In last week’s parsha, we came across the strange concept of halacha ve’ein morin ken: The rabbis tell us that when Pinchas took the law into his own lands, he was actually enforcing a secret law only available to those who know it on their own. That is to say that had he asked permission from a beit din, the beit din would have been commanded to essentially mislead him.
In this week’s parsha, we again encounter a rather unusual legal construct – heter nedarim porchim be’avir: That the laws of repealing vows fly in the air, meaning that the Torah only hints to them. So while not as extreme as the type of laws we saw with Pinchas, we nevertheless have another type of law that the Torah is trying to hide. Indeed Rashi on the Mishna (Chagigah 10a) explains that if the Torah clearly spelled out that vows can be repealed, many people would be flip about making them, figuring that they can always be repealed. Some commentators explain that this is why this section is the only set of laws directed specifically to the heads of the tribes.
So in both constructs (and in others as well), we see laws that the Torah wants only some of its followers to be completely aware about. Hence it seems reasonable to ask why the Torah wants to be so sneaky, as opposed to just going out and saying that some laws are really only meant for an elite that come to the table with greater understanding. One answer is that this would set up a bad precedent of a general law (as opposed to one about a specific subset like the kohanim) not applying to everyone. In other words, any Torah law is a good and beautiful thing – the more Jews that can access the goodness contained in it, the better it is.
But this has broader implications as well. One of the things a properly functioning legal must do is make everyone equal before the law. And yet as much as we can try to enact such an idea, it remains an ideological fiction. For example, while judges are to be impartial and relate only to the evidence, one litigant (or lawyer) is almost always more persuasive and better versed in the law than the other. (For that reason, I often felt that debates do nothing to show which side is right, but rather who is a better debater.) True, there are cases where the facts are so clear that they will come out regardless of how they are presented. But that doesn’t take away from the fact that our equality before the law is usually just theoretical.
The notion that all men are created equal is a modern myth. The truth is that all men are created differently: Everyone is dependent on the gene pool of their parents, creating limits on their health, size, raw intelligence and many other factors. They are also born into the setting of their parents, which can be a young single mother with no means or skills to raise a child or it can be a wealthy well-adjusted couple that will carefully nurture the child into adulthood.
So while a legal system must do its best to remain impartial, it also has to try to compensate for differences. And that is why poskim would traditionally be more lenient in interpreting ritual law for poor people than rich people. They understood that if they pronounced the chicken bought by a poor person to be not kosher, the man’s family would go without chicken that Shabbat.
Ultimately, we are dealing with the same thing with vows. What would be appropriate for a Torah scholar who understands the full seriousness of making a vow and not keeping it – is inappropriate for someone who uses vows for color and to convince others, but is actually not so committed to keeping them. For many such people, words are cheap – while he would never do a forbidden act, he believes talk to be inconsequential. To forbid the latter from making a vow, however, would be taking away his access to a holy Torah law that is the inheritance of all of Israel. But at the same time, the Torah does want to distance him from it – to make him more uncomfortable about making vows, which is what he would be if he had greater awareness of its sanctity in the first place.
It comes out that by taking actual inequalities into account, the Torah is able to maximize participation for all parts of Jewish society. And so what at first glance may seem like bizarre legal structures are really examples of fine-tuned refinement of an important abstract theory to the actual realities.
Don’t forget to listen to this week’s related podcast – Is There Still Room for an Unpopular Idea: We are not Created Equal.