Does the Torah prescribe unethical behavior?
The opening of this week’s Torah portion certainly seems to do so. It discusses a scenario in which, in the midst of war, an Israelite soldier takes a beautiful woman captive. But instead of insisting that she be returned to her family unharmed, the Torah prescribes the following process for the warrior who seized her:
You shall bring her into your household, and she shall trim her hair, let her nails grow, and discard her captive’s garb. She shall spend a month’s time in your household lamenting her father and mother; after that you may sleep with her and become her husband, and she shall be your wife.(Deuteronomy 21:12-13)
As long as the woman is permitted a month to mourn while not grooming herself as usual, the soldier-kidnapper may take his captive as his wife.
What is the Torah saying here? How is this procedure moral? And if it isn’t, why prescribe it?
The ancient rabbis were bothered by this too, and their answer is that this is not in fact ideal behavior. The Talmud (Kiddushin 21b) states that “the Torah here spoke only against the evil inclination.” In other words, it would be better to never allow this sort of thing. But the reality is that in the heat of battle, men’s sexual appetites often run wild. (The history of warfare sadly bears this out.) The Torah prescribed these steps in an effort to respond to the world as it is.
Why not just prohibit any such activity outright? Because it would likely be ignored and soldiers would simply take women at will. So the Torah provides a path to legitimizing the relationship through marriage, requiring the man to wait on his desires for a month during which the woman mourns and does nothing to make herself appealing to him. The warrior is thus allowed to take the woman, but in a slower, less rapacious and somewhat more controlled way. And after a month of hearing her mourn for her family and not taking care of herself, perhaps his passions will have abated and he will allow her to return to her family.
A few important lessons can be learned from this particular case, and the larger category of Torah regulations that are formulated “against the evil inclination.”
The first is that not everything the Torah allows is necessarily the right thing to do. As in this case, sometimes the Torah permits something because it is the lesser of two evils. If one has the wherewithal to avoid taking a beautiful captive woman in the first place, this is preferable. But if not, the Torah offers a way to blunt some of its most adverse consequences.
A number of other teachings in the Torah fall into this category too. In another example drawn from wartime, the Talmud (Chullin 17a) teaches that any food items found in houses when the Israelites conquered the land of Israel were permitted to be eaten, even pork. Presumably, this was not the ideal, but a divinely sanctioned concession to tired warriors who might reject kosher laws outright if forced upon them in the heat of battle.
Rabbi Joseph Soloveitchik used to argue that Jewish law is a floor — not a ceiling. The Torah may well prescribe certain practices as a necessary concession due to a particularly acute need, even as it allows for, and even expects, a higher standard of moral behavior at other times.
Rabbi Nahum Rabinovitch made an argument along similar lines, suggesting that the Torah presents not the moral ideal, but a method for catalyzing the evolution of moral values. For instance, the Torah permits slavery, but it did so because slavery was widely practiced in the ancient world and banning it outright may have been simply unworkable. Instead, the Torah imposed restrictions on the slaveholder and granted rights to the slave in the hope that, eventually, there would be no slavery at all — a moral insight that the Jewish people have happily embraced over the past few centuries.
A related conclusion that can be drawn from this is that the Torah isn’t simply a list of what is moral and what isn’t, what is legal and illegal, like a secular law code. Mindful of the complications of real life, the Torah often speaks not in absolutes, but with attention to the particular person it is addressing. To that end, tired warriors in a world with no concern for slavery or rape might not respond to an absolute prohibition. Instead, the Torah pursues the most achievable just result, granting its permission but with many clauses and regulations attached. Seen this way, the Torah is not only a legal-ritual text, but also an educational document that gestures toward a more idealized world than it strictly requires.
So does the Torah prescribe unethical behavior? Yes, at times. But it does so in response to human weakness and with the goal of overcoming those flaws and building a more ethical world.
This article initially appeared in My Jewish Learning’s Shabbat newsletter Recharge on Aug. 26, 2023. To sign up to receive Recharge each week in your inbox, click here.