The Rebellious Son: Can His Execution Be Justified?

Ilona Rashkow who holds a PhD in Comparative Literature is Professor Emerita at the State University of New York at Stony Brook and teaches regularly at New York University. She presents papers routinely at national and international academic conferences and has been the Visiting Aaron Aronoff Chair in Judaic Studies at the University of Alabama as well as a Visiting Research Scholar at the Jewish Theological Seminary.

THE REBELLIOUS SON:

CAN HIS EXECUTION BE JUSTIFIED?

The law of the rebellious son is very specific: If a man has a wayward and defiant son, who does not heed his father or mother and does not obey them even after they discipline him, his father and mother shall take hold of him and bring him out to the elders of his town at the public place of his community. They shall say to the elders of his town, ‘This son of ours is disloyal and defiant; he does not heed us. He is a glutton and a drunkard.’ Thereupon the men of his town shall stone him to death. Thus you will sweep out evil from your midst: all Israel will hear and be afraid (Deut. 21: 18-21). With regard to other Ancient Near Eastern laws, there is no parallel legislation. The Laws of Hammurabi discuss a rebellious adopted child who refuses to respect his adoptive parents or perform his filial duties. “If a son of a paramour or a prostitute say to his adoptive father or mother: ‘You are not my father, or my mother,’ his tongue shall be cut off” (Laws of Hammurabi 192). “If the son of a paramour or a prostitute desire his father’s house, and desert his adoptive father and adoptive mother, and goes to his father’s house, then shall his eye be put out” (Laws of Hammurabi 193). There is a way for a father to sever the relationship with his son, but there is no capital offense for a child’s bad behavior. “If a man wish to put his son out of his house, and declare before the judge: “I want to put my son out,” then the judge would examine into his reasons. If the son be guilty of no great fault, for which he can be rightfully put out, the father shall not put him out. If he be guilty of a grave fault, which should rightfully deprive him of the filial relationship, the father shall forgive him the first time; but if he be guilty of a grave fault a second time the father may deprive his son of all filial relation” (Laws of Hammurabi 168-169).

Other law codes have punishments for a disrespectful child, but these also do not include a death penalty. The Akkadian Ana Ittishu states, “If a son says to his father ‘you are not my father’ he (the father) may shave him, may

put the slave mark on him and sell him. If a son says to his mother ‘you are not my mother’ they shall shave half his head, lead him round the city, and put him out of the house.” Similarly, a Middle Assyrian adoption contract states, “If the adopted one does not respect his adoptive father, he may be shaved and sold without further legal process” (KAJ I, 6:17-23). Note that even a case of a child hitting a parent, which is a capital offense in Exodus 21:15, has a less severe punishment in the Laws of Hammurabi, “If a son strike his father, his hands shall be hewn off” (Laws of Hammurabi 195). In this context it is easy to understand why we find the idea in rabbinic literature that this law was never enforced, as it could easily be viewed as excessively harsh. TB Sanhedrin 71a states that this law is only theoretical. In order to relegate the law to theoretical status, the Sages used exegetical deduction and legal acrobatics to make it impossible to enforce the law. For example, the rabbis interpret the phrase he doesn’t listen to our voice (Deut. 21:20) to mean that the father and mother must speak in the identical voice, which is all but physically impossible. They then add that the parents must also be the same height and have the same facial appearance. If the law cannot, and should not, be implemented, what is the point of it being written in the Torah? Rabbi Shimon concluded that “there never was nor ever will be a stubborn and rebellious son. Why then was it written? So that we should expound the law and receive reward.” The law was understood to serve as signaling the gravity of the case rather than specifying action to be taken. This approach is not unanimous as R. Jonathan states that indeed a rebellious son was executed, and he even sat on his grave. The reason for the severe punishment is explained as a matter of deterrence. Rabbi Jose the Galilean said: “The Torah foresaw the ultimate destiny of the stubborn and rebellious son. Having dissipated his father’s wealth, he would seek to satisfy his wants and be unable to do so. He would then go to a crossroad and rob. Therefore the Torah ordained: ‘Let him die innocent rather than die guilty, for the death of the wicked benefits both themselves and the world’” (TB Sanhedrin 72a). Thus, the law of the stubborn and rebellious son is a form of pre-emptive punishment. He is deemed worthy of punishment not for what he has done but for what he is likely to do in the future. This aspect of deterrence can be seen in the text itself, which concludes with, all Israel will hear of it and be afraid (Deut. 21:21).

The question that arises is even as a theoretical construct, or as a deterrent, the offense found in the text is, This son of ours is disloyal and defiant; he does not heed us. He is a glutton and a drunkard. (Deut. 21:20). There is no biblical prohibition against gluttony or drunkenness, so it is unclear as to why this should warrant any kind of punishment. Similarly, although by being defiant and not obeying his parents the son is clearly not honoring his parents, the ambiguous disrespect noted here does not seem to rise to the level of a criminal offense that should be punishable by law.

This is a difficult and problematic law. Gilad J. Gevaryahu and Harvey Sicherman discuss laws that appear totally impractical. They write that “Rabbinic interpretation has served the purpose of clarifying difficult biblical passages. Three instances are collected in the Babylonian Talmud and tosefta of cases “that never were and never will be”, including the rebellious son [ben sorer umoreh] who is to be put to death at the request of his parents (Deut. 21:18-21).”1

By adopting the “never was and never will be” rule, a major issue was raised: could the Torah contain instructions that were in fact impossible to execute? As a consequence, modern commentators in particular have tended to view this as a case where the rabbis “humanized” the Mosaic law, the passage of time having changed the social mores.

The approach used by the rabbis is thus viewed as the precursor of many United States Constitutional law philosophical disputes that we face today. The section in Deuteronomy appears unequivocal and plain on its face. Nonetheless, many Rabbis felt that it was unfair or problematic to apply it as written. Those Rabbis strained to limit or effectively eliminate this Biblical provision similar to the disparate approaches attempted to limit the Second Amendment today.

Perhaps the Torah is writing the case in such a way, with no Ancient Near East parallel that the audience at that time was familiar with, in order to make sure that all understood it was only a cautionary construct.

NOTES

1. Gilad J. Gevaryahu, and Harvey Sicherman, “What Never Was and Never Will Be Rebellious Son – Subverted City – Infected House”, Jewish Bible Quarterly, vol. 29, no. 4, 2001.