To get rid of the law, the Rabbis started reading the text so literally, using every means of deduction and legal hairsplitting, that it became totally impossible to enforce the law. So, for example, the rabbis interpret the phrase “he doesn’t listen to our voice (איננו שמע בקולנו)” in Devarim 21:20 to mean that the father and mother must speak in the identical voice,[20] a state of affairs that is all but physically impossible. They then add for good measure that the parents must also be the same height and have the same face.[21]
- Ir Hanidachat (the Subversive City)
The second, and perhaps most radical, example of how far the Rabbis were prepared to go is the case of ir hanidachat,(subversive city) regarding which the Sages used a very far-fetched argument to abolish this biblical law for the sake of a higher morality. Here, too, they were convinced that “there never was a condemned city and never will be,” and the law was meant only to convey some important lessons.[22]
It is most ingenious how the Sages justified this ruling. They argued that it was impossible to destroy the entire city, since no doubt there must have been mezuzot on the doorposts of some of its inhabitants. (You can be a Jewish idol worshipper, but what Jew doesn’t have a mezuzah on their doorpost?) Since it is forbidden to destroy the name of God, which is found in the mezuzah, and everything in the city had to be utterly destroyed, the law of ir hanidachat could not be enforced and was meant to be purely theoretical.
That the mezuzah could be removed before the city would be destroyed was something the Sages did not want to contemplate! They must surely have been aware of this possibility. But since they believed that God could never have meant this law to be applied, they found an extremely far-fetched loophole and based their whole argument on a minor detail, which they could easily have solved and which they knew made little sense. It was deliberate trickery rooted in an unequalled moral awareness.[23]
- Lex Talionis (Eye for an Eye)
Another case is lex talionis, the law of “an eye for an eye.” This law was understood by the Rabbis to be purely symbolic, since it was impossible to enforce in a way that could be justified. (How could one person’s eye ever be equal to someone else’s?) They therefore felt obligated to interpret the true meaning of this law as financial compensation.[24] It was written as “an eye for an eye” to emphasize that ideally a person should give their eye to the one whom they blinded.[25] Surely, such a thing was not possible, but the point was made! [26]
- The Mamzer (Bastard)
A most striking case, which shows how far the Sages were prepared to go in finding loopholes, is the mamzer (a child born from an adulterous relationship). Since the Rabbis (according to our theory) considered both this law to be flawed, perhaps a relic of a primitive society, which the Jews at the time were not yet able to dispense with, they argued that they were obliged to at least limit their damage until the day when they could be abolished altogether. This, after all, was exactly what God and the Torah desired.[27]
Ideally, the Torah does not want such a law to apply, since it violates its spirit, according to which no one may ever be punished for another’s transgressions or become the victim of a malicious husband.[28] Why punish children for the sexual misconduct of their parents?
Still, the Rabbis believed that for the meantime, the law had meaning and was a very strong warning against sexual offenses. As such, the “flaw” did not yet have to be completely abolished but had to be amended in such a way that it would nearly never apply, although it was clear that at a still later stage it would need to be altogether abolished.[29]
There was no way, however, to reinterpret the text in order to accomplish this temporary goal, so another device had to be found. The Sages invented a mechanism that was so “out of the box,” one can only stand in awe of their courage. They decided that the legality of any marriage was not contingent on any action taken by the husband and wife, or even on the rabbi who married them, but only on their (the Sages’) agreement to this marriage. If they no longer approved, they simply declared the marriage null and void. [30] While they seldom made use of this principle, they did if they felt it would help a mamzer out of his or her unfortunate status.
A Trickery Reflecting the Torah’s True Values
The Sages didn’t see any of these interventions as trickery but as a way of achieving the higher objective of the Torah.[31] They believed that the Torah was completely divine but also flawed and that it was their task to refine it and to bring it to the level that God had intended. This, I believe, is the secret behind the halachic loophole and the divinity of the Torah.
[1] Mentioned in Rabbi Naftali Zvi Horowitz of Ropschitz, Zera Kodesh (Jerusalem, 5714), Parashat Yitro.
[2] The following was inspired by the writings of Rambam, Maharal, Rabbi Eliezer Berkovits z”l, Jewish Women in Time and Torah (Hoboken, NJ: Ktav, 1990); Professor Tamar Ross, Expanding the Palace of the Torah,(Waltham, MA: Brandeis University Press,2004); Rabbi Nahum L. Rabinovitch, The Way of Torah The Edah Journal 3.1 (2003); Donniel Hartman’s Putting God Second: How to Save Religion from Itself (Boston: Beacon Press, 2016) and many others. Special thanks to Yehudah Ber Zirkind for his learned advice and many thanks to Channa Shapiro of Jerusalem for her editorial advice. The ideas expressed in this essay are solely mine.
