Problem Laws

This week’s Torah portion teaches a wildly diverse set of laws. Many will seem logical and ethical to modern ears. For example: It is an obligation to return lost things to their owners. (Deuteronomy 22:1) Another example: One must build guard rail around a flat roof so people don’t fall off. (Deuteronomy 22:8) Building codes make sense in our day as well.

Other laws in this week’s portion will be harder for us to accept. For example: The parashah opens with the case of a captive woman who is taken as booty during war. A soldier who desires her is allowed to take her home and marry her after a 30-day period during which she is permitted to grieve the loss of her family and previous life. This can only strike us, today, as repugnant.

How should we approach those laws which are remnants of a social reality long gone? Let us explore a few approaches. 

A charitable read of the law that permits a soldier to marry a woman he has taken captive in war is to understand it as a stopgap against wartime rape. In the fog of war, a soldier has enormous power — physical and sexual — over a civilian woman. Yet the law requires that he must hold back from exercising some of it. He may not rape her on the battlefield, and if his desire for her outlasts a month after her capture, he is obligated to treat her as a wife rather than concubine, with all the rights and protections of that position. 

For the modern reader, the very idea of human spoils of war, or non-consensual marriage, is anathema. And while unfortunately wartime rape is not a thing of the past, this process of coercive marriage is no longer considered an ethical means of combatting it. Modern readers can accept the moral concept behind the law of the captive woman without condoning the law itself: We agree with the need to protect powerless hostages, though we no longer accept forced marriage as a means of doing that. 

There are many more uncomfortable laws in this week’s portion that require explanation and, ultimately, some form of reinterpretation. For example, even the classical rabbis were surprised that the Torah prescribes the death penalty for a wayward son (Deuteronomy 21:21) — today, no child would make it out of teenagehood — and for a bride who is accused of being a non-virgin on her wedding night. The rabbis reinterpreted these cases to fit their own moral standards. The non-virgin bride was understood to be executed only if found guilty of adultery during the engagement, and the wayward son only if he was well on his way to being a violent criminal. 

There’s another way to look at these challenging laws. Bible scholar Tikva Frymer-Kensky suggested that the Bible itself uses hyperbole in these cases to signal that these laws were never meant to be adjudicated in a court system. Rather, she suggests that the wayward son and non-virgin bride laws served essentially as cautionary tales — a means of scaring families into educating and controlling their children.  

Let us examine one last example of a problematic law in this week’s portion, the promise that a firstborn inherits a double portion of his father’s estate. (Deuteronomy 21:15–17) The “birthright” of the first-born son was the norm in the ancient world despite its inherent inequality, which is offensive to most of us today. It was to many of our forefathers as well, and the Torah is riddled with counterexamples. Abraham chose his second son, Isaac, to inherit his legacy, Esau sold his birthright to his younger twin Jacob, and Jacob favored Joseph, his eleventh son! Likewise, the kings of Israel were often younger sons rather than firstborns. 

According to legal scholar Robert Cover, these biblical stories depict a regular transgression of a well-trodden social structure to make a point: If the right person is not a first born, the Divine hand will overturn the legal and social expectations of society. Over time, the expectation that birthright could be overturned became an essential part of Jewish identity. Merit, we are meant to understand, trumps inherited position. Slaves can throw off their masters, and education and accomplishment can supercede birth order. Some laws are really meant to be broken.

Reading this week’s Torah portion requires active participation as we differentiate between laws with timeless ethical meaning that are worth striving to live by even in the modern world, and those which are remnants of a social reality long gone. In the latter case, some can be historicized, others reinterpreted and some turned into cautionary tales or narratives of revolution.