Can We Pass Moral Judgment on Torah?

I try not to be smug about my moral judgments. When I teach certain biblical passages that legislate reprehensible laws, I tell my students, “I do not have to defend the text, but I do have the responsibility to try to explain it, to speculate about what may have been the motivation behind this or that law.”^[1] Even this is a daunting task, however.

Invading Canaan and Killing the Seven Nations of Canaan

Deuteronomy commands that upon entering the land, Israel must kill all the inhabitants of Canaan:

^{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.

What could amount to a greater crime against humanity than genocide? I have no interest in defending the Torah’s command here. Nevertheless, I would like to understand the thought process that engendered it.

Consider what a community of refugees, like the Israelites escaping Egypt, should do that would be ethical according to modern standards. Ostensibly, the law-abiding refugees should apply for visas, and request official permission to enter the land as a safe haven. Countries in the modern world have indeed signed treaties guaranteeing the rights of refugees. In practice, however, the modern world has limited tolerance for refugees, and blanket permission to immigrate—even for those seeking asylum—is rare.

Many countries accept only a small percentage of “well-behaved” refugees, and then congratulate themselves for the humanitarian gesture. Some, with more largesse, even set aside ramshackle camps for refugees to stay in temporarily.^[2] The bulk of refugees, though, must usually find somewhere else to be or perish.^[3] This treatment of immigrants, especially refugees, more than bothers me. But I don’t want to be smug about this either.

If I try to understand (not defend) the reasons behind this treatment of immigrants, even desperate refugees, I imagine that it stems from the fear that large waves of immigrants might overwhelm the natives. Indeed, the European immigrants who came to the Americas after Columbus destroyed the indigenous people, an act from which most modern inhabitants of North America still benefit. I admit that genuine reasons for fearing immigrants can be espoused; that said, immigrants have even more reason for fearing established communities.

The Plight of the Refugees

Even if they do succeed in finding a place that will take them in, refugees find themselves with few rights and little protection; according to a widely-shared moral intuition—one I suspect will look unconvincing someday—people deserve rights only in their homeland.

When law-abiding refugees encounter native hostility, should they not simply recognize that the indigenous people have a prior claim, and are within their rights to refuse to accept them? Adhering to such a policy would mean abandoning their own lives and the lives of their children, to satisfy the demands of the established inhabitants.

It is not surprising, therefore, that throughout history, we find bands of immigrants, escaping from dangers at home, using violence to settle new lands. This is the picture of Israelite reality assumed in Deuteronomy.

Does this defend the Torah’s command to the Israelite refugees to proactively slaughter the native Canaanite population, man, woman, and child upon entering the land? No, but perhaps it gives us a sense of how the ancient Israelites understood the reality of what it would require for them to settle in Canaan.^[4]

The Rebellious Son

According to Deuteronomy, parents of wayward, drunken, gluttonous son, who does not listen to them, may drag him to the court and have him stoned to death:

^{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...

^{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 his town’s council shall stone him to death….

This problematic text shocks our modern sensibilities. We could play fundamentalist and double down on the law: God, in his infinite wisdom, wants us to realize that such a child should be stoned to death. But even the rabbis of the Talmud were unwilling to take this approach; perhaps the law shocked their sensibilities too.

To deal with the problem at the level of the practical, the rabbis added impossible conditions to the story in their statutory interpretation, essentially ensuring that no one would carry out the sentence (b. Sanhedrin 71a). Nevertheless, they did not remove the law from the Torah or declare it invalid, but kept it on the books as a theoretical requirement.^[5]

If we focus on the intended moral lesson of the text, it is clearly saying that children should respect their parents, and that society must protect itself against the (perhaps sociopathic) son. We can recognize the good values that drive the Torah to this ruling, while remaining clear-eyed that nowadays, and presumably in the times of the Talmudic sages, capital punishment in this case is inappropriate and unethical. But is there any way to conceptualize what could have led people to consider the stoning of a wayward son to be ethical, and even wise?^[6]

Consider the possibility that in some ancient societies, people took for granted that fathers (and mothers?) have the inherent right to put their minor children to death for any reason, or at least impunity for doing so.^[7] In such a society, a law requiring the parents to bring the child before the elders, who ultimately decide his fate, seems like an important and even ethical development. Though the text never says any such thing, perhaps Deuteronomy expects the elders, or even obligates them, to protect the child from abusive and overreacting parents.

The Avenger of Blood

Anything could go wrong when you give the “avenger of blood”—i.e., a close family member of the victim—the responsibility to put the murderer to death (see Num 35, Deut 19, Josh 20). The avenger might have no skills at identifying the true culprit. The culpable perpetrator might have all sorts of extenuating circumstances that deserve consideration. The perpetrator might have better fighting skills than the avenger. It seems obviously much more ethical to leave the punishment of perpetrators to the police and the relatively impartial justice system.

Consider, though, a society in which the central government is far away, or weak, or non-existent. What is more, what if the government or police are hostile to you? You cannot effectively go to the government for redress if the government does not have power, or if the government hates you. At most, you can convene a few of the town elders for some limited interventions.

Do you leave the homicide unpunished? Doesn’t the ability to murder with impunity encourage violence? It seems reasonable that the institution of blood-avenger, common in tribal or clan-based societies, makes sense under those circumstances.^[8]

The Torah does not dismiss this institution, but it is not fully comfortable with the practice either. Therefore, Torah law modifies the practice: the case against the murderer must first be proven in court before the blood avenger may act. If the court finds that the act was manslaughter and not murder, society must protect the person from the wrath of the blood avenger by allowing him entry into a refuge city.^[9]

The Rapist and His Victim

If a man rapes an unbetrothed minor girl, the law in Deuteronomy has the rapist pay the girl’s father a standard bridal price as a fine, and he is forced to marry the girl:

^{דברים כב:כט} וְנָתַן הָאִישׁ הַשֹּׁכֵב עִמָּהּ לַאֲבִי (הנער) [הַנַּעֲרָה] חֲמִשִּׁים כָּסֶף וְלוֹ תִהְיֶה לְאִשָּׁה תַּחַת אֲשֶׁר עִנָּהּ לֹא יוּכַל שַׁלְּחָהּ כָּל יָמָיו.

^{Deut 22:29} The man who lay with her shall pay the girl’s father fifty [shekels of] silver, and she shall be his wife. Because he has violated her, he can never have the right to divorce her.

Any modern legislator would draft laws to punish the perpetrator, while awarding damages and fines to the survivor herself. Having the girl marry her rapist would be completely unthinkable. In his “Marrying Your Daughter to Her Rapist” (TheTorah 2014), Zev Farber suggests that in societies in which a girl needed a husband to support her financially, and in which non-virgins had little if any chance to get married—even if their virginity was taken in a rape—such an arrangement was making the best of a bad situation.

This may be the case, but I suggest that the law may also be a way of protecting the girl from “honor killings.” In many places, even today, families will execute their daughters or sisters who bring dishonor to the family by engaging in illicit sex, or by marrying against the parents’ wishes, or even by surviving a rape.^[10]

I cannot imagine what experience a person could have that would make an honor killing seem like a good deed. That might count as a failure of imagination on my part, since many ancient and even contemporary societies take honor killing as a matter of course. Clearly, the Torah does not, and understood as a way of avoiding honor killings, this biblical ruling makes some sense.

Those Whom We Abandon into a Pit

We encounter unethical texts in rabbinic literature as well. What could possibly excuse the tannaitic tradition that we leave gentiles to die:

^{בבלי עבודה זרה כו.–כו:} תני רבי אבהו קמיה דר' יוחנן: הגוים^[11] והרועים בהמה דקה לא מעלין ולא מורידין...^[12]

^{b. Avodah Zarah 26a–26b} Rabbi Abahu recited this [baraita]^[13] before Rabbi Yohanan: “If one encounters gentiles and shepherds in a pit, they are not to be lifted out, but they may not be thrown into one either…”

This rule overlaps with U.S. law, where an individual has no obligation to intervene if coming across a person in imminent danger, unless one has a special relationship with the person, as, for example, a mother or a lifeguard.^[14] On one level, the halakha is more expansive in its requirement to save people than U.S. law, since it extends the requirement to all other Jews, irrespective of one’s relationship with them—unless they happen to be the despised class of shepherd (whom the rabbis considered to be thieves, since they graze on other people’s farmland).^[15]

And yet, the halakha expresses a disdain for non-Jews (and shepherds!) that feels heartless, especially since the baraita strongly implies not merely that one need not save them, but that it would be better not to save them. This violates the principle of benevolence, the most basic ethical rule, namely, all things being equal, we should act in ways that benefit people (and animals). Isn’t saving the life of any innocent human being the right thing to do?

I remember reading that the young man who had the honor of driving my teacher, Rabbi Aharon Lichtenstein, found the task difficult since whenever they encountered someone pulled over to the side of the road, Rabbi Lichtenstein would insist that the driver stop, so that they could offer to help the distressed driver and passengers. Doing so for Jews fulfills a Torah commandment, but I suspect that Rabbi Lichtenstein did it for everyone. Here we are not talking about life-or-death, where such a blindness to religious difference would be even more laudable.

In contrast, in the baraita’s ruling, the rabbis are clearly giving vent to animus: they live in a time of persecution, when Jews are downtrodden, and thus, they wish to see their despised enemies dead. They also, apparently, strongly disliked shepherds, who would graze their animals on people’s farms, and extend this animus to them as well. Even if the law is more fantasy than reality—how many shepherds stuck in wells were encountered in the rabbinic period?—it is a low point for rabbinic legislation.

Those Whom We Push Into a Pit

The baraita’s second rule is even worse:

^{בבלי עבודה זרה כו:} אבל המינין והמסורות והמשומדין [נ"א: והאפיקורסין] מורידין ולא מעלין.

^{b. Avodah Zarah 26b} “…as for sectarians, informers, and collaborators [some texts add: ‘and heretics’], they are to be thrown into a pit, and [if they have already fallen in], are not to be lifted out.”

How do we understand what amounts to a requirement to murder Jews who participate with the non-Jewish authority in some way?

Consider what a community can do when ruled by a hostile power. People may need to keep secrets in order to survive. Some members of the community can gain—at a cost to other members of the community—by revealing secrets to the authorities. Tell where Anne Frank’s family survives in hiding, and a desperate person can get some boon from the government, even additional days of life. What can Otto Frank do to protect his family from the informer? Otto Frank can certainly not expect the government to help. Non-intervention, leaving the informer free to seek other information, seems like a deadly wrong decision. The informer can freely endanger others.^[16]

The Informer that Destroyed the Temple

The Talmud tells a story in which a Jew, angry at his community, attempts to get them in trouble with the Romans by having the Caesar send a sacrificial animal that is unacceptable according to Jewish law but acceptable according to Roman law. The rabbis consult with the leading figure, R. Zekharia ben Abkilus, on what to do:

^{בבלי גיטין נו.} סבור רבנן לקרוביה משום שלום מלכות, אמר להו רבי זכריה בן אבקולס, יאמרו: בעלי מומין קריבין לגבי מזבח!

^{b. Gittin 56a} The rabbis suggested that they should sacrifice the animal anyway, to maintain peace with the authorities. R. Zekharia ben Abkilus said to them: “But people will say, ‘damaged animals may be sacrificed upon the altar’!”

סבור למיקטליה, דלא ליזיל ולימא, אמר להו רבי זכריה, יאמרו: מטיל מום בקדשים יהרג!

They then suggested murdering [the troublemaker], so that he will not go inform the authorities [that the animal was rejected as a sacrifice]. R. Zekharia ben Abkilus said to them: “But people will say, ‘causing a blemish to a sacrificial animal is punishable by death’!”

According to the story, this act of informing is what brought down the wrath of the Roman Empire upon Judea. Thus, a later sage reacts to this account with a severe condemnation of R. Zekharia:

אמר רבי יוחנן: ענוותנותו של רבי זכריה בן אבקולס, החריבה את ביתנו, ושרפה את היכלנו, והגליתנו מארצנו.

R. Yohanan said: “The humility of R. Zekharia ben Abkilus destroyed our Temple, burnt down our holy place, and sent us into exile.”

But I believe that even the rabbis were not totally comfortable with their carte blanche requirement to push sectarians down the well and to leave gentiles to die there.

Being Like Joseph’s Brothers

The rabbis use saving people from wells versus pushing them as illustrative of what the rules should be for Jews encountering other people against whom they hold different levels of animus. Yet, of all possible scenarios, the rabbis chose the one that Joseph’s brothers did to him: they lowered him into the pit, and did not raise him from the pit. Passing Midianites raised him from the pit.

I have to assume that the rabbis who composed this text wanted us to think about that biblical story. Identifying the endangered person with Joseph makes those who decide to abandon or kill the person seem like Joseph’s cruel brothers, who will eventually regret their actions. The rabbis, thus, problematized the law with a biblical narrative that paints the opposite picture.^[19]

Evaluating the Moral Judgments of the Ancients While Trusting My Own

I have tried to explain various unethical rules in our tradition by imagining what realities and life experiences might have motivated them. In the end, however, I am ambivalent about how to explain these ancient passages, and I find that my attempts to imagine possible reasons allow me the distance to inhabit the morally superior position of judge over the ancients. I try not to be smug about this, but I fail.

Like many people, I tend to implicitly trust my own judgment in matters of morality, but there may be something chimerical in this. Even today, other people, who occupy the same cultural milieu as I, disagree with me about pretty basic ideas. I think that those people are wrong, and I find myself curious or even puzzled at how they arrive at their ideas.

I do not have that problem with my own ideas, of course, since they seem self-evident to me. And yet, I used to have moral ideas that I now recognize as misguided. I wonder why I thought those misguided ideas were right. Maybe I personally have progressed to a higher level of sensitivity. But if I have, perhaps I am destined to progress to an even higher level in the future, and then I will realize that the moral judgments that I now defend are wrong. I wonder which moral judgments that seem right to me now will turn out to be the ones I will have to repudiate.

In the end, I admit that I do trust my moral judgment; I do evaluate some moral stances as absolutely, hatefully, wrong. While I am certain—as certain as I can be—that any attempt to introduce these laws, even just as theoretical principles, into our modern world would be an unmitigated and abhorrent moral failure, I do not want to condemn the moral stances of the ancients absolutely, merely because I failed to imagine the circumstances that engendered them.

Not Enough Understanding or Too Much?

In her novel Corinne (1807), Madame Germaine de Staël (1766–1817) famously wrote “understanding everything makes you very forgiving” (tout comprendre rend très indulgent). But Rabbi Lichtenstein liked to quote her grandson, Jacques-Victor-Albert, 4th duc de Broglie (1821–1901), who answered with his own observation: “Beware of too much explaining lest we end by too much excusing.”^[20]

Possibly one can both sympathize with the unethical laws of the past, and condemn them at the same time; possibly if one sympathizes enough, one simply disagrees, rather than condemns. Graham Greene wrote that “hate was just a failure of imagination.”^[21] Sometimes people do hateful deeds because they cannot imagine the reality of their victims; sometimes a passage in Torah may seem ethically challenged to me because I do not understand ancient conditions; sometimes I condemn people because I fail to imagine their reality.

Have We Made Progress or Do We Just Live a Different Reality?

Maybe we have made progress over the centuries, and we should not expect people from the ancient world to have such finely developed moral sensibilities as we have now. Perhaps I, like many moderns, have more exalted moral perceptions than our ancestors had; perhaps we have progressed, and the generally accepted moral stances of my community have reached a new exalted level. If so, I rightly judge ancient texts as morally problematic.

Alternatively, maybe, living in a rich, powerful, country that fights its wars overseas, I have life experiences so different from those of our ancestors that I cannot really imagine their reality, even as I try to. Maybe where I sit determines where I stand, not one hundred percent, but more than I like to admit.