Punishing Less Than Fully

by R. Gidon Rothstein

Parshat Ki Tetzei

Makkot To Fit the Crime

The Torah phrases the number of lashes given a sinner kedei rish’ato be-mispar, literally, according to his guilt, by number. Sefaria has JPS and (surprisingly, to me) Metsudah translations, who accept Ibn Ezra’s nontraditional reading. Ibn Ezra knows tradition’s assumption the court always give as close to thirty-nine as  the miscreant can bear. He knows others who think kedei rish’ato applies to the force of each lash, a more significant sin lashed forty hard times, less so forty lighter ones.

For himself, however, while he declares his acceptance of tradition in practice, he would have read the Torah to say the court assigns a number of lashes, depending on the seriousness of the crime, forty the upper limit. (He takes for granted we would just know which crimes are more serious, which less. I have my doubts.)

A sliding scale within lashes, an interesting idea, even as he carefully submits to tradition’s alternate reading.

Kings Extirpated Families

The Torah famously prohibits killing sons for the sins of the father, 24;16. Based on a surprising verse in II Melachim 14;6, Sforno explains why the Torah felt the need to say what seems obvious. He applies the verse particularly to rebels against a king, where the custom of the time was to kill the rebel and all his sons, lest they pick up where their father left off.

[Tanach tells us a few times of where a usurper of a throne wipes out the previous royal family. Sforno is sure it was to avoid competition.] The Torah is telling us not to, not to prejudge the survivors, not to kill them.

It explains why the verse in II Melachim paused to note Amatzyah did not kill the children of those who had killed his father, in accord with the Torah’s command. When I first learned the verse, I was told Amatzyah was taking very literally what Chazal applied more to testimony, relatives cannot testify about each other. Sforno thinks  Amatzyah captured an element of original intent in the verse, indeed the Torah was worried about this, too.

Hashem Forgoes

Twice in five verses, Or HaChayim points out places Hashem treats us better than we deserve [a reminder not to always be completely confused when hard times arrive; we often deserve what we get, or more, and yet do not see it.]

When Moshe reminds the Jews of Bil’am’s attempts to convince God to destroy or damage us, 23;6, he says Hashem was unwilling, refused, or did not want to listen (lo avah) to Bil’am. Points out Or HaChayim, the words imply the simpler path would have been to agree with Bil’am, because the Jews had sinned in ways deserving the curses he invoked against them.

Second, verse ten warns soldiers to be careful of kol davar ra, for Or HaChayim because war is a time of heightened scrutiny, such that even a relatively light sin can tip a person over into being caught up in the danger. Be careful of what is bad, and what can lead to bad, such as sins.

The Communal Role of Marriage

Emet Le-Ya’akov’s comment to 23;3 starts with his reminder he has already several times offered his view, Sefer Devarim aims to give the Jews the ways to build working political and communal systems. The rules of kings, war, and civil society fit easily, but—asks R. Kaminetzky—matrimonial law, who may marry whom, doesn’t have an obvious place in that framework. It belongs better in Vayikra, with the discussion of prohibited relationships (arayot).

The question is the answer, in his view (and mine, fwiw). Marriage (and divorce) are not a private matter between two people or even their families; it affects the whole people, as the young man now becomes an adult member of the community.

People who may not marry are referred to as pesulei kahal, invalid from being a full part of the community, and live on their own. [When, of course, they need not be excluded, and many singles, men and women, contribute valuably to their communities. I think he means they are not part of producing and building the future population, an idea that assumes “building” always includes children.]

The laws of who marries whom, and how, are therefore part of establishing our polities as well, and belong in Sefer Devarim. It also explains why the presence of a new groom exempts the whole shul from Tachanun, a rule not observed were a mourner there. Mourning is personal, although the community comes to comfort, where a wedding is a communal event, the joy belongs to the whole community.

We punish evildoers and rebels, Hashem punishes less than we deserve, the families we establish matter to everyone, not just the participants. In Parshat Ki Tetzei.