This week’s alumni Dvar Torah is by Tuvy Miller
Sanhedrin 71a cites Tannaitic positions in three contexts as declaring that a law in the Torah was never intended to be implemented. The first is Rabbi Shimon regarding the Rebellious son:
וכי מפני שאכל זה תרטימר בשר ושתה חצי לוג יין האיטלקי אביו ואמו מוציאין אותו לסקלו? אלא לא היה ולא עתיד להיות, ולמה נכתב – דרוש וקבל שכר
Because he ate a tartimar of meat and drank half a log of Italian wine, his father and mother take him out for stoning? Rather, he never was and never will be. So why was it written? Expound it and receive reward.
The other contexts are the ir ha-nidachat (idolotrous city) and bayit ha-menuga (“leprous” house).
R. Shimon’s position regarding the Rebellious Son has become a touchstone for discussions of morality and halakha. Did moral concerns motivate him to legislate the law of the law out of existence?  Those who oppose this reading of R. Shimon  often point to the bayit ha-menugah. There is nothing morally objectionable about it, and yet it is read out of existence! This proves that moral concerns are not necessary to achieve that result, and therefore perhaps the positions regarding ben sorer u-moreh and ir ha-nidachat were also not motivated by moral concerns.
Methodologically, this argument rests on solid ground. But it does not seem compelling enough to categorically reject the possibility  that we should instead look for a moral issue in the case of the bayit ha-menuga (BHM).  This perspective has not, to my knowledge, been adequately explored.
The Torah clearly limits the law of the BHM to the Land of Israel and to Jewish-owned homes. The former emerges quite clearly from the opening verses of the Torah’s treatment “when you enter the Land of Cana’an…” and is even clearer in the Tannaitic sources.  In that same verse, the word אחוזה is emphasized in relation to the land and ultimately to the house under discussion. This indicates an additional level of understanding-not only is this law limited to the Land of Israel, it is directly tied to Am Yisrael’s conquest and settling of the Land. 
The exclusion of non-Jewish homes derives from בית ארץ אחוזתכם, meaning that the homes must be Jewishly owned in order to become BHM. Based on Sifra and Vayikra Rabbah, Rashi adds a twist to this discussion that I believe will be crucial to our analysis:
ונתתי נגע צרעת – בשורה היא להם שהנגעים באים עליהם, לפי שהטמינו אמוריים מטמוניות של זהב בקירות בתיהם כל ארבעים שנה שהיו ישראל במדבר, ועל ידי הנגע נותץ הבית ומוצאן
This was an announcement to them that these afflictions would come upon them, because the Amorites concealed gold treasures in the walls of their houses during the Jews’ forty year sojourn in the desert and because of the affliction, they would tear down the house and find them (the treasures).
This explanation contends that BHM could only occur with a house that had previously been owned by non-Jews and presumably only as long as such houses existed in the land.  Ironically, even though such a house would generally not qualify as a BHM, once conquered it is the only structure that qualifies. 
Let us consider for a moment how the Tosefta’s assertion of לא היה ולא עתיד להיות would respond to this understanding of tsara’at. One might say that the two are incompatible because Rashi’s approach assumes as a matter of course that the Jews would actually find this gold, while the Tosefta believes BHM would never occur. Thus the Tosefta would likely not countenance Rashi’s conception of tsara’at ha-bayit. However, the Tosefta could claim that since we do not see instances where the Jews actually uncovered this gold, Rashi’s position is still tenable as a theoretical Midrashic explanation. If the Tosefta is motivated by some moral concern in asserting לא היה ולא עתיד להיות, then it would now have to maintain that within Rashi’s understanding. It is this possibility that I would like to further examine.
I contend that if faced with Rashi’s reading, the Tosefta would claim that the reason BHM “never was and never will be” is because it is inconceivable that, having ordered us to wipe out the Canaanite nations, the Torah would reward the Jews with their homes and possessions. In other words, while it may have been necessary, though not morally neutral, to attack these nations in order to take hold of the Land, the Jews had to remember the moral cost of what they had done and could not allow the newfound spoils to dim the memory of the battles. While the Jews would find booty upon their arrival, God did not want that to become the focus of the campaign, nor did He want it to derail the establishment of a just and moral society.
I would like to further elaborate upon this contention regarding an aversion to benefitting from the spoils of war to show that Tanakh’s perspective on this is complex. Throughout Tanakh, there are a number of instances where there are war narratives that discuss spoils, as well as some legal/philosophical sections. We will briefly examine several of them, though a more thorough analysis will be needed at a later date.
The first example in our exploration is the story of Avraham and the king of Sedom. After defeating the four kings, saving Lot and recapturing the spoils, Avraham and the king meet in what Humash calls “the valley of the king.” After Malki Tsedek’s enigmatic berakha, the king requests- “give me the people and take for yourself the spoils.” Avraham counters that he does not even want “a shoelace” lest the king say in the future, “I made Avraham wealthy.” On one level, this is a theological response, highlighted by the reference to God as koneh shamayim va-arets-Avraham wants everyone to know that his wealth comes from God, not a human king. This would be part of Avraham’s overall mission of keriah be-shem Hashem. However, there is an additional layer here quite relevant to our discussion. Were Avraham to accept the spoils, his wealth would forever be associated with this battle, giving the impression that this was perhaps the reason he went to battle in the first place. Avraham was justified in going to war but feared that if he collected the spoils, it would sully his mission of tsedek u-mishpat.
Later on in Tanakh, the Jews are faced with a similar situation when they prepare to re-enter the Land with Yehoshua. Unlike the Avraham episode which was a war of protection or self defense, the wars the Jews would fight were conquests. Already in Humash, God had made an allowance to take spoils from battles fought outside the Land, but when speaking about the conquest of Cana’an it is more ambiguous. By forbidding the Jews to take from the spoils of Yeriho, God sends a clear message- even if you will be allowed to take spoils in other battles, that is not the goal of this campaign and the booty cannot blind you to the complexity of what you are doing. That the example of Yericho is meant to impact future battles is clear because failing to heed God’s message leads to a breakdown of the campaign at the first battle of ‘Ai.
Perhaps one of the best sources to cite in opposition to our approach is the section in Bemidbar about the spoils from the war with Midian. The Humash goes to great lengths to describe the booty and how it must be divided and made fit for Jewish use, presumably indicating approval of its acquisition. However, upon closer reading it seems that this picture is not quite accurate. The soldiers were never told anything about the spoils before they went out to battle and from Mosheh’s fiery reaction upon their return, he clearly did not approve of what they had done, at least with respect to the human captives. Furthermore, the requirement to purify the captured items and to divide them up in a specific manner, including giving a portion to God, places further limitations on the unrestricted consumption of these spoils. It may very well be that the reason for all of this is in order to distance the Jews from the reminders of the corrosive Midianite culture, but it is also possible that God wanted the soldiers to understand that their unchecked grabbing of spoils was problematic. Once the booty had been collected it would have been difficult to take it away, but the limitations taught the soldiers that when Divinely ordained war leads to rampant plundering, the moral justification begins to erode.
The text that deals directly with conquest and militates against our perspective can be found in Devarim, immediately after the section containing the first paragraph of Shema. Mosheh tells the people that they will enter the land and find houses filled with good and fields overflowing with plenty, none of which are of their own making. Here, conquering the land seems to go hand in hand with taking the spoils of war. In fact, the “houses filled with good” could be read as an allusion to the gold in the walls.  He warns that they should not forget God at this time, and one reason he gives is that the Jews may become over indulgent, neglect their spiritual obligations and begin to drift towards ‘avodah zarah. However, there is a deeper element present here that indicates a different perspective. When imploring the people not to forget God, Mosheh reminds them that this is God who “took you out of Egypt, from the house of slavery.” This last part seems rather unnecessary, unless, of course, the Jews need to be reminded that the reason they were taken out of Egypt is to serve God through building a moral and just society in the Land of Israel.  This is further bolstered by the command to fear God which, in the Biblical context, refers primarily to behaving morally, as in the story of Avraham and Avimelekh, or in the retelling of the Amalek story later in Devarim. These two details indicate that while God realizes that spoils may be taken, that is not something that is morally neutral. It cannot become the basis for the society that we are creating, which must not be founded upon plunder, rather upon tsedek u-mishpat.
What we have seen in these examples is that in a number of cases, Tanakh’s attitude towards taking spoils is quite complex. While there is generally a recognition that Jewish armies may plunder, there is a clear message that it is not preferred and certainly is not the goal of the war. Furthermore, the story in Yehoshua and the text just examined teach us that such spoils may not serve as the basis for the society we are creating. The Jewish people are allowed to have a homeland, especially one to which they have ancestral rights. That acquiring this land will come through the loss of life is inevitable, maybe even justified, though still morally fraught. However, once the land has been acquired, every effort must be made to eschew the role of the victor and to build homes and fortunes that do not benefit from the spoils of the defeated. In this way, we will limit our triumphalism, always aware of the costs of our victory and ever vigilant to build a society that seeks to transcend that past of conquest in favor of a future filled with justice and righteousness.
 That he made the law halakhically inapplicable because of the immorality of killing a child for relatively benign actions. See Moshe Halbertal, מהפכות פרשניות בהתהוותן (Magnes 1997) and R. Ethan Tucker’s critique https://www.hadar.org/torah-resource/moral-revolution-or-complex-application. On ir ha-nidachat, see Ramah’s letter to the rabbis of Lunel about killing the children in the city (printed in the back of Yad Ramah on Sanhedrin).
 See R. Tucker pp. 18. See also http://www.torahleadership.org/categories/kiteitzeiben.pdf and http://www.torahleadership.org/categories/kiteitzeibensorer_2.pdf.
 A 3rd option would be that there are two distinct parts of the list, but this seems unlikely and is stylistically awkward.
 For the purposes of this discussion, I will accept Halbertal’s more radical reading of R. Shimon, insofar as we are testing its validity by questioning one of the primary counter-arguments against it.
 Sifra, Mishna 12:1
 This understanding is proffered in Sifra 5:3
לאחוזה עד שיכבשו מנין אתה אומר כיבשו אבל לא חילקו חילקו למשפחות ולא חילקו לבית אבות ואין כל אחד ואחד מכיר את שלו, יכול יהו מטמאין בנגעים תלמוד לומר ובא אשר לו הבית עד שיהא כל אחד מכיר את שלו
Compare to Shemot 12:25; 13:5, 11 and Vayikra 23:10; 25:2 where conquest does not obviously appear.
 At some point, the houses left by the Amorites would crumble and the Jews would live in houses of their own construction.
 Furthermore, and perhaps most radically, it presumes that tsara’at on a house does not signify any wrongdoing on the part of the homeowner, but is instead a harbinger of berakha. This is contrary to most Rabbinic understandings of tsara’at which view it as a punishment for slander or haughtiness, among other things. It is important to explore the implications of this new position, but it goes beyond our analysis here.
 Though the Talmud (Hullin 17a) assumes that this refers to the un-kosher foods the Jews would find and would be permitted to consume. On this, see Ramban on our pasuk and Rambam, Hil. Melakhim 8:1.
 See the numerous verses later in Devarim about the need to care for the unfortunate among us, specifically linked to our experience in Egypt.
Tuvy Miller (SBM ‘13) is in his second year of semikha at RIETS and works at SAR High School as a Beit Midrash Fellow