Wednesday, January 17, 2018

Freedom, Imprisonment and Redemption: The Naïve Idealism of the Torah–a dvar Torah (ish) for late Bereishis / early Shemos / Bo

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In historical Judaism, freedom and imprisonment are just two sides of the same möbius strip. Inner and outer freedom is the prime concept of the Torah and of Jewish tradition. Yet in Judaism, freedom is at once freely given and at the same time, never without a price tag.

Captivity plays an almost schizophrenic role in the Tanach, and indeed, throughout Jewish history. On one hand, we find the prisonless society described in Exodus. But then, there is the forced captivity of an innocent described in the laws of the “yefes toar” – the beautiful woman taken in battle. And, though Judaism is far from an ascetic tradition, both ancient and modern Judaism have glorified, to an almost grotesque extent, the concept of spiritual redemption through imprisonment.

How do these seemingly opposite concepts build upon and complement each other? And of what use are they in the modern world? Our culture is widely assumed to be “Judeo-Christian” in character, but little remains today of the idealistic Jewish approach to crime and punishment.

Criminals and Victims

If Jewish life begins with Bereishis (Genesis), there, too, begins the complex Jewish relationship with prison. The first Jewish imprisonment, like most that have followed , took place in a hostile alien culture. Yosef, having been sold by his brothers into slavery, finds himself in a Mitzri prison, falsely accused of attacking a high authority’s wife.

Throughout Tanach, prisons are compared to darkness and even blindness. Torah, of course, is compared to light, and the Jews are urged to be a light for the nations of the world. Perhaps most significant about Yosef’s imprisonment is that it demonstrates even at this early stage in history how at-odds bnei Yisrael were with their surrounding cultures. The message is clear: taking prisoners just isn’t a Jewish thing to do.

But if captivity is antithetical to Jewish thought, accountability and punishment are not. The Torah, written and oral, list extensive consequences for sins ranging from minute (not sending away a mother bird) to unspeakable (the corruptions of S’dom and Amora).

For crimes of property and personal injury, the Torah approach is twofold: first, restitution and punitive damages, and, second, if the criminal cannot pay, a term of slavery with his victim’s family. The Torah sees this as the only way he can possibly redeem himself, learning from the lives of righteous people.

One well-known Torah text on justice is the infamous lex talionis – the “eye for an eye” passage that many condemn as a “bloodthirsty” text. In fact, the rabbis of the Talmud interpreted these verses to mean that the guilty party must offer monetary compensation to his victim. No tooth was ever taken for a tooth – for what good would that do a suffering victim?

The City of Killers

The Torah divides capital crimes into two categories, intentional (murder) and unintentional (manslaughter). Though murder was a capital crime, conviction required a majority verdict of the Sanhedrin, a court of 71 judges. And if a unanimous verdict was given in a capital case, the accused was automatically acquitted. The Talmud says that the death sentence was so rare that if it was imposed more than once every seventy years, that was considered a “bloody Sanhedrin.”

The Torah’s treatment of manslaughter is most curious. The Torah and oral traditions gave instructions for building 48 arei miklat, cities of refuge, around ancient Israel, to which accidental murderers were forced to flee.

This was seen as protection, rather than punishment; otherwise, the families of the victim would seek vengeance for his blood. To further ensure that these killers could safely reach shelter, the Torah gives instructions for signposts along all highways so there would be no difficulty in the journey.

Yosef as Captive / Captor

With this commitment to preserving the life of a person who committed manslaughter, how much more so should a person convicted of a lesser crime retain their freedom. Indeed, a criminal must retain his freedom so that he can learn how to fully appreciate it. And if rehabilitation failed, responsibility lay not only with the criminal but with the person charged with helping him – his victim.

In our society, the impulse is to push criminals away – house them in remote facilities far away from our neighborhoods, our homes, our schools. Regardless of their crime, we wash our hands of any responsibility for them and of any similarities between us. In the Torah, this is absolutely not allowed; we are all responsible for one another.

Returning to Bereishis, when Yosef’s brothers arrive in Mitzrayim, he disguises his identity to test their loyalty to one another. First, he pretends not to understand their Hebrew conversation. Then, in order to “prove” that he is unlike them, he acts in the manner a Mitzri would, imprisoning the brothers on false spying charges.

Yosef eventually releases the brothers, but then, a few verses later, he tests them one final time. Here, Yosef plants a silver goblet in the bag of his youngest brother, Binyamin, then accuses him of stealing the goblet. Yosef must find out if the brothers will remain loyal to one another.

For the Torah, as described by the Rambam, true forgiveness comes only after a person has had an opportunity to repeat his crime but instead chooses the more Godly option. As Yosef tests his brothers for the crime of disloyalty which led them to abandon Yosef, there is no threat of prison. Rather, he announces that he will enslave Binyamin as punishment for theft.

Here, Yosef perhaps hints at his Jewishness, reaching out to share his righteous life, but only if his brothers can prove that they are worthy – that they need not endure a period of slavery to appreciate freedom.

Israel as Enslaved / Enslaver

To the modern mind, imprisonment and enslavement don’t seem far apart. For all our Judeo-Christian pretensions, our models, both of slavery and imprisonment, derive from neither tradition. Instead, we view both as punitive and debasing – a perpetual downward spiral of degradation.

It is this type of slavery to which Yosef’s descendants were eventually subjected in Mitzrayim. And much later in Jewish history, when the Nazis took Jews to work as convict/slaves, their heads and beards were shaven; their clothes were taken away at the same time along with their names (instead, they were given numbers). All these things robbed them of the spark of individuality.

In contrast, midrash (the “text behind the text” or backstory to the Bible which was passed down orally for hundreds of years) teaches that bnei Yisrael merited redemption from Mitzrayim because they managed to retain all the qualities that made them unique and kept their culture distinct. They never adopted Mitzri names, they retained their traditional manner of dress, and they continued speaking their own tongue. By rebelling against the image of the “model prisoner,” their lives were probably more difficult in the short term, but eventually, this bought their freedom.

Of all the times Moshe asked Paro to let his people go, not once does he stop that thought with a period. Speaking on Hashem’s behalf, he follows up with what later becomes the fine print of Jewish freedom: “let My people go, that they may serve Me.” Servitude is indeed the Jewish people’s destiny, but not the kind that numbs and equalizes. To serve Hashem, bnei Yisrael must retain their essential humanity.

Once they finally were redeemed, they were brought to Har Sinai to receive the Torah – a contract of freedom and servitude intertwined. Though “Torah” is often translated as “Law,” it literally means “teaching,” and it is no simple rulebook. It is a charter of rights, an utterly democratic pronouncement of humankind’s equality, underscoring with finality Moshe’s message to Paro: no liberty without obligation.

With their recent experience in captivity, the Jewish people must have been surprised to find the concept of enslavement in the Torah at all. Still, the message was clear: this was a new, compassionate model of slavery, one which deals with troublemakers by grooming them for a life of liberty.

This was accomplished in an unusual way. First, a slave could rely on his master for room, board, and health care. In fact, the rights of slaves are so well-enumerated that they were often a financial burden. The Talmud says, in effect, that they master and slave must be peers: if the master is eating caviar, he can’t give his slave bread and water. It even comments that “one who purchases a slave purchases a master for himself.”

More importantly, though, slavery in the Tanach carries a finite sentence. All slaves were to be set free after six years, released with the means to find a livelihood. What an unlikely form of punishment – one which makes a victim responsible for the criminal’s care, while a “nogood-nik” gets off seemingly scot-free!

Discharge and Redemption

The Torah anticipates this. Given its humanitarian slavery laws, human nature and a certain degree of sloth, it’s easy to imagine a slave might become more comfortable with his master than out on his own. Surprisingly, the Torah allows him to make this choice.

But if somebody decided he no longer wanted to even try to make it on his own, he had to first submit himself to a humiliating ritual wherein he declared his love for his master, who then pierced his ear, marking him permanently.

Why pierce the ear? Many rabbis have concluded that, besides the fact that this area could be pierced with minimal risk of infection and pain, it was the Jewish ear which heard Hashem’s pronouncement at Mount Sinai: “they are my servants.” By having his ear pierced, the slave admits that his ear is “flawed,” that he is shutting out God’s message. For the slave, the degradation of this ritual lies in giving up a higher servitude for a lesser one.

Permanent slavery also seemingly continues to punish the slave-owner, who has to keep supporting the slave. But perhaps this is exactly the point.
The ear-piercing ceremony couldn’t be held in private – it must take place by the master’s door-post, so passers-by would have been free to gawk. If there is any condemnation intended, surely this public ritual condemns the master as well, for failing to provide what Christians might call a “good witness” to a godly lifestyle.

Similarly, returning to the concept of cities of refuge, a murderer’s term there must surely have felt like a prison sentence. And, unlike slavery, it was an arbitrary sentence; murderers could only return home upon the death of the current Kohen Gadol. The choice of the Kohen Gadol is an interesting one, in a way indicting him for all careless murders of his generation.

However, concerned that homesick "prisoners" would undoubtedly pray for his death, Talmudic legend describes how the mother of the high priest would bring food and sweets to these prisoners. One can easily imagine these prototypical Jewish mothers, offering their finest baked goods in the hope that a city of killers would think, "such a nice lady -- how could I wish any suffering on her son?"

This simple mother's act utterly exemplifies the Jewish approach to imprisonment and rehabilitation, for in the Torah, servitude and freedom are inseparable. By wishing well on the high priest's mother, killers were, in effect, praying for their own imprisonment and through it, their redemption.

Imprisonment as Cleansing

Whatever we find in the Torah, though, Judaism’s relationship with prison has never been a simple condemnation; its traditions also carry the perception of incarceration as a cleansing experience.

Yosef was already a righteous person before he was imprisoned in Mitzrayim – indeed, his only “crime” was refusing to go along with the illicit requests of a married woman. Yet some believe that he needed further faith refinement to prepare for a life of leadership. Therefore, he had to wait two years in prison, some commentaries suggest, in order to further cleanse and refine him, before the butler “remembered” him and called him to Paro’s side.

In medieval and modern Jewish history, in Russia and elsewhere in Europe, many Jewish leaders served prison terms for charges ranging from treason to drinking the blood of Christian babies. Today, Chabad chassidim still observe several occasions each year which represent dates when a previous Rebbe was released from jail. These dates are always celebrations – the epiphanic moment when the Rebbe’s innocence is declared and he is reunited, in a purified form, with his followers.

A hideous instance of this philosophy of imprisonment and suffering as a “cleansing” experience surfaced in 2001 when Sephardic Chief Rabbi of Israel, Harav Ovadia Yosef, announced that the six million victims of the Nazis "were reincarnations of the souls of sinners.” These people, he claimed, “had been reincarnated in order to atone."

These examples contrast not only with Torah attitudes towards punishment and rehabilitation, but indeed, with the core of Judaism, which has always condemned asceticism and self-flagellation. They are perhaps most easily explained by our innate drive to find rationalizations for pain which is otherwise too senseless to comprehend.

The Ugly Beautiful Captive

Another teaching which is seemingly at odds with Torah thought is found in the laws of the “yefes toar,” the beautiful captive, in the book of Devarim.

When the army of bnei Yisrael goes to war, the Torah says any soldier may claim a woman as his prize following conquest. But before he can have her, he must lock her up for a month. During the month, she shaves her head, lets her nails grow, and weeps for the loss of her family. Only after that time can the soldier claim her – that is, if he still wants her in that state.

What’s going on here? The Torah, a testament to Hashem’s love and compassion, is suddenly advocating the dehumanization of another person – all to satisfy a soldier’s urges?

In the heat of battle, raping and pillaging go hand-in-hand. The Torah acknowledges this, but hints at a deeper truth – the soldier doesn’t see himself as a rapist, he sees himself, always, as one of the good guys, fighting for a noble cause. This can be clearly seen in the two different Hebrew words this passage uses to mean desire: chashak and chafetz.

When the Torah says “if you see among the captives a beautiful woman, and you desire her,” the word used is chashak, which actually means something more like “yearning,” a noble thing indeed. But look at this situation honestly: he’s never even met her, never had a conversation with her, and all he knows about her is that he’s just killed her family.

Clearly, he’s deceiving himself when he thinks he “yearns” for her. His adrenaline is pumping, he sees a lovely young woman, so he lies and tells himself he’s in love so he can have her.

Tellingly, after the month is up, the Torah says, “if you have no desire, you should let her go.” The word used here? Chafetz, a physical, animal lust. The woman’s month of debasement unmasks her reality, curing the soldier of all his noble misconceptions. Hashem, in effect, gives him an easy out, saying, in effect, “acknowledge that it was lust, let her go, and we’ll call it even.”

Of course, imprisonment is a harsh sentence for an innocent woman. But it must have seemed relatively merciful compared to the alternative –a battlefield rape which might leave her impregnated with an enemy’s child. And most of the time, it probably also worked to spare her from a lifetime of marriage to a man who had killed her family.

More importantly, the yefes toar is a lesson about true slavery and mastery. Even the free soldier must submit to Hashem’s will, but through his submission, he earns even greater freedom, knowing he is not a slave of his physical drives.

This, then, is a final twist of the möbius strip. In a moment of debasement, we find the ultimate expression of liberty – but liberty, too, is a form of servitude. The Torah reminds us that we must choose our freedoms wisely.

Idealistic? Impractical? Naïve? In today's world, perhaps. The arei miklat have long since dissolved into desert dust, but these optimistic Torah concepts remain vibrantly alive, thousands of years later. If nothing else, perhaps they have been sustained because of the hope they offer, reminding us of the potential for redemption in every human being. We are all – perpetrator and victim – responsible for one another’s destiny, and if any one of us falls short, we are all accountable.

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References

(Please note: links are inactive because all have “died” since I first wrote this in 2003; however, author information is still correct):

Buchwald, Rabbi Ephraim: Does the Torah Allow Its Citizens to Take the Law Into Their Own Hands? http://www.njop.org/html/MATOT-MASEI5762-2002.htm

Elman, Pearl: Deuteronomy 21:10-14: The Beautiful Captive Woman. http://www.utoronto.ca/wjudaism/journal/vol1n1/v1n1elma.htm

Lipskar, Rabbi Sholom D. A Torah Perspective on Incarceration as a Modality of Punishment and Rehabilitation. http://www.us-israel.org/jsource/Judaism/prison.html

World Union of Jewish Students (WUJS). What is a Midrash? http://www.wujs.org.il/activist/learning/guide/midrash.shtml

Tzivia / צִיבְיָה