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August 11, 2013 / conservadox

Dvar Torah- Ki Teitze

One thing I like about the JPS Commentary is that it shows how seemingly irrational mitzvot may make sense (or even be leniencies) in historical context.

For example, the Torah requires that the first-born be given a “double portion” (Deut. 21:17) of the family estate when a father dies.  Halacha interprets this to mean two shares of the estate- that is, twice what the son would receive if property was divided evenly.*

What’s the point of this?  Tigay explains that the eldest may be more likely to have additional responsibilities “such as managing the estate on behalf of all the survivors, providing for survivors who were minors, [and] bearing the costs of burying and mourning for deceased parents”.  In a society with low life expectancies, it is pretty likely that the children will be pretty young; thus, the eldest might be the only child capable of managing such matters.

You may respond: this may make sense as a default rule.  But what if a non-eldest child is more capable?  That’s why the law only gives the eldest an extra share rather than telling the father how to divide the property among the rest of the sons.  If there are more than two children, the father can give a disproportionate share of the rest of the property to the most capable son. (Of course, the Torah is assuming that everything will go to a child instead of a spouse- but that’s another discussion!)

Another seemingly irrational rule that actually sort of makes sense is the “mother bird” law.  This law provides that someone who encounters a bird’s nest may not take the mother along with her young (Deut 22:6).  Tigay notes that according to one medieval commentator, “releasing the mother enables her to produce more offspring in the future and thus helps maintain the supply of food needed by humans.”  In other words, the law exists to prevent a problem of individual rationality that leads to collective irrationality.  It is rational for individual hunters to take every bird and egg they can; but if everyone does this, there is a risk that birds will be “over-hunted” and disappear from a village- a result that, from a collective perspective, is obviously harmful.   Even today, economists try (without much success) to teach us about the “tragedy of the commons” that the Torah confronted 3000+ years ago.

The “tragedy of the commons” concept, in my opinion, partially delegitimizes the libertarianism that dominates conservative politics.  The libertarian vision is that the state can be used only to prevent pure coercion.  But in the absence of wide-ranging government regulation, the “tragedy of the commons” repeats itself in a wide variety of areas big and small.  For example, as long as energy is cheap, it is rational for each of us to use the cheapest source of energy as intensively as possible, even if it creates pollution (since the pollution may be felt in another neighborhood, state or country).  But if everyone pollutes as much as they feel like doing, the ultimate result is irrational: regional air pollution or even climate change that leads to a worldwide increase in climate-related natural disasters such as hurricanes or floods.

An example of a possible leniency is the law of the “stubborn and rebellious son” (Deut. 21:18-21). This law allows parents to have an obnoxious son executed after a trial by the town elders.  This of course seems like a crazy law not just to moderns, but also to the Talmudic sages (who interpreted the law so narrowly that it could probably never be applied).   Tigay points out that in the patriarchal period, the father’s power over his children may have been absolute; for example, Judah talks about having his daughter-in-law executed for sexual misconduct (Gen. 38:24) without any real trial.

By contrast, the “stubborn and rebellious son” law, even read more literally, restricts the father’s rights in three ways.  First, as Tigay points out, “by requiring that the case be judged by the elders, [the law] places limits on parental authority.”  Second, the Torah provides that this law applies only after the parents discipline the son (Deut. 21:18), thus indicating that the son must be a “repeated offender”.  Third, both parents must be involved (Deut. 21:19).  As Tigay notes, “The fact that both parents must agree deprives the father of unilateral authority even to prosecute his son.”  Thus, the “stubborn and rebellious” law actually represents a step forward (from my modern perspective) over the pre-Torah parent’s absolute right to kill misbehaving children.

*For example, if there are five sons, the eldest would get 2/5 instead of 1/5.

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