The Deliberately Flawed Divine Torah

Mentioned in Rabbi Naftali Zvi Horowitz of Ropschitz, Zera Kodesh (Jerusalem, 5714), Parashat Yitro.

The following was inspired by the writings of Rambam, Maharal, Rabbi Eliezer Berkovits z”l, Jewish Women  in Time and Torah (Hoboken, NJ:  Ktav, 1990);  Professor Tamar Ross, Expanding the Palace of the Torah,(Waltham, MA: Brandeis University Press,2004);  Rabbi   Nahum L. Rabinovitch, The Way of Torah   The Edah Journal 3.1 (2003);  Donniel Hartman’s Putting God Second: How to Save Religion from Itself (Boston: Beacon Press, 2016)  and many others. Special thanks to Yehudah Ber Zirkind for his learned advice and many thanks to Channa Shapiro of Jerusalem for her editorial advice. The ideas expressed in this essay are solely mine. 

 Devarim 21:18-21; b. Sanhedrin 71a

 Devarim 13:13-19; b. Sanhedrin 71a

 Shemot 21:24; Vayikra 24:20; Devarim 19:21; b. Ketubot 32b; b. Bava Kamma 83b

See b. Ketuvot 2b-3a; b. Gittin 32a. 

See, however: Marc B. Shapiro, The Limits of Orthodox Theology: Maimonides’ Thirteen Principles Reappraised (Oxford & Portland, OR: The Littman Library of Jewish Civilization, 2004) Ch. 7; also, Rabbi Dr. Yehuda Brandes, Dr. Tova Ganzel, and Dr. Chayuta Deutsch, Be’einei Elohim Ve’Adam: Biblical Criticism and the Person of Faith [Hebrew] (Jerusalem: Beit Morasha, 2015).

See Donniel Hartman’s Putting God Second: How to Save Religion from Itself (Boston: Beacon Press, 2016), Ch. 5.

Maimonides, The Guide of the Perplexed, vol. 2, tr. by Shlomo Pines (Chicago: University of Chicago Press, 1974) 3:32

See, for example, the commentaries of Don Yitzchak Abarbanel and Rabbi Samson Rafael Hirsch on Vayikra. 

The case of a non-Jewish slave is different. In my opinion, this institution, as well, was meant to be temporary and to be eventually abolished – as, indeed, it was. Editor’s note: See discussion in James Diamond’s TABS essay, “The Treatment of Non-Israelite Slaves: From Moses to Moses.”

See Shemot 21: 1-11; Kiddushin 15a, 16b-17b; Bava Metzia 31b. Editor’s note: The biblical texts emphasize the moral struggle behind the attempt to coerce owners to free their Jewish slaves. See discussion in Marvin Sweeney’s TABS essay, “The Bible’s Evolving Effort to Humanize Debt Slavery.”

Or, they would still appear but in a different schema, in which only the moral lessons could be learned.

I refer here only to moral laws, not to Shabbat and other rituals, since the latter topics touch on the relationship between God and man. For a discussion of a change in all of the laws, including laws such as Shabbat, see my books: The Torah as God’s Mind: A Kabbalistic Look into the Pentateuch (Jerusalem: Bep-Ron Publications, 1988) and Between Silence and Speech: Essays on Jewish Thought (Northvale, NJ & London: Jason Aronson, 1995) Ch. 7.

In truth, the very existence of the Jewish people is a compromise to human weakness. When looking into the stories of the Flood, the Tower of Babel, and the birth of the Jewish people starting from Avraham’s family, we clearly see that the ever-widening scope of corruption caused God, as it were, to no longer expect all of humanity to live by the moral heights. Instead, He charged Avraham and his family with the task of becoming an example from which others would learn. This ultimately led to the creation of the Jewish nation as a chosen people. Had mankind behaved morally, there would have been no need for such a nation and the Jewish people would never have emerged. See my book Between Silence and Speech, Ch. 3. 

See Seder Eliyahu Zuta 2.

See Maharal, Tiferet Yisrael, Ch. 69.

b. Sanhedrin 71a.

See Maharasha (ad loc.) and Keli Yakar to Devarim 21;18. It is interesting to note Rabbi Yonatan’s statement (Ibid) that he sat on the grave of a rebellious son, indicating that the law had at some time been executed. This may reflect an earlier, more primitive understanding of the text that may have been as a result of laws that were practiced in other cultures, in which children were severely punished for not listening to their parents. It also seems to indicate that parents were actually willing to bring their children to court to have them killed, something the Talmud regards with extreme aversion. But in a society that in earlier days even practiced child sacrifices, anything could happen. 

b. Sanhedrin 71a.

תניא נמי הכי, 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.

 Ibid.

Here, too, Rabbi Yonatan (Ibid.) maintained that he sat on the ruins of such a city and the mezuzot must have been removed beforehand. His arguments in both of these cases seem to be far-fetched, since the Sages must have known about such incidents. Either they were in denial about them or they wished to be in denial, so as not to undermine their viewpoint that these laws never did and never will apply!

b. Bava Kamma 83b-84a.

Maharal, Gur Aryeh, Vayikra, 24:20. It is not entirely clear whether Maharal sees this as a punishment, or as a way of healing the victim.

b. Sanhedrin 71a. One wonders whether nowadays with our advanced medical experience, it would indeed be mandatory to give one’s eye to the person whom he or she injured! 

Perhaps this has to be done in stages: First by stating, for example, that the law of the mamzer was only applicable to the child of such an adulterous marriage but not to its offspring, unlike today’s law that says all the offspring are forever mamzerim. See b. Yevamot78b; Sifrei Devarim 23:3, 249; Mishneh Torah, Hilchot Issurei Biah 15:1; Shulchan Aruch, Even Ha-Ezer 4:1. Then, at a later stage, it would be abolished entirely. See the opinion of Rabbi Yosi that in the days of the Mashiach (messiah) all mamzerim will be purified and permitted to marry freely, a clear indication that they saw this law to be temporarily applicable (Tosefta Kiddushin 5:4; Kiddushin 72b).

[28] Devarim 24:16; Melachim 2, 14:6; Divrei HaYamim 2, 25:4. See, however, Shemot 20:5, 34:6; Bamidbar 14:18; Devarim 5:9. The Sages have attempted to resolve this contradiction in several ways. See b. Berachot, 7a; BT Sanhedrin 27b; and Midrash Aggadah (Buber) on Shemot 20:5.

See end of note 21.

See Encyclopedia Talmudit, vol. 2, pp.137-140, s.v. “afke’inho rabbanan le-kiddushin minei.” See the famous teshuva of Rabbi Shalom Mordechai Schwadron, Teshuvoth Marsham (Warsaw, 1902), Vol 1, responsum 9. See also the Collected Responsa of Rabbi Yitzchak HaLevi Herzog, Even Ha-Ezer vol 2, (Jerusalem, 1967) no. 17-19, pp. 74-82.

Also in the case of the biblical commandment to destroy the nation of Amalek and the seven nations of ancient Canaan at the time that Joshua conquered the land, the Sages found ways to nullify this law and declared it inoperative by claiming that these nations no longer exist. (See Mishnah Yadayim, 4:4; Mishneh Torah, Hilchot Melachim 5:4  and Minchat Chinuch by Rabbi Yoseph Babad, Mitzvah: 604.) However, the biblical text indicates that these nations once did exist and were partially destroyed – including women and children – by the Israelites. We have to wonder whether these stories really happened or whether they are purely figurative. Or, that perhaps only the males were killed. Most interesting is the observation in Yoma 22b where Rabbi Mani states that King Shaul argued with God why the Amalekite children had to be killed for the sins of their fathers. King Shaul argued with God as Avraham did when God wanted to destroy Sedom and Amora (Bereishit 18:20-33).