Ki Teitzeh: If Something is Allowed Does that Make it Right?

BS”D By Dvir Cahana August 28, 2020

“In what ways has the Holocaust impacted your life?” The question sliced through the light banter like barbed wire on a scenic Polish landscape. Dr. Eva Fogelman, a researcher on the psychological effects of the Holocaust was interviewing me after having interviewed my grandmother the first year I was on this planet with a similar set of questions. I paused, for a moment.

To my grandmother, such a question would have been ridiculous. I can hear my grandmother’s chuckle and thickly-coated Hungarian accent tend to this prompt with a, “Sveetheart, I think vee should start by trying to figure out in vut vays the Holocaust hasn’t impacted my life.”

But how could I even begin to answer this question? It feels like so much of my life has been a stream of consecutive attempts at trying to reason with it, and yet, I don’t really know if, as a third generation, Third Reich survivor, there are any tangible through-lines that I can attribute as a recognizable quake reverberating into my life from the Holocaust. The immediate effect is quite evidently present, cousins and uncles that have been taken from me will forever remain petrified in the fire. However, that merely expresses itself through a difference in family constitution, and people are born into all sorts of constellations, so I am hesitant to pin a psychological ripple on something so matter of fact. Beyond the obvious, however, it is merely speculation. In my response, I want to leave generalizations and overarching trends to academia. I can theorize and postulate until the ruse-ters come home with anecdotal evidence, but I can poke holes, or question the normative claim that any one of those theories suggest. The response I was looking for, needed to strike a balance between a feeling that recognizably stems from the Holocaust and yet is unique enough to not just be a generic life-experience that anybody could relate to.

Eva tries to help me, “Many people say that learning about the Holocaust outraged them and that it shattered their sense of confidence in who they were.” When looking inwardly, such an experience was unrelatable. The Holocaust was always fascinating to me and I don’t really remember ever internalizing it with fumigation, or through morose coloured glasses and the expected effects did not seem to reflect my own life in any consistent way.

Can I really say that I second-guess exposing my Jewishness, when I addorn my Kippah with glowing pride. After morning prayers, I love keeping my shirt rolled up, in order to time the hours that the engravings of the phylacteries can remain etched on my arms. I quite literally wear my identity on my sleeve, when two generations ago, due to the Nuremberg Laws, the enforcement of such practices was interpreted as a tarring and feathering of sorts.

Can I say that I hold onto resentment to the Nazis? I can’t say that either, I only know the story of my life, and, thus far, I have been greeted with so many blessings, and stable, nurturing relationships at every turn. There was an unfathomable destruction in the 20th century, but the world that I woke up to was one where a re-burgeoning has sat at the centerpiece of my people’s story. 

Well, the paranoia of anti-semitism must have certainly worn off on me. But, upon reflection, I’m not sure that I can confidently say that, and that any of its side effects have been detectable in my life. As a run of the mill urbanized Montrealer, I have always felt so comfortable in non-Jewish circles. Never in my life have I ever confronted the boogy-man of Antisemitism in any fundamental way beyond benign misconceptions or amicable jabs. And I jovially belt out Jewish diddys as I meander through the streets of any city without a second’s hesitation.

But if the conversation of the Holocaust has flowed so transiently through my vocabulary, then there must be some rudimentary way that my life has been impacted by this cataclysmic event, right? The moment’s pause creeped into an awkward silence, “Hello? Hello? Are you still on the line?” I needed to quickly gather my thoughts and rummage up a response.

“It is hard for me to trace any behaviour-set of mine to the Holocaust with certainty, but I do beleive that I have been very preoccupied with fantasizing how I would approach the moral dilemmas of being a German child in the mid-20th century. Even as a toddler, I remember wondering, if I would have been able to muster up the where-with-all to not turn-in my Jewish acquaintances to the Gestapo? Would I have not joined the Hitler Youth?  If I were a Jew in a concentration camp, would I have the bravery to risk my own life to save somebody else’s? I would say that the Holocaust has led me to throw out the goal posts of extrinsically set moral barometers, from a young age.”

 If something is allowed, does it make it right? If everyone is behaving a certain way is the onus absolved from me? Tales of my grandmother’s heroism inspire me; they were my bedtime stories, my fairy tales. But they always left me wondering, would I be able to transcend, as she did. In similar circumstances, would I listen to my inner moral code, or would I fall victim to the zeitgeist. That has been the underlying tension I have carried with me, and mulled over at ad nauseum – Mein own life’s Kamp-frontation.

 I have always been extremely wary of the status-quo legal system that surrounds us. On one hand, the axiomatic principles that we take for granted oscillate in perpetuity. The question of whether or not current practices will be deemed as tomorrow’s Holocaust have always tantalized me. Ideally, we shouldn’t have any laws and we should all behave civilly towards one another, but, alas, laws enforce a base level of civility. And on the other hand, legal systems institute excessive safety measures, in order to ensure the conformity of the lowest common denominator. Ie Do I need to wait at a red light if there are no cars on the horizon? The rule exists to stamp-out a decisive line in the sand where terms are discernable and objective. Of course, there is a peace of mind to know that everyone is abiding by a common law, but when conjuring up morals from the Holocaust, I have been cautiously skeptical of the agreed upon social norms that we abide by and I have always felt a desire to push-back or to question whether a law waters down functionality in all conceivable cases. I continually ask myself the consequences of holding steadfast to any precept of moral philosophy, and how either end of the spectrum ends up circling back around at any extreme and ends up bearing eery resemblances to it’s polar-opposite.

My father so beautifully defined the importance of two sets of Justices in last week’s sermon. The phrase Zedek, Zedek Tirdoff, “Justice, Justice shall you pursue” enshrines two planar focal points in which Justice must take place. You have the objective concept of Justice, the Justice that is unmoving and unindividuated, that the society as a whole acknowledges and trends towards. This is the glue that binds a society together, and it is everybody’s task within a community to continually challenge and perfect their standard for equity and Justice in their community. This first focal point has been at the forefront of many heated debates in recent weeks. The two instances in Kenosha, Wisconsin, dilate our sensitivities to the fault line in America’s Justice system. The unseeing eye of justice has seen things that it can’t unsee, and the actionable demands that athletes have placed in their wild-cat protests, once these realizations continue to surface, gives us hope that there has been a shift in public perception of athletes’ political protests since Kaepernick kneeled for the first time four years ago to this day.

The first Zedek, exists in the idealized form of Justice that a society is tasked to continuously build upon. Perfecting that Justice, says Plato, allows for the nucleus of all other societal values to proliferate. Agreed upon Justice is a fundamental feature of a thriving society, but it needs to loosely drape over a community. The second Zedek establishes a Justice system that every individual must chase within themselves. Just as G-d endowed humanity with free-will, we should not ever think to impose a justice system that lords over its citizenry. There must be room for individuation, however if Justice establishes order, then any crater that Justice chooses not to smoothly iron out, will inevitably be filled by chaos. It is in this chaos that G-d gave us the world, and it is in this chaos that the individualized Justice system needs to come into play. The first plane of Justice needs to correct the second plane of Justice, but the second plane must never fall obsequious to the first. We must never replace individual thinking. In the early stages of the coronavirus, people employed reddit to publicly humiliate those who were not abiding by social distancing practices, and as my friend, Sivan Rotchin, pointed out to me, this type of behaviour wreaked with the same aromatic stench as informing on someone to the Nazis, or ratting someone out to the KGB. The law mustn’t be idealized to the point where no crevice of self-jurisprudence can be found. We need to leave room for freedom to fall between the cracks. And so, there is a necessitation that each constituent of the whole be watchful that both Justices aren’t abused. If we freely allow people to lose sight of their behaviour and fall victim to the indulgence of their self-serving drive, or grant governing bodies the discretionary privilege of enforcing qualified immunity then we have gone too far in the other direction. Tight-roping this line is a delicate but integral component to constructing a Just society.

The bubble of a super-company’s influence extends beyond its own economic means. Their practices are orbited by every company they compete with as well. Walmart played in the ambiguous zone of antitrust law breaches as it Pac-manned its way through any Mom and Pop Shop that crossed its line of fire. And now Walmart is the one attempting to call out Amazon on its anti-competitive practices. The capitalist model fosters an ever one-upping environment that arrives at greater efficiency while working at the wall of what the first focal-point of Justice will permit. There is no room for balancing the first and second Justices, because if you don’t take advantage of what the system permits, somebody else will and you will be left behind.

The show, Nathan For You, is a comedic work of genius. In it, Nathan masterminds these over-the-top schemes for small business owners to employ, in order to keep up with the behemoths that they are competing against. Nathan over-dramatizes this point, but as a “run of the mill urbanized Montrealer”, he exposes just how alienating the system that we live in can be to both us and the consumers and how little effort it takes to persuade people to adopt amoral business practices. The small business owners are coerced by the pursuit of barely scratching out ends meet, the consumers are pressed financially to only purchase from the large companies, thus extending the canyon between large and small companies, the workers of big companies aren’t able to effect change in their company, and the only people who have the power to change the system alienate themselves through a cognitive dissonance by feeding right back into the profit-at-all-costs mentality. This is no new revelation, Nathan took this concept right out of Karl Marx’s playbook. If the goal is self-fulfillment, then it won’t be achieved without the freedom to engage in the activities that we think will make our lives and the world better for the sake of the activities themselves. Attempting to make incremental touch ups to a country in which everyone is subordinate to the system to the point that humanity is an afterthought without seeking out radical reformation is performing surgery on a psychedelic trip. The free-market forces the hand of individuals who want to make an honest living and creates an underbelly of desperate tumult in which the only ones who anyone ever hears about are the companies that are willing to sacrifice humanity for the sake of profit; commerce over conscience. We have reached a point as a society where we can agree that slavery and colonization are two evils that we don’t want to repeat, however those institutions still persist and are masked with other names: Chinese sweat shops, “volunteer” inmate firefighters, debt-inducing college tuition prices… Frantz Fanon, in The Wretched of the Earth calls this economic camouflaging of colonialism in a globalized world, Triumphalism. So again we must ask ourselves, just because something is permitted, does it make it right?

In this week’s portion we start with a very troubling passage. We are presented with three cases that leave me quite perturbed. The first case describes the one who goes to war, and marries a captive woman from the conquered territory.The description for this woman is “יפת תאר” “a beautiful woman”, the same that is given to Esther when she is forced into marriage with Achasureus. The law is, that if after everything you’ve done to her, you choose not to marry her, you may let her go, but don’t afflict her further by selling her as a slave. The second case discusses the elder son who is the child of a more scorned wife. You mustn’t overlook the elder child when it is time to pass on the inheritance, and the third case is the controversial case of the wayward child: If a son, around the age of his bar mitzvah, steals wine from his parents’s cellar, he must be publicly stoned (and that is not to say that he consumed any canabis, the Torah prescribes the execution of this minor’s, seemingly minor, petty crime). 

These three cases are quite off-putting. How can the first case talk about compassion after describing the ceaseless weeping and affliction that you caused this woman? Polygamy aside, what does the Torah mean by saying you can be married to a wife that you scorn? And the most disturbing of the three is the wayward child. What on earth could be the justification for prescribing death to a child who heeded the advice of The Who and land enough alcohol to get “teenage wasted”? I am not alone in this sentiment, the Rabbis of the Talmud, used the phrasing of the Torah in order to make it impossible that there was any practical application of the case. By implementing caveat after caveat, such as enforcing the law only on condition that both parents look identical to one another, this case remained in a hypothetical space. By doing so, they were masterfully able to diffuse the case of the wayward child of its binding power, and thus exposing their own discomfort of this evidently head-scratching ruling. 

But by doing so the Rabbis left us with an even bigger problem. Word real estate is a precious resource in the Torah and it is impossible to go over every imaginable case. What is, then, the purpose of the Torah providing such a horrifically brutal account of a situation that would never manifest? Why would the Torah go out of its way to delineate a legal ruling, if it does not come to teach a practical Halacha? The Talmud asks this very question in Sanhedrin 71a. The response to this question is a 4 word answer: “נכתב דרוש וקבל שכר”, “Why does this case exist? In order for us to expound on these ideas and in doing so you will receive reward”. In other words, it’s there to incite torah study and to bring us to investigate this text on a deeper level. The basic reading of these four words is logical, but it feels like a copout of an answer because it omits the crucial part about actually telling us what it is that we can learn from it. It certainly serves as a great call to action, to hive mind potential solutions to our question but it falls flat when you turn to it with the question, “Nu, what should we learn from this biblical passage?” Don’t get me wrong, one of the exciting features of the Torah is that there exists within it a plethora of eternal quandaries. Can we chalk this one up as another one of these? 

I do not think so. Couldn’t the Rabbis have cited the Torah itself, when it says (Deutoronomy 21:17), “וּבִֽעַרְתָּ֥ הָרָ֖ע מִקִּרְבֶּ֑ךָ וְכָל־יִשְׂרָאֵ֖ל יִשְׁמְע֥וּ וְיִרָֽאוּ” (Thus you will sweep out evil from your midst: all Israel will hear and be afraid.) In this sentence the torah makes it clear that this ruling acts as a demonstration to distance the people from sin. וְיִרָֽאוּ (they will fear) is a play on words with the word to see. The sensorial connection to this case, however only remains as a judicial hearing and never materialized into a seeing. Therefore, the seeing coagulates into a fear. Furthermore, the usage of the word “וּבִֽעַרְתָּ֥” (to sweep away) parallels an annual ritual in the “Biur Chametz” This public demonstration may be viewed as excessive. By the time it is the day before Passover, we must have already purged our house of any bread, but to fulfill the performative aspect of this law, even if no bread exists in your house, you must still find a way to complete this legal obligation. The wayward child can thus be seen as a similar contractual binding of a sorts. Both of these readings are already built into the text and seem like reasonable reasons to our query. But instead of going down this route the rabbis seem to have decidedly chosen to remain vague and simply respond with “נכתב דרוש וקבל שכר”.

There is something very poignant about these four words. They have a very calculated feel to them. Bifurcated in the middle, we are presented with two distinct parts, demonstrating an exchange. The first half, is written in the collective (נכתב) and the second part is done from the perspective of the individual (קבל). With our understandings of the two Justices (collective and individual) let us probe the meaning of the two middle words.

 There are four tiers in which Torah study is categorized under. The first is the Literal meaning of the text. This reading is fundamental and always grounds the conversation but it is meager in its expansiveness. This reading of the Torah provides historic value, pedagogic value, anthropological value, perhaps, but the rabbinic project is about keeping this ancient text alive and vibrant into our present world. The second level of Torah study is textual analysis. The Rabbis built their entire Halachik system based off of these reads and interpretations. This second level has very practical uses, the system allowed the Torah the flexibility to be modified into a post-cultic system, but it too, does not have the ability to provide deeper investigations. Every textual connection that the rabbis infused into the Jewish legal system is finalized the moment it is uttered. For example, the rabbis can teach that there is something that can be learnt from the use of an extra word, but once they define what it is that they can learn from it, there is no longer space to create any new interpretations. The third level departs from the cut and dry halachic world. This is where we begin our conversation of the ruling of the wayward son. The third tier of Biblical interpretation is the very word that is found in the rabbis’ response to the wayward son: “דרש”. These are the moral principles that we infuse back into the text. By stating that “We will write revelatory reinterpretations” “נכתב דרש” the rabbis are showing that the path to a perfected Justice system is continually in progress. They intentionally omit the “דרש” itself because it is for each generation to define. When something is written it terminates the creative process, and all potential pathways of interpretation collapse into that writing. That is the role of the textual analysis tier, but the third tier is one that needs to be collectively defined (hence why it is plural) but it is one that has space for change. 

We can see this read of the word, “דרש” play into our upcoming Rosh Hashana liturgy. In the section of Zichronot, we tell G-d that despite having a memory for all actions that led to a moment we ask that G-d “creatively reinterpret” our deeds, “כִּי זֵֽכֶר כָּל הַמַּעֲשִׂים לְפָנֶֽיךָ בָּא וְאַתָּה דוֹרֵשׁ מַעֲשֵׂה כֻלָּם”, this is followed by the wake up call in the form of 10 blasts of the Shofar. In Megillat Esther (6:1) Achashverosh, unable to sleep, asks to read from the book of Zichronot in the middle of the night, which serves to be a literal wake-up call for him. In it, he reads of Mordechai’s deeds and in that moment “creatively reinterprets” Mordechai’s name as worthy of switching with Haman’s in the king’s eye. In this scene, Haman had prepared the tree in which he had designated to hang Mordechai on. This tree would return as the tree in which Haman is hung on. The closing sentence of Megillat Esther describes Mordechai as second to the king and as “דֹּרֵ֥שׁ טוֹב֙ לְעַמּ֔וֹ”. This is our request to G-d on Rosh Hashanah. Look back in your book of Zichronot and “reinterpret” our deeds, as Achashverosh did for Mordechai.    

And what is the purpose of the backend of the exchange in the sentence, “נכתב דרוש וקבל שכר”? On an individual level there is a need and a requirement to not settle, but rather to push deeper. The fourth tier of Torah interpretation is the school of Jewish mysticism: Kabbalah, (the very word used). Kabbalah takes the opposite approach to the first tier. The first tier says that there is only one way to read the text, the second provides new ways but once they are defined they are embedded into the text and accepted as literal, the third opens the corridor to multiple concurrent interpretations, but within each interpretation there always must be thorough consistency. The fourth tier doesn’t ask for consistency. If we extend ourselves to the fourth tier we can imagine an entire population of “דרש”’s and in those contradictions you end up with a democracy that is just as coloured with variegated opinions as the collective being pluralistically inclined to accept each opinion on their own. Our own lives are an accumulation of constant contradictions, but our body is one consistent mass that contains all of those contradictions together. That is the way to interpret the Kabalistic plane. Every word has 10 different interpretations and even though some interpretations are in direct contrast with the other, they are all true and all accurate representations of the whole. It is the individual’s act of deep diving into that mystic plane that we are able to approximate the reward. With the wayward son we stipulate an egregious punishment, but the case itself never existed and so all we are asking the individual to contemplate isn’t the fabrication of the punishment it is solely intended to highlight the reception of the reward. It is a troubling passage indeed, but now that we have established some purpose to its existence, let us try to extrapolate our modern moral principles that this story comes to teach us. Let us write our generation’s collective “Drash” on the subject.

The presentation of these three cases in conjunction with one another brings us right back to the thesis of this sermon. Who is to blame for the wayward child? Does it make sense to murder an innocent child who knows no better? But at the same time one behaviour snowballs into a worse behaviour and so the assumption is that the child is leading themself down a doomed life trajectory.

 The three cases reenact a sequence of events in which the foundation of the marriage was doomed from the start.

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