The Lash?

Ki Tetze

Deut. 21:10 - 25:19

Précis:  The parasha might be subtitled “entering society” because it describes the creation of a just and moral social network. It begins with the phrase “when you go forth” (ki tetze) to battle. This parasha, according to Maimonides, contains 72 mitzvot (commandments). Although they seem unrelated, they all deal with the morals and values that God wanted to be deeply implanted in the Israelites' society. They cover a wide variety of topics, from family life, human kindness, respect for property and animals, the safety of others, sexual relationships, escaped slaves, financial loans and charging interest, keeping promises, and remembering to blot out the name of one of Israel's greatest enemies. This assortment of commands included requirements that there be sex-distinct clothing; that mother birds not be separated from their eggs; that roof-tops have parapets; that seeds not be mixed in a field, and that “tzitzit” (fringes) be worn on garments.

Deut. 25:1–3“When there is a dispute between persons and they go to law, and a decision is rendered declaring the one in the right and the other in the wrong, if the guilty one is to be flogged, the magistrate shall have the person lie down and supervise the giving of the lashes, by count, as warranted by the offense. The guilty one may be given up to forty lashes, but not more, lest being flogged further, to excess, your brother be degraded before your eyes.”

               

                In these verses, we come face to face with corporal punishment, a practice which we reject in modern society. It may be that this “institution” was adopted because there were no prisons in ancient Israel, and some penalty short of death was required for relatively “minor” offenses.  Prison did exist in some other societies (as we know by Joseph’s imprisonment in Egypt). Here, we find concern for the criminal facing the lash. The lashes come only as a result of a sentence by a properly constituted court; they are limited in number; the offender had to be of sufficiently good health to survive the ordeal. Finally, the offender is referred to as one’s “brother” to indicate his essential humanity.

            In practice, lashes never exceed 39, to avoid the possibility of transgressing the numerical limit. Once punished, the offender returns to the community, in effect having paid his “debt to society.”

            In recent years, we have debated the impact of punishments which seem to exceed the limits of what the U.S. Constitution labels “cruel and unusual.” Those who rely on so-called “original intent” see no issue, inasmuch as criminals in the late 18^th century were often hung or received corporal punishment. (Aside: you might observe that this writer does not agree with the concept of “original intent,” but that’s for another d’var.) Those with a broader interpretation of our Constitution discuss the continuing validity of capital punishment; another argument concerns the question of whether prolonged solitary confinement should be barred.

            From a Jewish perspective, we should recall that the cited punishment was seen as a kind of retribution, but, at the same time, the offender was always encouraged to repent (“do t’shuvah). Jewish tradition reminds us also that a court that sentences someone to the death penalty more than once in 70 years is considered a “murderous court.”

            In our examination of criminal justice issues today, the ability of offenders to repent and “do t’shuvah” should certainly be part of the calculus in which we engage when we consider how our criminal justice system operates.

Teaching About Zionism and Justice

Shoftim

Deut. 16:18-21:9

Précis: The parasha Shoftim (literally, “judges”) is devoted primarily to various themes of justice, and includes warnings against false testimony, idol worship, and the dangers posed by mortal kings. The parasha also warns the people against false prophets, magicians, soothsayers and witches. It establishes requirements for cities of refuge in the Promised Land. In short, the parasha is devoted to ways to create a just society in the Land of Israel.

            This week’s Torah reading includes two remarkable and noteworthy concepts. In the 3rd verse we read this morning, we see a clarion call: Tzedek, Tzedek Tirdof: Justice, Justice you shall pursue, that you may thrive and occupy the land that the Lord your God is giving to you.  And in Chapter 20, we read that in occupying the land, its inhabitants are to first be offered the opportunity to surrender, and if so, all of the inhabitants are to serve as forced labor. If they defy the Israelites, all the men are to be slain, and women and children made captives.

            How we can seek justice on the one hand, and on the other hand enslave or murder the inhabitants of the land? The idea of killing every male and enslaving the women and children during an occupation is abhorrent. How can this be just? 

            I am fortunate to teach middle and high school students at our community midrasha, Shoresh. It has always been a challenge to teach high school students about the distinctions among early Zionist thinkers, in large part because today’s students find the writings of 19th or early 20th century philosophers difficult to decipher. It was difficult 10 years ago, and has become increasingly difficult.  

            I believe I know why: they have lived their entire lives with images of Israel as the occupier and as the military juggernaut of the Middle East. These images are used, as we know, by the Palestinian propaganda machine, which seems to succeed in part because it allows no uncensored new coverage in its areas of control, while all of Israel appears open to TV and Internet reports. And Israel has failed to respond adequately. The BDS Movement has understood that a target audience of American Jewish Youth is fertile ground for enhancing its profiles at colleges across the country. So, at Shoresh we discuss why it is that other nations are not targeted like Israel, nations which commit atrocities which make Israeli actions pale by comparison. We ask where are the BDS movements against Syria? Against North Korea? Against China?

            How else do we encourage love of Israel? We continue to read important excerpts from the founders of the different streams of Zionism. Some students see resonance with their own feelings in Herzl’s belief in the need for sanctuary, or in Ben Gurion’s socialism, or Jabotinsky’ nationalism, or in Rav Kook’s religious imperative. In our study of history, we stress the essential fact that the Arab world has never agreed to the existence of a Jewish State in their midst. Only when Israel defeated its foes in combat were they grudgingly accepted by some of their neighbors.

            We analyze statements made by the PLA, Hezbollah, and Hamas about Israel, and deconstruct the falsehoods so often contained within them. Finally, I emphasize that there is a difference between love of Israel and support of its current government or its policies. They get this, because they love America but most, if not all, detest its president. 

            I remain hopeful. I still believe in the mitzvah of tzedek, tzedek tirdof, and will continue to seek justice, for Israelis as well as for Palestinians, and strive to instill this spirit in my students.