THE LAW OF THE STUBBORN AND REBELLIOUS SON is one that generated considerable debate among the sages. What was its logic? How was it to be applied? Was it, in fact, ever applied? What does it teach us about the nature of justice, human and divine? Here is the law as it appears in this week’s sedra:
If a man has a stubborn and rebellious son who does not obey his father and mother and will not listen to them when they discipline him, his father and mother shall take hold of him and bring him to the elders at the gate of his town. They shall say to the elders, “This son of ours is stubborn and rebellious. He will not obey us. He is a profligate and a drunkard. Then all the men of his town shall stone him to death. You must purge the evil from among you. All Israel will hear of it and be afraid.The apparent harshness of the law led R. Shimon bar Yochai to conclude that “there never was nor ever will be a stubborn and rebellious son . Why then was it written? So that we should expound the law and receive reward.” The law was, in his view, a matter of theory rather than practice – a way of signalling the gravity of the case rather than specifying action to be taken. (Perhaps the law was meant to be recited to such a child in order to persuade him to mend his ways).
In fact, the whole tendency of rabbinic interpretation was so restrictive as to make it difficult if not impossible for such a case to arise. The child must be within three months of attaining maturity (younger than that, he was still a minor; older, he was not still a child). He must have stolen money from his parents, used it to buy a specific measure of meat and Italian wine, eaten and drunk it in one go, in a place other than his parent’s house, and so on. The conditions that had to be satisfied for the law to be applied were so stringent that they could almost never have been met. Indeed some sages suggested conditions that in practice would never be fulfilled. For example, R. Judah held that “If his mother is not like his father in voice, appearance and stature, he does not become a rebellious son. Why? Because the Torah states, He will not obey our voice, and since they must be alike in voice, they must be alike in appearance and stature also.”
Nevertheless, there were those who held that the law was intended to be, and actually was, applied. What, according to them, was the logic of the law? R. Jose the Galilean said: “The Torah foresaw the ultimate destiny of the stubborn and rebellious son. Having dissipated his father’s wealth, he would seek to satisfy his wants and be unable to do so. He would then go to a crossroad and rob. Therefore the Torah ordained: Let him die innocent rather than die guilty – for the death of the wicked benefits both themselves and the world.”
On this view, the law of the stubborn and rebellious son is a form of pre-emptive punishment. He is deemed worthy of punishment not for what he has done but for what he is likely to do in the future. The equivalent nowadays would be preventive detention, that is to say, putting someone in prison because he or she is judged to be a danger to society. There is a concept in secular law of punishment as deterrence, not just punishment as retribution. That, according to R. Jose, is the logic of this law. Not only is the child himself sentenced, but the aim is also that “All Israel will hear of it and be afraid” – in other words that other potential criminals be discouraged by seeing the fate of this one. One explanation of the disagreement between Rabbi Shimon bar Yochai and Rabbi Jose is therefore that they differ as to whether punishment-as-deterrence is part of the Torah’s view of justice.
ONE OF THE MOST SIGNIFICANT post-enlightenment arguments about the nature of ethics was between Kantians and Benthamites. For Kant, ethics was a matter of duty. For Bentham it was a matter of consequences. Kant believed in justice as retribution. If a wrong had been done, it had to be set right by wrong being done to the wrongdoer. Justice is a matter of rectifying past wrong, restoring moral balance to the world. Bentham, by contrast, developed the theory known as utilitarianism. An act is right is it produces the best consequences for society as a whole, sometimes summarised as “the greatest happiness for the greatest number.” On this view, justice looks less to the past than to the future. If it deters wrongdoing and leads to less crime it is justified.
This is no mere theoretical disagreement. It leads to significant differences in practice. According to Bentham, a punishment might be justified even if it were out of proportion to the crime, so long as it deterred others (an “exemplary punishment”). A Kantian would disagree. If it is disproportionate to the crime (a Jewish principle: see Maimonides, Guide for the Perplexed, III, 41) it is unjust, and no utilitarian benefits can justify injustice. Conversely, Kant considered the hypothetical case of a man who had committed murder on a desert island where the remaining inhabitants were about to leave. Should they sentence him to death and carry out the punishment? There is no deterrence in such a case. There would be no one else on the island to murder. None the less, said Kant, sentence should be carried out, for if it were not, a past wrong would remain unrequited. There would be a failure of justice.
Some such disagreement seems to lie between R. Shimon and R. Jose. R. Jose believed that the Torah sometimes prescribes punishment-as-deterrence in order to protect society and reduce the incidence of serious crimes. R. Shimon holds that it does not, for punishment-as-deterrence offends against the principle of retributive justice. One should not commit an injustice, even if lives will be lost in future as a result. THUS FAR, THE LEGAL DEBATE. However, the Torah is a rich and complex document and does not confine itself to legal provisions alone. It also contains narrative. One narrative in particular has a bearing on the question of the stubborn and rebellious son – namely, the story of Ishmael. Ishmael was the son of Abraham and Sarah’s handmaid Hagar, by whom Sarah proposed that Abraham have a child (what is nowadays called “surrogate motherhood”). When Sarah eventually had a child of her own, Isaac, she saw Ishmael metzachek – a difficult word to translate in this context. Literally it means “mocking”; Rashi interprets it to mean “guilty of cardinal sins.” Whatever Ishmael was doing, it was enough to convince Sarah that he was not fit company for her own son.(indeed G-d himself had told Hagar, several chapters earlier, that her son “will be a wild donkey of a man; his hand will be against everyone, and everyone’s hand against him, and he will live in hostility towards all his brothers” 16:12). Hagar and the young Ishmael were sent out into the desert in the blazing sun. Their water ran out, and Hagar put the child under a bush, saying “I cannot watch the boy die.”
We then read:
“God heard the boy crying, and the angel of G-d called to Hagar from heaven and said to her, “What is the matter, Hagar? Do not be afraid; God has heard the voice of the lad there where he is . Lift the boy up and take him by the hand, for I will make him into a great nation.” Then G-d opened her eyes and she saw a well of water. So she went and filled the skin with water and gave the boy a drink.”The midrash adds the following commentary:
Rabbi Simon said, The ministering angels immediately began accusing him , saying, “Lord of the universe, will you bring up a well for an individual who will one day slay your children with thirst?” G-d said to them, “At this moment, what is he ?” “Righteous,” they replied. “I judge man only as he is at the moment.”Similarly the Talmud states:
“Individuals are judged only according to their acts at the time, as it says, ‘G-d has heard the voice of the lad there where he is.’”Ishmael was the first stubborn and rebellious son, rejected by his parents (father Abraham and step-mother Sarah) for what he might become (“a wild donkey of a man; his hand will be against everyone, and everyone’s hand against him”). Yet the Torah, as interpreted by the midrash, rejects the argument of R. Jose in favour of the logic of R. Shimon. Punishment as deterrence against future crimes is not divine justice. G-d does not judge people for what they might become. He judges them as they are now. Beneath this principle of justice is a deeper idea still: the principle of human freedom. Only the certainty that a juvenile delinquent will grow into a murderer can justify punishing him now to prevent acts he may commit in the future. But because we are free, and because even the most hardened criminal can repent and change, there is and can be no such certainty in human affairs. A stubborn and rebellious child can grow into a responsible adult. (Indeed, according to the Talmud, Ishmael repented in the lifetime of Abraham)
The story of Ishmael in Bereishith is an important commentary on the law in Devarim, and incidentally tells us something not only about the nature of biblical justice but also about why the Torah contains narrative as well as law. Law deals in generalities. Narrative focuses on particularities: this person, that family, this time, that place. Without law, society becomes chaos. But without narrative, law itself loses contact with the realities of human life. It becomes impersonal and at times inhuman (an American philosopher, Martha Nussbaum, has written an interesting book on this theme, Poetic Justice). It is one thing to discuss justice-as-deterrence in the abstract, quite another to do so with the image of the young Ishmael about to die of thirst before us. When R. Shimon bar Yochai stated that “There never was nor ever will be a stubborn and rebellious son ” he was articulating one of the deepest instincts of biblical justice. We do not condemn people for what they may become. We judge them for what they are.
THERE IS A CUSTOM at this time of the year to read, every day, Psalm 27. This contains a very arresting line: “Though my father and mother may reject me, the Lord will gather me in.” Though there is no overt reference here to the law of the stubborn and rebellious son, the echoes are unmistakable. That is precisely what the law envisages, namely, parents coming to court and saying, We can no longer control our child. We reject him. It is also what Sarah (and, reluctantly, Abraham) did to Ishmael. The Psalm therefore expresses a tragic human possibility. There are cases in which the relationship between parents and a child can break down completely – when a child can feel completely rejected. Yet, says the Psalm, divine justice is something more than mere justice. G-d never rejects us. Precisely because the gates of repentance are never closed, G-d holds out his hand to all of us, and that relationship cannot break down. We may (G-d forbid) reject G-d but G-d never rejects us. We may be his stubborn and rebellious children, but he is our ever-accessible parent.
Thus, in the Psalm, the narrow legal theme of the juvenile delinquent becomes a majestic truth about the human condition. G-d never abandons us or gives up on us, because He never ceases to believe that, whatever wrong we may have done in the past, we can mend and transcend in the future. More than we have faith in G-d, G-d has faith in us. In that knowledge we find a strength greater than ourselves lifting us when we fall, affirming us in the midst of rejection, believing in us more than we believe in ourselves.