Can the Torah Be a Moral Authority in Modern Times?

The Torah has many precepts that strike the modern person as morally problematic. Responses to this challenge fall into three basic categories:

Fundamentalist—One approach is to double down and argue that the Torah reflects God’s will and must by definition be moral; it is actually our modern ethical sense that is out of whack.

Dismissive—Some argue that such laws simply showcase the worthlessness of religion, which should be toppled entirely for the betterment of society. A book with immoral laws is an immoral book and that is that.

Selective—A third approach is to point to other parts of the Torah that reflect a high morality and claim this to be the “real” meaning of the Torah, rereading the problematic texts in light of the morally uplifting ones. This approach is especially popular among modern apologists.

Such selectivity, however, requires a certain amount of skullduggery, since the Torah has many morally problematic laws whose meaning is clear. For example, the Torah tells us to execute:

• Men who commit a homosexual act (Lev 20:13),
• Sabbath violators (stoning; Num 15:35),
• Blasphemers (stoning; Lev 24:16),
• Witches (Exod 22:17),
• People who commit zooerasty (Exod 22:18, Lev 20:15-16),
• Maidens found to be without a hymen on their wedding night (stoning, Deut 22:21),
• A priest’s daughter who fornicates (burning, Lev 21:9)
• Children who strike or curse their parents (Exod 21:15, 17)
• Sons who are drunkards and don’t listen to their parents (stoning, Deut 21:18-21)

For those of us who look to the Torah as a religious resource and authority, how are we to think about such ethically problematic laws?

Does Oral Torah Solve the Problem?

In Judaism, it is often argued that these problems are solved in the Oral Torah, through hermeneutical reinterpretation and legal loopholes.^[1] For example, death penalties are made almost unfeasible by the rabbinic rule that two witnesses must warn the perpetrators that they are committing a capital offense, and the perpetrators must respond יודע אני ועל מנת כן אני עושה “I know and I am doing it anyway” (t. San 11:1–4).^[2]

These legal loopholes are designed to avoid practical implementation. Still, the laws are maintained on the books. Moreover, by declaring the Torah to come directly from God, ethically problematic laws are preserved as an ideal, at least in the past.

To make this point clearer, let us look at selected examples of rabbinic solutions to ethically problematic laws.

Proscribing the Seven Nations

According to Deuteronomy, the Israelites were commanded to “proscribe” (=slaughter as an offering to YHWH) the native inhabitants of Canaan before they took it over.

^{דברים כ:טז} רַק מֵעָרֵי הָעַמִּים הָאֵלֶּה אֲשֶׁר יְ־הוָה אֱלֹהֶיךָ נֹתֵן לְךָ נַחֲלָה לֹא תְחַיֶּה כָּל נְשָׁמָה. ^כ:יז כִּי הַחֲרֵם תַּחֲרִימֵם הַחִתִּי וְהָאֱמֹרִי הַכְּנַעֲנִי וְהַפְּרִזִּי הַחִוִּי וְהַיְבוּסִי כַּאֲשֶׁר צִוְּךָ יְ־הוָה אֱלֹהֶיךָ.

^{Deut 20:16} In the towns of the latter peoples, however, which YHWH your God is giving you as a heritage, you shall not let a soul remain alive. ^20:17 No, you must proscribe them— the Hittites and the Amorites, the Canaanites and the Perizzites, the Hivites and the Jebusites—as YHWH your God has commanded you.

Maimonides codifies this law as part of the system of halakha, but at the same time makes it practically irrelevant.^[3]

מצות עשה להחרים שבעה עממין שנאמר החרם תחרימם, וכל שבא לידו אחד מהן ולא הרגו עובר בלא תעשה שנאמר לא תחיה כל נשמה, וכבר אבד זכרם.

It is a positive commandment to proscribe the seven nations, as it says (Deut 20:17), “you must proscribe them.” Anyone who comes upon one of them, and doesn’t kill him, has violated a positive commandment, as it says (Deut 20:16), “you shall not let a soul remain alive.” But their memory has already been wiped away (i.e., the nations no longer exist as such).

This passage begins by telling us that we are required to slaughter Canaanites anytime one encounters one. Practically speaking, however, Maimonides informs us that we will never actually have to do this, since the seven nations no longer exist, either they were wiped out entirely in the past, or, at least, whatever remnants there were, became so completely mixed with other populations as to make them non-existent.

As much as we might appreciate the clear statement that we need not slaughter such people ourselves, are we to accept that God, the creator of the universe, told Moses that this is what was wanted from the Israelites: to annihilate another people, men, women, and children?

Stoning a Wayward Son to Death

The Torah describes what parents should or can do if their son is a rebellious glutton and drunkard.

^{דברים כא:יט} וְתָפְשׂוּ בוֹ אָבִיו וְאִמּוֹ וְהוֹצִיאוּ אֹתוֹ אֶל זִקְנֵי עִירוֹ וְאֶל שַׁעַר מְקֹמוֹ. ^כא:כ וְאָמְרוּ אֶל זִקְנֵי עִירוֹ בְּנֵנוּ זֶה סוֹרֵר וּמֹרֶה אֵינֶנּוּ שֹׁמֵעַ בְּקֹלֵנוּ זוֹלֵל וְסֹבֵא. ^כא:כא וּרְגָמֻהוּ כָּל אַנְשֵׁי עִירוֹ בָאֲבָנִים וָמֵת וּבִעַרְתָּ הָרָע מִקִּרְבֶּךָ...

^{Deut 21:19} His father and mother shall take hold of him and bring him out to the elders of his town at the public place of his community. ^21:20 They shall say to the elders of his town, “This son of ours is disloyal and defiant; he does not heed us. He is a glutton and a drunkard.” ^21:21 Thereupon the men of his town shall stone him to death. Thus you will sweep out evil from your midst…

The rabbis offer several midrashic readings of the text aimed at making implementation impossible, ostensibly because they are bothered by the idea of parents having their sons stoned to death (m. Sanhedrin 8:2):

מאימתי חייב משיאכל טרטימר בשר וישתה חצי לוג יין האיטלקי רבי יוסי אומר מנה בשר ולוג יין.

When has the son behaved in a way to qualify him as a rebellious son? Once he eats a tartemar (200g/8oz) of meat and half a log (.25l/8fl-oz) of wine. Rabbi Yossi says: “A maneh (400g/16oz) of meat and a log (.5l/16fl-oz) of wine.”^[4]

Here the Mishnah is suggesting that the boy (still a child) must eat more than an adult-sized portion, and Rabbi Yossi doubles this.^[5] While it is difficult to imagine a child eating this much—especially Rabbi Yossi’s portions—the Talmud is apparently dissatisfied with this, since such a feat remains possible, and therefore suggest something patently ridiculous (b. Sanhedrin 71a):

רבי יהודה אומר: אם לא היתה אמו שוה לאביו בקול ובמראה ובקומה אינו נעשה בן סורר ומורה. מאי טעמא - דאמר קרא: איננו שמע בקלנו מדקול בעינן שוין - מראה וקומה נמי בעינן שוין.

Rabbi Yehudah says: “If the voice, appearance, and size of his mother is not the same as that of his father, he cannot be categorized as a wayward son.” Why is this, because the verse says, “he does not listen to our voice.” Just as their voices need to be identical, so does their appearance and their height.

These requirements are clearly devised to make conviction impossible; a mother and father will simply never be identical.^[6] But again, the text claims that God commands parents to stone their sons to death for being gluttons and drunkards, and thus we preserve this law, at least as an ideal.^[7]

Ethical Problems in Rabbinic Law

Moreover, Rabbinic laws have their own morally problematic texts, if less stark:

• Heretics may be thrown into a well or left to die (b. Avodah Zarah 26b)
• Jewish midwives may not birth non-Jews since this increases idolatry in the world (m. Avodah Zarah 2:1)
• It is forbidden to ever free a gentile slave (b. Berachot 47b).
• Women should not be taught Torah because they will turn it into nonsense; it would be better to burn the Torah than allow women to study it (m. Sotah, 3:4; j. Sotah 3:4, the opinion of R. Eliezer).
• It is forbidden for Jews to leave their animals with gentiles, since gentiles prefer having sex with Jewish-owned animals even to their own wives (b. Avodah Zarah 22b).
• A man is forbidden to be alone with two women, since women are light-headed and thus, easily seducible (b. Kiddushin 80b).
• A Jew having relations with a non-Jewish woman may be impaled on a sword or spear during the act (קנאין פוגעין בו; m. Sanhedrin 9:6).

Here again, later authorities attempted to soften moral problems through legal reinterpretation.

Killing Heretics

Let’s take an example from the mitzvah to kill heretics. Maimonides codifies the following law (Mishneh Torah, “Book of Torts,” Laws of Murderers and Protection of Life 4:10):

המינים, והם עובדי עבודה זרה מישראל, או העושה עבירות להכעיס אפילו אכל נבילה או לבש שעטנז להכעיס הרי זה מין, והאפיקורוסין, והן שכופרין בתורה ובנבואה, מישראל, מצוה להרגן, אם יש בידו כח להרגן בסייף בפרהסיא הורג, ואם לאו יבוא עליהן בעלילות עד שיסבב הריגתן. כיצד, ראה אחד מהן שנפל לבאר, והסולם בבאר, קודם ומסלק הסולם ואומר לו הריני טרוד להוריד בני מן הגג ואחזירנו לך, וכיוצא בדברים אלו.

Sectarians, that is, Israelite worshipers of foreign gods, or one who transgresses commandments defiantly—even if he [merely] eats non-kosher meat or wears shaatnez defiantly, this is a sectarian—and heretics—that is, those who deny [the divine origin of] the Torah or the Israelite prophets—it is a mitzvah to kill them. If one has the power to kill them with a sword in public, he should kill him. If not, he should sneak up on him until he can cause them to be killed. How? If he sees one of them has fallen into a pit, and there is a ladder in the pit, he should remove the ladder and tell him “I need to get my son off of a roof, then I will return it,” and similar strategies.

Maimonides was aware of the disastrous practical implications of this law, which he codified from the Talmud, and was particularly worried that people would kill Karaites, who lived in the same community, which is why, to avoid this, he added a provision saying that the law only applies to first generation heretics (Mishneh Torah, “Book of Judges,” Laws of Heretics 3:3):

אבל בני התועים האלה ובני בניהם שהדיחו אותם אבותם ונולדו בין הקראים וגדלו אותם על דעתם, הרי הוא כתינוק שנשבה ביניהם... שהרי הוא כאנוס ואף על פי ששמע אח"כ... לפיכך ראוי להחזירן בתשובה ולמשכם בדברי שלום עד שיחזרו לאיתן התורה.

But the children of those who have strayed, and their descendants, whose ancestors have caused them to be heretics, and who were born among the Karaites who brought them up in their faith, they are like a baby who was taken captive among them… and it is as if they have been coerced to sin, even if they heard [the truth] afterwards… Therefore, it is fitting to return them through repentance and to coax them with words of peace until they return to the might of the Torah.

Modern authorities use this imagery, declaring that modern day heretics are like “kidnapped children,” who do not know any better. R. Avraham Yeshaya Karelitz (1878–1953), in his Chazzon Ish (Yoreh Deah 2:16), offers a particularly flowery apologetic:

אין דין מורידין אלא בזמן שהשגחתו יתברך גלויה, ואז היה כיעור הרשעים גדרו של עולם. אבל בזמן ההעלם שנכרתה האמונה מן דלת העם, אין במעשה ההורדה גדר הפרצה אלא תוספת הפרצה, שיהיה בעיניהם כמעשה השחתה ואלימות ח[ס] ו[שלום]. וכיון שכל עצמינו לתקן, אין הדין נוהג בשעה שאין בו תיקון, ועלינו להחזירם בעבותות אהבה...

The law of pushing a heretic into a pit applies only during periods in which God’s providence is manifest in the world, and thus abhorring the wicked would be a way of protecting the world. But during periods in which God’s providence is hidden, and faith is cut off among the average person, pushing a heretic into a pit would not be mending a fence but would add another breach, because most people would see it as a terrible act of violence, God forbid. And thus, the law does not apply during periods when it is of no help, and it is our job to bring people back [to Torah] with ties of love…

This may help with the practical problem, but to quote Norman Solomon’s reaction to this apologetic: “Are we really looking forward to the time when the shekhina (divine presence) is manifest again so that we allow heretics to die in pits?”^[8]

Saving Gentiles on Shabbat

Although the Mishnah forbids Jewish women to serve as midwives or wet-nurses for gentile babies, the rabbis permitted it anyway משום איבה, to avoid getting the gentiles angry (b. Avodah Zarah 26a). This permissive ruling brings the Talmud into a related discussion: Is it permissible for a Jewish woman to act as midwife for a gentile woman if it requires her to violate Shabbat? The Talmud records a debate on this question between R. Yosef and his student Abaye:

סבר רב יוסף למימר: אולודי עובדת כוכבים בשבתא בשכר שרי משום איבה; א"ל אביי, יכלה למימר לה: דידן דמינטרי שבתא מחללינן עלייהו, דידכו דלא מינטרי שבתא לא מחללינן.

R. Joseph had a mind to say that even on the Sabbath it is permitted to act as midwife to a heathen for payment, so as to avoid ill feeling; Abaye, however, responded that the Jewish woman could offer the excuse, “Only for our own, who keep the Sabbath, may we waive it, but we must not waive the Sabbath for you who do not keep it.”

Abaye’s negative answer was codified by R. Joseph Karo (1488–1575) in the Shulchan Arukh (OḤ 330:2), upon which R. Yisrael Meir Kagan (1838–1933), in his highly influential Mishnah Berurah (#8) commentary, wrote the following screed against Jewish doctors:

ודע דהרופאים בזמנינו אפי' היותר כשרים אינם נזהרים בזה כלל דמעשים בכל שבת שנוסעים כמה פרסאות לרפאות עובדי כוכבים וכותבין ושוחקין סממנים בעצמן ואין להם על מה שיסמוכו דאפילו אם נימא דמותר לחלל שבת באיסור דרבנן משום איבה בין העו"ג... איסור דאורייתא בודאי אסור לכו"ע ומחללי שבת גמורים הם במזיד השם ישמרנו:

Know that doctors in our time, even the more observant ones, are not careful about this at all, and it is a daily occurrence that every Shabbat they travel for miles (which violates the laws of techum Shabbat) in order to heal gentiles. They write prescriptions and grind medicines themselves. They have no authority upon which to rely, for even if we were to say that it is permissible to violate Shabbat for a rabbinic prohibition to avoid angering them… it is certainly forbidden to violate a Torah law according to all authorities. Thus, (these doctors) are totally public Shabbat violators on purpose, may God protect us.

Yet modern authorities have come up with ways to allow even Torah laws to be violated to save gentile lives. For example, R. Moshe Feinstein argues that with modern communications, gentile doctors will learn about this practice and refuse to save Jewish patients.^[9] Nevertheless, the reasoning remains in order to avoid their hatred, not because of the intrinsic worth of their lives.^[10]

I remember years ago, when I was in rabbinical school, hearing Rabbi Yitz Greenberg, one of the great moral voices in contemporary Orthodox Judaism, go over these sources with us and ask us whether that reason—fear of gentile reprisal—really satisfies the modern conscience? Are we okay with saying that God who created all human beings in his image, would in theory prefer to allow gentiles to die rather than Jews break the Sabbath to save them?

In short, while Judaism has developed a robust mechanism for avoiding the practical pitfalls of unethical laws, on the books, the Torah—written and oral—is riddled with laws and perspectives that violate our ethical sensibilities.^[11]

The Selective Approach Is Insufficient

This same critique holds when confronted with the selective apologetic. For example, when the Torah is accused of bigotry against non-Israelites by pointing to the law requiring Israel to slaughter the Canaanite inhabitants of the land upon entering, many respond with “but the Torah says that all humans were created in God’s image, so the Torah cannot be bigoted.” The problem with this response is not that it is false, but that it is incomplete. The Torah says both things, and they are in serious tension with each other.

While it is certainly laudable to emphasize the Torah’s moral principles as reflecting the kind of Judaism we wish to propagate, it seems disingenuous to act as if the other, ethically problematic laws aren’t “really” Torah. Sadly, people looking for support for a bigoted outlook on how to treat non-Jews living in Israel can do the same thing in reverse, adopting the principle of “remove the natives” as the real expression of Torah, and minimizing the importance of universal principles such as “we are all created in God’s image.”^[12]

So what approach can we take that avoids fundamentalistic doubling down on one hand, and throwing-the-baby-out-with-the-bathwater style dismissiveness on the other?^[13]

Adapting the Goals of the Tradition

One way to do this is to read the law in its original context. What was the worldview in ancient times, such that the advocates of the law saw it as moral, and how would we try to accomplish the same goals now in an ethical way? Instead of thinking about laws as static points, we can see each as carrying with it an insight or ideal that must be applied in a way that takes our ethical and social norms into consideration.^[14]

For example, like the Talmudic sages, we are certainly bothered by the idea of executing a child because he has become a disrespectful and antisocial glutton and drunkard. Nevertheless, we can see why the law was written: Firstly, because the Torah sees a value in children respecting their parents (Exod 20:12 [=Deut 5:16], Lev 19:3). More significantly, the Torah here is concerned that a son who shows no self-control whatsoever, including with regard to how he treats his own parents, may end up being a danger to society, is an important concern.

The Torah was responding to this situation with the limited tools available to it in the ancient world. Biblical society—indeed many pre-modern societies—had no knowledge of psychological wellbeing or psychological illness. Treatment for bad behavior was simply punitive. Thus, for the authors of the Deuteronomic Law Collection—where the law of the wayward son appears—the boy has shown he is “a bad apple” and society must be rid of him. Thus, the text commands that he be stoned to death.

Nowadays, we see this response as unethical, but we can appreciate the concern. In this sense, the Torah’s goals here can remain authoritative. We must look for early warning signs in children of antisocial behavior that could presage a dangerous future. We then must intervene, not punitively, but with all the tools that modern psychology and psychiatry have at their disposal. This would be a way of tackling the problem of concern to the Torah but in a manner consistent with the ethical norms of our own society.^[15]

Honest and Ethical Torah

The wayward son may be one of the easier examples of finding a laudable goal in an ethically problematic law. We need to be able to apply such thinking even to hot-button issue laws in the Torah such as the condemnation of male homosexual intercourse,^[16] or the command to slaughter all the Canaanites, man, woman, and child.^[17]

The goal is to be able to think critically about these laws. We must, on one hand, be frank about their moral failings, while on the other, search for the ethical aspirations that inspired the authors and where these could be relevant today. Such an approach is a challenge for those religious Jews who wish to see themselves part of tradition and the modern world, but the ability to think and speak honestly about the Torah’s ethical problems frees us from the need for half-truth apologetics. Such a balancing act can help us navigate the narrow bridge between fundamentalism on one side, and total dismissal of the value of religion on the other.

Freed of the need to affirm religious teachings as empirical truths, we can experience the religious journey of Israel with YHWH as going back millennia, while at the same time, not feeling that we must affirm all of the specific beliefs and behaviors of our ancestors as ideals to strive for today.

Certainly, those of us who are part of a traditional religious culture feel a deep sense of connection and high regard for the texts and traditions of our past. At the same time, we must view that past honestly and help our tradition evolve to what it can be. As the world grows in ethical sensibility, so must we, and so must our faith.