Ki Tetze – Judicial Sensitivity and Wisdom

A fascinating, yet little-known explanation ties the famous Mishpat Shlomo – King Shlomo’s most famous judgement – to this week’s Torah portion.

The explanation the Meiri[i] offers to the story of Mishpat Shlomo [ii] reveals the “behind-the-scenes” manipulations and strategy of the two litigants and King Shlomo’s brilliant method of uncovering the truth.

The story related in the Book of Kings[iii] tells of two mothers of newborn sons, who came before King Shlomo.

The plaintiff claimed that the other woman had smothered her infant while sleeping and he died. She continued to claim that the mother of the deceased infant switched him with her own living son during the night. King Shlomo had to determine which woman was the mother of the living baby. The King asked for a sword to be brought before him and ordered “Cut the living child into two!” The mother of that child beseeched the King to let him live and award him to the other woman, while the other woman said “Neither I nor you will have (a son) – cut!” King Shlomo proceeded to rule that the child be given to his mother who demonstrated her love for him.

The Meiri questions the second woman’s reaction to the King’s decree. Once the real mother agreed to award her the child her reply should have been – “Justice has been served and I am receiving my son!” In that case her claim would have been vindicated. However, she did not take the child, but rather ordered him killed! This appears foolish and unnatural. The Meiri posits an explanation[iv] that the two women were a mother-in-law and her daughter-in-law whose husbands had died. The daughter-in-law was the mother who had smothered her son. In doing so she caused her husband not to have left behind a viable infant.

The instructions in Parshat Ki Tetzeh (Devarim 25,5) in such a case clearly state: “כי ישבו אחים יחדו ומת אחד מהם ובן אין לו – לא תהיה אשת המת החוצה לאיש זר, יבמה יבא עליה ולקחה לו לאשה ויבמה”  Meaning, she would be required to fulfill the mitzvah of yibbum (levirate marriage) and marry her husband’s surviving brother. This brother was none other than the other woman’s infant! (Apparently her husband had died immediately following the birth of his new and only brother but prior to the birth of his own son.) She desperately did not want to wait many years as a shomeret yavam for yibbum to take place, so she replaced her deceased son with her living young brother-in-law. This would have sufficed to have her exempted from yibbum. It also would have exempted her mother-in-law from yibbum since any offspring, child or grandchild would do so. This explains why the mother-in-law was not put into the position of shomeret yavam even had her own son died.

But this does not explain why the daughter-in-law did not claim vindication and walk off with infant. As the Meiri says: “When Shlomo ordered to cut the living child, she was happy, for she felt more comfortable remarrying in a permissible way.” If she had kept the living child, she would indeed not have been considered a shomeret yavam, however when it would come time for her to remarry, she herself would know that she was transgressing the halakha. Alternately, if the King ruled to slay the child, she would become a free woman and permitted to marry. She could do so with a clear conscience! Hence her eagerness to have the child killed and her words “Neither I nor you will have (a son) – cut!”

Make Yourself Heard

King Shlomo was appointed chief Justice of Am Yisrael in Eretz Yisrael by none other than the highest Judge – The Almighty. However, we live in different times – those of hester panim, when we have to make decisions and take actions ourselves. At this point in time the Israel State Committee for the Appointment of Dayanim (Rabbinical Court Judges) of which I am a member, is actively making the determination of which candidates should be appointed to the 24 empty positions in the Regional Rabbinic Courts as well as 7 in the High Rabbinical Court of Appeals. By Israeli law, the Rabbinical Court has sole jurisdiction over the personal status – marriage, divorce and yibbum – of every Jewish citizen in Israel. As almost all of the members of the committee are political appointees it would behoove the general public to become actively involved in the determinations of their political representatives in appointing these judges who will determine their and their children’s fate.

[i] Meiri, Menahem Ben Solomon, 1249-1316, was a Provencal scholar and commentator of the Talmud..

[ii] Meiri, Beit HaBekhira on Yev. 17b.

[iii] Kings I 3

[iv] The explanation of the identity of the two women is based on the combination of two Midrashim. Midrash Rabba on Kohelet 10,18: and Yalkut Shimoni 2,175.

Dr Rachel Levmore
Dr. Rachel Levmore is a rabbinical court advocate; director of the Agunah and Get-Refusal Prevention Project of the International Young Israel Movement in Israel and the Jewish Agency; one of the authors of the prenuptial “Agreement for Mutual Respect”; and a member of Beit Hillel. She is a member of Israel’s State Committee for the Appointment of Dayanim.

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