Torah from Heaven The Deliberately Flawed Divine Torah The Theology of the Halachic Loophole

Nathan Lopes Cardozo

vrijdag 28 oktober 2016

I believe that the Torah is min hashamayim (“from heaven”) and that its every word is divine and holy. But I do not believe that the Torah is (always) historically true (sometimes it seems like Divine fiction), or that it is uninfluenced by external sources. On top of this, I am reminded of the observation by the famous Chassidic leader Rabbi Menachem Mendel of Rimanov, who suggested that the children of Israel heard only the Alef of Anochi of the Ten Commandments, which means that they did not hear anything since one cannot pronounce the Alef! (1)

Nor do I believe that its laws, literally interpreted, are all morally acceptable. They are not. Rather, I believe that the Torah is often morally, deeply, and deliberately flawed, and that furthermore, God Himself intentionally made it flawed.

It is the latter issue that I will discuss in this essay. (2)

Far-fetched Arguments and Halachic Loopholes

My belief that the Torah is morally flawed is closely related to an altogether different topic: The “halachic loophole,” which Chazal and later poskim (halachic decisors) frequently used to solve halachic problems.

Many of these loopholes are legal fictions the Rabbis employed to deliberately ignore straightforward biblical pesukim (verses) or halachic standards. In doing so, they often made use of far-fetched arguments and twists that violated the very intent of these verses or halachic norms, and they seem to have done so with no compunctions and without it becoming a major issue. To the Rabbis, this method was seemingly a normal procedure whenever it was “convenient” to achieve their goals. To us, however, some of these loopholes are not only far-fetched but misleading, and seem like manifestations of trickery.

The Sages declared that the following Torah laws “never were and never will be”:
Ben sorer umoreh (the stubborn and rebellious son who had to be killed). (3)

Ir hanidachat (the subversive city, which had to be entirely destroyed because its inhabitants worshipped idolatry). (4)

In addition to this, they decided that lex talionis, the principle of “an eye for an eye,” meant financial compensation while the text does not even hint at this. (5)

To solve the problems of mamzer (a child born from an adulterous relationship) they invented mechanisms that the Torah never mentioned. (6)

There are numerous other cases. In all these instances, the Rabbis used arguments that are highly problematic and seemingly dishonest and deceptive. How did they do so with a clear conscience?

The Torah as a Divine Compromise

We believe that a profound reason stands behind the Sages’ willingness to adjust the Torah in this manner. While the Sages believed that the Torah is absolutely divine, (7) they did not see it as the final text or teaching. They realized that the Torah text was a stage in God’s plan at a particular moment in Jewish history.

Revelation is a response to the human longing for a relationship with God, thus, it can succeed only to the extent that human beings can relate to it. The Divine Will, therefore, is limited by what human beings are able to pragmatically and spiritually understand and accomplish at a given time and in a given place.

The Torah is anthropocentric while its aspirations are theocentric. In other words: While the Divine Will may want to accomplish the ultimate, it is constrained by the limitations of human ability. The Torah, then, is really a divine compromise, filtered through the mindset and mores of its intended audience. (8) It is therefore flawed in the sense that it must sometimes allow or introduce laws that are far from ideal but were the best possible option at the time they were revealed to the Jewish people, or like in other cases were never meant to be applied literally. (See later.)

Maimonides: The Outdated Nature of the Sacrificial Cult

One famous example is given by Maimonides, in his Guide of the Perplexed, regarding the sacrificial cult in the Tabernacle and later in the Temple. He suggests that the Torah carefully limited the already existing practice of sacrifice and kept it for the sole purpose of weaning the Jewish people away from the primitive rituals of their idolatrous neighbors. In other words, Maimonides believed that the sacrificial cult in Judaism was established as a compromise to human weakness:

For a sudden transition from one opposite to another is impossible. And therefore man, according to his nature, is not capable of abandoning suddenly all to which he was accustomed….Therefore He, may He be exalted, suffered the above-mentioned kinds of worship to remain, but transferred them from created or imaginary and unreal things to His own name…commanding us to practice them with regard to Him. (9)

To give the sacrificial cult a more sophisticated, dignified and monotheistic meaning, the Torah introduced many laws to refine this kind of worship. This would slowly move people towards being able to have it abolished altogether, which was the divine objective.

Still, the numerous and intricate sacrificial laws in the Torah, carefully detailed in the Oral Law, have tremendous symbolic and educational meaning far beyond the actual sacrificial deed. Many of them paradoxically make the worshiper sensitive to higher standards leading to genuine monotheism. (10) This means that while one should really outgrow the actual sacrificial deed, the many spiritual messages behind these laws remain relevant even to this day.

Hebrew Slavery

The same is true about slavery. The fact that the Torah tolerates slavery only means that it was not yet possible to completely abandon it. Former societies would not have been able to sustain themselves economically had slavery come to a sudden end. So the Torah introduced laws to make slavery – at least Hebrew slavery (11) – more ethical, by creating much better conditions for slaves, helping them to overcome their slave mentality, and giving them the opportunity to free themselves and start a new life. (12) Only at a later stage could slavery be eliminated altogether.

If the Torah Was Given Today Would It Have Laws on Slavery?

To take the point one step further, not only would the laws concerning sacrifices and slavery be totally abolished once the people outgrew the need for them, but they would actually not have appeared in the biblical text had it been revealed at a much later stage in Jewish history. (13)

This has enormous consequences for a proper understanding of what Torah, in essence, is all about. Just as slavery and the cult of sacrifices are compromises to human weakness would not have appeared in the text at a later stage, the same may be said for other problematic laws. (14)

But whether or how they would have appeared at a later stage would depend on the moral and religious sophistication of human beings, not on God. The more human beings purge themselves of earlier ideas and practices that still reflect primitive and amoral perceptions, the more the ideal divine law will be able to reveal itself. So the text of the Torah is human in the sense that it is the human condition that will determine what will appear in the divine text and what will not.

Humanity’s Innate but Inchoate Moral Intuition

But a person’s obligation is to aim for higher moral and religious standards. Because people are created in the image of God, they carry within themselves moral notions of the highest order, which are very close to God’s ultimate will. They may not be aware of them, since they remain subconscious at an early moment in Jewish history – such as at Mount Sinai – but at a later stage and throughout all of history, these moral notions slowly develop and come to the forefront. (15)

The Need to Disconnect from Torah

But developing these higher moral notions is possible only if the readers morally disconnect themselves from the biblical text when the text still represents lower moral standards. Would they constantly come back to the text, they would be unable to opt for higher moral and religious goals, since they would consider it to have the final word. The text would then become an obstacle, instead of a support system to achieve even higher levels of growth. So rather than the person following the text, the text should follow the person.

A Twenty-First Century Torah vs. a Three Thousand Year Old Torah

Were the Torah given today, it would not be the same text that God gave at Sinai. After all, over the many years people have developed a more sophisticated understanding of moral values. It is true that they have bitterly failed in living by those standards, but there is no doubt that humanity’s understanding of what morality should be is far more advanced than it was in the days of the Torah. The unconditional equality of all men, the dignity of all women, Jews and non-Jews are but a few examples.

Yet the drive to reach for these higher levels is inspired by the Torah’s introducing such laws as Love your neighbor as yourself, and laws that call for sexual restraint, the wellbeing of the stranger, respecting human dignity, and many others. The Torah gave people a taste of how things really should be. By doing so, it has greatly contributed to the ongoing development of many other values, some of which are not even mentioned in the Torah.

The Paradox of the Torah’s Ethical Charge

Sometimes the Torah’s laws reflect the highest standards, and sometimes they do not. Too much “theocentric” legislation at once would probably have been impossible to accept by a society that was still rooted in conditions so at odds with those standards. The resulting Torah is, thus, a paradoxical mix of sublime divine ideals and primitive human necessities.

By sustaining this paradox, the text created a vision and aspiration in stages. It gave human beings a feeling of how things should really be, while not yet asking them to go all the way. It reveals an understanding, as Maimonides teaches, that such changes need time to reach human beings, since a person cannot make a “sudden transition from one opposite to another.”

The Sages’ Responsibility to “Update” the Text

It is here that one of the most far-reaching ideas in Judaism appears. Instead of God constantly upgrading the text to higher standards according to human capabilities, and giving the Torah over and over again, God left it in the hands of the Sages.

After laying the foundations, God asks the Sages to become partners in the creation of the Torah, (16) in the sense that humans would now be able to develop it to even higher levels. Just as in the creation chapter (Gen 1), God provides the main ingredients and then asks humanity to fashion the world and improve it, the Torah is presented as the main ingredient that the Sages must engage with and improve. The text was meant as a point of departure, not as an arrival, (17) and the Sages are the ones required to adapt the text.

Changing the Laws without Changing the Text

The Rabbis’ divine mandate to update Judaism and keep its moral development on target was not to be accomplished by changing the “underdeveloped,” compromised, and flawed divine wording itself but by their interpretation of the Torah text, or by advancing ideas and even laws that sometimes required drastic changes, which violated the literal meaning of the verses. That they were willing to do so is now obvious. They felt obligated to do so, since this was the very intention of the text. The divine but flawed text asked of humans to go beyond it and sometimes even ignore it. The text demanded its own fundamental renovation.

Four Examples of Rabbinic Updating

Let us return to the four examples with which we opened the piece:

A. Ben Sorer u-Moreh (Rebellious Son)
The Torah commands that a stubborn and rebellious son must be put to death. The rabbis were of the opinion that this law could never have been enforced, since it completely violates the moral spirit of the Torah, even by its lower standard at Sinai. They therefore declared that such a law is only theoretical: “There never was a stubborn and rebellious son, and never will be.” (18) Its message was purely educational. There are many important lessons to be learned from this so-called commandment, but that it should actually be implemented is not one of them. (19)

To get rid of the law, the Rabbis started reading the text so literally, using every means of deduction and legal hairsplitting, that it became totally impossible to enforce the law. So, for example, the rabbis interpret the phrase “he doesn’t listen to our voice” in Devarim 21:20 to mean that the father and mother must speak in the identical voice, (20) a state of affairs that is all but physically impossible. They then add for good measure that the parents must also be the same height and have the same face. (21)

B. Ir Hanidachat (the Subversive City)
The second, and perhaps most radical, example of how far the Rabbis were prepared to go is the case of ir hanidachat,(subversive city) regarding which the Sages used a very far-fetched argument to abolish this biblical law for the sake of a higher morality. Here, too, they were convinced that “there never was a condemned city and never will be,” and the law was meant only to convey some important lessons. (22)

It is most ingenious how the Sages justified this ruling. They argued that it was impossible to destroy the entire city, since no doubt there must have been mezuzot on the doorposts of some of its inhabitants. (You can be a Jewish idol worshipper, but what Jew doesn’t have a mezuzah on their doorpost?) Since it is forbidden to destroy the name of God, which is found in the mezuzah, and everything in the city had to be utterly destroyed, the law of ir hanidachat could not be enforced and was meant to be purely theoretical.

That the mezuzah could be removed before the city would be destroyed was something the Sages did not want to contemplate! They must surely have been aware of this possibility. But since they believed that God could never have meant this law to be applied, they found an extremely far-fetched loophole and based their whole argument on a minor detail, which they could easily have solved and which they knew made little sense. It was deliberate trickery rooted in an unequalled moral awareness. (23)

C. Lex Talionis (Eye for an Eye)
Another case is lex talionis, the law of “an eye for an eye.” This law was understood by the Rabbis to be purely symbolic, since it was impossible to enforce in a way that could be justified. (How could one person’s eye ever be equal to someone else’s?) They therefore felt obligated to interpret the true meaning of this law as financial compensation. (24) It was written as “an eye for an eye” to emphasize that ideally a person should give their eye to the one whom they blinded. (25) Surely, such a thing was not possible, but the point was made! (26)

D. The Mamzer (Bastard)
A most striking case, which shows how far the Sages were prepared to go in finding loopholes, is the mamzer (a child born from an adulterous relationship). Since the Rabbis (according to our theory) considered both this law to be flawed, perhaps a relic of a primitive society, which the Jews at the time were not yet able to dispense with, they argued that they were obliged to at least limit their damage until the day when they could be abolished altogether. This, after all, was exactly what God and the Torah desired. (27)

Ideally, the Torah does not want such a law to apply, since it violates its spirit, according to which no one may ever be punished for another’s transgressions or become the victim of a malicious husband. (28) Why punish children for the sexual misconduct of their parents?

Still, the Rabbis believed that for the meantime, the law had meaning and was a very strong warning against sexual offenses. As such, the “flaw” did not yet have to be completely abolished but had to be amended in such a way that it would nearly never apply, although it was clear that at a still later stage it would need to be altogether abolished. (29)

There was no way, however, to reinterpret the text in order to accomplish this temporary goal, so another device had to be found. The Sages invented a mechanism that was so “out of the box,” one can only stand in awe of their courage. They decided that the legality of any marriage was not contingent on any action taken by the husband and wife, or even on the rabbi who married them, but only on their (the Sages’) agreement to this marriage. If they no longer approved, they simply declared the marriage null and void. (30) While they seldom made use of this principle, they did if they felt it would help a mamzer out of his or her unfortunate status.

A Trickery Reflecting the Torah’s True Values

The Sages didn’t see any of these interventions as trickery but as a way of achieving the higher objective of the Torah. (31) They believed that the Torah was completely divine but also flawed and that it was their task to refine it and to bring it to the level that God had intended. This, I believe, is the secret behind the halachic loophole and the divinity of the Torah.

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

(2) 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.

(3) Devarim 21:18-21; b. Sanhedrin 71a.

(4) Devarim 13:13-19; b. Sanhedrin 71a.

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

(6) See b. Ketuvot 2b-3a; b. Gittin 32a.

(7) 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).

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

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

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

(11) 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."

(12) 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."

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

(14) 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.

(15) 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.

(16) See Seder Eliyahu Zuta 2.

(17) See Maharal, Tiferet Yisrael, Ch. 69.

(18) b. Sanhedrin 71a.

(19) 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.

(20) b. Sanhedrin 71a.

(21) This was taught too in a Braita: If a boy’s mother was not similar to his father in voice, in appearance and in height, he can’t become a “rebellious son”.
What is the reason for this requirement? Because it says in the Torah: “He does not hearken to our voice.” This teaches us that the parents must have a similar voice.
And from that fact we also induce that they must have a similar appearance and their height must also be similar.

(22) Ibid.

(23) 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!

(24) b. Bava Kamma 83b-84a.

(25) 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.

(26) 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!

(27) 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. Yevamot 78b; 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.

(29) See end of note 21.

(30) 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.

(31) 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).

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