This week’s alumni Dvar Torah is by Rabbi David Fried
Near the beginning of Parshat Ki Teitzei, we read the section of the ben sorer u-moreh (the wayward and rebellious son). The notion of executing an adolescent boy for what amounts to a number of misdemeanor offenses can be unsettling to the modern reader, and was no doubt to the ancient reader as well. (After all, no one else in the Torah is executed for so minor an offense.) Many like to take solace in the Gemara’s statement that “the ben sorer u-moreh never was and never will be” (Sanhedrin 71a). A morally problematic law is far less problematic when we are assured it has never and will never be put into place. Ironically, both lamdanim and academics like to latch on to this explanation, each for their own reasons: The lamdanim to promote the value of purely theoretical Torah study and the academics to promote the idea of “Rabbinic nullification,” the claim that the rabbis have the power to intentionally darshen out of existence any law they find morally problematic (often with the implication that today’s rabbis should do the same).
The problem with hanging our hats on “it never was and never will be” is that if one examines the Talmudic passage that says it, it very much appears to be a minority opinion. There is an anonymous beraita that makes such a statement about three different laws in the Torah (ben sorer u-moreh, ir ha-nidachat—the entire city that turns to idolatry, and bayit ha-menuga—the leprous house). In each of the cases, the Gemara ascribes the statement to the opinion of a lone tanna, whose definition of the relevant categories in each of the cases are so precise as to render the likelihood of an actual case occurring virtually impossible. In ascribing the statement to a lone tanna, the implication is that the other tannaim did not have such strict requirements. Indeed, in each of the cases, the Gemara’s discussion ends with quoting someone who says they actually saw the thing happen. Furthermore, in each of the cases, the Rambam rules against the opinion that the Gemara associates with the statement of “it never was and never will be.” It seems clear that the Rambam read “it never was and never will be” not as an endorsement of the tactic, but as a reductio ad absurdum. God does not give us laws that will never be practical. If God just wanted to teach us some theoretical lesson, God could have found another way to do so. An interpretation of a divine law that renders its application impossible is a prima facie basis for rejecting that interpretation.
Without “it never was and never will be” at our disposal, we are forced to grapple with the actual moral implications of this law. Indeed, the Mishnah already attempts to grapple with this, explaining that the ben sorer u-moreh is “judged based on his end” (Sanhedrin 71b). Someone who is already stealing at age 13 to feed his addiction to meat and wine will no doubt eventually come to murder over it, so we execute him now before he has a chance to commit the murder. Now, this is still a rather unusual explanation. We do not generally execute people for crimes they have not yet committed. To help us understand this, the Mishnah (Sanhedrin 72a) quotes another example of someone who is “judged based on their end.” If one person is pursuing another to murder them, they may be killed to protect the intended victim. Is this not a clear example of killing someone for a crime they have not yet committed? What is the ben sorer u-moreh but an extended pursuer? If we know for a fact that someone’s life is in danger (even if, as in the case of the ben sorer u-moreh, we don’t know who), we have a right to kill the assailant, even far in advance.
Or do we? The Gemara, on Sanhedrin 74a, records the opinion of Rabbi Yonatan ben Sha’ul that one may not kill a pursuer if it is possible to save the intended victim without killing them, e.g. if one can save the victim by injuring a limb of the pursuer instead of killing them. (While not everyone agreed with this opinion, it is clear that it is the accepted opinion le-halakhah—see Shulchan Arukh Choshen Mishpat 425:1.) What would it mean to apply this limitation in the case of ben sorer u-moreh? The Gemara (Sanhedrin 71a) offers a second possibility for what the beraita could have meant when it said “the ben sorer u-moreh never was and never will be.” In this possibility, the basis for the beraita was not in the technical details of the law of ben sorer u-moreh, but in human psychology. “Rabbi Shimon says: Just because he ate a tarteimar of meat and drank half a log of Italian wine, his parents are going to take him out to be stoned?!” Rabbi Shimon highlights that in order to prosecute anyone as a ben sorer u-moreh the parents have to be willing to press charges. Sadly, I’m sure we’ve all read stories in the news of parents who have murdered their children, but aside from these extraordinarily abusive exceptions, it seems like a fairly good assumption that the vast majority of parents are not going to press charges to get their son executed, even if he is somewhat delinquent. If we read Rabbi Shimon’s statement in the context of the law of the pursuer, however, there may be more to it than this. It is not merely about a parent’s love for their children. Pressing charges on your son as a ben sorer u-moreh is to totally give up on him. It is to say, “I am so certain my son will grow up to be a murderer that the only way to protect their future victims is to kill him now.” If you believe there is any way your son might be turned away from this life of crime without killing him, it would not merely be undesirable to press charges, it would be forbidden. This approach, I believe, gives us a healthier way to navigate Torah laws that we find morally challenging. We cannot turn the “the Rabbis” and expect them to wave some kind of formalist wand to make them disappear. That would be substituting their judgment for God’s judgment. If God gave us a law, we must have faith that in at least some instances, it is the right thing to do, even if those instances may be rare. What we can do is work on our own morality; work on making sure we never give up on any child; work to ensure that we build a society where the kind of circumstances that call for such an unpleasant consequence never arises.
Rabbi David Fried (SBM ‘10) teaches Judaics at the upper division of the New England Jewish Academy (NEJA) and is an editor at theLehrhaus.com.
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