parashat shoftim Innovating Torah
This Shabbat I’d like to cover this week’s and next week’s parashot together. Parashot is the plural of parasha, the weekly Torah portion read in synagogues around the world. This week we read parashat shoftim, which runs from Deuteronomy 16:18 to Deuteronomy 21:9. Next week we’ll read parashat ki tetze, which runs from Deuteronomy 21:10 to 25:19. These two parashot are among the most concentrated in the Torah; they’re both jam packed with commandments. These particular parashot however, present us with certain commandments which seem to represent something less than HaShem’s ideal for his children.
The first problematic commandment is in parashat shoftim: Deuteronomy 17:14-17, “you shall surely set a king over you whom HaShem God shall choose.” But when the Jewish people came to ask Shmuel for a king, God answered that the people had rejected himself from being king [1Samuel 8:9]. If setting a king over the people is a positive commandment in parashat shoftim, why all of sudden in the Book of Samuel is it serious disobedience?
The second problematic commandment is in next week’s parasha, in parashat ki tetze: Deuteronomy 21:10-14.
“And you see among the captives a woman beautiful of appearance and you lust after her and you would take her to be your wife.”
Is it really a commandment to lust after a female POW and impose a second wife on your family? What if your first wife doesn’t wish to share her marriage?
The third problematic commandment is also in parashat ki tetze: Deuteronomy 21:18-21.
“Should a man have a stubborn and rebellious son who does not listen to the voice of his father or to the voice of his mother…his father and his mother shall seize him and bring him out to the elders of the city…then the men of the city shall pelt him with stones and he shall die.”
Is this commandment God’s remedy for a difficult adolescence? Is this what our Torah means by good parenting: if your kid gets too hard to handle, just hand the Little Nuisance over to the city fathers who’ll stone him to death for you?
The fourth problematic commandment comes in Deuteronomy 24:1.
“When a man takes a wife and possesses her, and should it be that she does not find favor in his eyes, because he finds in her an unseemly thing, he writes her a document of divorce, puts it in her hand, and throws her out of his house.”
Is divorce really the Torah’s way of settling conflicts with our spouse? Why then does HaShem say through his prophet Malakhi [2:16] that he hates divorce?
If we were to take these four commandments at face value, it would sound like our Torah is not the perfect guide to life it claims to be. These problematic commandments highlight the fact that the Torah is not always meant to be taken at face value. It would be foolish in the extreme to implement the letter of the Torah apart from the judicial framework provided for by the Torah.
These problematic commandments are part of a legal system. We cannot understand them in isolation from the system. Apart from jurisprudence, commandments don’t constitute Torah. Torah isn’t just a list of rules. Parashat shoftim explicitly makes provision for jurisprudence in Deuteronomy 17:8-12.
“Should a matter be too wonderful for you in judgment, between bloodguilt and bloodguilt, between verdict and verdict, between punishment and punishment, matters of controversy within your gates — then you shall rise and go up to the place where HaShem your God shall choose. And you shall approach the priests, the Levites, and the judge who will be in those days, and you shall inquire. And they shall tell you the decision of judgment. And you shall act according to the decision which they tell you from that place where HaShem will choose. And you shall be careful to do everything they instruct. According to the torah which they shall declare to be torah to you and the judgment which they render you shall act. Do not swerve from the decision which they shall tell you right or left. As for the person who acts presumptuously, without listening to the priest who stands to serve HaShem your God there, or the judge, that person shall die, and you shall put away evil from Israel.”
In other words, the Torah makes provision for moral consideration, for ethical deliberation, for jurisprudence. The word often translated “they shall instruct you” is the verbal form of the noun “Torah.” Deuteronomy 17:11 literally says, “according to the torah which they declare to be torah to you and the judgment which they render you shall act.” It could hardly be stated more plainly: leaders in Israel have a divine mandate to expound Torah, to expand Torah, to innovate Torah. Our Torah is not only the written code, but the decisions of Spirit-led men and women who develop new applications for new challenges.
Christians usually think of Torah as the written form alone. This is like confusing a skeleton for the body beautiful. True enough, without the chassis underneath there’s no body beautiful, but a skeleton and a body aren’t quite the same. Christians make the confusion because they revere the Torah at a distance. Because most Christians don’t implement the Torah, they never discover that the letter alone is inadequate. But because Israel honor the Torah in practice, experience has taught Israel that Torah never exists as letter alone. Jews know the skeleton always has to be fleshed out in order to come alive.
The Apostle Shaul in his Second Letter to the congregation at Corinth [3:6] teaches that in isolation the letter of Torah produces death, but that the Spirit of Torah produces life. The Apostle’s teaching is implicit in the Torah itself. Behavior pleasing to God can be outlined by the written code, but if it’s not Spirit-guided, it won’t lead to life. The commandments require the human touch and the divine touch.
So how did Israel’s leaders go about interpreting our problematic commandments? Set up a king, lust after a cute POW, kill the ornery kid, and divorce the wife. We’re obviously in dire need of Spirit-filled interpretation here!
Among the Jewish people, interpreting the Torah has always been a collective, multi-generational enterprise. We interact with insightful readers of the past because they reflect sensitivity which our person experience hasn’t awarded us and our own generation hasn’t amassed.
Abarvanel interprets the first two problematic commandments in terms of divine concessions to human foibles. I quote his commentary on the Torah.
“This is not a commandment at all, because HaShem, may he be blessed, did not command that they should say this and ask for a king. Rather it is a prophecy of the future. It will be said after you are in the promised land, after the conquest and all the wars, after the land is allotted. This is what Scripture intends when it says, ‘And you shall inherit it and dwell in it.’ I know that you will be ungrateful, that you will say of your own accord, ‘I will set a king over me,’ not for the necessity of warring against the inhabitants of Canaan, because the land will have already been conquered. The reason rather is to be comparable to the nations who crown kings over themselves. This stems from foolishness, because you should have asked for a king when you entered the land to fight your wars. That would have been an appropriate time for this necessity, not after the conquest, the allotment, and settling down in security in the land. This is what Scripture intends when it says, ‘And you will say, I will set a king over me like all the Gentiles who are around me’ that is to say, it is neither obligatory nor at all necessary. Rather, the purpose is for you to ape Gentile behavior. This is implied. When this happens they may not crown the said king as they wish, but rather whom HaShem shall choose among their brothers. This is the commandment itself and its veracity. In other words, ‘You shall surely set a king over yourself from among your brothers,’ not that he commanded them to ask him, but that since they are going to ask on their own initiative, only the one whom HaShem shall choose from among your brothers. Accordingly, the matter of a king is a positive commandment dependent on permissive will. In other words, since you want to do so, notwithstanding that it is undesirable, don’t do it any way except this.
This is similar to parashat ki tetze, ‘When you go out to battle against your enemy and HaShem your God gives them into your hand and you capture captives, and see among the captives a woman beautiful of appearance and you lust after her.’ [Deuteronomy 21:10, 11] It’s not a commandment that you should lust after her and have sexual relations with her, but a matter of permissive will, where the motivation is the evil inclination. The commandment is that after having had sexual relations you bring her into your own family circle and she becomes your wife as our sages of blessed memory have reminded us [Bavli Qiddushin 21a]. This is also similar to parashat dvarim, ‘When you father children and grandchildren and have been long in the land and corrupt yourselves and make an image, the likeness of anything and done evil in the eyes of HaShem your God to anger him [Deuteronomy 4:25]. This is no commandment, but rather criminal iniquity. There is however a commandment dependent on this condition, which is, ‘you shall return to HaShem your God.’ When they are sinners they should return to HaShem and he will heed their voice. So it is in principle with the subject of a king. The request for a king is certainly not a commandment, but rather a matter of permissive will, where the motive is the evil inclination. Once however, the people have expressed the desire, the said king must be chosen by HaShem from among his brothers and not be selected in any other way.”
To summarize, Abarvanel takes the problematic commandments of setting a king over us and lusting after a POW, as divine concessions to human weakness, not as positive commandments which we should all be eager to perform.
Abarvanel treats two of our problematic commandments, and so does our next classic commentator. The earliest collection of interpretation on the Book of Deuteronomy in existence is entitled Sifre, which in Aramaic simply means book. Sifre connects our second problematic commandment with our third.
“The father of the stubborn and rebellious son is the same guy who lusted for the captive woman beautiful of appearance. He insisted on bringing Satan inside his house and as a result he fathered the stubborn and rebellious son.” [Sifre פיסקא ריח]
The Sifre is pointing out the cause-and-effect relationship between bad choices and bad consequences. The letter of the Torah says nothing about the home environment which fostered the stubborn and rebellious son, but Spirit-led leaders put their finger on the connection. A father who puts sexual gratification ahead of his family’s interests will lack parental authority to inculcate social responsibility in his offspring. Because Israel’s Sages served judges and had first-hand experience adjudicating family law, they understood the dynamics of dysfunctional families all too well.
The sages in the 2nd century singled out the commandment concerning the stubborn and rebellious son for special treatment. The sages totally circumvent the letter in favor of the spirit. The sages severely limit the application of this commandment by stringently interpreting all the conditions. Their idea was to make it all but impossible to implement the commandment. I’m quoting the Mishna, the earliest codification of the Jewish legal practice.
“Rabbi Yhuda says, ‘If his mother was not worthy of his father, the boy doesn’t fall into the category of stubborn and rebellious son [He interprets the expression “the voice of his father and the voice of his mother (Dt 21:18) to mean they must be absolutely equal]. Should one of them be dwarfed or crippled or deaf or blind or mute, the boy doesn’t fall into the category of stubborn and rebellious son. For it is written, ‘His father and his mother shall lay hold of him,’ [verse 19] hence they can’t be dwarfs, ‘they shall bring him,’ [verse 19] hence they can’t be crippled, ‘they shall say’, [verse 20] hence they can’t be deaf, ‘this our son,’ [verse 20] hence they can’t be blind, ‘he doesn’t listen to our voice,’ [verse 20] hence they can’t be mute.” [Mishna Sanhedrin 8.4]
The idea that upholding the Spirit might sometimes entail total circumvention of the letter is radical, but this commandment is an extreme case, and it calls for extreme compassion on the part of communal leaders. The sages were not afraid of drastic interpretation when required by public good.
Jesus is sometimes accused by literalists as undermining our Torah, but as a posek halakha, as an authoritative jurist, Jesus was a compassionate leader more concerned about divine intention and human need than theoretical consistency. Matthew 19:3-8.
“The Pharisees also came to him, testing him, and asking him, ‘Is it halakhicly valid for a man to divorce his wife for every matter? And he answered and said to them, ‘Have you not read that he who created in the beginning made them male and female and said for this reason a man shall leave his father and his mother and cling to his wife, and the two shall be one flesh? So then, they are no longer two, but one flesh. What God has joined together, let no man separate. They said, ‘Why then did Moshe command to give a document of divorce and send her away? He said to them, ‘Moshe, because of the hardness of your hearts, permitted you to divorce your wives, but from the beginning it was not so.’”
Jesus uses the major principle of divine intention to override the literal commandment. His legal reasoning is very much like that of Arbavranel on setting a king and marrying a POW. It’s a Spirit-led decision, not a strictly literal interpretation.
In Matthew 18 Yeshua transfers the mandate for Israel’s leaders to create Torah to his own disciples. Jesus places his disciples on the same level as priests, Levites and judges in Deuteronomy 17. In other words, Jesus equips his own disciples to be the new leaders of Israel. Jesus bequeaths his disciples authority to decide what is to be Torah as new situations arise among God’s people. Matthew 18:18-20.
“Amen, I say to you, whatever you shall bind on earth will be bound in heaven, and whatever you shall release on earth shall be released in heaven. Again I say to you, if two of you on earth shall harmonize concerning any matter which they may ask, it will be to them from my Father in heaven. For where two or three are synagogued in my name, there I am in the midst of them.”
In the vocabulary of 1st century Judaism, “binding” and “releasing” are technical terms for making halakhicly valid decisions. Protestant denominations typically limit Jesus’ grant of authority to intercessory prayer or the discipline of flagrant sin, but this is not the literal meaning of Matthew 18:18 Protestants are so afraid of what Roman Catholics have gone and done with Matthew 18:18 that we’re afraid to take Jesus at his word here. It’s a sweeping mandate to innovate Torah in his name.
What are our resources for innovating Torah? In order to discover God’s we will need to draw on all the gifts he’s endowed us with as a people. I strongly believe that God never entrusts us with a mission without equipping us to do it. Obviously, we need to interpret written Scripture using all the disciplines at our disposal. We need to remember how God has led his people in the past. We need to candidly recognize failures of past policies and learn from them. We need to critically reflect on our own experience. We need to draw on the wealth of professional competence in many areas. We need to remember that all true knowledge ultimately comes from God and shouldn’t be belittled just because it didn’t receive the honor of making an appearance in his written Torah. We need mature theological reflection. We need to make decisions based on all available evidence.
Because of the potential for divisiveness, we don’t want to innovate Torah on the basis of a narrow majority. We must trust the Spirit of God at work in our brothers and sisters. We must trust the Spirit of God sufficiently to wait for a consensus to emerge. This trust in others is an integral part of the process of searching God’s will. I’m confident that as we trust and obey together we’ll see more evidence of God’s leading, and that together we’ll be enabled to follow.
Obedience to Spirit-led decisions is just as important as obedience to written Torah. Deuteronomy 17:11-13 again.
“And you shall be careful to do according to all what they instruct you. According to the Torah which they pronounce to be Torah to you and the judgment which they render you shall act. Do not deviate from the case which they shall tell you right or left. The man who commits deliberate violation, not listening to the priest who stands to serve HaShem your God there, or to the judge — that man shall die, and you shall burn out the evil from Israel. And all the people shall hear and fear and deliberately violate no longer.”
The Sages asked, if God never really intended the court to carry out the death sentence on the stubborn and rebellious son, then why did he give such a commandment in the first place? The sages answered their own question. Figure it out, they said, and claim the reward! Jews, you see, believe there’s a reward for every commandment. And that’s going to be my answer too. Figure it out and claim the reward!
