Ki Teitze is a parasha densely packed with mitzvot. Of course, just because there are all these laws does not mean that it is always clear what their parameters are or how they are to be implemented. Should determining this be done only through technical and formal rules, or do values and underlying principles play a role?
In this regard, it is worth noting two discussions in the Talmud around two different mitzvot found in Ki Teitzei. In Devarim 24:17, we read, “Do not take as collateral the cloak of a widow.” The Mishna (Baba Metzia, 116a) asks whether this applies to all widows or perhaps only poor widows. The first opinion is that it applies to all widows because the verse does not distinguish. Rabbi Shimon, however, states that it only applies to poor widows. The Talmud explains that Rabbi Shimon believes that one is entitled in the interpretive process to darshinan ta’ama dikra, to use the reasons of the mitzvahto determine its legal parameters. The Talmud refers to this position of Rabbi Shimon in many places, but the general sense is that it is a position that is rejected, that we cannot use our understanding of the reason behind a mitzvah to determine its parameters.
Now contrast this to the Talmudic discussion regarding another mitzvah in Ki Teitze, the mitzvah of perikah and ti’inah, unloading and reloading an animal that is collapsing under its load (Devarim, 22:4). What is the purpose of this mitzvah? Is it, asks the Gemara (Baba Metziah, 32a), to alleviate the suffering of the animal, a concern for tza’ar ba’alei chaim, animal suffering? Or, alternatively, is it a concern for the owner who may lose his donkey, if it dies on him, leaving him stranded by the side of the street? In other words, is animal suffering a Biblical concern or only a rabbinic one?
One reason this matters is that it will determine the weight of our obligation to alleviate the suffering of animals in general. However, the immediate concern of this Gemara is not to extract the value and apply it elsewhere but to use the very value itself in interpreting the parameters of the mitzvah. If, for example, tza’ar ba’alei chaim is the operative principle here, says the Gemara, then the mitzvahwould apply even if the donkey was ownerless. However, it would also mean that the primary mitzvahwould be unloading, rather than reloading, the animal. If the concern were for the owner, in contrast, there would be no obligation if the animal was ownerless, and the obligation to reload might be as great as that to unload.
The Gemara leaves this question unresolved, but what clearly emerges is that one can use the reason behind a mitzvah to guide the interpretation of the parameters of the mitzvah. What is particularly fascinating is that this Gemara indicates that the application of hermeneutic principles can be guided by what is understood to be the underlying reason of the mitzvah.
How to reconcile this with the earlier statement – that we do not use the underlying reasons for a mitzvah to interpret its legal parameters – is unclear. It seems that sometimes this can be done, but it is not clear when. Certainly, one key factor is whether we can state with any confidence what the underlying principle actually is. If multiple reasons can be given for a mitzvah– which is almost always the case, witness the two explanations for perikah and ti’inah above – then using an assumed reason to guide interpretation would seem much more questionable. In an article I wrote a few years ago, I explore this issue at length and identify a number of different approaches and criteria as to when the reasons of a mitzvah are or are not used in the process of legal interpretation. The values underpinning the mitzvot can, within certain limited parameters, play a role in the interpretation of a law. But values emerge not only from the mitzvotbut from the Torah narratives as well, and the message of a narrative might even, at times, point in an opposite direction than that of certain mitzvot.
The mitzvah of recognizing the first-born son in this week’s parasha is an interesting case in point. We are told that a father cannot give the double portion to a younger, more beloved son, and that he is required to recognize the first-born’s rightful status and privilege. A moment’s reflection, however, will reveal that many narratives of the Torah tell the opposite story. From God’s preferring of Hevel’s sacrifice of Kayin’s, from the choosing of Yitzchak over Yishmael and Yaakov over Esav, all the narratives of the Torah tell the story that what matters is not birth order but righteousness and merit. Scholars call this phenomenon of bypassing the first-born the “usurping of the right of primogeniture” and note that this is a recurring theme through Breishit.
A prime example of this is when Yaakov gives Yosef two tribes, a double portion, thereby favoring him over the older son, Reuven. This is, of course, in direct violation of the prohibition to favor the younger son of the beloved wife (Rachel) over that of the hated wife (Leah)!
Even God violates this law: “So shall you say to Pharaoh: My son, my first-born, is Israel” (Shemot, 4:22). In birth order, Israel is not the first-born of the nations. But God has chosen us, and has given us the status of the first-born, flying in the face of the biblical prohibition!
The point of these narratives is a powerful and revolutionary one: hierarchies of society do not matter as much as personal worth or merit. So how do we deal with the mitzvah in this week’s parasha which tells us that we must uphold these societal hierarchies?
It seems we are mandated at times to embrace opposing values. The world is complex, and simple solutions are almost always the wrong ones. On the one hand, societal structures should be maintained – the stability of the society is a key value. On the other hand, we can and should recognize the basic equality of all human beings and judge people and reward people based on merit, not status. Our charge is to find a way to work toward this more ideal vision while not undermining the status quo.
One way to do this in the case of inheritance is through a deathbed bequest. Such an instrument does not change the laws of inheritance; it merely circumvents them by gifting the property before one’s death. In fact, we find that the Rabbis did exactly this in creating the vehicle of matanat shekhiv mei’ra, a deathbed bequest, which is not constrained by the laws of the first-born’s double portion. In fact, Rabban Shimon ben Gamliel states that a father should be praised if he chooses to completely disinherit all his children if they are undeserving (Baba Batra, 133b)! And yet the Torah’s mandate of the double portion remains on the books and is binding when one dies intestate. It is in this way that the Torah laws are upheld and the societal structures are preserved while the Torah’s vision of a society based on merit is embraced and approximated.
These ideas are potentially dangerous ones. If values can play a role in interpreting the law, even a limited one, and if values open up other avenues even as the law is maintained, what is to say that this won’t get out of hand? Who is to stop someone from irresponsibly giving a facile reinterpretation of halakha based on what he thinks the underlying reason is, disregarding all the formal rules and principles of interpretation? What is to stop someone from coming up with a legal workaround that, rather than respecting the law on the books, completely undermines it?
These dangers are very real. We must not turn halakhainto the mere expression of a system of values, rejecting the binding and formal nature of the law. The other extreme, however, is equally wrong. We must not jettison the vibrant dynamic of values and law and turn halakha into a rigid system of pure formalisms.
Our task is not an easy one. We must work hard and with vigilance to maintain this dynamic, at once affirming lo darshinan ta’ama dikra, that it would be hubris to think that we can know what the principles are and how to precisely apply them, and tza’ar ba’alei chaim, that Torah principles and similar values guide us as we follow the formal rules to interpret and apply halakha. We must at once insist that the younger son cannot be given a double portion and at the same time find the proper instruments that allow for status based on worth and merit to be recognized. It is only in this way that we will embody a Torat chaim, living a life true both to the Torah’s laws and to its deeper values for us and its vision for society.