The Talmudic Case of the “Wayward and Rebellious Son”

A brief passage in the book of Deuteronomy presents the law of the “wayward and rebellious son,” whose parents may bring him before the elders of the city and testify to his bad behavior; after which the elders can sentence him to death by stoning. In the Talmud’s view, this punishment is justified because it prevents this child from growing into an adult who will commit truly heinous crimes; if executed now, “he will die innocent rather than die guilty.” The talmudic sages then go on to impose restrictions on who qualifies for this punishment: there is only a three-month age range during which the child is liable; he must demonstrate that he is, in the Torah’s words, “a glutton and a drunkard” by eating raw (or very rare) meat and drinking Italian wine; he must buy these foods with money stolen from his parents. But, writes Adam Kirsch, the rabbis don’t stop there:

[T]he clearest sign of the rabbis’ intention in introducing all of these qualifications comes in Tractate Sanhedrin 71a, where Rabbi Yehudah says: “If his mother is not suited for his father, he does not become a wayward and rebellious son.” According to the [later talmudic sages], what this means is that “if his mother was not identical to his father in voice, appearance, and height, he does not become a wayward and rebellious son.” Since no two people are ever identical, much less a husband and wife, it is apparent that the rabbis actually want to make the Torah law unenforceable. Finally, the [text] says so explicitly: “There has never been a wayward and rebellious son and there never will be one in the future.”

Here we come to the core of the issue. The Talmud has essentially canceled a provision of the Torah. But if the Torah is God’s word, by what right can the rabbis do this? The answer is that they do not believe, or admit, they are introducing any novelties into the law. Rather, they are explicating what the law always meant, and so there is no actual change in Jewish practice. No wayward and rebellious son ever existed in the past, which is why none will ever exist in the future.

But if that is so, then why did God put this law in the Torah in the first place? “Why was it written?” the Talmud asks, and gives a wonderful reply: “So that you may expound and receive reward.” Living by the law is one thing, and it is required of every Jew; but studying and analyzing the law is the real glory of Judaism. Indeed, God makes unenforceable laws simply so that scholars can analyze why they are unenforceable! If someone asked me for a talmudic passage that encapsulates the ethos of rabbinic Judaism, I think I would choose this one, in all its mercifulness, ingenuity, and love of thinking for its own sake.

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Read more at Tablet

More about: Deuteronomy, Halakhah, Judaism, Religion & Holidays, Talmud

Reforms to Israel’s Judiciary Must Be Carefully Calibrated

The central topic of debate in Israel now is the new coalition government’s proposed reforms of the nation’s judiciary and unwritten constitution. Peter Berkowitz agrees that reform is necessary, but that “the proper scope and pace of reform, however, are open to debate and must be carefully calibrated.”

In particular, Berkowitz argues,

to preserve political cohesiveness, substantial changes to the structure of the Israeli regime must earn support that extends beyond these partisan divisions.

In a deft analysis of the conservative spirit in Israel, bestselling author Micah Goodman warns in the Hebrew language newspaper Makor Rishon that unintended consequences flowing from the constitutional counterrevolution are likely to intensify political instability. When a center-left coalition returns to power, Goodman points out, it may well repeal through a simple majority vote the major changes Netanyahu’s right-wing coalition seeks to enact. Or it may use the legislature’s expanded powers, say, to ram through laws that impair the religious liberty of the ultra-Orthodox. Either way, in a torn nation, constitutional counterrevolution amplifies division.

Conservatives make a compelling case that balance must be restored to the separation of powers in Israel. A prudent concern for the need to harmonize Israel’s free, democratic, and Jewish character counsels deliberation in the pursuit of necessary constitutional reform.

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Read more at RealClearPolitics

More about: Israel & Zionism, Israeli Judicial Reform