The Stubborn and Rebellious Son
© 2010 S.H. Parker

Hebrew transcription and translations are from the Mechon-Mamre on-line chumash, unless otherwise noted.

Parsha Ki Tetze (Devarim 21:10 ff), like several parshiot in Devarim, is replete with high moral teachings.

It begins with major revisions to the handling of women captured in war, establishing rules for how they must be treated.

It forbids disinheriting children or even reducing the patrimony of children of an "unloved wife."

It forbids leaving the body of an executed criminal hanging on the tree overnight.

There are extensive, powerful admonitions about protecting other's and their property.

  לֹא-תִרְאֶה אֶת-שׁוֹר אָחִיךָ אוֹ אֶת-שֵׂיוֹ, נִדָּחִים, וְהִתְעַלַּמְתָּ, מֵהֶם:  הָשֵׁב תְּשִׁיבֵם, לְאָחִיךָ. 22:1 Thou shalt not see thy brother's ox or his sheep driven away, and hide thyself from them; thou shalt surely bring them back unto thy brother.

It contains the famous prohibitions on mixed kinds.

It forbids muzzling your plow animal whilst working (thus preventing the animal from eating).

And right in the middle of this high minded ethical treatise, we find the בֵּן סוֹרֵר וּמוֹרֶה  ("ben sohrorh u'morah"), the stubborn and rebellious son," one of the strangest passages in Torah:

יח. כִּי יִהְיֶה לְאִישׁ בֵּן סוֹרֵר וּמוֹרֶה אֵינֶנּוּ שֹׁמֵעַ בְּקוֹל אָבִיו וּבְקוֹל אִמּוֹ וְיִסְּרוּ אֹתוֹ וְלֹא יִשְׁמַע אֲלֵיהֶם: 18 If a man have a stubborn and rebellious son, that will not hearken to the voice of his father, or the voice of his mother, and though they chasten [whip] him, will not hearken unto them;
יט. וְתָפְשׂוּ בוֹ אָבִיו וְאִמּוֹ וְהוֹצִיאוּ אֹתוֹ אֶל זִקְנֵי עִירוֹ וְאֶל שַׁעַר מְקֹמוֹ. 19 then shall his father and his mother lay hold on him, and bring him out unto the elders of his city, and unto the gate of his place;
כ. וְאָמְרוּ אֶל זִקְנֵי עִירוֹ בְּנֵנוּ זֶה סוֹרֵר וּמֹרֶה אֵינֶנּוּ שֹׁמֵעַ בְּקֹלֵנוּ זוֹלֵל וְסֹבֵא 20 and they shall say unto the elders of his city: 'This our son is stubborn and rebellious, he doth not hearken to our voice; he is a glutton, and a drunkard.'
כא. וּרְגָמֻהוּ כָּל אַנְשֵׁי עִירוֹ בָאֲבָנִים וָמֵת וּבִעַרְתָּ הָרָע מִקִּרְבֶּךָ וְכָל יִשְׂרָאֵל יִשְׁמְעוּ וְיִרָאוּ: 21 And all the men of his city shall stone him with stones, that he die; so shalt thou put away the evil from the midst of thee; and all Israel shall hear, and fear. 
Rashi teaches      wayward [above, "stubborn"]: Heb. סוֹרֵר, deviating (סָר) from the [proper] path. 
rebellious: Heb. מוֹרֶה, one who disobeys the words of his father. [It is] derived from the word מַמְרִים [“to rebel”] (see Devarim. 9:7)
The chabad.org judaica press chumash notes: The Talmud (San. 71a) ...: They must warn him in the presence of two (witnesses) and have him flogged ["chasten"] in the presence of three (judges).

Now, the idea of punishing incorrigible sons (remember I have three sons) can have a certain appeal, but where does Torah come to say he should be put to death?

An indication of just how seriously Torah takes this is the fact that it is repeated later:

 אָרוּר, מַקְלֶה אָבִיו וְאִמּוֹ; וְאָמַר כָּל-הָעָם, אָמֵן. Cursed be he that dishonoureth [disrespects] his father or his mother. And all the people shall say [or, lit., "said"]: Amen

at Devarim 27:16, the "blessings and curses" on Israel's entry into the land. This curse is second only after "Cursed be the man that maketh a graven or molten image, an abomination unto the LORD, the work of the hands of the craftsman, and setteth it up in secret." Pretty serious... dishonoring parents is a curse second only to idolotry.

Talmud l'omer that there was never a case of a stubborn and rebellious son. I have heard another tradition that there was one case. But this misses a very significant point.

When a person is put to death,

יַד הָעֵדִים תִּהְיֶה-בּוֹ בָרִאשֹׁנָה, לַהֲמִיתוֹ, וְיַד כָּל-הָעָם, , מִקִּרְבֶּךָ. The hand of the witnesses shall be first upon him to put him to death, and afterward the hand of all the people. 
Devarim 17:7

Normally, the witnesses are the executioners. But in this case, the witnesses are not involved at all.

Could there be something else going on here?

I remember learning this passage with Rabbi Engel, מורי, who noted something quite unique in the passage: both the father and the mother must testify against the child. Not merely is it unprecedented in the ancient world for a woman to testify in court, here it is a requirement. It is mandatory that a woman testify in court!-Unheard of!

Rabbi Engel took the next logical step. The son must disrespect both his father and his mother (and the phrasing in the Hebrew is not "the voice of his father and his mother" but " the voice of this father and the voice of his mother," repeating the phrase "the voice of" to ensure clarity, emphasizing the mother's role). Additionally, the son must be disciplined by both. He must be brought to the elders by "his father and his mother." "And they shall say ...," that is, both parents must testify against the child. Both parents must be involved at every step of this process.

The only way this makes any sense, Rabbi Engel observed, is when the mother and father are equal in the home. 

Previously, Torah has broken with the sociology of its times by showing us an independent woman (Tamar) pursing her rights, women as prophets (Miriam), women inheriting (the daughters of Zelophehad, Ba'midbar 27:1), etc., etc. Torah seems to be continually laying the groundwork for the equality of women (and I learned midrashim that go even further). Here, Torah comes to teach us that a proper household has a mother and father who are equal in the eyes of the children.

Torah is in many respects a very subversive document. 

It recognizes women have rights.

It refuses to follow the ancient tradition that wealth or social position has any role in judgment ("you will not respect persons in judgement" is not a bad thing, as I heard one Catholic priest preach, it means that "you will not take a person's social status into account when evaluating a case").

It takes man's negotiations with God quite seriously (Abraham and Moses), not displaying any caprice in God's interactions with the world.

It severely limits the clan's right of retribution for a wrong done to it (עָרֵי מִקְלָט, Ba'midbar 35:11ff).

And, here, it further reinforces the principle that the family and the clan are not the seat of judgment. In the ancient world, the father had absolute rights over his children. Who they married, what jobs they did, life/death, it was all up to the father.

The principle underlying the stubborn and rebellious son has nothing to do with any actual cases, whether there ever were any or not. The principle is that both parents must act in concert, as Rabbi Engel argued, and that they, especially the father, cannot act alone. Judgment, the dispensing of justice, does not belong to the father, neither does it belong to the (nuclear) family nor even to the clan. Judgment belongs to "the elders of his city," that is, to properly constituted public authorities.

The "stubborn and rebellious son" cannot be executed as described in our current passuk.

Capital crimes require two independent witnesses to testify (see my remarks on Shoftim). Unless, one wishes to argue that parents testifying against their own child is so outre that the relationship of husband and wife can be ignored.

I don't see that argument overcoming the stringent requirement

 עַל-פִּי שְׁנַיִם עֵדִים, אוֹ שְׁלֹשָׁה עֵדִים--יוּמַת הַמֵּת:  לֹא יוּמַת, עַל-פִּי עֵד אֶחָד. At the mouth of two witnesses, or three witnesses, shall he that is to die be put to death; at the mouth of one witness he shall not be put to death.
Devarim 17:6

for convictions.

Or one can understand the "stubborn and rebellious son" principle as actually trying to not so subtly reorganize not just society but also how we think about society.