In parshat Ki Tetze we encounter the case of the ben sorer u’moreh, the wayward and rebellious son. We read in Devarim 21:18-21 that if a child does not obey his mother and father they should bring him out to the gates of the city before a council of elders, publicly declare him a glutton and a drunkard, and stone him to death.
If this law seems shocking to you, you’re not alone. The rabbis of the Talmud devote an entire chapter of Tractate Sanhedrin to the ben sorer u’moreh. They ask how it can be possible that the Torah would legislate capital punishment for someone who has not committed a capital offense, let alone a child. Trying to puzzle out the Torah’s logic, the Talmud suggests that the wayward and rebellious son is judged not for his actual crime but rather al shem sofo, literally “on the name of his end.” The rebellious child is thus labeled or type-cast into the kind of person whose childhood disobedience will become an adulthood of crime.
We see in the story of the ben sorer u’moreh an ancient version of the school-to-prison pipeline, in which educational institutions pre-determine the fates of children, most often young men and women of color from low income families, directing resources away from them and increasing their contact with the police, eventually landing them in prison.
In response to the dilemma posed by the ben sorer u’moreh, the rabbis of the Talmud conclude that a child should never be labeled as an inevitable criminal. They work hard to re-read these four verses of Torah, limiting the kind of person who could potentially fall into the category of the ben sorer umoreh until the threat of a death sentence is virtually ruled out of existence. According to the rabbis, he is guilty if he has publicly consumed an excess of meat and fine Italian wine. If he consumed them in a religious ritual such as a wedding or holiday feast, if he consumed any other substance (kosher or not) besides meat and Italian wine, he is not guilty. He is only guilty if he steals money from his father to obtain these substances, but consumed them in the domain of strangers. He is only guilty if his parents present a united front and can speak in perfect unison. By setting these parameters, and many more like them, the rabbis make it essentially impossible for this child to ever exist in their courts. Driving this point home, they explicitly state “A [case of a] stubborn and rebellious son [actually being executed] – there never was and there never will be” (Sanhedrin 71a).
Parshat Ki Tetze also introduces makkot, the punishment of lashes. We learn in Devarim 25:1-3 that when a person has sinned egregiously, he may be given up to 40 lashes. The Torah goes on to warn that he can be given no more than 40 lashes, lest he receive more than he deserves, “and your brother will be degraded before your eyes” (Devarim 25:3).
Picking up on the strange ending of the parsha’s verse about lashes, Rashi asks: why is the convicted man called your brother? “All the time [the Torah] has been calling him rasha (wicked), but as soon as he has received the lashes, it calls him akhicha (your brother).” The Torah is attempting to create a justice system in which those who violate the social order receive some form of punishment. But Rashi points out that even in this ancient and often violent justice system, the ultimate intention is not to damage a person beyond repair or to permanently mark them as a criminal. The goal is rehabilitation, and the Torah recognizes this by immediately restoring the criminal’s identity as akhicha, a member of your own family and community.
Like with the case of the ben sorer u’moreh, the Talmud re-reads the verses on makkot, reducing the maximum number of lashes from 40 to 39 (Makkot 22a). According to the rabbis, we take away that final lash to ensure that we never administer too many lashes to a person. Though here the rabbis draw a much more subtle limiting boundary than with the rebellious son, we again find an example of the rabbis re-interpreting the plain meaning of the Torah text in order to produce a more humane law.
These cases inspire me because they are examples of the creative audacity and moral willpower of our rabbis, who inherited a Torah they did not always want to see lived out in the world around them. In many cases, the rabbis upend the straightforward meaning of the scripture in order to advance their vision for a more just society. Looking back to the commentary of our sages, both through the Talmudic rabbis and Rashi, we can see that Jewish legalists have long been uncomfortable with the justice system of the Torah.
This creative audacity and moral willpower is no less necessary today than it was two thousand years ago. If trauma, institutional racism, poverty, abuse, addiction, or any other root causes of crime have led people to break the law, our legal system should orient toward addressing these roots causes and supporting rehabilitation and reintegration. If young people exhibit signs of rebellion, they should not be criminalized. Rather, they should be claimed as brethren and supported. We can envision a healthier world than the one we live in, just as our sages envisioned a healthier world than the one they inherited. And just as they audaciously re-worked the Torah in order to build a better world, so too can we work to transform the structures of oppression and dehumanization in our world, in the name of justice and compassion.
Mónica Gomery is a lover of song, poetry, community, Talmud, pushing for justice and equity, big questions, and humble hearts. Mónica spent the summer of 2015 learning in Truah’s Rabbinical and Cantorial Student Fellowship in Human Rights while interning for the Women’s Prison Association. Now a fifth year rabbinical student at Hebrew College, she will be serving as a prison chaplain this year in Boston. Mónica learned some of the material for this dvar Torah from Rabbi Benay Lappe at Svara’s Queer Talmud Camp, and is grateful for the opportunity to expand on liberatory Torah in the name of her teacher.