It should go without saying that war is terrible.
Apart from the carnage between opposing forces, one of its awful consequences is that local civilians are typically subject to collateral damage at best, and direct atrocities at worst. The Jewish people know this fact better than most, and students of history will know of many others.
For the vast majority of human history, men were massacred, and women were raped and possibly enslaved. Although international humanitarian law has considered wartime sexual violence as a war crime in the last century, it still occurs frequently in less developed parts of the world.
The Torah is sensitive to the moral challenge of this baseline reality, and steps in to regulate it with the law of the captive woman:
כִּי תֵצֵא לַמִּלְחָמָה עַל אֹיְבֶיךָ וּנְתָנוֹה אֱלֹהֶיךָ בְּיָדֶךָ וְשָׁבִיתָ שִׁבְיוֹ. וְרָאִיתָ בַּשִּׁבְיָה אֵשֶׁת יְפַת תֹּאַר וְחָשַׁקְתָּ בָהּ וְלָקַחְתָּ לְךָ לְאִשָּׁה – If you go out to war against your enemies, and the Lord, your God, will deliver them into your hands, and you take captives; if you see among the captives a beautiful woman and you desire her, you may take her for yourself as a wife. (21:10,11)
This mitzvah flies in the face of what we today consider to be moral and ethical. How can the Torah endorse such a barbaric act?
Rashi immediately explains that the Torah does not command, endorse, or approve this; instead, the law speaks to mankind’s baser inclination in the heat of the moment, and grants a discretionary permission.
R’ Daniel Rowe expounds that a law’s inclusion in the Torah doesn’t have to be an endorsement at all.
If we scrutinize the context, the laws continue that for 30 days she must be shaved bald, mourning her family in unkempt black rags. This “marriage” is not meant to be romantic or attractive, perhaps precisely so that the soldier regrets forcing this poor stranger under his roof, and will return her home.
The next two laws that follow are the laws of a despised wife and the rebellious son, which Chazal understood to mean that by taking advantage of this permission, a man would come to hate his wife, and their sour relationship would produce bad children.
While the Torah contains lofty ideals, it also contains certain threshold requirements that elevate baseline morals and norms for the moments we are not at our best.
With this law, the Torah requires a total departure from thousands of years of normalized slavery and rape. Instead of conforming to the convention that classified women as spoils of war like other property to be exploited, the Torah demands that a woman’s personhood is acknowledged and respected, and her dignity preserved.
This is a radical polemic that represents a total paradigm shift.
Recognising that is what the mitzvah really is.
The Torah demands more of its adherents. When we wage war, we are supposed to fight justly and ethically, with minimal harm to others, in the same way that we are supposed to live our daily lives.
The Torah is not some distant ideal that is beyond the reach and understanding of humans – לֹא בַשָּׁמַיִם, הִוא.
The Torah is written for humans, with all our fallibility – דיברה תורה כלשון בני אדם.
The Torah talks about rape and slavery. But just because they are in the Torah, that does not mean they are ideals that we aspire to practice ever again.
Because if we study a little closer, the Torah is actually steering us away from a world that tolerates such rampant immoral practices, and towards the more civilized world we are familiar with today.