“When you see among the captives a woman of beautiful appearance and you desire her…” Here is another example of Torah as a law code regulating a human society in all its imperfections. Torah permits but regulates an evil practice. Wartime has always been a terror for women, who are at the mercy of soldiers hyped up on testosterone and feeling as if they can commit any act without accountability.
Power corrupts and there is such a power in warfare for a soldier whose side has won the battle. Raping and plundering are among the evils of war.
As with other social evils, such as slavery, Torah takes a two-part strategy: regulate the practice and undermine it. Therefore, the practice of taking women during wartime is restricted by a list of requirements. Torah requires that the women be permitted time to grieve. The rabbis suggested that the cutting of hair and trimming nails was to make the war-bride unattractive and to reduce the impulses of lust as an incentive to make war and capture women. It certainly is not permitted to take a woman in the lust of the battle.
In the end, we can say that this Torah law is unjust, that allowing Israelites to kidnap women and turn them into wives is barbaric. It seems to be an example of God reforming culture in stages, rather than giving a law which would be too advanced for the culture.
And ultimately Torah undermines the practice of taking war brides altogether. The higher laws of Torah do not permit such a practice. Anyone who cares about Torah enough to love neighbor, to love foreigners, and even to love one’s enemy will not participate in such a cruel act of callous disregard for another human being.
The captive war-bride (10-14), protecting the rights of the firstborn in a polygamous marriage (15-17), legislating the execution of insubordinate sons (18-21).
The three topics covered in this section all have to do with social order: rules for brides taken forcibly in war, laws of inheritance protecting the tradition of the firstborn, and dealing with an unworthy heir whose behavior threatens to damage the social order.
Concerning war brides, we had already been told (Deuteronomy 20:14) that Israelite men were permitted to take them, but not from the Canaanite inhabitants of the land since they might lead the men to assimilate to Canaanite culture. It was common for women in wartime to be raped or taken as concubines. The Torah seeks to overcome social evils generally by regulating them, reducing the injustice and harm, and ultimately by teaching a better way. Therefore, the practice of taking women during wartime is restricted by a list of requirements.
Torah requires that the women be permitted time to grieve. The rabbis suggested that the cutting of hair and trimming nails was to make the war-bride unattractive and to reduce the impulses of lust as an incentive for taking them. It certainly was not permitted to take a woman in the lust of the battle. In the end, we can say that this Torah law is unjust. While the woman must be allowed time to grieve and must be treated as a wife, she has no choice in the matter and is dominated by the man. Torah seems to be taking an existing practice and reforming it without going all the way toward eliminating the evil practice entirely.
The next matter of social order concerns inheritance customs in the polygamous culture of ancient Israel. Custom dictated a double share of the inheritance for firstborn sons. Yet jealousy and rivalry between wives and sets of children could lead to acts of violence. Therefore Torah says the man must not give preference to one wife over the other, but count as firstborn the actual firstborn son. Social order is protected, violence avoided, when there is a clear law of succession and inheritance rights. Sons born after the firstborn would grow up knowing they would need to make their own way in the world, as those who receive a lesser share.
In the third section, the customary treatment of rebellious sons is the issue. That this is an adult child, not a minor, is apparent from the accusation against them as drunkards and gluttons. In other ancient Near Eastern cultures the options for treatment of such a child included enslavement, disinheritance, or even mutilation (Tigay, Deuteronomy: The JPS Torah Commentary). Even in Roman culture, many centuries later than Torah, a father had the right to harm or even kill his own family (patria potestas). Genesis 38:24 implies that Judah had such a power over Tamar. The Torah legislates this power, requiring that the rebellious adult child be brought to the town elders and that the men of the town carry out the penalty (perhaps to avoid hasty and angry killings).
The rabbis say this law was for illustration only (to put fear of parents into children) and not meant to be carried out. One would have to prove, they say, that the child was un-reformable. It is important to understand that the Torah is a real legislation for a real people in history. Some things permitted in Torah are also undermined by the weightier principles of Torah (war-brides, slaves). Thus, those who follow Torah would realize in time that loving one’s neighbor cancels the permission of Torah for things like owning slaves and taking war-brides.
DEUTERONOMY 21:22 – 22:7
“You must not leave his corpse on the tree but you will surely bury him the same day.”
Torah regards death as a curse. This law addresses the custom of shaming an executed person by leaving their body on display, strung up on a post or tree. The verse goes on to say כִּי־קִלְלַת אֱלֹהִים תָּלוּי (ki-qilelat Elohim taluey, “for an executed corpse is an affront to Elohim”). Human death is the very thing which must not be brought into the temple, or even near it. Human death defiles like air pollution (Numbers 19:13, 20) and anyone who comes in contact or is even under the same roof with a corpse must be purified in a thorough, careful ritual occurring over a period of seven days.
Is this Torah merely concerned about the corpses of those executed or is it a larger statement about death as a curse? Torah uses case law to set forth principles. The case of an executed person’s corpse is an example of an occasion where people break with the usual custom of care for a dead body. There are few other occasions where people might leave a corpse exposed for a period of time. So this case establishes a more general rule: dead bodies should not be left overnight in the land of Israel. As the temple is holy, so, to a lesser degree, the whole land is holy. The land should not be exposed to the curse of death, but rather bodies should be put away in burial caves the same day.
This is the reason why Jewish burials happen on the same day (it has become a Jewish law even outside of Israel). This theme in Torah is all part of a trajectory. Human death is identified as the specific curse of our existence, “For dust you are and to dust you shall return” (Genesis 3:19). And death will be done away with then the curse is removed, “your dead shall live . . . you who dwell in the dust awaken and sing for joy” (Isaiah 26:19, see also 25:8-10).
The executed man on the tree (21:22-23), obligations to your fellow (22:1-4), cross-dressing (5), a mother bird and its young (6-7).
When a person was executed in ancient times it was not uncommon for the body to be hung on public display as a warning and deterrent to others (see Numbers 25:4 for an example). Yet in God’s symbolic system, death is unclean (Numbers 19:11-20). Ritual pollution caused by human death can even defile God’s sanctuary if the prescribed rituals for purification are not followed (Numbers 19:13, 20). Deuteronomy in this case seems to be in agreement with the priestly source of the Torah (such as these texts found in the book of Numbers.). Therefore, Deuteronomy legislates a maximum one day period for the public display of the bodies of executed persons.
This commandment has been adapted in Jewish tradition to a different purpose. Although the original commandment concerns the public display of executed corpses, this has become the basis for the requirement to bury all dead persons within twenty-four hours. There is generally no viewing of the body and the deceased person is usually buried before memorial services are held. Ancient laws still affect customs in the lives of people today, some 2,500 years after Deuteronomy was written.
In the next section we find laws about responsibility toward one’s “brother” (JPS renders the word “fellow”). Some readers have felt that this paragraph inadequately expresses the obligation of love between human beings, since it seems only to apply to one’s “brother.” But Exodus 23:4-5 requires these responsibilities of lovingkindness even for enemies. Perhaps Deuteronomy’s preference for the “brother” language is not so much about limiting the scope of mutual care but is rather a vision for the people to dwell together in the land as fellows, almost as if the people were all in the same family. The idea is not so different from the well-known teaching of Jesus that his followers were to regard each other as mothers, fathers, brothers, and sisters (Mark 3:35).
Deuteronomy 22:5 seems to be a prohibition of cross-dressing. The problem is, we are unaware of cross-dressing as a social phenomenon in ancient times. It is quite possible we are missing knowledge about some specific practice that is being referred to here. Taking vs. 5 as a rule to be implemented in our own modern society is problematic for a number of reasons. We have found some other laws in Torah to be outdated and based on ideas about society that run counter to the higher laws of Torah (neighbor-love, respect and kindness toward all persons). Choosing to enforce a ban on cross-dressing or transgender identity based on Deuteronomy 22:5 is an example of selective reading.
The law of the mother bird and her young compares with Leviticus 22:28. The promise of long life, when it was taken as a blessing for any righteous individual who followed this law, was a stumbling block to faith (for the righteous do not always have long life). Abravanel saw a wiser interpretation: preserving a species of animal would bring long life by conserving the animal populations in the land.
DEUTERONOMY 22:8 – 23:7 (6 in Chr Bibles)
As a law code, these passages are about regulating society and not about the higher aspirations of the soul. Therefore the laws are gritty and realistic, lacking the idealism and beauty of other passages.
A nation needs laws to deal with evil and violence and other matters. Therefore we find a seemingly random mix of topics here. A builder of a house must consider safety measures in the process of building. Certain combinations of crops and kinds of clothing material are forbidden in Israel (but Israelites wear an outer garment with fringes that seemingly violates the mixtures law). The serious consequences of pre-marital infidelity are spelled out, including the death penalty for a woman who is found not to be a virgin. Similarly, adultery brings a death sentence for both the man and woman. Laws for differentiating rape from consensual sex are rather simplistic, but human as compared to some of the law codes of surrounding nations. Lying with your father’s ex-wife is forbidden. Certain people are banned “from the congregation of Adonai,” eunuchs, mamzers (see definition below), and Moabites and Ammonites. We do not know what exactly is meant by “from the congregation,” but it seems to mean they were banned from marrying into Israel and being considered members of the tribe. We also don’t know for sure what a mamzer is, but our best guess is it refers to the children of forbidden unions (children of rape and incest, perhaps children of fornication and adultery).
What are we as modern people to think of this section of laws? We cannot admire them. They are perhaps an improvement over law codes of the time, having a concern for justice. The rabbis of a later era consistently interpret laws bearing the weight of capital punishment with exceeding leniency so that it is virtually impossible in rabbinic law for a person to be executed or to be considered a mamzer. Perhaps we can say, in a harsh world, Torah’s civil laws brought people to a higher concern for justice, but that these were intermediate steps far from the ideal.
We seem to see the ideal though in other passages, from later in Israel’s history. In Third Isaiah (the portion of the book of Isaiah thought to be written after the Babylonian exile) we read, “Do not let the foreigner who has united himself with Adonai say, ‘Adonai will exclude me from his people’” (Isaiah 56:3). In the book of Ruth we see a beautiful story of a Moabite woman who is more righteous than many Israelites and who becomes a matriarch in the line of the Davidic kings. Boaz says, “I am taking Ruth the Moabite, wife of Mahlon, as my wife so as to perpetuate the name of the deceased on his inheritance” (Ruth 4:10). Deuteronomy’s harshness and lack of flexibility suggests a text written in difficult times, a law code searching for a solution to social breakdown and using rigid rules to enforce compliance. Isaiah 56 and the book of Ruth suggest a more mature reflection in light of God’s love for all his children.
Parapet on a roof (8), forbidden combinations (9-11), tzit-tzit (fringes, 12), adjudicating cases of premarital infidelity (22:13-29), forbidden relationship: father’s ex-wife (23:1 (22:30 in Chr Bibles), forbidden relationship: eunuchs and mamzers in the Assembly (2-3(1-2 in Chr Bibles)), forbidden relationship: Ammonites and Moabites in the Assembly (4-7(3-6 in Chr Bibles)).
The larger section in which these laws are contained (21:10 – 25:19) is about civil and domestic issues. The requirement of a parapet on the flat roofs of Israelite houses (a case law about safety measures), the forbidden combinations of planting and weaving, and the requirement of fringes on Israelite garments close out a section of domestic matters (22:1-12). Laws about judging disputes over marital chastity issues begins a section on marital and sexual conduct (22:13-29).
If a man makes a false accusation against his bride, claiming in their wedding night that she is not a virgin, his cruel act is punishable by whipping and a fine. On the other hand, lacking evidence of virginity on her wedding night, a woman can be executed by stoning. Yet the rabbis interpreted this case as requiring a high level of proof, with witnesses, and even then the woman would first get a warning and would have to engage in sex again before being stoned (Rashi). In cases of adultery, both the man and woman are liable to execution (which has bearing on the story of the woman caught in adultery in the New Testament).
The laws forbidding eunuchs, “mamzers” (see below), Ammonites, and Moabites in the Assembly is a separate section whose subject is forbidden relationships. This is a difficult passage with many unanswered questions.
What does it mean to be banned from the Assembly? Tigay (Deuteronomy: The JPS Torah Commentary) argues this means the body of citizens who may intermarry and who have a say in the political process. It does not mean being banned from the temple (since Deuteronomy uses different language for the temple). Meanwhile, the book of Ruth and Isaiah 56 seem to disagree with a notion of banning foreigners.
What does it mean that the ban on them is “to the tenth generation”? Some interpreters believe this is a way of saying “the ban is forever,” but the Torah has its own way of expressing perpetuity. Perhaps the “tenth” is intended literally, but if so, why?
A similar ambiguity characterizes the ban on mamzers. What exactly is a mamzer? The meaning of the word is far from certain, but traditionally it means a child of a forbidden union such as incest (forbidden unions are listed in Leviticus 18). Rabbinic law treats these issues with restraint and justice (for example, the standards for proving someone is a mamzer is so high, practically speaking no one is judged to be a mamzer today in most Jewish courts). It is important to note that Deuteronomy does not seem to have the last word on these matters. The case of Ruth contradicts the ban in Deuteronomy, so much so that rabbinic sages were led to a strained harmonization (that the text bans a Moabite but not a Moabitess).
DEUTERONOMY 23:8-24 (7-23 in Chr Bibles)
“You shall not turn over a slave unto his masters.” During the period of the African slave trade, when many states in America ran their economic engines on the backs of enslaved human beings, masters would read the Bible to slaves.
Of course these masters did not cite Deuteronomy 23:15-16 (16-17 in Jewish Bibles). They would read verses like, “Slaves, obey your masters” (Ephesians 6:5). They would give their slaves mini-sermons on the curse placed on the descendants of Ham. African slaves, coming from a non-literate culture, regarded the Bible (the first book they had ever encountered) as magical. It was a book of terror. It spoke against them and condemned them to their fate.
Miraculously however, the African-American community, even during the dark days of slavery, developed a love for the Bible over time. Those slaves who learned to read were often taught from the King James Bible. Some emancipated slaves, such as Frederick Douglass, began to use the Bible as a book of liberty and a rhetorical weapon against the oppressive machinery of the plantation industry. “I am the Lord, your God, who set you free,” said the Bible.
Modern readers of the Bible struggle with the fact that slavery is permitted in the Ancient Near East, including Israel, and the Roman Empire, as reflected in Paul’s writings. Reading the Bible as something it is not (a book intended to make ancient people take on a cultural outlook more like moderns), modern readers assume that everything in the Bible has God’s stamp of approval. Rather than being a book that makes us good by its teachings, the Bible is the story of God’s behind the scenes actions to bring us to the good.
No book of commandments or wisdom or self-help can make us good. A miracle of transformation is required to turn evil-soaked human beings into the creatures of light and glory we were made to be. But the Bible does contain the roots of that tree that gives life forever. Glimmers of the perfect shine. “You shall not turn a slave over to his masters,” is one of several flickers of hopeful light reflected in Israel’s law code. “He shall live with you in any place he may choose . . . you must not ill-treat him.” In the days of plantations and masters, the Bible was read selectively. Much has not changed.
Edomites and Egyptians accepted in third generation (8-9), increased purity regulations for the military camp (10-15), sanctuary for foreign slaves (16-17), forbidding prostitution (18-19), prohibition on lending at interest (20-21), sanctity and urgency of vows (22-24).
Vss. 8-9 finish the earlier section about forbidden people in the Assembly. Tigay (Deuteronomy: The JPS Torah Commentary) deduces from this law about Egyptians and Edomites that the ban on “entering the assembly” is not a ban on residing as aliens in the land. Therefore, the previously mentioned ban on Ammonites and Moabites does not preclude them living as resident aliens. Meanwhile, with Edomites and Egyptians, the idea seems to be that after dwelling as aliens for three generations, they could be accepted into the “assembly of Israel.” We cannot be certain what “entering the assembly” means, but one likely interpretation is that intermarriage would then be permitted (Tigay).
In 23:10 a new section starts (ending with 25:19), the final section of laws. They are miscellaneous in nature with their common theme being civil and domestic issues.
The section begins with rules for a military camp (vss. 10-15). The regulations for ritual purity when marching to war are in some ways increased, as was the case with Israel in the wilderness. Vs. 14 is the only passage in Torah that hints excrement is impure (though the thought returns in Ezekiel).
The rest of this section addresses other assorted civil and social issues. We see in vss. 16-17 a difference between Israel and the nations regarding slavery. Other Near Eastern law codes demanded that their neighboring states return escaped slaves whereas Israel was forbidden to return them to slavery (Tigay).
Regarding vs. 19, prostitutes sometimes were paid with animals, and such an animal would be unfit to offer in the Temple. The “pay of a dog” phrase may refer to something we are no longer aware of or it may be a phrase for the pay of a male prostitute.
The prohibition of lending at interest (vss. 20-21) works only in a society designed and blessed by God, an agrarian economy in which obedience to the divine will guaranteed abundant crops. But apart from the Torah ideal, a people whose sustenance comes from faith and not from a market economy, it is impossible to maintain a ban on lending and borrowing. Capitalism and other economic systems are part of the reality of this present world, but the Torah hints at something better, to be realized in the world to come.
Vows (vss. 22-24) are holy, and the offerings promised were to be brought quickly, probably meaning at the next festival at the Temple.