Parshat Ki Tetze
by Rabbi Avi Billet
From the one time in Re’eh to the three times in Shoftim to the five times in Ki Tetze, the Torah tells us nine times to eradicate evil – “Uvi’arta hara” – from either amongst you, or amongst all of Israel.
It would seem that in most of these cases, as well as others in our parsha, the Torah is advocating for a death penalty kind of punishment for those who are either guilty of a crime, or are in violation of a mitzvah.
Most people I know would have much less of a problem with capital punishment for truly evil people, such as murderers and terrorists. This is likely true in times of peace, but is even more true during times of war when the swift justice of war eradicates evil people.
But for sinners?
We are all sinners! Why would we advocate for these death penalty punishments, or any kind of corporal punishment, when the laws which trigger these punishments are so easily violated? I have seen Sharia law advocates explain that the law is meant to be a deterrent, and that the message of “they will hear and they will fear” will serve as the inspiration to create a moral society as we weed out the bad apples among us. Even if this works in theory, the lack of compassion, and the lack of a soul in the hands of the executor of "justice" is so anti the civil society we have accepted as tolerant and (acceptably) liberal.
The problem with applying the literal presentation of the Torah's laws in our parsha as "the way the Jewish society was" is that the court system always required witnesses and warnings. And if the warning was not issued in the proper fashion (let alone if it was not issued at all), or if there were no witnesses, or if the witnesses did not fit the necessary criteria or were somehow disqualified (such as if they were related to one another or to one of the claimants), the court case is more of a spectacle than an effective system of punishment. The corporal punishments the Torah describes are immediately thrown off the table.
Understanding to which crimes and sins specific punishments were appended requires a careful reading of Devarim chapters 17-24. But all of the cases in question come with Talmudic caveats. The rebellious son never existed. The betrothed daughter at that specific age was never unfaithful. Warnings. Witnesses. Etc.
How then is a just society created if the court system has its hands bound and can’t carry out the law?
Two elements come into play in a society living under God. Firstly, monetary cases are decided by the courts. Documents always had to have witnesses. Legal jargon may not have been what it is today, but the paperwork was there. And courts could decide between he said-he said cases, even in the absence of witnesses.
The other element is God’s role. The God fearing individual reads the Torah, understands the gravity of the worst sins described in the Torah, and makes a conscious choice not to violate, and to otherwise live a holy existence, to the best of one’s ability.
Otherwise, between the punishment known as “kares” (which has many possible manifestations) and “misah bidei shamayim” (death at the hands of heaven), the courts would put certain punishments in the hands of Heaven. Imagine the otherwise guilty party (minus the necessary proof to actually convict) walking out of court with the judges saying, “Good luck because you’re going to need it. God is going to get you.”
What will it take? A car accident? A slip and fall? A heart attack? Or, in those days, perhaps getting gored by an animal running amok? Precisely.
I am not suggesting that the victims of tragedies like these in our day are being punished for indiscretions. Even if they were guilty of certain sins (after all, aren’t we all?), in most cases it was private, and it was certainly never adjudicated in court. More likely they were not even remotely guilty of the sins of the magnitude described in our parsha. How then do we explain why tragedy struck?
We can’t. And those who think they know the answers are fools and should be shunned. Sometimes we don’t know and can’t understand the ways of God. Saying things like “it was his time” and “God wanted it this way” are the wrong things to say to people who are filled with questions.
Two final points. I read an opinion piece in Haaretz this week that suggested that as we have evolved from the punishments described in the Torah and no longer practice “an eye for an eye” and capital punishment, we should also consider getting rid of Bris Milah, as the author suggested, “Ritual circumcision is the only act of physical harm that remains.”
The author’s misunderstanding of the corporal and capital punishments aside (most of which were either monetary compensation to victims or impossible-to-enforce capital punishment), he completely misunderstands what Bris Milah is all about. The Covenant is not viewed as a punishment. It is a gift from God. The act of circumcision is an act of faith that has been adequately addressed by Rabbi Akiva almost two thousand years ago. (Midrash Tanchuma Tazria 7)
Finally, we are to understand that as much as society “evolves” the Torah’s truths remain. The punishments described for the heinous crimes and sins are meant to illustrate just how badly these specific violations tear apart the fabric of our Torah-guided society.
Our goal is to weed out sinners. And we do that through educating sinners not to sin. May we all become experts in Torah knowledge so we can not only continue to enhance our wonderful society, but be a light to the world for how to treat our fellow man.
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