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Notes from Limmud 2007

Pre-crime in the Talmud: Responses to the Wayward and Defiant Son

Adam Krause

[Standard disclaimer: All views not in square brackets are those of the speaker, not myself. Accuracy of transcription is not guaranteed.]

Modern people find difficulties with certain parts of the Bible; e.g. the commandment to commit genocide against Amalek. There are different reactions to this, varying from: who are you to question G-d, to: these things spoke to our ancestors, but we don't hold them as G-dly nowadays. This session will examine the tension between these as exemplified by the legal case from the Book of Deuteronomy, of the rebellious son who is to be stoned to death.

Deuteronomy 21:18-21:21 דברים כא יח־דברים כא כא
If a man has a stubborn and rebellious son, who does not heed the voice of his father, or the voice of his mother, and does not obey them even after they discipline him, his father and his mother shall take hold of him, and bring him out unto the elders of his city at the public place of his community. They shall say unto the elders of his city, This son of ours is stubborn and rebellious, he does not heed us. He is a glutton, and a drunkard. Thereupon all the men of his city shall stone him to death. Thus you will sweep out evil from your midst: all Israel will hear and be afraid. כי יהיה לאיש בן סורר ומורה איננו שמע בקול אביו ובקול אמו ויסרו אתו ולא ישמע אליהם׃ ותפשו בו אביו ואמו והוציאו אתו אל זקני עירו ואל שער מקמו׃ ואמרו אל זקני עירו בננו זה סורר ומרה איננו שמע בקלנו זולל וסבא׃ ורגמהו כל אנשי עירו באבנים ומת ובערת הרע מקרבך וכל ישראל ישמעו ויראו׃

Does the punishment fit the crime? Yes, according to the Ten Commandments.

Response 1: The Decree of a King. תוספתא סנהדרין יא ו

Why was it written? ... R. Simeon ben Eleazar said: "A daughter and not a son? Rather it is [like] the decree of a king." ולמה נכתב ר׳ שמעון בן אלעזר אומ׳ הבת ולא הבן אלא גזירת מלך היא׃

The text only talks about a son, not a daughter. The decree of a king is not to be questioned, or judged by your moral compass.

What exactly does the son do wrong? He's described as a glutton and a drunkard, by the parents. But that's not why he's hauled up before the tribunal.

Response 2: "Judged According to his Future Actions."

Sifre Deut. 218
"He does not heed his father or mother"; it would be possible [to convict him] even if his father and mother [only] told him to light a candle and he did not light it. [The verse] therefore teaches "he does not heed" [a second time] to create an "Equation by Association". Just as in [the second] "he does not heed" mentioned below "he is a glutton and a drunkard," so too in [the first] "he does not heed" mentioned here "he is a glutton and a drunkard." איננו שומע בקול אביו ובקול אמו יכול אפילו אמרו לו אביו ואמו להדליק את הנר ולא הדליק, תלמוד לומר איננו שומע איננו שומע לגזרה שוה מה איננו שומע האמור להלן סורר ומורה זולל וסובא, אף האמור כאן זולל וסובא

"He does not heed" appears twice; in the second case it says "he's a glutton and a drunkard." At first they say what if he refused to obey a command? Surely you couldn't make someone morally culpable for something so small! Therefore it must be due to his being a glutton and a drunkard. (The rabbis have discomfort with the first, so shift the emphasis to the second.)

Midrash Tannaim
R. Yose the Galilean said: Because he ate a tarteymar of meat, and [a mere] 2.5 log [0.17 litres] of Italian wine, the Torah said he will go out to the court and be stoned!? Rather, the Torah concluded [according] to the future actions of the wayward and rebellious son, for in the end, [once] he finishes off his father's funds, seeks [resource to continue] his addiction and doesn't find them, he will go out to the crossroads and rob people. רבי יוסי הגליל אומר וכי מפני שאכל זה תרטימר בשר ושתה חצי לוג יין האיטלקי יצא לבית דין ליסקל׃ אלא הגיעה תורה לסוף דעתו של בן סורר ומורה, שסוף מגמר נכסי אביו ומבקש למודו ואינו מוצא, ויוצא לפרשת דרכים ומלסטם את הבריות׃ אמרה תורה ימות זכאי ואל ימות חייב, שמיתתן של רשעים הנאה להן והנאה לעולם ולצדיקים רע להם ורע לעולם׃

They said if this gluttony occurred in any kind of religious or sinful framework, this has to be discounted. It's only if it's a repeated pattern.

In the following, the Mishnah tries to link various cases: the rebellious son; someone who tunnels into someone's home to rob them—in this case, if it's nighttime, the homeowner can kill them with impunity, but not in daylight.

Mishnah Sanhedrin 8:5-7

The wayward and rebellious son is judged according to his future actions. He should die innocent and not die guilty, for the death of the wicked is good, for the death of the wicked is good for them and good for the world and that of the righteous is bad for them and for bad for the world...

The tunneller is judged according to his future actions. He came in a tunnel and broke the barrel: if he has bloodguilt [the home owner] is liable, if he has no bloodguilt [the home owner] is exempt.

These are they whose souls we save: one who pursues his fellow (to murder him), the male [to rape him] or the engaged woman [to rape her].

But, one who pursues the animal [to bestialise it], who violates the Sabbath or who engages in foreign worship: we do not save their souls.

בן סורר ומורה יידון על שם סופו ימות זכאי ואל ימות חייב שמיתתן של רשעים הניה להם והניה לעולם ולצדיקים רע להם ורע לעולם׃ יין ושינה לרשעים הניה להם והניה לעולם ולצדיקים רע להם ורע לעולם׃ פיזור לרשעים הניה להם והניה לעולם ולצדיקים רע להם ורע לעולם׃ ...

הבא במחתרת יידון על שם סופו׃ היה בא במחתרת ושבר את החבית אם יש לו דמים חייב ואם אין לו דמים פטור׃

אלו שמצילין אותן בנפשן הרודף את חברו להורגו אחר הזכור אחר נערה מאורסה׃

אבל הרודף אחר הבהמה והמחלל את השבת והעובד עבודה זרה אין מצילין אותם בנפשן׃

The common theme here is that they are all being punished for their future actions. But what about the difference between the immediacy of the second case, and the first one being any length of time down the line?

In case you thought no one would ever apply something like this; here's a (post-facto) case:

Moses of Zurich on the "Semak" 6:19
...They relied on this [source] to kill their children at the time of the decree [i.e. times of emergency during the crusades] for they cannot distinguish between good and evil. We are afraid lest they settle amongst the gentiles of their nation as they grow up; better that they die innocent and not die guilty, for thus have we found concerning the wayward and rebellious son, that because his future actions would be to rob people and transgress Sabbaths, he is [put to death] with stoning... ...ומכאן סמכו לשחוט הילדים בשעת הגזירה, שאינם יודעים בין טוב לרע לפי שאנו יראים פן ישתקעו בין הגויים כשיגדלו, מוטב שימותו זכאים ואל ימותו חייבים שכן מצינו גבי בן סורר ומורה, שעל שום שסופו ללסטם את הבריות ומחלל שבתות לפיכך הוא בסקילה...

Response 3: "Expound it and Receive Reward"

Attempting to reduce the scope.

Sanhedrin 8:1 סנהדרין ח א
The Wayward and Defiant Son: From what age is [a person] made [culpable as] a Wayward and Defiant Son? From when he brings forth two hairs until he sprouts a beard [the lower one, not the upper]. As it says, "If a man has a wayward and defiant son", [it says] "a son" and not a daughter, "a son" and not a man. The minor is exempt for he is not yet legally culpable. בן סורר ומורה מאימתי נעשה בן סורר ומורה משיביא שתי שערות ועד שיקיף זקן התחתון ולא העליון אלא שדברו חכמים בלשון כי יהיה לאיש בן בן ולא בת בן ולא נקיה׃ שנאמר איש׃ הקטן פטור שלא בא לכלל מצות׃
Sanhedrin 71a סנהדרין עא א

What does [the Mishnah] mean when it says [that the son cannot be convicted if his mother is] "not suited" [to his father]?... It means that they must be equal. Such has also been taught in an external tradition:

R. Judah says: "If his mother is not equal to his father in voice, height and appearance, he is not convicted as a Wayward and Defiant Son." What is the reason [for this restriction]? Scripture states "He does not heed our voice," due the fact that their voices must sound the same [because it states "our voice"], so too must their appearance and height be the same.

Whose approach does the following external tradition exhibit?

The case of the Wayward and Defiant Son never occurred and never will occur. Why then was it written [in the Torah]? "Expound it and receive reward!" (T San 11.6)

Whose approach? That of R. Judah! ... R. Jonathan said, "I saw [the Wayward and Defiant Son convicted] and sat on his grave!"

מאי אינה ראויה? אילימא חייבי כריתות וחייבי מיתות בית דין סוף סוף אבוה—אבוה נינהו, ואמיה—אמיה נינהו! אלא: בשוה לאביו קאמר תניא נמי הכי׃

רבי יהודה אומר אם לא היתה אמו שוה לאביו בקול ובמראה ובקומה אינו נעשה בן סורר ומורה׃ מאי טעמא—דאמר קרא: איננו שומע בקולנו מדקול בעינן שוין—מראה וקומה נמי בעינן שוין׃

כמאן אזלא הא דתניא:
בן סורר ומורה לא היה ולא עתיד להיות ולמה נכתב דרוש וקבל שכר כמאן? כרבי יהודה! ...
אמר רבי יונתן: אני ראיתיו וישבתי על קברו׃

This takes the rabbinic method to ridiculous lengths! It says the only reason that the case was in the Torah was for us to sit here and study it!

The last line is also a ברייתא. [The speaker didn't attempt to reconcile it with the above. Rabbi Jeremy Gordon explained (elsewhen) that what the compiler of the Talmud is saying here is that the consensus is opposed to the death penalty here, and that even if an example can be found of it being carried out, that should not be construed to constitute a precedent: "It never happened" in precedent-based law, even if it did in reality.]

Response 4: "My Son Was Dead and is Alive Again": The Gospel of Luke, 15:11-32.

This of course dates from much earlier than the Mishna, and was written at a time when the distinction between Judaism and Christianity was rather vague—but Luke was probably written by a non-Jew: it tends to emphasise the universality of the Christian message. Most scholars date Luke to around 90 CE.

A certain man had two sons. The younger of them said to his father, Father, give me the share of the property that will belong to me. So he divided between them. Not many days after the younger son gathered all he had and travelled to a distant country, and there squandered his property in dissolute living. When he had spent everthing, a severe famine took place in that land; and he began to be in need. So he went and hired himself out to one of the citizens of that country, who sent him to his fields to feed the pigs. He would gladly have filled himself with the husks that the pigs were eating; and no one gave him anything. But when he came to himself, he said, "How many of my father's hired hands's have bread enough and to spare, and here I am dying of hunger! I will get up and go to my father, and say unto him, 'Father, I have sinned against heaven and before you; I am no longer worthy to be called your son: treat me as one of your hired hands.'" So he set of and went to his father.* But while he was yet a great way off, his father saw him, and had compassion, and ran, and fell on his neck, and kissed him. And the son said unto him, Father, I have sinned against heaven, and in thy sight, and am no more worthy to be called thy son. But the father said to his servants, Bring forth the best robe, and put it on him; and put a ring on his hand, and shoes on his feet: And bring hither the fatted calf, and kill it; and let us eat, and be merry: For this my son was dead, and is alive again; he was lost, and is found. And they began to be merry. Now his elder son was in the field: and as he came and drew nigh to the house, he heard musick and dancing. And he called one of the servants, and asked what these things meant. And he said unto him, Thy brother is come; and thy father hath killed the fatted calf, because he hath received him safe and sound. And he was angry, and would not go in: therefore came his father out, and intreated him. And he answering said to his father, Lo, these many years do I serve thee, neither transgressed I at any time thy commandment: and yet thou never gavest me a kid, that I might make merry with my friends: But as soon as this thy son was come, which hath devoured thy living with harlots, thou hast killed for him the fatted calf. And he said unto him, Son, thou art ever with me, and all that I have is thine. It was meet that we should make merry, and be glad: for this thy brother was dead, is alive again; and was lost, and is found.

* At this point I got tired of modernising the cut-and-pasted KJV text...

Discussion as to whether this is a good comparison: is this really a rebellious son? Does "was dead" mean "as if I stoned him"?

Summing up

Within the Jewish tradition, our moral compass counts. How we see things is an important part of the halachic process. This is one text, but it reflects on all other sacred texts too: where does it come from, and what authority does it have?

Responses 3 and 4: Response 3 says: we have a problem, and it's in our sacred text. What do we do with it? They redeem it by attaching a higher value to it: Torah study. In response 4, Luke also has a problem with it, and also has it as part of his sacred tradition. The text there instead redeems it through an act of love, given to the son who otherwise would have had nowhere to go.

Both traditions redeem the text, but through different means; perhaps one more Jewish and one more Christian.

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