The Beautiful Prisoner, The Great War, and the Yetzer Hara – Ki Teitzei 5778

This morning’s Torah portion, Ki Teitzei, contains more mitzvot, more commandments than any other parashah in the Torah.  Many of those mitzvot have direct applications to our lives today.  It is easy to see how these are timeless principles by which we ought to lead our lives.

Other mitzvot seem to be better suited for a different time and place.  In fact, we sometimes encounter mitzvot that seem to run counter to what we understand to be proper, moral behavior.

Before judging too harshly, we must remember to read on multiple levels.  Our first task is to try to understand what this law meant in the time and place in which it was given.  The Torah is a very old book.  Ancient social norms were vastly different.  We cannot judge ancient practices by modern sensibilities.

The second way of reading the text is to see it through the lens of Jewish tradition.  It turns out that our ancestors were also disturbed by some of the same things that disturb us, and they often came up with creative ways to interpret or allegorize difficult texts that made them meaningful and applicable to life in their own day.

Then, we can begin to consider how this difficult mitzvah might have meaning for us today.

The first mitzvah in today’s Torah portion is of this kind.  The opening verses describe the treatment of female captives by victorious Israelite warriors.  At a time when plunder and rape were standard practice in warfare, the Torah places extreme limits on the behavior of Israelites soldiers.

If a soldier takes a beautiful woman captive whom he desires, he cannot touch her.  Instead, he must bring her into his house.  She must shave her head, trim her nails, and go into mourning for thirty days.  Basically, he makes her as unappealing as possible.  Then, if the soldier still desires her, he must marry her.  If not, she goes free.

The Torah’s restriction on the behaviors of Israelite soldiers stands out in the history of human warfare until modern times.  Nowadays, the Geneva Convention includes accepted laws of ethical behavior in war which are agreed to by most nations in the world, including Israel.

The Torah’s regulations, therefore, would seem to be no longer relevant.

Rabbi Isaiah HaLevi Horovitz was a Polish Rabbi who moved to Tzfat in the Israel in 1621.  He was an important Kabbalist who had a great influence on Chasidism.   As is often the case, Rabbi Horovitz is best remembered not by his name, but by the acronym of his major literary work, the Shlah.  The Shlah, Shnei Luchot HaBrit, meaning “Two Tablets of the Covenant,” is a commentary on the Torah that was popular among Ashkenazi Jews.

In discussing the opening theme of Parashat Ki Teitzei, the Shlah acknowledges that the pshat, or plain meaning of the Torah, indeed describes laws and limitations of warfare.

But that is not what interests him.  The text hints at a more personal lesson pertaining to each individual human being.  The law about the woman captured in war is an allegory for an internal war that all of us wage.  It is the greatest war of all, the war against the yetzer hara, the evil inclination.

The Shlah tells a story:

There was once a pious man who encountered some soldiers returning from a war against their enemies.  With puffed up chests, they were carrying spoils that they had captured during the fierce battle.

He said to them: “You have just returned from the small war with your spoils.  Now prepare for the big war!”

“Big war?” they asked, looking around in surprise, as if there was an impending sneak attack.  “What are you talking about?”

To which he responded: “The war of the yetzer and his legions.”

The Shlah explains that when the Torah speaks of the soldier’s desire for the beautiful woman taken captive, it is really presenting an allegory about the pull of our urges.  Those urges are hard to resist.  They lead us down paths of self-destruction.  The Shlah equates committing a sin to losing a battle against our urges.  

In a real war, if one is victorious against one’s enemies over the course of a few battles, the enemies (usually) learn their lesson and surrender.  But the big war against the yetzer hara never ends, whether or not we are victorious in its individual battles.  That is the great war which all of us wage.

The soldier’s feelings of desire for the beautiful woman are a metaphor for our attraction to those urges that tempt us.  We desire many things: good food and drink, honor, wealth, possessions, power, recognition, sex.  The ultimate goal is not to suppress those feelings entirely, but rather to channel them appropriately.  The Shlah suggests that we do so by figuratively paring the nails and trimming the hair.  In other words, by making those desirable things less desirable.

The Torah recognizes that these urges are real, and in some senses are even good.  For without the Yetzer HaRa, the midrash teaches, nobody would ever build a house, get married, have children, or conduct business.  (Genesis Rabbah 9:7)

To this list we can add that the proper channeling of our urges leads to healthy living, meaningful friendships, supportive communities, joy.

Through this channeling of our urges, what might have been a sin is transformed into a merit.

The Talmud teaches that “in the place where those who have repented stand, those who are completely righteous cannot.”  (BT Berachot 34b)  The Shlah explains that because the penitent person has made mistakes, worked on them, and trained himself in the ability to resist temptations, he is thus better equipped to deal with new temptations when they arise.

It is the middle of the month of Elul.  We are just over two weeks from Rosh Hashanah, followed ten days later by Yom Kippur.  This is the time when we are supposed to be focused on cheshbon hanefesh, taking account of our souls.

Where am I in life right now?

Have I wronged anyone and not made amends?

Did I make promises that I have not kept?

Have I gone astray in other ways?

In some way, our yetzer hara is mixed up in every mistake or transgression we have committed.

My wrongdoing, my inability to control my desires, comes from selfishnesss and greed, from putting my own desires ahead of the needs of others.  My yetzer hara was victorious whenever I expressed my anger in ways that were hurtful to others, whenever I allowed my fear to cause inaction or laziness.

Let us use this annual time of introspection and life review to understand those moments when our urges have gotten the better of us.  What can we do to channel those desires into constructive actions that bring us closer to our loved ones, our friends, our community, and God?

Cash Bail in Jewish Law – Shoftim 5778

Of the many problems that California is currently facing, bail reform is one that has recently been in the news.

That is because there is a bill, SB10, that has been going through the California State Assembly and is going to be up for a vote this week after numerous modifications over the past year.

The latest version represents a compromise that does not please everyone.  The law would eliminate the cash bail system.  Instead, each county’s court system would determine whether to incarcerate an accused criminal based on a pre-trial assessment of whether a person would be a risk to society or pose a flight risk.

If SB10 passes the Assembly, it will still need to clear the State Senate and then be signed by the Governor.

Let me state at the outset that I do not know whether this law will solve the problem.  But the problem certainly needs solving.

Even though all of us are experts on the judicial system due to our careful viewing of Law & Order, please allow me to review a few details.

Bail is the release from custody of an accused person before the trial.  

It originated in England in medieval times as a way to make sure that a suspect would show up in court.  It does not necessarily involve the payment of money.

Cash bail, which SB10 would eliminate, means that the court requires the accused to come up with a certain amount of money in order to be released.  If the money is not raised, then the accused remains incarcerated through the end of the trial.  If the money is raised, the accused is released on bail, with the money being returned after the trial is complete, minus fees. 

In the 8th Amendment, the Founding Fathers included the clause – “Excessive bail shall not be required.”  The Supreme Court has never determined what “Excessive” means.

Under current federal law, certain crimes are not subject to bail.  Suspects must be kept in jail before the trial.  This includes cases in which there might be a sentence of death or life in prison, certain drug offenses, and a few other categories.  A judge who determines that a suspect would pose a risk to his/her community or be a flight risk can also deny bail.

For all other crimes, there is a bail hearing.  Most states use the cash bail system.  Accused persons who are unable to afford the bail amount face a choice.  In states where it is legal, like California, they can go to a bail bond agency, which loans them the money in exchange for a payment, usually 10% of the total bail amount.  The bail bondsman then makes sure that the accused shows up in court.

A person who cannot afford the bail bond must remain in jail, even though bail has been granted.

There are a number of problems with the cash bail system.

Keep in mind, first of all, that under American law a suspect is innocent until proven guilty.  This means that when a person accused of a crime who is kept in jail, he is kept there as a legally innocent person.

The median bail amount in California is $50,000.  Only 1 in 10 can afford to pay it.  63% of those who are currently sitting in jail have not been convicted of anything.  They are waiting for trial or sentencing.  A person who is in jail awaiting trial is unable to work.  He (it is usually a he) typically loses his job, and possibly his home.  He is unable to support his family.  He has great difficulty meeting with his legal team and preparing his defense.

In contrast, a person who has the means to post bail can continue to work and has a much easier time of meeting with his lawyer and preparing his case.  The result is that for those convicted of the same crime, those who post bail, on average, receive a lesser sentence than those who have to remain in jail before the trial.

There is evidence, as well, that bail rates for black and Hispanic defendants are set higher than for white defendants who are charged with the same crime.

Finally, the prospect of spending a long time in jail awaiting trial encourages innocent people to plead guilty to crimes they did not commit.  This gets them out of jail, but it also gives them a criminal record, which can have a lifetime impact.

SB10 tries to address these issues.  As the bill itself states:

It is the intent of the Legislature in enacting this act to safely reduce the number of people detained pretrial, while addressing racial and economic disparities in the pretrial system, and to ensure that people are not held in pretrial detention simply because of their inability to afford money bail. (SB10, Sec. 2)

I do not know whether SB10 will achieve these goals.  I am trying to learn more about it, but am certainly no expert.  I encourage all of us to educate ourselves on this issue.

When trying to understand an issue of criminal reform, it can be helpful to look at other systems.  While not perfect, our Jewish legal tradition is rooted in principles of fairness and equity.  It turns out that Jewish law, or halakhah, has something to say about bail as well.

This morning’s Torah portion, Shoftim, is primarily about the justice system.  Moses instructs the Israelites, collectively, to establish and maintain just institutions of government.  In the second verse.  Regarding judges, he declares:

Lo tateh mishpat, lo takir panim, lo tikach shochad ki hashochad ye’aver einei chakhamim visalef divrei tzadikim.

You shall not skew judgment.  You shall recognize no face and no bribe shall you take, for a bribe blinds the eyes of the wise and perverts the words of the innocent.  (Deut. 16:19)

These are the three principles of judicial fairness.  They appear numerous times in the Torah.  Usually, the Torah addresses them to judges specifically.  Here, Moses delivers these requirements to the Israelites collectively, as if to say that we all bear responsibility for the behavior of soceity’s officials.  We must make sure that those whom we appoint as justices and magistrates abide by principles of equality and fairness.

These three concepts present three aspects of judicial fairness.

Jewish law recognizes that judges are human beings.  A judge may not do anything in the court that would show favor to a wealthy person or an acquaintance.  Not only is a judge not allowed to take a bribe, for obvious reasons, a court is not allowed to charge fees to the plaintiffs in a case.  Mishnah Bechorot (4:6) states that “anyone who charges a fee to the litigants to judge – his judgment is nullified.”

The judge cannot allow anything to occur in the courtroom that might prevent a plaintiff from presenting the best possible case.

The judicial system the Torah describes is fairly uncomplicated.  In a real legal system, however, there are a lot more moving parts.  It is not difficult to imagine a flawed court that is comprised of well-intentioned, knowledgeable professionals of high moral character.

Regarding bail, the Talmud (BT Sanhedrin 78b) deals explicitly with the question of what to do with a suspect before the trial is held.  If it is a capital crime – in other words if the accused has been charged with murder – he must be jailed by the court until guilt or innocence can be determined.  In such a case, no bail is permitted.  If the accused has severely injured a person, and it is not clear if the victim will survive, he is also held in jail.  The reason is because the court does not yet know if he will need to be tried for murder or for injury.  Rashi explains that the accused is imprisoned out of a concern for flight-risk.  If the suspect injures another, but the injuries are not considered to be life-threatening, then he is released until the trial.  

The Mekhilta (Mishpatim, Ex. 21:19, 2), an early legal midrash collection on the book of Exodus, addresses the question of cash bail directly.  In the situation described in the Talmud, the accused is not permitted to post bail and go free.  He must remain incarcerated until the victim’s fate resolves.  

An entry under “Bail” in the 1906 Jewish Encyclopedia concludes as follows:

…as a rich man can readily give Bail and the poor man can not, the release of the prisoner on Bail would run counter to that other oft-repeated rule of the Torah, ‘One law there shall be to you.'”

Over the centuries, Jewish law has not traditionally employed incarceration as a punishment in the legal system.  It was basically used just for holding an accused murderer before trial out of concern for public safety and potential flight.

There are essentially three types of punishments that a Jewish court can administer.  For capital crimes, the punishment is death.  For sins, the court can administer lashes.  For civil and personal injury cases, there are fines.

One form of imprisonment that is mentioned in ancient sources is called the kippah.  It was a small cell in which a person would be imprisoned and fed meager rations until he died.  This could be used in a case in which a murderer was found guilty, but could not be sentenced to death because of a technicality.  There is no evidence that the kippah was ever actually used, though.

Dina d’malkhuta dina is an ancient concept that is applied in particular to monetary laws.  “The law of the land is the law.”  In order to participate in the economies of the societies in which they live, Jews need to adopt those society’s laws, including when they do not conform to Jewish law.

For most of the past two thousand years, Rabbis did not have the authority to issue legal rulings except in cases that were internal to the Jewish community.  Many of the discussions on criminal and civil law, therefore, are theoretical.  But there is a historical record of a cash bail system being utilized by a Jewish court.

Rabbi Yitzchak ben Sheshet Perfet, known by his acronym as the Rivash, was a 14th century Spanish Rabbi.  He wrote a teshuvah, a legal decision, that deals with a question of whether a debtor who could not pay off his debts could be incarcerated.  He rules that this would be forbidden under Jewish law.  But then he laments:

The truth is, in my own city, the judges’ custom is to imprison a person who is liable in this manner, according to an act of the community.  And they further enacted that even without being found guilty, any person can be held over a lawsuit, unless they pay collateral, and they call this a ruling of the court.  I did not want to allow this act to stand, because it is not in accordance with our Torah’s law.  And they said to me: this is in accordance with the “marketplace act” [a principle allowing new rules that make commerce smoother], because of swindlers, and so as not to bar the door in the face of borrowers. And I allowed their custom to stand. (Teshuvot HaRivash 484) 

In other words, in the Rivash’s day, Rabbinic courts were sending Jews to debtors prison and allowing them to post bail.  This was apparently the dominant practice in the area, and was deemed necessary by the leaders of the Jewish community to preserve the integrity of the marketplace.  Knowing that it was against the Torah, the Rivash reluctantly allowed it to stand.

The existence of the modern State of Israel has made the question of how to punish criminals in a Jewish legal system practical.  

Rabbi Haim David HaLevy, the former Chief Rabbi of Tel Aviv, who died in 1988, wrote a Tehuvah in which he stated categorically that a person who is being charged for a capital crime should be incarcerated without bail under any circumstance.  Citing the Rivash, he concludes that “that for all other crimes, for which the punishment is monetary, we let them go [on bail] until the determination of the sentence.”  (Aseh L’kha Rav 3:48)

Like any legal system, Jewish law is not perfect.  Nevertheless, for more than three thousand years, it has strived to conform to principles of justice and equity that are rooted in the Torah itself.  As such, it has something to teach us today.

I would never suggest that state or federal law must conform to Jewish law.  We Jews should be nervous whenever a religious group tries to impose its beliefs on secular law.

But our ancient tradition has much to teach us concerning the establishment of societies and institutions that are guided by justice and equality.  We would be wise to improve our understanding of Jewish law as we try to determine the best way forward for our community, our state, and our nation.

 

BIBLIOGRAPHY

Incarceration in Jewish Law: A Brief Overview

10 things you need to know about money bail

It’s a Great Mitzvah to be Happy Always – Re’eh 5778

Since 2012, the United Nations has conducted an annual World Happiness Report.  It ranks 156 countries by the collective happiness of their populations using weighted metrics derived from per capita GDP, degree of social support, healthy life expectancy, freedom to make life choices, generosity, and perception of corruption.  According to the 2018 World Happiness Report, America ranked 18th in the world, but we have been on a downward trajectory over the past decade.  Israel was 11th, if one can measure such a thing.

Of course, this has nothing to do with happiness as each of us experiences it individually.

Am I happy?

How do I get it?  And what is it?  Perhaps it is a chemical release that we can measure through neurobiology.  Maybe it is a feeling of purpose in life, or the awareness of being wanted.  Perhaps happiness is something we experience when we indulge our appetites.

One of the recurring themes in this morning’s Torah portion, Parashat Re’eh, is simchah – happiness, or joy.  The Hebrew root sin, mem, chet occurs exactly one time each in the Books of Genesis, Exodus, Leviticus, and Numbers.  It appears twelve times in the Book of Deuteronomy.  Seven are in Parashat Re’eh.

All seven occurrences contain similar elements.  The Israelites are told to rejoice when they bring various kinds of voluntary and mandatory offerings to the Temple.

Here is one example, describing the observance of the holiday of Shavuot:

V’samachta lifnei Adonai Elohekha… You shall rejoice before the LORD your God with your son and daughter, your male and female slave, the Levite in your communities, and the stranger, the fatherless, and the widow in your midst, at the place where the LORD your God will choose to establish His name.  (Deuteronomy 16:11)

You, or rather, the Israelite, must gather together with all of the members of his household: his wife, children, and servants.  Plus, he invites the poor and dispossessed to join with him.  They are all to assemble “at the place where the Lord your God will choose to establish His name,” that is to say, the Temple in Jerusalem.  There, they are to bring a freewill offering from the recent harvest, as an observance of Shavuot.

Note that it is not God who is doing the rejoicing.  It’s people – us.  This is not the case in other books of the Torah, which emphasize the burning up of meat to send up a pleasing odor to the Lord.  In Deuteronomy, we worship God by celebrating together and creating a mood of festivity among ourselves.  When Israelites brought one of these offerings, they did so as an acknowledgement and expression of thanks for the blessings that had been provided by God. 

The parashah implies that the recipe for true simchah requires several things: for us to be together, for us to share our bounty with the poor, for us to eat and drink, and for us to acknowledge that any blessings we get to enjoy in this world are ultimately gifts from God, and not merely the products of our own efforts.

Finally, by emphasizing that all of this must take place in the Sanctuary, and on specific occasions, the Torah channels our expressions of joy into sacred contexts.  After all, there can be danger in unbounded releases of happiness.  Parties can get out of hand.

Does the destruction of the Temple and the ending of sacrifices mean that we no longer worship God with simchah? 

The Baal Shem Tov, the founder of Chasidism, placed a great emphasis on the idea of simchah as the central component of Judaism.  He offered an alternative approach to Jewish life, which in his day was so focused on intellectual achievement that it had lost the essence of what it meant to be Jewish.

All joy, even its lowest forms, originates in holiness and is a gift from God.  The Baal Shem Tov especially liked the following story from the Talmud.

Rabbi Beroka Hoza’ah used to frequent the market at Lapat where Elijah [the Prophet] often appeared to him. Once he asked [the prophet], “Is there anyone in this market who has a share in the world to come?”

[Elijah] replied, “No…” While [they were thus conversing] two [men] passed by and [Elijah] remarked, “These two have a share in the world to come.”

Rabbi Beroka then approached [the two men] and asked them, “What is your occupation?”

They replied, “We are jesters, when we see people depressed we cheer them up; furthermore when we see two people quarrelling we strive hard to make peace between them.”  (BT Ta’anit 22a)

One would imagine that the marketplace of a major Persian city would be filled with worthy people.  Scholars, merchants, philanthropists, civic leaders – many passersby who should merit a place the world to come.  Yet the only people worthy enough are the jesters.

The Baal Shem Tov’s great grandson, Rebbe Nahman of Breslov constantly strove to find ways to serve God with simchah.  Of his many beloved stories and teachings, the most well-known is: mitzvah gedolah lihyot b’simcha tamid.  “It is a great mitzvah to be in a state of joy always.”  (Likutei Moharan, II 24)

It sounds nice, and makes for nice lyrics to a niggun, but it is kind of a strange thing to say.  We usually think of happiness as something which we strive to achieve.  But a mitzvah?!  A commandments?!  Perhaps we might suggest that a life lived according to the Torah can lead a person to happiness.  But to suggest that there is a requirement to be happy seems unrealistic.

And even more far-fetched is the notion of tamid, always.  Can anyone achieve a constant state of happiness.  And if so, could the rest of us stand to be around such a person?

Rebbe Nachman knew this well.  He personally suffered from severe mood swings and depression.  He lost two children, and his wife died when he was thirty five.  He remarried almost immediately, contracted tuberculosis, and died at the age of thirty eight.  So what does Rebbe Nahman mean when he talks about simchah?

He teaches that it is in a person’s nature to be drawn to marah shechorah, black bitterness, and atzvut, sadness, from the travails of life.  We all suffers afflictions.  It would seem to demand all of our efforts to achieve a constant state of joy.  

Every one of us has a lev nishbar, Rebbe Nachman continues, a broken heart.  This broken heart is not something to suppress, nor is it something to wallow in, as that can lead us further down the path of black bitterness.  He advises instead that we should dedicate a fixed time each day during which to break our hearts and engage in honest conversation with God.  Then, we can be freed up to experience joy.

Indeed, Rebbe Nachman did this.  We have preserved many of Rebbe Nachman’s own spontaneous prayers that he recited in his daily conversations – or battles, as he described them – with God.  Embrace the brokenness and sadness, and then be freed up for joy.

Rebbe Nachman advised his chasidim to sing, and to dance.  He encouraged silliness, and lightheartedness.  “Finding true joy is the hardest of all spiritual tasks,” he taught.  “If the only way to make yourself happy is by doing something silly, do it.”  (Advice, Breslov Research Institute. p. 254)  Rebbe Nachman fervently believed that our spiritual joy could make an impact in the real world.

Shortly before Purim in 1803, Rebbe Nachman arrived in the town of Terhovitza, in Ukraine, for his annual visit.  (Likutey Moharan, Volume II, #10, p. 115) Czar Alexander I had recently issued an ukase, a decree instructing the issuance of “Enactments Concerning the Jews.”  This would eventually lead to laws for mandatory conscription and compulsory secular education.

Rebbe Nachman introduced one of his teachings by stating: “When, God forbid, there are decrees affecting the Jewish people, through dancing and hand-clapping these decrees can be mitigated.”

After he completed the lengthy and intricate lesson, Rebbe Nachman remarked: “This is what I said!  We are hearing news of decrees against the Jews.  But the days of Purim are near and Jews will dance and clap, and thereby mitigate the decree!”

At the Purim festivities that year, Rebbe Nachman danced even more fervently than usual.  “I have delayed the decrees for twenty-odd years,” he reflected afterward.

The decrees did not come until almost twenty five years later, in 1827, sixteen years after Rebbe Nachman’s death.

I don’t know if we have come any closer to defining simchah, but Parashat Re’eh and Rebbe Nachman offer paths to achieving it.  In the Torah, Simchah is experienced when we join with other people, including those without the means, to express gratitude for the gifts we have been given.  Spiritual simchah, expressed at holy moments and locations, is worship of God.

For Rebbe Nachman, it is the highest form of worship.  And even though life is difficult, unfair, and filled with sadness; and even though some people’s physical and psychological burdens seem to far exceed those of others, our ultimate task in life is to cultivate a state of constant joy.  This can only be done by acknowledging the sadness.  Maybe it is the black bitterness itself that makes true simchah possible.

Mitzvah gedolah lihyot b’simchah tamid.  “It is a great mitzvah to be in a state of joy always.”