Kafka: Foran Loven -  hypertekstualiseret af Elias Ole Tetens Lund

If it will never happen, why write it ?
By Rabbi Yaakov Beasley

A. INTRODUCTION

Parashat Ki Tetze brings Moshe's recounting of the Torah's commandments to a glorious climax. 74 separate mitzvot, covering labor and building laws, rules of warfare, respect for  the deceased, responsibilityfor the property of another, the stringencies of the sexual morality demanded of the Jew – these are but a sample of the broad scope covered in this section. However, several laws go far beyond the expected level of responsibility – that a person is accountable for his/her actions – and greatly expand the level of responsibility the Torah demands of a Jew. At the end of the previous parasha, we encountered the section of the 'eglah arufah' – the sacrifice offered by the city's elders, who claim that they did not shed the blood of an innocent wayfarer found in proximity to their village. The commentators explain that the Torah never suspected them of actually killing the traveler; instead, the Torah equated the passive failure to provide lodging and shelter for the stranger with the active committing of murder.
In our parasha, we see the scope of responsibility extended even further. Having seen that the Torah not only requires us to behave in a proactive manner, holding people accountable for failing to ensure the wellbeing of others, the Torah then lists a commandment that holds people accountable not for their present actions, but for the possibility that those actions foretell delinquent behavior in he future. After discussing the law of the beautiful captive and how she is to be treated, and then how a person married to two wives should behave in apportioning his property, the Torah describes the treatment and punishment that is meted out to the stubborn and rebellious son – the ben sorer u-moreh. The parents of this rebellious child are to bring him to the court, where, upon declaring that "he is a glutton and a drunkard,"the community is to stone him. As loathsome as overeating and excessive drinking are, they are not capital crimes. Instead, as the Ramban points out, the son was executed because he was likely a potential criminal and his death would deter others from following in his path.

The Talmud states that "having disposed of all of his father's possessions, he will go to the crossroads, lie in wait, and rob people in order to support his habit." The Ramban lists four similar cases where a person is condemned to death not due to the severity of his actions, but to serve as an example to others. In all of these matters, the Torah states, "and all of Yisrael will hear and they will fear" – stressing that the purpose of applying capital punishment is for the reaction that it will provoke. The four places where the Torah declares, "and all of Yisrael will hear and they will fear" include: a) our section; b) the meisit (instigator) – a person who attempts to get others to worship idols, who is killed even if he is unsuccessful in his efforts (Devarim 13:7-12); c) eidim zomemim (scheming witnesses), who tried unsuccessfully to have the courts kill another; and are killed to dissuade others from testifying falsely (19:15-21), and d) the zaken mamre (rebellious elder), whose refusal to accept a majority ruling against his views by the High Court, though not worthy of the death penalty in its own right, definitely encourages disputes and weakens the judicial body’s standing among the people (17:8-13).

B. WHAT IS A REBELLIOUS SON?


What does it mean to be a ben sorer u-moreh? Rashi, based on the Sifri, states that the son turns away both from the Torah (sorer) and the words of the prophets (moreh). The Ibn Ezra provides a more expansive definition. He understands 'sorer' as rebelling against God, and 'moreh' as rebelling against his parents (provided they themselves are God-fearing). He then suggests that 'sorer' refers to the failure to perform the positive commandments, while 'moreh' implies that he violates the negative ones. Later on, the Ibn Ezra describes him as a heretic, who is solely involved with seeking the pleasures of this world.
The Abrabanel adds one more dimension to the severity of the ben sorer u-moreh's actions. While 'sorer' implies that the son has strayed from the proper path, 'moreh' entails teaching others to sin. According to this approach, it is only once the child becomes a negative influence upon others that we consider his failings to be worthy of capital punishment. In defining the extent and limitations of the laws of the ben sorer u-moreh, the Talmud (Sanhedrin 71a) states that the child is not considered liable until he has stolen his father's property in order to acquire a tartimar of meat to eat, and a log of Italian wine to drink. The  Halakha places further restrictions upon the ben sorer u-moreh so as to make the application of the law extremely unlikely, if not impossible. The rules only apply with the first three months after the child has reached halakhic manhood; both parents must be living and willing to press charges; neither parent can be deaf, lame, nor missing a limb; they must speak with the same voice and have the same appearance; the boy must steal the meat and wine from his father's house, yet consume them elsewhere in the company of worthless individuals, in order for him to be convicted. According to the Tosefta Negaim, this law is not in effect in Yerushalayim.
(The Meshekh Chokhma suggests that this is due to the continuous eating of so many sacrifices and offerings, as well as ma'aser sheni – the second tithe – within Jerusalem; consumption within the city, since it is performed for mitzva purposes, cannot be considered gluttony.) These are only a few of the numerous restrictions and limitations that apply before a boy can be judged as a ben sorer u-moreh, ensuring that the actual application of the law was extremely rare.


RATIONALE


Several Talmudic opinions (Sanhedrin 71), having studied the above limitations, conclude that the case of the ben sorer u-moreh "never occurred and never will occur." According to them, the sole purpose of having this section in the Torah is to learn the laws and provide a reward for those who do so. R. Yehuda suggests that given the stringencies and limitations listed above (according to him, the mother must be identical to the father in voice, appearance, and height – something that is impossible), the law can never be carried out in practice. R. Shimon agrees with R. Yehuda that such a case "never occurred and never will occur." However, he suggests that this is not because of a limitation in reality, that the husband and wife share the exact same appearance, but due to its high unlikelihood: "Is it just because he ate a tartimar of meat and drank a log of Italian wine that his parents would take him out to the court to be stoned?" In theory, the Torah grants the parents to carry out the law in all of its severity; but in fact, finding parents who would willingly offer their child to the authorities, to be convicted on their own testimonies, would be such a highly unlikely possibility as to be considered impossible.
What benefit does the Torah provide by listing a commandment that in all likelihood will never be implemented? The Kli Yakar suggests that the intended targets of the Torah are the sons, who would otherwise be tempted to follow their desires and engage in "harmless" gluttony and drinking. However, in his commentary to R. Shimon's statement in the Talmud, the Maharsha suggests that the Torah directed its message not towards the children, but the parents: According to R. Shimon, it is clear that the Torah required the death penalty for the rebellious son's actions, for the Torah was able to penetrate into the son's ultimate fate, as it states  later on. However, what R. Shimon is saying is that [while the Torah understands what this son will eventually become,] his parents cannot fathom their child's ultimate end, and therefore will pity him and not take him out to be stoned over the 'mere' eating of a tartimar of meat. Why, then, was this section written? "To be studied and receive a reward for doing so" – meaning that the parents should study this section and realize that the Torah could fathom their son's ultimate end, and that such a son is worthy of being stoned. For this reason, the Rabbeinu Bachye states that this parasha resembles the story of akeidat Yitzchak. Even though this law was never to be applied (just as God never intended to have Avraham sacrifice Yitzchak), the message remains the same. As much as a parent loves a child, when necessary, the parent must suppress those feelings when it comes in conflict with God's will.