Cary Hillebrand Looks at Parashat Ki Tetze

Parashat Ki Tetze

פרשת כי תצא

 דברים

Deuteronomy 21:10 to 25:19

By Maimonides’ count, this week’s parashah contains 72 of the 613 commandments in the Torah. Other Rabbinic sources count 74 commandments in this section.

Chapter 21, Verses 10 through 14 – Fate of women captives in battle

The parashah begins on a somewhat troubling note. “When (not If) you go to war …” (כי תצא למלחמה). Is the Torah implying the inevitability of conflicts?

We have here an attempt to ameliorate the behavior of a Hebrew soldier who captures an attractive enemy woman. Some Rabbinic commentators claim (unsupported by the text) that he is permitted to rape the unfortunate woman once (and only once!) after the battle, apparently caught up in the heat of the moment. Other rabbis ruled that he is absolutely forbidden to rape her. In either case, he must wait a full thirty days before he must either wed her or release her (note that she has no say in the matter).

The thirty-day waiting period gives his passions a chance to cool down and for him to think rationally and the unfortunate woman is given the opportunity to grieve for her lost (probably slaughtered) family. The Torah deals with behavior in the real world, as it existed in that ancient period, and not a fictionalized utopia. At the time (as in our time!) warfare cannot be eliminated, but here is an attempt to at least ameliorate one of its basest and cruelest consequences. The modern reader is left troubled reading this section. If the warrior decides after the cooling off period that he does not really desire her, while he cannot sell her, he is not required to offer her any compensation. If simply released, or rather kicked out, she probably has nowhere to go. Her tribe, her family, have most probably been annihilated. What are her chances for survival? Perhaps her only realistic chance to survive would be prostitution or to sell herself into slavery.

Verses 15 through 17 – A man with two wives; willing of property

A man with two wives would by nature favor one of them, as we have seen with Jacob, wedded to the loved Rachel and unloved Leah. a firstborn’s share of his inheritance even if he is the son of the less favored wife. In that case, a husband cannot withhold a firstborn’s share of his inheritance even if he is the son of the less favored wife.

For that reason, the eleventh century Ashkenazi Rabbi Gershom declared a ban on polygamy – חרם דרבנו גרשום, a nonbinding ruling that over time would be observed almost universally by all Jews, except for the geographically isolated Yemenites.

Verses 18 through 21 – Dealing with a wayward son

Harsh treatment of a wayward and disobedient son (בן סורר ומורה). This paragraph must be understood in the context of the time. Under most laws and conventions of this period, the father had complete authority over the members of his household, including the power of life or death. By requiring the father to bring the troubling kid to the elders of the town for judgment, this gives him a cooling-off period before he acts in a way that he would most likely soon regret. Also, the elders can reason with him. The Rabbis of the Talmud put so many restrictions on this clause that it became virtually impossible to carry out such a sentence. Indeed, the Talmud states that such a terrible sentence was never carried out and never will be.

Verses 22 and 23 – Practice for hanging a condemned man

After execution, if a man is hanged from a tree or gallows (hanging was to be only after death by either stoning or either pushed from a cliff or off a roof), his body cannot remain exposed overnight but must be buried the same day. This is in sharp contrast to the Roman practice of leaving the crucified body (including you know who) on display for an extended period as a warning and deterrence.

Chapter 22, Verses 1 through 22 – More rules for proper behavior

We have here an eclectic mixture of rules for proper behavior for various and sundry circumstances. Note verses 6 and 7: “If you come upon a bird’s nest with a mother nursing her fledgling or siting on her eggs, let the mother go before taking the young or collecting the eggs. By this you may fare well and have a long life.” The Talmud deals with a Rabbi Elisha Ben Abuyah (second century CE) who witnessed a child shooing the mother bird before taking the eggs in the nest, and tragically, the child lost his balance and fell to his death. Rabbi Ben Abuyah, upon witnessing this, lost his faith, proclaiming “There is no judgment and no Judge (אין דין ואין דיין) and he actively turned against Torah observant Jews. From then on, his former colleagues spurned him, and refused to call him by name, referring to him as “The other” – האחר). Was the promise of long life for showing mercy to the mother bird meant to be taken literally?

Verse 9 has a prohibition against sowing a vineyard with two or more types of seed. This possibly contradicts modern concepts of crop rotation.

Verse 11 is a repeat of a law in Leviticus. Mixing wool (צמר) and linen (פשתים) is shatnez (שעטנז – linguistic origin of the word is uncertain) and is forbidden to the common people but required for the priestly garments.

Verses 13 through 29 – Marriage contracts; matters of rape

This law deals with marriage contracts, including disputes regarding falsely claimed virginity of a bride. Note that there is no such requirement for the groom (boys will be boys). Also, the interests of the bride’s father and of the husband are of concern, but not the well-being of the bride.

If a man lies with a married woman, they both are to be put to death. What if this is against her will? The Torah is silent here. Also, what about a married man lying with an unmarried woman. Here too, the Torah is silent.

Note the troubling language of verses 28 and 29. In effect, if a man rapes an unmarried virgin, he pays the girl’s father fifty shekels and must marry her. No punishment is implied, and the girl’s desires and well-being are not to be a consideration. In effect, she is treated like property. One rationalization would be that although the unfortunate incident is not her fault, she is now “damaged goods” and it would be difficult if not impossible for the family to find her a husband. As for the rapist, “you broke it, you bought it” appears to be the guiding principle. This is appalling to our 21^st-century sensibilities. I suppose it can be argued that the thought that if he raped a woman, he would be saddled with her for good may act somewhat as a deterrent. Similar laws and practices are not so far removed from the situation today in traditional Middle Eastern Societies. Erdogan, in his ongoing campaign to drag Turkey back into the Dark Ages actually had tried to enshrine this into law! There is also the appalling practice of quasi-legal “Honor Killings” prevalent in Jordanian and Palestinian societies.

Chapter 23, Verses 1 through 26 – Still more rules

Another eclectic mix of laws and rules.

Verse 2 – A man with crushed testicles is not to be admitted as a member of G-d’s congregation (קהל ה’). This command is probably meant to eliminate the practice of self-mutilation and castration as was prevalent among many of the surrounding peoples. Maimonides ruled that if the condition was due to illness or birth defect, this ruling does not apply.

Verse 3 – The problem of momzerim – ממזרים (due to a forbidden union such as incest or marriage between a divorcee and a Cohen) still burdens and confounds orthodox circles and Israeli society today. The offspring of a forbidden unit, or momzerim, cannot marry into Israelite society, only to other momzerim.

Verse 4 – We are commanded never to accept Moabites or Ammonites into our congregation since they were inhospitable to us during our journey out of Egypt. The Torah prescribes indifference, not hostility. Ruth (considered the first convert – “Your people shall be my people, your G-d shall be my G-d”) was a Moabite. This seemingly contravenes this prohibition. Possibly, Ruth had a “legal loophole” of sorts around this prohibition. She was able to enter the community by renouncing her Moabite heritage: “Your people shall be my people”. Another interpretation supposes that the ban applied to Moabite men, but not to Moabite women.

Verse 8 – Why are we commanded not to hate the Egyptians who enslaved us? Rashi comments that this is because Egypt hosted Joseph and his family in a time of dire need, even though it did not end well.

Verses 13 and 14 – This is a practical call for camp sanitation that only became standard military practice late in the 19^th century.

Verse 20 contains a prohibition against charging interest to a countryman. Prohibition does not apply to foreigners. Note the institution of Hebrew Free Loan Societies in America. Some rabbis have ruled that the prohibition applies only to loans to the needy, not commercial loans. Also, as in other instances where a clear Torah commandment is unworkable or even unthinkable as society develops, legal workarounds were devised to preserve the letter of the law if not always the spirit of the law.

Verses 25 and 26 give a traveler or wayfarer permission to eat of the fruit or grain in the fields but not to harvest or carry off with him.

Chapter 24, Verses 1 through 22 – Even more rules

Verses 1 to 4 prohibit a man from remarrying his divorced wife if she had since remarried somebody else and then divorced. It may possibly have been intended to prevent promiscuity among married couples and wife swapping.

Verse 16 dictates that parents should not be punished for their Children’s crimes, and likewise, children should not be punished for their parents’ crimes. This is a striking declaration of individual responsibility.

Verses 19 to 21 contain important teachings. When reaping the grain harvests, collecting the ripe olives, or grapes from the vines, do not revisit the fields. The remains shall be for the needy to gather.

Chapter 25, Verses 1 through 19 – Some more rules

Verses 5 through 10 describe the situation requiring a levirate marriage. The usual practice is that if the surviving brother refuses to marry his late brother’s widow, then both parties perform the (distasteful) chalitzah – חליצה ceremony as described in verse 9. Over time, the Rabbis ruled that Levirate marriages were forbidden, or at least highly discouraged. Still, in accordance with these Torah verses, the chalitzah ceremony must be performed, at least in orthodox communities, so the widow can remarry and get on with her life. If the brother refuses, for whatever reason (even to attempt extortion), the unfortunate widow is barred from remarrying.

Verses 11 and 12 – If two men get into an altercation and the wife of one interferes by grabbing the genitals of the other man, her hand is to be cut off. Later Rabbis ruled that the actual penalty for causing embarrassment is monetary compensation. The Hebrew text does not appear to support this interpretation.

Verse 17 entreats us to remember Amalek and what he did to us on our journey through Sinai.

After being entreated to remember Amalek, verse 19 entreats us that after subduing all our enemies, we are not to neglect wiping out Amalek. Possibly, this refers to destroying all physical artifacts linked to Amalek, such as monuments, temples, etc. The meaning may also be that we should not glorify Amalek but remember them only for their crimes.