion found in the Talmud[xxii] that the Mitzvah of reciting Shema is of rabbinic origins. Based on the above explanation we can suggest that in fact there’s no real argument between this opinion and the majority opinion that it is a biblical Mitzvah. Because the Mitzvah’s spirit is sourced in Torah but its technical details were articulated by the rabbis, there’s room to argue in what category the Mitzvah should be placed in.

 

The Rebellious Child

“If a man has a wayward and rebellious son, who does not obey his father or his mother, and they chasten him, and [he still] does not listen to them, his father and his mother shall take hold of him and bring him out to the elders of his city, and to the gate of his place. And they shall say to the elders of his city, “This son of ours is wayward and rebellious; he does not obey us; [he is] a glutton and a guzzler.” And all the men of his city shall pelt him to death with stones, and he shall die. So shall you clear out the evil from among you, and all Israel will listen and fear.”   (Deuteronomy 21:18)

 

The Talmud discusses this fascinating law at great length in tractate Sanhedrin.[xxiii] Many restrictions and limitations are put on this law briefly expressed in the Torah. Yet even an amateur glance at these rabbinic laws reveals how strange they are. There seems to be an agenda by the sages to restrict a law that seems barbaric and outdated to primitive times. Critics of the Oral Law will argue that the sages attempted to rationalize and moralize this biblical law. Let’s begin this discussion with a few samples of the “ridiculous” limitations and restrictions put on this law in the Talmud:

  • The child must be between the age of 13 and 13 ¼ (in most instances). Why? Because once he hits the later age, he is no longer considered to be a “son” since he has the potential to become a father.
  • He must steal money from his father and
  • buy a specific measure of a specific type of meat and wine, and
  • eat it with a group of lowly friends—not in his father’s domain.
  • The party cannot be for a Mitzvah (e.g. for a Shabbat meal).
  • Neither can it be of a sin (a forbidden time or place to eat). This even applies to a rabbinic fast-day! Why? Because the verse says “he does not listen to our voice,” so the sages derive that it is to “our [the parent’s] voices” that he does not listen to—but he does listen to the voice of Heaven (i.e. he hasn’t transgressed with this meal).
  • If any of the parents are a cripple, then the law is also void.
  • Last but certainly not least: According to Rabbi Yehuda, the parents must share the same height, voice, and appearance for the law to be in effect!

These restrictions are so limiting that the Talmud even claims that the law never occurred in history, though there is a diverging opinion that it has occurred. Various (unsatisfying) explanations have been given as to why the Torah wrote a law that it knew would never happen.[21]

It is clear to the objective reader that there’s an agenda behind all these rabbinic laws as the rabbis are purposely trying to limit this law. We must understand what this agenda is without undermining the revered status of the holy sages.

This subject gets even more complicated when we find that nearby cultures at the time the Torah was written also shared a similar law to this Rebellious Child law in Deuteronomy. Even centuries later, at the onset of the Roman Empire, this law was still intact.[22] The fact that this law was widespread at the time of the writing of the Torah, would suggest that the Torah is sharing with us that same law—without all these restrictions the sages teach us. This proposes that these limitations recorded in tractate Sanhedrin are all rabbinic restrictions—not biblical law. If so, we must understand, why did the sages set limitations to this law and by what means were they allowed to practically nullify a biblical law (by placing the most unrealistic conditions that must be met in order to execute the law).

 

We’ll begin with the biblical origins of the law. There’s no doubt that the Torah did not have the intentions of all the limitations mentioned in the Talmud. They must be rabbinic. The biblical law was straightforward: a son who is constantly disobedient to his father and mother may be executed at the will of his parents. This law was widespread at those times. Since the State Power was much weaker than nowadays (where the government has control over all crimes, small or large), there was a big emphasis on individual family government. Extended families back then would live together in the same village and the patriarch or “father-head” would have absolute control over his family and their descendants. This was known as Pater Familias in ancient Rome.

The Torah had no intentions of abolishing a law it would have no control of. If the Torah would have outright forbade it, there’s no doubt that the patriarch of the family would still flex his authority over his household to the extreme that outside societies would grant him. The Torah wasn’t going to start an uphill battle. This is similar to the compromises Torah negotiated regarding slavery and a female captive of war (see chapter “Moralizing Various Mitzvos and biblical Narratives” in Vol. 5 of The Rational Believer series).

So, the Torah also embraced this widespread law—but there are many biblical limitations to minimize this law. These conditions outlaid in the verses would make it so rare for this law to be executed to the point that the sages argued whether this law was ever done (though in my humble opinion it would seem that it was done—and hence the “compromise” aspect of it).[23] These conditions are:

  • Both the father and mother must agree to execute the child. In only very few cases would a mother allow for her child to get killed.
  • They needed to have warned the child about the consequences of his actions.
  • The case must be passed through the court of the town to examine whether the child actually rebelled in an extreme manner. This procedure assured that the law wasn’t executed based on anger of the parents. It also made it a public issue and a talk-of-town which would further limit the instances in which it occurred.

 

At this point, it is not only a compromise that Torah allowed but the law itself is also rational. At a time where the State Government was so weak, there was a major significance for there to be household order that was overseen by the family leaders—the parents. Their authority assured that their descendants would be civil contributors to society—not those who disrupt law and order.

That was the rationale behind the law and it applied until the world’s circumstances have changed. In the mid-Roman Empire era (in the times of Hadrian the Emperor), the State Government expanded and the absolute power of the patriarch of the family was being limited by the state’s rule.[xxiv] At that point, there was no more a need for individual family authorities. Both the Torah’s compromise and the Torah’s rationale were no longer needed.

Biblical Law is everlasting as a matter of principle.[24] So what happens in a case like ours where the world’s circumstances have changed and the law should no longer apply? This is where the sages step in. At Talmudic times, the law of Pater Familias was practically extinct. So the rabbis set the agenda to limit the law to the point where it its conditions are impossible to be met.

By what means did they limit the biblical law? They used their derivation power to use words from the verses to limit the law. The rule of derivations only allows for logical deductions to be applied to the law (see chapter “Derivation Tools”). In the case of the Rebellious Child, the Talmud uses its derivation power to derive the most bizarre and abstract conditions for the law. Why is here different than other laws where we only apply the least novel derivation (i.e. over here the sages applied the most novel derivations)? Because here it actually makes sense to apply the most novel conditions in order to practically abolish a law whose reason for establishment no longer applies. The rabbis used their technical powers to abolish an outdated law that only for technical reasons still applies.

This theory of mine is a personal opinion not presented (nor objected[25]) by any rabbinic scholars. I suggest it since no rabbis deal with this issue.

 

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[1] This is even though a person wouldn’t want his hand to be cut off for the compensation of just his value as a slave—which is of course much less than what he considers himself and his hand to be worth. For example, a slave in the market will cost, say, $100,000 (depending on the supply and demand). A slave without a hand, would go for $40,000, say. Yet that $60,000 is certainly not a deal someone would want for his hand to be amputated. If so, why indeed do we evaluate it based on the slave value in the market?

We would asses his value as a theoretical slave because the value of a person isn’t what he considers of himself. The value of a person is relative; there’s the value that he considers himself and the value the way the rest of the world regards him. A person to himself, is valued significantly high as it is the nature of a person to esteem himself and do everything for his own benefit. But to the rest of the world, technically his value is only that of his market-value as a slave. Yes, we will respect him and protect him for a much higher value (for example to pay up his ransom of $3,000,000, if he were to be kidnapped—depending on the situation) due to our moral obligations to one another. But still that doesn’t make his essential value to rise. Being that the court of law and the attacker are from the outside world, his value is only that of a slave and not his personal evaluation of himself.

[2] Although that isn’t considered brutal by many standards because the attacker himself did that very act. But this is a long discussion irrelevant to ours.

[3] As is known from many ancient documents, such as the Code of Hammurabi, Code of Ur-Nammu, and the Laws of Eshnunna, there were social statuses that would affect the justice system. The Code of Hammurabi had differences in its law concerning an injurer depending if it was a noble, commoner or slave (see upcoming footnote).

[4] See upcoming footnote.

[5] With the notable exception of the Code of Hammurabi (in a regular case of injury). However, if an elite injured a commoner, then a fixed monetary fine was imposed. Although the Code of Hammurabi takes much attention to the historian community for obvious reasons, it still wasn’t the dominating or only code of law at the time. There were many other cultures and set of laws for different countries. Fixed monetary amounts were set for compensations in the Code of Ur-Nammu and the laws of Eshnunna (also future laws, such as those of Rome, have also adapted a standard fixed price for compensation). There were no official codes of law found in Egypt, leaving us to only guess what civil laws the country the Jews escaped from would have had.

We frequently hear that there is a similarity in wording to the Code of Hammurabi’s law of injury and the Torah’s. They therefore suggest that the Code of Hammurabi’s obvious literal interpretation should be applied to the Torah as well.

It says: “If a man has destroyed the eye of a man of the gentleman class, they shall destroy his eye …. If he has destroyed the eye of a commoner … he shall pay one mina of silver. If he has destroyed the eye of a gentleman’s slave … he shall pay half the slave’s price.”  The Torah’s law is: “Fracture for fracture, eye for eye, tooth for tooth. The injury he inflicted on another shall be inflicted on him.

The only similarity is the usage of “an eye” and “a tooth” found in both documents. Literally. That just so happens to be the first examples of an injury that comes to the mind (especially in a brawl). There’s thus no reason to connect the laws and claim the Torah was influenced by the Code of Hammurabi because of the “similarities in terminology.” In the Sumerian code, the execution was taken literally as the terminology expresses (“they shall destroy his eye” which is very different than “an eye in place of an eye; as he did, so shall be done to him”) and as the next law in Code of Hammurabi (i.e. the fixed fines for injuring a commoner or slave) suggests. Also, it is clear that the Sumerian law was limited to a voluntary damage excluding an injury done unintentionally. Another Law found in the code is when one man injures another in a quarrel—unintentionally—that he must swear that he did not intend to injure and all he must do is pay the doctor’s fees. The Torah’s law of “an eye for an eye,” on the other hand, seems to extend to an injury done by mistake, and would therefore seem to mean monetary compensation.

More on a general note, the similarities between the code of Hammurabi and the Torah (that Bible Critics like to point at) does far than telling us that the Torah was derived from it and even that they share a common origin in Babylon. Besides for the many fundamental differences between the two documents, even the similarities aren’t that striking. The similarities actually demonstrate that civilization as a whole has common civil issues it must deal with. Civil laws are meant to be logical and the divine origins of the Torah doesn’t negate the logical aspect of the civil laws within it.

 

[6] Some skeptics say, at this point, that it makes more sense for the punishment to be revenge rather than monetary payment, because what’s in a case where the attacker is a poor man with no money to pay. The answer is simple. He will owe the money until one day when he can pay back. And actually, the question can be reversed back to them: what if the attacker himself is already a cripple or blind man (which was, by the way, very common in primitive times) not allowing for the possibility for the revenge to be done back to him. In fact, his state of being is permanent in contrast to a poor person who may become rich one day.

[7] This is much more connected to the verse in comparison to other “hints.” Rashi therefore talks of the less literal interpretation in his commentary of the verse. Similar rabbinic interpretations are found in Rashi’s commentary on other verses, where although they aren’t the very literal understanding it does have some sort of connection to the verse (due to the tradition from Sinai). Of course, this less literal interpretation doesn’t negate or tamper with the literal interpretation which remains intact. Other examples include the source of which Tefillin is learned out of (Exodus 13:9—see Rashbam on that verse), the law to write a Sefer Torah (Deuteronomy 31:19—see Ramban on that verse), and the law of dietary meat and milk separation (Exodus 23:19—see Rashbam there).

[8] Even if Reuven was overall a righteous individual, there is still the possibility for sin. “For seven times shall a righteous man stumble yet will rise” (Proverbs 24:16); “for there is no righteous man on earth who hasn’t sinned” (Ecclesiastes 7:20).

[9] As for the question of why the Torah, a book of moral lessons, found the need to mention this story—it is for the storyline of which later Reuven will lose his extra portion as the eldest son and the kingdom would be given to Judah for this sin. See Genesis 49:4.

[10] Regarding the similar episode of Judah and Tamar, there is a Midrash which says that Judah’s intentions were holy as he knew that Messiah would be a descendant of his wedlock offspring Perez. This, of course, isn’t the literal reality. It is clear from the verse that Judah did not know that it was Tamar. Rather the Midrash’s explanation is only the way things were in the higher realms i.e. the intentions of Judah’s soul or something of that sort.

[11] King David preferred to kill him in a quite manner as opposed to public trial and prosecution (which is the standard procedure for rebels and criminals). Like this, speculation and rumors wouldn’t begin that David killed Uriah just in order to take his wife.

[12] For after the battle, when the soldiers would return home, they would legally remarry their wives.

[13] It should be noted that back in the days, idolatry with foreign woman was a typical and wasn’t considered as repulsive and uncommon as in these days (where society as a whole is much more stable and moral in many aspects). It was only for religious reasons that such acts were considered illegal. Hence, the sin of David’s lust isn’t as bad as it might sound to the modern ear.

[14] But doesn’t the Torah know that in the future that it’ll no longer be the most common example? If so, why does it write the most common example of its time?

It is clear from all over the Torah, particularly in Exodus and Deuteronomy, that the Torah was written addressing the nation leaving Egypt (and commands them to teach these laws to their children for generations to come). So it is understood why the Torah only writes the common example of its time without putting future modern civilization into account.

[15] The idea of a Spirit Law can be analogous to one of the requirements of becoming a citizen of a country. One must pledge loyalty and patriotism to the country to be eligible for citizenship. This isn’t a technical to-do item on a checklist but a spirit of overall living in the spirit of the country and being loyal to it etc.

[16] This may be analogous to the minimum the Sages set for Torah-study, a biblical Mitzvah. The Mitzvah in Torah has no set amount of time because it is more like a spirit than a technical checklist. But the Sages later enacted that at minimum one must learn one chapter (of Mishnah) at morning and one at night.

[17] For an example of an asmachta (“hint”) given even though the source is another, see Sefer Hamitzvos Shoresh Beis where the Rambam discussed  the Mitzvah of burying the dead, visiting the sick and comforting the mourning. He says that the Talmud sourced it in a verse via asmachata. It is done despite that the actual source is under the command to “love your fellow as yourself.”

[18] The Beis Yosef, though, argues with the Rosh. He does so perhaps due to his understanding of the rabbinic qualifications enacted.

[19] The phrase “all the words that I command you today” is a reference to the Mitzvos to love the Lord, to recite (live with) the Shema, don the Teffilin and place Mezuzos on the doorposts.

[20] Similarly, when Beis Shammai and Beis Hillel argue in Talmud Berachos 10b, it is also only as a “hint.”

[21] The best explanation being that it was intending to teach children the importance of respecting parents. But even this explanation falls short since once the child learns of all these restrictions, the law only becomes a joke—not a lesson.

[22] It was called “Pater Familas” in which the patriarch of the family had absolute power over the family, to the point where he could execute anyone from the family at his wish.

[23] It would seem that the opinion that it hasn’t happened is only a minority position. That is why the Talmud attributes a single sage to that view in Sanhedrin 71a. The Talmudic saying that this law was said “to learn/analyze and get reward [for the Torah-study]” is only according to the opinion that it has never happened.

The saying “to learn/analyze and get reward [for Torah-study]” could also possibly be according to the opinion that it has happened. The question the saying comes to answer is what relevance this law could have for us today—when the law no longer applies (as we shall discuss). The answer to that is that we can study it as Torah-study (just like we still study the sacrificial laws that are no more applicable).

[24] See chapter “Are the Mitzvos Eternal?” in Vol. 3 of The Rational Believer series.

[25] To the exclusion of Rambam who attempts to rationalize the conditions by claiming they are from Sinai. Understandably, we are not limited because of the Rambam’s assertion to suggest our own more fitting interpretations.

 

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[i] Talmud Bava Kamma 83b.

[ii] E.g. Bava Kamma 86a, Talmud Yerushalmi Bava Kamma 35a.

[iii] E.g. Mishna Torah Mitzvasa Aseih 247, Lo SaAseh 293. Minchas Chinuch as brings it in 237:1, 296:1. Sefer HaChinuch 409:3, Sefer Mitzvos Gadol volume 2 77:1, volume one 164:1, Bach Choshen Mishpat 4:1, Abarbanel on Deuteronomy 25:11.

[iv] Mishneh Torah Sanhedrin 17:1.

[v] Ritva on Makos 22b.

[vi] Genesis 35:22.

[vii] Talmud Shabbos 55b.

[viii] Talmud Shabbos 56b.

[ix] See his commentary on II Samuel 2:11.

[x] Ibn Ezra on Exodus 23:19,

[xi] http://animals.mom.me/how-many-kids-do-goats-have-7907049.html

[xii] Rashbam on Exodus 23:19.

[xiii] Biur Ibn Ezra on Exodus 23:19 and Radak in Shoresh “Gede.”

[xiv] Rambam Hilchos Maachalos Haasuros 9:3.

[xv]Tosfos on Chullin 104b. Baal Hamaor, Yerayim 149, and Raah (Bedek Habayis page 83) agree with this, while others argue. Cf Chulin 105a and Rambam Hilchos Maachalos Assuros 9:28.

[xvi]Rambam Hilchos Maachalos Assuros 9:28.

[xvii] Nedarim 38a, Rambam Hilchos Sefer Torah 7:1.

[xviii] Rabbi Akivah Eiger on Yoreh Deah 270 among others.

[xix] Deuteronomy 6:3.

[xx] Ros”h Hilchos Sefer Torah S. 1 as explained by Shac”h.

[xxi] See Rashbam on Exodus 13:9.

[xxii] Berachos 13b and 21a.

[xxiii] 70a-71b.

[xxiv] https://en.wikipedia.org/wiki/Pater_familias. Severy 9-10.

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