Ki Tetzei: Mixed Messages

Treat your captive bride with care
yet stone your wayward son;
hang a felon from a tree,
then bury his remains.

Raise your neighbour’s fallen ass
yet stone a fallen girl;
drive the mother bird away
before you take her young.

Do not sow your vineyard
with a second kind of seed;
the donkey with the mighty ox
yoke not before the plough.

Keep the maimed and misborn
from the presence of the Lord;
yet hate not the Egyptian:
you were strangers in his land.

Charge no interest from your kin
who ask you for a loan;
keep the vows you made to God
or suffer from His wrath.

Build a railing on your roof
so nobody will fall;
release the husband, newly-wed,
from fighting in the war.

Rob not the beggared debtor
of the means to earn his keep,
wait patiently outside his house
until he cedes his pledge.

Pay the pauper’s salary
before the sun goes down;
leave forgotten gleanings
for the needy to collect.

The guilty, flog, but count each lash
to limit his disgrace;
and when your ox is threshing,
let it graze upon the grain.

The woman who protects her man
by grabbing at his foe:
have no mercy on her plight
but amputate her hand.

Have honest weights and measures
in your pouch and in your home;
perpetuate the dead man’s name;
and Amalek’s name – erase!

Parashat Ki Tetze contains a diverse collection of mitzvot – the most in any parasha – 74 in all, according to the Sefer HaChinuch. There are commandments that are exquisitely compassionate (the Etz Hayim commentary of the JPS says: “One theme is certainly very prominent in this parasha, which is the irreducible dignity and worth of a human being, even the most marginal members of society, such as the criminal or the female war captive…”). But side by side are laws which at best are anachronistic and at worst seem barbaric.
In an article on Ki Tetse from 2007 from the website of Limmud On One Leg, Rabbi Gershon Winkler notes, “This portion of our Torah is a continuation of a seemingly endless stream of instructions that appear quite paradoxical, and at best utterly confounding. They run from compassionate laws around the treatment of laborers to crude consequences for adulterous affairs. In the same breath that we are told to not muzzle our oxen while plowing our fields, we are told to stone to death hopelessly rebellious adolescents. And so it goes, on and on.”
Rabbi Winkler wonders how we are to understand this “unpredictable, inconsistent aspect of our holy Torah, about which it is said: “Her ways are ways of peace, and all of her roads are roads of pleasantness.” (Mishlei 3:17). Granted, that many of these instructions were monumental breakthroughs for 1300 B.C.E. ‘Until the nineteenth century,’ wrote historian Cecil Roth, ‘cruelty to animals was nowhere illegal, except in Jewish law’. (The Jewish Contribution to Civilization, pp. 343f). And while the highly-lauded ancient Hammurabi Code prescribed death to anyone who harbored a runaway slave, the equally ancient Hebrew Code commands to the contrary: ‘You shall not surrender to his master a slave who has escaped from his master to you’ (Devarim 23:16-17).”
But, asks Rabbi Winkler, “What about the other stuff? How do we reconcile our seemingly compassionate Torah and all of its super-humane sensitivities with the seeming crude injunctions that also fill its folios?”
He suggests that perhaps the answer lies in the injunction about sending off the mother bird before snatching her young from the nest (Devarim 22:6). He compares the view of the Rambam who explains the law as a way of teaching us to feel compassion, that animals, too, have feelings (Mo’rah Ne’vuchim, Ch. 3), and the Ramban who explains it as a way of teaching us to be compassionate (Ramban on Devarim 22:6). Rabbi Winkler deems this a significant difference. He says, “Compassion… is a nice thing to feel. But more challenging is the practice of being compassionate, of acting with compassion in all situations, not only the ones that make us feel merciful because we can “empathize” or it touches a “soft spot”, but even those situations where there is little or no room or no time for empathy or soft spots – to act with compassion even then.”
Rabbi Winkler continues, “The Torah is not interested in teaching you to feel compassion, but rather how to live compassionately. Feelings are situational, subjective, personal, and contingent upon individual whims and judgments. Moreover, we don’t need divine revelation to instruct us to feel what we are naturally inclined to feel. What we do need divine revelation to teach us is how to draw upon our feelings and apply them beyond our subjective selves toward a higher calling, in response to a higher will. That is the mixed message of our Torah. Can you act with severity when necessary without losing your compassion? Can you flog someone who has been sentenced to be flogged, without losing sight of his dignity? (Devarim 25:3). Can you execute a murderer and act compassionately toward his corpse ?(Devarim 21:23) Can you stigmatize compassionately? The ancient rabbis modeled this when they taught that the order of calling people up to the Torah during worship, is: “Ko’hain, Levite, Israelite. But if the choice is an ignorant Ko’hain or a learned mamzer [the offspring of an incestuous or adulterous relationship], the learned mamzer takes precedence!” (Talmud Bavli, Ho’ra’yot 13a). Can you hold both, the disqualification and the virtue? Can you act with severity while maintaining your compassion? And vice-versa? Can you love your child and say No? As the 2nd-century Rabbi El’azar warned: “One who acts compassionately in a situation requiring severity will in the end act with severity in a situation deserving of compassion” (Midrash Tanchuma, Metso’ra, Ch. 1).”
Rabbi Winkler concludes, “In other words: Can you dance in the Grey? Or can you only thrive in the black-and-white? Can you frolic in the chasm of paradox or can you only play in the safe realm of either/or? That is the challenge. As Solomon put it some 2900 years ago: “It is a good thing if you can hold on to both [opposites] without releasing your grip on either.” (Kohelet [Ecclesiastes] 7:15-18).

In an article entitled, Engage all Texts, on last week’s parasha, Shofetim, Daniel Septimus says the following, “We are all aware that when we turn to Jewish tradition for teachings that inspire us to work for social justice, we often turn a blind eye to texts that can inspire the opposite: religious paternalism, inequality, brutal forms of capital punishment, and yes, even race-based genocide.
But is this okay? Can we credibly cite Jewish teachings that encourage a better world when there exist parallel teachings that could lead to a worse one? I think yes, but only with these conditions: that we are honest about which texts we are excluding from active duty and that we study not only those traditions that promote our social agendas, but those that contradict it–because neglected texts left unattended have a nasty way of coming back to life in more virulent forms…Scattered amongst Judaism’s most noble and righteous teachings are passages that are anachronistic at best and immoral at worst. We must identify these teachings–biblical, rabbinic, medieval, and modern. As we engage texts that inspire us to pursue social justice, we must, at the same time, engage those that can inspire violence and oppression.”

It is mandatory, of course, to read the biblical text with the exegesis that accompanies it, so that we very often find that the sages mitigate the harshness of many of the laws and frequently interpret them in metaphorical ways.


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