In assessing the role and influence of Jewish Law on today’s society, we frequently hear a reference made to the “Judeo-Christian” tradition as the origin of contemporary law. Citations concerning the similarities that abound between modern law and the Biblical tradition seem to confirm this belief. Most serious scholars of Jewish law, however, vigorously dispute that claim; and on several grounds. Firstly, the very term “Judaeo/Christian” is a misnomer. There is hardly anything compatible in the two religions other than the basic belief in a Deity and the need for morality. However, that is the common denominator of most religions. Secondly, while there are some coincidental similarities between the two religions, there is far more substantive material which fundamentally distinguishes them.
Similarities between two disparate entities can be attributed to one of several reasons. In most cases it is only a superficial resemblance, which is in no way indicative of any influence of one over the other. In other situations, there was a deliberate attempt at borrowing from an earlier system because of the benefit in adopting certain elements of an otherwise totally distinct philosophy and adapting them to the new ideology, in order to give the appearance of continuity. This would, of course, appeal to those who loath to give up their allegiance to the old tradition.
An example of this phenomenon is the integration of certain Jewish rituals into Christian life; most notably the Seder. A cursory examination of this practice will demonstrate that the reason for their adoption of the Seder is totally incongruous with the Jewish rationale for the observance of the same Mitzvah. Another example of this phenomenon is the oft cited resemblance between the Fifth Amendment and the Jewish law against self-incrimination. Though they are indeed similar, and there is reason to believe that the American tradition, in this regard, was influenced by Jewish law, the aversion to self-incrimination in these two disciplines derive from entirely different legal perspectives.
We shall return to this point, however, a little later in this paper.
It is not the purpose of this paper, though, to critique the foregoing view which sees our modern secular system of law originating in and evolving from the Biblical and Talmudic tradition. Instead I shall endeavor to focus on the insights and attitudes which characterize Jewish law and distinguish it from other legal traditions, both secular and religious.
2. Divine Authorship
Firstly and most fundamentally, Jewish law is predicated on the notion of Divine authorship. The Torah with its 613 commandments is the embodiment of G-d’s wisdom and will which He had communicated to the world at Mount Sinai, some 3,300 years ago. This event has become known as the “Revelation of Sinai.” Even the pronouncements of the rabbis and their interpretations of the Torah are seen as extensions of the original Sinaitic revelation in much the same – although not identical -manner that current Supreme Court rulings are seen as extensions of, and implicit in, the Constitution. Our Sages, in the Talmud, go as far as declaring that even when there are disputes among the authorities, both views are expressive of the words of G-d. In reference to the famous series of arguments between the School of Shamai and the School of Hillel, the Talmud states: אלו ואלו דברי אלוקים חיים – “These and these are the words of the living G-d.” Secular law, in contradistinction, is, by definition, a man made product.
Secondly – as a corollary of the first distinction – Jewish law was intended to shape and mold society, while secular systems of law are themselves shaped and molded by society. The Talmud underscores this objective of Torah to change society when it states that the Torah was given to refine and bring peace to the world.
Thirdly – and likewise a corollary of the above – while secular law can, and ideally should, be modified, adapted and even transformed as the needs and circumstances of society change and evolve; Jewish law, on the other hand, can never be subject to any modification, due to its Divine origin. All apparent modifications one finds in the Talmud and other sources of Jewish law are actually built into the original statement of the law.
A classic illustration of this is Hillel’s enactment of the Pruzbol which seemed to have circumvented the Torah’s cancellation of all debts during a Sabbatical year. What Hillel did was not to abrogate the law through the enactment of the Pruzbol – contrary to popular misconception – but to apply an already existing provision which allowed for the collection of all debts which were submitted to the courts.
3. Natural Law or Positive Law
Fourthly, in the ideal situation, secular laws must always be logical to the extent that they can be anticipated by rational man. One should be capable of following most laws, based on common sense alone, without having ever heard of them. At the very least, they should apeal to man’s common sense once they are legislated. This is the notion of “Natural law” to which I am referring, the bedrock of other religious systems such as Catholicism, the roots of which can be traced back to the ancient Greeks and Romans. Judaism, in contrast, is clearly predicated on the notion that no matter how far the human mind can go, there is something that must be revealed from the “outside,” from a transcendent force which imposes itself on our existence. This approach has been termed “Positive law.”
It is true that Jewish law speaks of the Seven Noahide Commandments as being “Natural”. Had the Torah not been given we would have learned basic morality from the animals, the Talmud informs us. Accordingly, there is certainly an element of intrinsic morality within the world which leads mankind to intuitively discover basic universal truths.
The revelation at Mt. Sinai, however, introduced a new dimension of law into the world. One that is not related to creation and nature. When we observe the law of “Thou shall not commit murder,” we observe this not only in reaction to our conscience but as a response to a “higher” power which dictates right and wrong. We cannot always rely on our instincts and conscience to keep us on the straight path. People frequently confuse various forms of inner physical and emotional turmoil as their conscience stirring within them. Humans have always been capable of rationalizing even the most bizarre and devious behavior when it would suit their needs and desires of the moment. It was imperative that these basic laws be given to us and imposed upon us by an Higher Authority to guarantee that we do not deviate from them.
In short, while Jewish law recognizes the value of a “Natural law” system and incorporates elements of it, the Torah remains – first and foremost – a Divinely revealed, transcendant order, which goes against the grain of rationality as often as it concurs with it.
4. Rights and Obligations
Fifthly, while secular law is concerned with, and addresses itself to, upholding, preserving and protecting the “rights” of mankind, Jewish law is concerned with the obligations we have towards one another and our Creator.
It is important to note that Jewish law differs in this regard even from other religious legal systems. In all systems of law – secular, as well as religious – obligations are limited to the specific area of concern which characterizes that particular discipline. For example, secular legal systems are concerned with preserving the rights of individual citizens and of society at large. Wherever no one’s rights will be infringed upon, there is no need for legislation. Religious systems do not fundamentally differ in this regard. They just broaden the scope of one’s obligations to include protecting the rights of the Deity, the church and other religious institutions. In other words, although superficially, it may seem that religious law is concerned with obligations, in contradistinction to secular systems, a deeper analysis will reveal, that all systems – with the exception of Judaism – are concerned with someone’s rights. G-d also has rights. However, when we do not infringe on G-d’s domain there is no need for legislation, even within the religious sphere.
Jewish law, in stark contrast, does not recognize the existence of any dichotomy such as the one expressed in the Christian Bible, “Give to Ceaser what is Ceaser’s” an echo of the pagan Zoroastrian belief in a dualistic religious system. There is no area of life that is outside of G-d’s “domain,” not just in the philosophical sense of the word, but in the legal and practical sense as well. Every aspect of life is somehow governed by a Mitzvah of the Torah.
All religions compartmentalize religious experiences. There are times for religious experiences as there are the proper places and people for them. There are also times, places and people who are free to do what they please in their own time. G-d has “rights” and we have “rights.” Just as it is deemed improper to trespass onto G-d’s turf, so to speak, so too is it inappropriate for Him to impose Himself on our territory.
The Torah, however, recognizes no such distinction. There are no absolute, inherent, inalienable rights! Instead the Torah posits that we have continuous obligations. In certain times the obligation is more intense and pervasive than others. In certain times G-d obligates us not to be preoccupied with, what we normally consider, “religious” activities. We must work six days a week, declares the Midrash, just as we are obligated to cease from work on the seventh. Thus working for ourselves, during the six days of the week, is no less a Mitzvah, an obligation, than observing the Sabbath. Similarly, there are times when we must take it easy, not because it is our right to withdraw from the world of obligations, but, on the contrary, it is our duty at certain times to engage in leisurely activities to help us regain our strength for the future.
There is a beautiful story which so poignantly illustrates the foregoing “inescapability from obligations” notion endemic to the Jewish way of life. Two saintly brothers were incarcerated by the anti-Semitic Czarist regime. When they seemed to become oblivious to their punishment by devoting their entire day to the study of Torah and prayer, one of the guards – an anti-Semitic apostate Jew – confiscated their books. However, that did not help in dampening their spirit and joy because they had so much of their knowledge committed to memory. Thus they continued to joyfully discuss passages of Talmud and recite Psalms to the chagrin of the apostate Jew. Then, the evil guard, who was somewhat proficient in Jewish laws and traditions, thought of an ingenious, but diabolical idea. As Jewish law prohibits the recitation of prayers and the study of Torah in an unclean environment, he brought the barrels of feces and human excrement to their cell; but to no avail. The two brothers, who before rejoiced when they had the opportunity to study G-d’s law and pray to Him, were now in ecstasy that they were able to serve Him in a rather unique way – by not studying Torah and not praying. Why was this reason for celebration? Because it is the same G-d who commanded them to pray and study who now commanded them to desist from engaging in prayer and study. There is no “freedom” from our obligations even when G-d Himself says that we are relieved of them!
Based on the above, we can now formulate a sixth distinction between Jewish law and all other systems, secular or religious. While each religion – and secular corpus of law -comprises several key areas of concern, be it civil, criminal, ritual, matrimonial etc., Jewish law knows of no phase of life which does not draw from the wisdom and direction of the Torah. Jewish law covers the totality of existence.
5. Whose Body is it?
The foregoing leads us to yet another – a seventh – distinction between Jewish law and other systems with respect to the proprietorship of one’s own body. In almost all legal traditions, one’s most personal and sacrosanct possession is his or her own body. If there is anything that is inherently ours it is our bodies. Of course, every legal system does put some limits on that freedom, such as the state’s intervention in preventing a suicide. However, the exception serves only to prove the rule that the right one possesses over his or her own body is virtually absolute and is to be overridden only when the rights of society at large are about to be infringed upon. It is not so much the concern we have for that individual’s life that compels us to save that person’s life against his will, but the realization that allowing this person to die might lead to a breakdown in society’s commitment to life.
In Judaism’s “obligation” oriented philosophy, one has no more right over one’s own body than one has over someone else’s. This assertion is based on Maimonides’ ruling concerning a murder victim, who is pardoned by the victim’s relatives. Maimonides rules that the pardon is ineffective. His rationale for this ruling is highly revealing: “Because the person is not the acquisition of his relatives but rather the possession of G-d.” While the first part of his explanation is quite understandable and would have sufficed in explaining the law that does not allow the relatives to pardon the murderer; we must understand, as to why Maimonides found it necessary to add the phrase that the body belongs to G-d. Even if the body did not belong to G-d it is certainly not the property of the relatives!
Rabbi Shlomo Yoseph Zevin, of blessed memory, an illustrious Talmudic encyclopaedist of the past generation, ingeniously resolves this anomaly by claiming that Maimonides, by virtue of the additional phrase, is, in effect, introducing a new law. Even if the victim himself, prior to his expiring from the fatal blow would pardon his assailant, he would still be liable for the murder. This is so because the victim himself, even as he was alive, has no more right over his own body than the one who murdered him has.
Again it is the obligation one has to one’s own life and limb which restricts the person’s own activities vis-a-vis his body. Moreover, even the rights enjoyed by us, insofar as our bodies our concerned, are not rights or privileges, rather they fall into the category of obligations. To cite a simple example: We have the right to work even in somewhat hazardous circumstances. This should not be viewed as a license to engage in recklessness, or a relaxation of our obligations towards our own selves, but rather as an expression of our obligation to work and support ourselves in an honest way that is of such overriding importance that it supersedes the obligation to be extremely careful in guarding our health.
6. Pursuit of Justice and Truth
The final – and eight – distinction between Jewish law and other legal systems that we shall discuss here, involves the very nature and composition of the judiciary. I believe the salient differences between them are as follows:
Firstly, in the Jewish courts everything is determined by a panel of at least three judges. In capital cases it is at least 23 and sometimes 71 who will pass judgment. At no time in the history of Jewish courts was the decision of guilt or innocence placed into the hands of a jury of one’s peers. Secondly, the whole concept of a lawyer representing his clients was unheard of in our tradition. Thirdly, the accused – in criminal proceedings – cannot incriminate himself. Unlike the American system in which one cannot be forced to testify against oneself, Jewish law totally disregards and repudiates any incriminating statement the accused would make, either involuntarily or even voluntarily.
It would appear that all of these distinctions emerge from a more basic one. Our American system of justice is an adversarial one, wherein both sides have a responsibility to present their respective cases in the most favorable light; and in doing so attempting to prevent the other side from doing the same. Accordingly, it is not the issue of whether it is true or not that the accused committed the crime, but rather, the question becomes: has it been proven beyond a reasonable doubt that he had committed the crime. The prosecution must succeed in mounting a forceful case against the accused while the defense must attempt to raise doubts, even if it cannot prove his innocence. It is self-understood that the best judges of this are one’s own peers who can be expected to determine which side was more effective in its presentation of the case.
It is also obvious as to why counsel is so crucial to this system. The average person could hardly be expected to stand up to the more experienced arm of law and justice, and present an effective defense, regardless of his innocence.
And finally, the accused person’s confession is certainly acceptable in the secular system of justice not because it constitutes absolute proof of guilt, but because it makes the entire need to establish guilt irrelevant. This is an obvious consequence of an adversarial system where the objective is to present the best case for guilt or innocence. When there is an admission of guilt, there is no longer a contest; the prosecution does not have to make its case because the confession has rendered the defense impotent.
It should be noted, though, that there appears to be an inherent contradiction between this system’s accepting and even encouraging a confession of guilt – based on the foregoing rationale, that it destroys the defense – and the trite legal adage that “One is innocent until proven guilty.” If that noble sentiment would in fact have any truth to it, confessions would never be encouraged, because by doing so, one short-circuits the entire legal process, as the confession renders the entire contest moot. And in the absence of a trial, one’s innocence should have been presumed.
Jewish law, however, rejects the very foundation of the argument that the case is a contest and that confession eliminates the need for the legal proceedings. On the contrary, as discussed earlier, a Jewish case is an exercise in the singular search for the truth; and if the confession would accomplish that goal it would not have been disqualified. Thus, the argument against accepting self-incriminatory testimony must be based on the notion that a confession might actually obscure and make the pursuit of truth more elusive. Maimonides (Hilchot Sanhedrin 18, 6) views the confession as a form of masochism or an attempt at suicide, whereby an innocent person confesses to a crime he never committed in order to be subjected to the penalty. And though, the likelihood of that happening is quite low, it is, nonetheless, statistically, a distinct possibility. It would thus be a crime to allow the courts to use this evidence in order to impose corporal or capital punishment, since the confessor might be the “one-in-a-thousand” instance where the confession is not sincere. Maimonides has expressed this very insight in relation to the Torah’s rejection of circumstantial evidence, inasmuch as we might err and execute one – innocent person – out of a thousand guilty ones. In Maimonides’ own words: “Better to let a thousand guilty people go free than to condemn one innocent individual to die.”
Moreover, in light of our analysis of Jewish law’s quest for truth, the fact that there is even a small statistical probability that the confession is not an accurate barometer of the truth, is sufficient for it not to be regarded as credible evidence. Here we must revert to a Chassidic insight – with regard to the uncompromising nature of truth. Truth, when compromised, even minutely,” says the Kotzker Rebbe, “is no truth at all.” In contradistinction to other virtues, even a reduced level of peace, righteousness, charity and the like, are still regarded as virtues. Not so with respect to truth where the slightest compromise of truth is no truth at all.
One might raise the question. If all this is so, how does Jewish law accept any evidence as credible – even of two witnesses? This question has actually been raised by Maimonides himself, who observes that the acceptability of witnesses is based on a “Scriptural decree.” It is the Torah which ordained that witnesses are to be believed – that is why we accept their testimony, and not the reverse, i.e., because they are believable that is why the Torah says we should accept their testimony. Alternatively, it might be argued that logic dictates that we believe two witnesses who have no prior criminal record, after thorough cross-examination, and, who know the penalty for perjury (in some cases they receive the very same penalty as the accused would have gotten upon conviction; in capital cases – the death penalty!) This, in spite of the fact that there is still a remote possibility of perjury. This is so, not only because the statistical possibility of perjury that exists is so miniscule, and that no legal system can possibly function without accepting credible witnesses, but, in addition, it is due to the fact that the only way they can be perjured – according to Jewish law – is through testimony of other witnesses. Were we not to accept testimony of this set of witnesses on the grounds that it is possible that they might be lying, there would likewise be no way of determining they were lying since the second set of witnesses might also be lying. In short, the problem we have with confession is that it has an intrinsic flaw, in that confessions are often motivated by other concerns – such as suicide, according to Maimonides – which cannot always be detected. Whereas false witnesses can be weeded out by the threat of punishment, strong cross examination and the strong presumption of innocence and respectability the witnesses must have before they testify, a person confessing to a crime has none of those safeguards. Hence, even the slight chance that the person might be using his testimony to inflict injury on himself, suffices to have us view his testimony as being inherently flawed, and is therefore not regarded as evidence at all.
Be that as it may, the evidence strongly suggests that Jewish law is keenly interested in pursuing the truth as far as is humanly possible, within the context of its judicial system.
And again we return to our original contention that Jewish law is interested in the notion of “obligations” rather than with “rights,” as is the obsession of other legal systems. When society is concerned with self-preservation – as a “rights oriented society” would – it cannot afford to expend all its energies in pursuing truth to the very end. Instead it opts for a short-cut approach; of having both sides of the dispute present their respective cases and let the jury decide. The crucial point is that no one side is being discriminated against, since that side can also utilize the system for his own benefit as well. Experience has shown us that, in the final analysis, justice will be done, and the guilty party will be convicted while the innocent will most likely be vindicated. Although cases of false and improper conviction do occur, they are indeed rare. For purposes of preserving the rights of society, this approach is adequate enough, while the other approach would be too cumbersome and taxing for society. In short, society is best served this way, even though it must compromise the virtue and ideal of truth and thoroughness so dear to the obligation oriented system of Jewish law.
Jewish law, on the other hand, takes the view that we must – because we are obligated to – pursue truth and justice without compromise. The interest of the Torah is not simply to protect the rights of people and society, but to give people a challenge and responsibility. Pursuing justice is one very important responsibility and cannot be compromised except in cases of emergency, at which point it is the obligation of saving society which overrides the need for justice.
To summarize all of the distinctions between Jewish law and all other systems of law, discussed above:
1) Jewish law is Divine, all other systems, man made.
2) Jewish law shapes society, secular laws a.re shaped by, and are a reaction to, society.
3) Jewish law cannot be modified to suit the needs of society, secular laws can and must.
4) Jewish law is not (necessarily) logical and cannot (usually) be anticipated; secular law is a system of “Natural” law.
5) Jewish law is interested in establishing “obligations,” while secular law is interested in “rights.”
6) Jewish law does not compartmentalize, it involves the totality of existence; secular law, and, even other religious systems, are addressed to a limited number of life’s experiences.
7) Jewish law does not recognize one’s right to one’s own body; secular law recognizes it as the most basic right.
8) Jewish courts consist of a panel of judges, without a jury and lawyer, who are interested solely in discovering the absolute truth, and before whom the only valid evidence is the testimony of witnesses. A secular judiciary is based on having the stronger side prevail.