Stubborn and Rebellious Son - Ki Tetze

How To Be a Jewish Judge - Part Two

Devarim 21:18-23

If a man has a ben sorar u’moreh (stubborn and rebellious son) who does not listen to the voice of his father and the voice of his mother and when they discipline him he does not listen to them, then his father and his mother shall seize him and bring him out to the elders of the city and to the gate of his place.  And they shall say to the elders of the city, this son of ours is stubborn and rebellious, he does not listen to our voice, a glutton and a drunkard.   Then, all the people of the city shall pelt him with stones until he dies, and you shall burn out the evil in your midst, and all Israel will hear and fear.

Rashi, based on Sanhedrin 72b

The stubborn and rebellious son is executed on account of [what he will become in] the end. The Torah penetrates to his ultimate intentions. Eventually, he will squander his father’s money, seek what he has become accustomed to, not find it, and stand at the crossroads and rob people [killing them, thereby incurring the death penalty. Says the Torah, “Let him die innocent, rather than have him die guilty.”

Mishnah Sanhedrin 8:1-4

From when does a ben sorar u’moreh become a ben sorar u’moreh?  From when he brings forth two hairs, and until his beard grows around.  As it is said “ben” and not “bat”.  “Ben” and not “ish”.  Little ones are exempt.

From when is he liable?  From when he has eaten a certain measure of meat and drunk a certain measure of Italian wine.  If he ate in a ‘mitzvah gathering’ or ate the second tithe in Jerusalem, or ate non-kosher meat... if he ate anything that is a mitzvah or anything that is a violation of religious law, if he ate any food other than meat, or drank any drink other than wine, he does not become a ben sorar u’moreh, as it is said (Deut 21) “a glutton and a drunkard.”  And even though there is no proof of this there is a hint of it, as it is said (Proverbs 23): “Don’t be among the drunkards of  wine or the gluttons of meat.” 

If his father wants to and his mother does not want, or his father does not want to and mother wants to, he does not become a ben sorar u’moreh unless both of them want to. If one of them was maimed or lame or dumb or blind, he does not become a ben sorar u’moreh, as it is said (Deut. 21): “then his father and his mother shall seize him” – so they are not maimed.   “Bring him out” – so they are not lame.  “They shall say” – so they are not dumb.  “This son of ours” – so they are not blind.

From In The Land of Milk & Honey

They didn’t argue that God knew best, or that human morality was inherently unreliable.
They didn’t answer that we don’t have a choice – that “that’s was the Torah says and who are we to argue?” They realised that leaving our morals at the entrance of the Bet Midrash is not what learning Torah is about, that – to paraphrase the Kotzker – serving the Shulchan Arukh is not always the same as serving God.

David Weiss HaLivni

Even when the Rabbis altered a law, they never abrogated it. They retained the integrity of the law. They did not totally eliminate it. That was necessary in order not to impugn the Lawgiver with a lack of moral sensitivity which may undermine not only this law, but laws in general. Once one has formulated, as in the case of bastardy, mamzerut, the need for changing the law because of moral exigency, any subsequent change will be interpreted as an admission that initially there was no moral sensitivity, imputing to the Lawgiver a defective moral awareness.

Daniel Spitz, CJLS Responsum on Mamzerut

It is true that the rabbis in the past did not explicitly use morality as the basis for change or interpretation of a law. In explaining the Torah's statement "an eye for an eye, a tooth for a tooth," for example, the Rabbis of the Talmud offer ten separate hermeneutic proofs that the verse calls for compensation and not mutilation. Each is indirect and tenuous, which explains why so many are offered. Underlying the ingenious arguments is an implicit matter of conscience regarding the taking of body parts.

There is a price paid, however, for only looking inwardly for the justification of change. The hermeneutic rules may fail to provide a comprehensive solution, as in the case of mamzerut. Preserving the system may begin to look more important than acting justly and halakhah may begin to look more like a chess game than a system of religious striving. In the words of Rabbi Gordon Tucker: “Halakhah is a theological legal system. Separating law from moral principle in such a system, as positivists would be wont to do, is to separate moral principles from God, and that is theologically untenable.”