A lecture given to the law students at Charles Darwin University
30 March 2016
Darwin, Northern Territory, Australia
bob.mendelsohn@gmail.com
We watch the news on the television and at times we get upset, almost angry. I remember the 1976 movie Network with that once-Aussie actor Peter Finch, who won the academy award for his acting, albeit posthumously. He played a news presenter who went manic with Faye Dunaway as his producer. He was upset by the injustice in the world and screamed, and had people across the US screaming out their windows, “I'm mad as hell and I’m not going to take it anymore.” (Full speech in note)
I speak with many people about religion, and most who don’t believe as I do will tell me something like, “It doesn’t matter what religion you have, as long as you don’t hurt anyone. Try to do good.” That moral tone seems to be the religion of the 21st century.
But that ethic of “love and not hurt” is not as universal as we would hope. Consider the outrage we feel when we hear of a homicide bomber who kills 63 people in Lebanon at the US embassy (1983) or 6 months later when over 300 were killed in the barracks of the Lebanese. By the way, I refuse to use the term ‘suicide bomber.’ If a suicide bomber just killed himself, none of us would even notice. But these are murderers, and thus I use the term “homicide bombers.” In 2004, at the Australian embassy in Jakarta, 9 were killed and 150 injured by a terrorist who killed himself as well. In 2002, at a restaurant in Haifa and the Bali bombings, the Moscow theatre, and this week in Lahore, Pakistan, innocent children in a park—it is showing no signs of stopping. Outrage is abundant, and we continue to appeal to human decency, and an ethic, which is ours. From where did that ethic come?
I believe it’s rooted in our Judeo-Christian heritage.
Michael Fagenblat writes in his article, “The Concept of Neighbour in Jewish and Christian ethics” the following, “The commandment to ‘love your neighbour as yourself’ plays a central role in both Jewish and Christian ethics” but then he goes on to highlight the misunderstandings of that simple command by the Christian church. In his clarification of the Church’s concepts of ‘neighbour’ Fagenblat references the golden rule. Commonly that is understood to be “Do unto others as you would have them do unto you.” Although he argues that the Golden Rule was in various pre-Christian citations , it was only in Jesus that the link with the love commandment was used. By “love commandment” I mean the two great commandments of Jesus, “Love God with all your heart, soul, mind and strength” and “Love your neighbour as yourself.”
Historical development has roots
In order to understand the legal systems of the West, one must understand the roots of those systems and that requires the awareness of and deep investigation into the Mosaic constitution, which can be called the Law of Moses, or in Hebrew, the Torah. According to the story in the book of Exodus in the Bible, Moses was 80 years old and ascended Mt Sinai in order to meet with the Almighty. There he was given the Ten Commandments on two tablets of stone, and the interpretation of them, in what is titled the books of Leviticus and Deuteronomy. Those words which he heard, and apparently either memorized or scribed, are now what we would call Torat Moshe, the Law of Moses. They are the first five books of the Jewish and Christian Bible. Sometimes this is titled The Pentateuch.
But we also must always be able to expand the Law into new needs, or new situations, never imagined before, and see if principles, postulates, precedents, protocols, and yes, even minutiae of details are applicable to each situation of life. Moses would not have imagined laws detailing regulations for birth control pills, elevators, hybrid cars or hybrid golf clubs. How does Jewish Law develop and help us in our modern Australian cultures to be fair, to give every person a fair go, or however we choose to define the Hebrew word ts’daka. (Justice)
The Torah uses this phrase, “Justice, justice shall you pursue” (Deuteronomy 16.20) which sounds right to be mentioning at the outset of a lecture on Jewish people and Law. It could be an academic beckoning, but it goes well beyond that. The verse finishes with “that you may live and possess the land which the LORD your God is giving you.” The end of that seeking for justice is a peaceable and healthy living in the Promised Land, with relationship with the Almighty clearly in view. So how are Jewish people to accomplish this? We need to know what to do, how to do that, and when, where, with whom, etc. In other words, we need a full measure of instructions about life in the midst of existence. If we are to live peaceably with one another, what are the boundaries? What are the stipulations? What is required? What is prohibited? Or are we left to our own devices? And if that be so, who determines the moral right and wrong?
After all if as Fagenblat avers the simplest of rules from Leviticus 19:18 “love your neighbour as yourself” finds misunderstandings in Christian circles, then how is someone supposed to sort out the harder issues and commandments? Now you see the quandary in which Jewish people, actually all people in any society, have when they try to sort out co-existence. The issues of freedom and boundaries is one with which philosophers, lawyers, religionists, and every teenager I know has struggled.
Mishnah and Gemara
We have a compiled set of data, filled with both regulations and precedential rulings, along with stories to amplify and illustrate them. This is called the Mishnah.
The Mishnah consists of six orders (sedarim, singular seder סדר), each containing 7–12 tractates (masechtot, singular masechet מסכת; lit. "web"), 63 in total, and further subdivided into chapters and paragraphs or verses. (fuller list at end notes).
How are we to understand some of the rules given in Torah without a commentary of sorts? For instance, the Bible tells us to “Keep the Sabbath day holy.” Yet when one looks for the specific biblical laws regulating how to keep the day holy, there are rules against lighting a fire, or leaving one's dwelling, cutting down a tree, plowing and harvesting. Would refraining from these few activities fulfill the biblical command to keep the Sabbath holy? In modern days Sabbath rituals that are most commonly associated with the day: lighting of candles, eating and drinking and reciting the kiddush, and the reading of the weekly Torah portion and Haftorah section are found not in the Torah, but in the Oral Law. In the Talmud we learn of 39 types of work which are strictly forbidden on the Sabbath. The list is at the end.
The Oven of Achnai
For you to understand the Jewish concept of regulations, let me tell you the story of an oven, and how to determine who makes rules about its usability. Let me give you a glossary (Fuller glossary at end notes) quickly, to help you get this next scene. The words are:
Halacha. This is a ruling, if you will, a precedential legal ruling by lawyers in the past. The word comes from the Hebrew, “halach” meaning “to go” and means figuratively, the way to go. And thus halachic is the adjective form of this noun.
Aggadah. This is story. And it’s the other portion of the reading of the Talmud, the Jewish interpretation book of the Old Testament.
Rabbis are those religious leaders after the fall of Jerusalem in 70 CE (or 70 AD in previous histories) who assumed authority in the religion, since the priesthood was eliminated then since we didn’t have the worship center named the Temple. Rabbinic authority is standard in understanding the Jewish people today.
A word not used in the text is the word kosher. And that means a lot more than foods, like pickles or bagels. It has to do with being ‘fit for use.’ In the story I’m going to tell you, the opposite is used. The term is ritually impure. That means that something can be unusable. There are rules on how to make something usable again, but that’s not the focus of the tale. The story of the oven is an illustration, which is prompted by conversation the rabbis are having about women and how men should treat them well, be honouring their wife, lest he bring dishonor to her. That is found in (Bava Metzia, Chapter 4, 59a.)
So here’s this seminal story from Bava Metzia (one of the tractates in the order Nezikin). The setting is that the Talmud mentions the case of some particular type of oven (and debates what exactly its characteristics are, cut in pieces, mortar inserted or sand between the layers, broken, etc) and brings down the events ensuing from a debate among the rabbis over its ritual status. Is this oven impure now? Can it be used in such a condition? The item is called the “Oven of Achnai.” What is Achnai? Some leave it as a name of the oven, like Panasonic, DeLonghi or Samsung, and others translate it to a coiled oven, like one which could be represented by a snake.
Such debates are very common; in fact, the Gemara is the recording of these debates. In this case, the Sages (the majority of those assembled) held that this oven was susceptible to ritual impurity, while a certain Rabbi Eliezer maintained that it was not impure and could be used for cooking. But he didn't concede in the face of the majority, as usually happens (by the way, this wouldn't mean that he was wrong, merely that the law followed the other opinion. It's not the same thing.)
Again he said to them: ‘If the Halacha agrees with me, let the stream of water in this aqueduct prove it!’ Whereupon the stream of water flowed backwards — ‘No proof can be brought from a stream of water,’ they rejoined.
Again he urged: ‘If the Halacha agrees with me, let the walls of the schoolhouse prove it,’ whereupon the walls inclined to fall. But R. Joshua rebuked them, saying: ‘When scholars are engaged in a halachic dispute, what have ye to interfere?’ Hence they did not fall, in honour of R. Joshua, nor did they resume the upright, in honour of R. Eliezer; and they are still standing thus inclined.
Again he said to them: ‘If the Halacha agrees with me, let it be proved from Heaven!’ Whereupon a Heavenly Voice cried out: ‘Why do ye dispute with R. Eliezer, seeing that in all matters the Halacha agrees with him!’
But R. Joshua arose and exclaimed: ‘It is not in heaven.’ What did he mean by this? — Said R. Jeremiah: That the Torah had already been given at Mount Sinai; we pay no attention to a Heavenly Voice, because Thou hast long since written in the Torah at Mount Sinai, After the majority must one incline.
R. Nathan met Elijah and asked him: What did the Holy One, Blessed be He, do in that hour? — He laughed [with joy], he replied, saying, ‘My children have defeated Me, My children have defeated Me.’ (Bava Metzia, Chapter 4, 59b.)
And that’s the end of the Talmudic story. And if you are not used to this type of argumentation, you might be scratching your head and wondering…who won? What was the real argument? What was the precedent from which the ruling came, etc?
Rabbinic authority can outvote God
The ending statement by the Rabbi Joshua is a citation from the book of Deuteronomy, albeit only a phrase. Deuteronomy 30:12, where it refers to God's law. The actual quote is, “For this commandment which I command you today is not too difficult for you, nor is it out of reach. It is not in heaven, that you should say, ‘Who will go up to heaven for us to get it for us and make us hear it, that we may observe it?’ Nor is it beyond the sea, that you should say, ‘Who will cross the sea for us to get it for us and make us hear it, that we may observe it?’ But the word is very near you, in your mouth and in your heart, that you may observe it. (from verse 11 to 14)
What did he mean by this? Rabbi Yirmiyah explains that it means that since the law was already given at Mount Sinai, we cannot take advice from a Heavenly Voice, since it already says in the law, to follow the rule of the majority (this is a ‘quote’ from Exodus 23). In other words, now that God has given the law into our hands, it's in our hands. Not even he has the right to mess with the legal system he established: we can outvote God.
“And then things unfold in the next section, which we did not read, about the social impact, Rabbi Eliezer's excommunication (not quite the same thing in Judaism as it is in Christianity) for refusing to accept the rule of the council, the difficulties that ensued, because even though they were right to do it (to maintain the authority of the legal system) he was still in some sense "wronged," and God doesn't let such things go by easily... it gets into a different topic here. Which is really how it all came about in the first place, since the topic the Talmud was discussing was people being wronged.
The whole business of "we can outvote God" is a pretty incredible message. It's a view of divinity that I think is quite unlike that of Christianity, but on the other hand it's a view that considers that God could vest his authority in humanity and trust them enough to make it theirs and not his.”
An alternate reading of the foundation texts
Is that what the Deuteronomic passage is meaning? Consider the verse of Exodus which is used in the story as well. This is how Jewish law is decided. Note the power of the rabbis to translate and interpret and thus create new laws. Rabbi Yirmiyah said, “After the majority must one incline.” OK, this clearly says we can vote and a majority will determine what the Book means. But I disagree with the translation. Let me show you the verse in three other versions of the Bible and in context.
Here’s the NIV:
“Do not spread false reports. Do not help a wicked man by being a malicious witness. Do not follow the crowd in doing wrong. When you give testimony in a lawsuit, do not pervert justice by siding with the crowd, and do not show favoritism to a poor man in his lawsuit. (Exodus 23.1-3)
Masoretic text: “Thou shalt not follow a multitude to do evil; neither shalt thou bear witness in a cause to turn aside after a multitude to pervert justice.”
The Stone Edition: “Do not be a follower of the majority for evil, and do not respond to a grievance by yielding to the majority to pervert (the law),”
In the verse in question, the poetry is clearly synonymous parallelism and not antithetical parallelism as the Talmud might argue. Wow, make one wrong step in translation, and you can build an entire regime from it. What the rabbis did here with Exodus 23.2 is exactly opposite of what the clear meanings of the text render. No, it says, do not go along with the majority (Heb: rav) but do the right thing.
So what's my point? I appreciate the care and the storytelling of the rabbis recorded in the Talmud. And I appreciate the bigger story surrounding the oven, which highlights for me the need to care for my wife, and to honour her regularly. But to self-authenticate and grab for power, that’s way out of bounds, to me as a thinking person.
That said, do you see that the rabbinic authority is clearly enhanced by a wrong translation and thus guaranteed even to modern times? OK, this makes sense, really. Everyone has a go at Bible passages, to create nuance, or meaning, even as I just did. And everyone will interpret things based on many factors.
The Apostle Paul looks at this same passage from Deuteronomy about the Word being not in heaven, or in a distant country, and says this,
“But what does it say? “THE WORD IS NEAR YOU, IN YOUR MOUTH AND IN YOUR HEART” — that is, the word of faith which we are preaching, that if you confess with your mouth Jesus as Lord, and believe in your heart that God raised Him from the dead, you will be saved; for with the heart a person believes, resulting in righteousness, and with the mouth he confesses, resulting in salvation. For the Scripture says, “WHOEVER BELIEVES IN HIM WILL NOT BE DISAPPOINTED.”
The rabbinical student named Saul came to believe in Jesus in a radical story got a name change to Paul, and used the Talmudic method of taking one verse and making Halacha out of it. His interpretation is that the Bible is available for everyone, and not that the miraculous nature of Eliezer’s proofs were to be discounted. Paul is convinced, as I am, that relationship with God, through Jesus the Messiah, is available to everyone, Jew and non-Jew alike. And it’s not too far away; it’s available.
Rabbinic authority remains not only for Jewish people
Everyone creates nuance and interprets the texts, even as you hearing this lecture are doing as I speak. The rabbinic justification for Jewish people to follow their majority opinion never diminishes.
Now do Jewish people only think Jewish people should keep and honor the laws they received at Mt Sinai? Yes and no. Jonathan Klawans argues in “The Law” like Paul the Apostle, that the rabbis (after the destruction of the Temple) developed a list of Noahide (of the sons of Noah) laws that constitute the minimal legal obligations imposed on Gentiles (non-Jews). These 7 laws are in force to this day, and the first is preeminent: to establish courts (for justice).
Biblical narrative being true or not, and I’m one who believes it is true, let us turn our attention to the code itself and determine the agents, the realm, the categories, as the Torah has laid the groundwork for our system of justice.
In your handout, you will see themes where Torah informs the Jewish people, related to the theocracy and Temple religious practices, domestic relationships, Land rights, citizenship and such. The Torah lists 613 such commandments. But that’s hardly the end of it, as most students of Law would well understand. Laws about air rights in today’s societies, that is, the air above the land we purchase with our house, seriously impact relationships with neighbors, don’t they? What if you want to prevent their building too high and thus preventing your views of the shore or ocean.
The Mishnah contains thousands of regulations, including leaving stones at tombstone when visiting or breaking the glass at a wedding, tossing bread crumbs into the river on Rosh Hashanah. It’s all there.
It’s commonly called the Oral Law , even though it’s all written. But originally they say it was handed down orally. Think about it. How many Jewish slaves coming out of Egypt could read? Probably zero. How did they pass on the traditions and learning of the people before them? It was entirely oral. And people back then were able to maintain stories told and retold. Especially those tribal stories which engaged the heart, and which concerned the Deity.
Adultery: One example of the death penalty
Although parts of the Mishnah read as boring legal recitations, Rabbi Judah the Prince sometimes made the text a bit more lively by presenting minority views, which it was also hoped might serve to guide scholars in later generations (Mishna Eduyot 1:6). In one famous instance, Rabbi Judah cited this warning judges gave to witnesses who bore testimony in capital cases and some of these sentences are classic in even the modern Jewish worldview:
"How are witnesses inspired with awe in capital cases?" the Mishnah begins. "They are brought in and admonished as follows: In case you may want to offer testimony that is only conjecture or hearsay or secondhand evidence, even from a person you consider trustworthy; or in the event you do not know that we shall test you by cross-examination and inquiry, then know that capital cases are not like monetary cases.
In monetary cases, a man can make monetary restitution and be forgiven, but in capital cases both the blood of the man put to death and the blood of his [potential] descendants are on the witness's head until the end of time. For thus we find in the case of Cain, who killed his brother, that it is written: 'The bloods of your brother cry unto Me' (Genesis 4:10) — that is, his blood and the blood of his potential descendants.... Therefore was the first man, Adam, created alone, to teach us that whoever destroys a single life, the Bible considers it as if he destroyed an entire world. And whoever saves a single life, the Bible considers it as if he saved an entire world. (That is the quote you might remember from Schindler’s List.) Furthermore, only one man, Adam, was created for the sake of peace among men, so that no one should say to his fellow, 'My father was greater than yours.... Also, man [was created singly] to show the greatness of the Holy One, Blessed be He, for if a man strikes many coins from one mold, they all resemble one another, but the King of Kings, the Holy One, Blessed be He, made each man in the image of Adam, and yet not one of them resembles his fellow. Therefore every single person is obligated to say, 'The world was created for my sake"' (Sanhedrin 4:5). (One commentary notes, "How grave the responsibility, therefore, of corrupting myself by giving false evidence, and thus bringing [upon myself the moral guilt of [murdering] a whole world.")
This is so important that the two witnesses to a capital crime were also the executioners. Let me explain. Let’s say several people all saw a murder or someone committing adultery. The men of the area would nab the perpetrator and bring him to justice. The court would hear the testimony of the witnesses, and there had to be at least two as the Torah teaches. (Deuteronomy 19.15) Then the court would determine guilt or innocence. Let’s say the man was guilty. The punishment announced. Let’s say he had committed adultery. The Torah teaches, “If a man commits adultery with another man’s wife — with the wife of his neighbor — both the adulterer and the adulteress must be put to death.”(Lev. 20.10). OK, the Law is clear and the punishment must be carried out. Who will be the executioners? They are the two witnesses.
Can you see how this might limit the willingness of false witnesses to come forth? If you are responsible for both the apprehension and the execution of the criminal, hopefully if your witness is false, your conscience will at least curb your enthusiasm if not prevent it altogether.
Mind you, the death penalty was not easy to obtain and the courts were extremely reluctant to enforce it. It’s clearly a deterrent that was more about the sin than the punishment.
“A Sanhedrin that puts a man to death once in seven years is called destructive. Rabbi Eliezer ben Azariah says that this extends to a Sanhedrin that puts a man to death even once in seventy years. Rabbi Akiba and Rabbi Tarfon say: Had we been in the Sanhedrin none would ever have been put to death. Rabban Simeon ben Gamaliel says: they would have multiplied shedders of blood in Israel.” (Makkoth 1:10)
Listen to this partial list (complete in endnotes) of requirements to prevent capital punishment.
The witnesses could not be related to each other nor to the accused.
The witnesses had to see each other, and both of them had to give a warning (hatra'ah) to the person that the sin they were about to commit was a capital offense;
If the Beth Din arrived at a unanimous verdict of guilty, the person was let go - the idea being that if no judge could find anything exculpatory about the accused, there was something wrong with the court.
And the list goes on. Obviously the requirements were designed to prevent the death penalty from being enacted.
And what were the means of capital punishment in those days? They were four: strangling, burning, stoning, beheading. The witnesses would strangle a guilty one by pulling a rope, from both ends. In the case of burning, the witnesses would then pour hot liquid like melted lead down the throat of the guilty after strangling him. Stoning took place in a quarry by the accused and the accusers going to the top of a height at least twice the height of the accused. They would then push him over into the pit, which would usually break his neck. The accusers would then throw the first stones and the community could join in afterwards. Beheading was more accurately stabbing by the accusers. You see, the witnesses were the primary executioners.
Perhaps the story of the woman caught in adultery in the Newer Testaemnt is more familiar to some of you. There an unnamed woman is caught in adultery and brought or shall we say made to stand trial in front of Jesus. The harsh words and their harsh manner are clear.
“They made her stand before the group and said to Jesus, “Teacher, this woman was caught in the act of adultery. In the Law Moses commanded us to stone such women. Now what do you say?” They were using this question as a trap, in order to have a basis for accusing him. But Jesus bent down and started to write on the ground with his finger.” (John 8.3-6)
The situation is rabid. The intensity and violence are spitting off the page as we read it. Their entrapment of the woman is obvious, isn’t it? You see, it takes two to tango, and the man who was with her should also have been killed, but where was he? Maybe this was a sting operation. The punishment is clearly defined, but Yeshua appeals to something higher. He writes in the sand, and many wonder what it is he is writing.
Here’s the rest of the story:
“When they kept on questioning him, he straightened up and said to them, “If any one of you is without sin, let him be the first to throw a stone at her.” Again he stooped down and wrote on the ground. At this, those who heard began to go away one at a time, the older ones first, until only Jesus was left, with the woman still standing there.
Jesus straightened up and asked her, “Woman, where are they? Has no one condemned you?”
“No one, sir,” she said.
“Then neither do I condemn you,” Jesus declared. “Go now and leave your life of sin.” (John 8.7-11)
Obviously Jesus agreed with the rabbis that the death penalty was to be limited, but he said some other things in this story, which stand out. He didn’t diminish the law at all. In fact, he elevated it.
“The purpose of the Law was to bind the Hebrews to God and direct their lives to the more perfect worship to God” (Beyond the Commandments, page 46) When Jesus makes the requirement on the executioners that they themselves were to be completely sinless, he actually elevates the Torah to higher than even the Jewish leadership was accustomed. Now the executioners had to be holy, too. Now they also had to be sinless, and each one walks away, first the older because they knew their sin and were willing to admit it first, and then the younger ones.
What Jesus doesn’t say and what is implied is that he IS able to cast the first stone. He was holy and never sinned. So according to his own rules, he could have cast the first stone. But he chose a forensic forgiveness instead. I say it was forensic since he didn’t actually issue any words of forgiveness. He basically declared the trial a mistrial, that is, there was not going to be a trial, since there were no witnesses. He then said to the woman, you are free to go. Only he reiterated the biblical mandate, which should have been something she maintained before. He told her to leave the life of sin. “Go and sin no more.” With the freedom that Jesus gave her, she could live a clean life forever.
By the way, I think Jesus was writing a two column listing, with the names of the rock holders on one column and their primary sin on the other column. No wonder they walked away dropping their rocks and hoping he wouldn’t accuse them any more. That’s just my gap filler although it’s informed by two biblical texts in Exodus and Jeremiah. (Ex. 31.18, Jer. 17.13)
Courts long before
The first courts that the Jewish people employed took place outside of Israel. It happened in the wilderness right after they left Egypt in the Exodus, about 1500 BCE. Moses was in over his head with situational decision-making. Jethro was Moses’ father-in-law and the scene of this encounter is especially worthy of our notice today.
“The next day Moses took his seat to serve as judge for the people, and they stood around him from morning till evening. When his father-in-law saw all that Moses was doing for the people, he said, “What is this you are doing for the people? Why do you alone sit as judge, while all these people stand around you from morning till evening?”
Moses answered him, “Because the people come to me to seek God’s will. Whenever they have a dispute, it is brought to me, and I decide between the parties and inform them of God’s decrees and laws.”
Moses’ father-in-law replied, “What you are doing is not good. You and these people who come to you will only wear yourselves out. The work is too heavy for you; you cannot handle it alone. Listen now to me and I will give you some advice, and may God be with you. You must be the people’s representative before God and bring their disputes to him. Teach them the decrees and laws, and show them the way to live and the duties they are to perform. You shall select out of all the people able men who fear God, men of truth, those who hate dishonest gain; and you shall place these over them as leaders of thousands, of hundreds, of fifties and of tens. Let them judge the people at all times; and let it be that every major dispute they will bring to you, but every minor dispute they themselves will judge. So it will be easier for you, and they will bear the burden with you. If you do this thing and God so commands you, then you will be able to endure, and all these people also will go to their place in peace.”
So Moses listened to his father-in-law and did all that he had said.” (Exodus 18.13-24)
So the first courts for the Jewish people were in the wilderness and were a chain of lower courts and a supreme high court ruled over by Moses himself. This system worked well then and continues in some forms in Jewish life to this day.
Laws to be observed today: Sabbath is preeminent and some clever ploys
Sabbath observance is preeminent in Jewish life in these days. Ask most Jewish people one rule of something to fulfill in their Jewish expression and it would most likely have to do with the Sabbath. So on Fridays in major cities worldwide from Moscow to Melbourne, young Jewish girls will walk Jewish neighborhoods, asking women they encounter, “Are you Jewish?” and then upon hearing an affirmative, will ask, “Will you perform candle lighting tonight by a certain time?” If the answer is no, then the girls invite the interviewed into the Mitzvah Mobile where they can light candles and that will be enough for them… It will count!
Why do they do this? Some sayings tell us what will happen when all Jewish people keep the Sabbath. “If Israel were to keep two Sabbaths according to the laws thereof, they would be redeemed immediately (Shabbat 118a) . . .”Or, “If Israel kept the Sabbath properly even for one day, the Son of David [the Messiah] would come. Why? Because it is equivalent to all the commandments.” (Exodus Rabbah 25.12)
The Eruv
As I said before, how we ‘keep the Sabbath’ is barely uncovered in Torah, but it fills a volume of Moed and other passages in Talmud and Jewish writings ever since. An interesting Sabbath legality relates to the ‘eruv.’ This word means ‘mixture.’
An eruv is an area within which observant Jews can carry or push objects on the Sabbath, (which lasts from sunset on Friday to sunset on Saturday), without violating a Jewish law that prohibits carrying anything except within the home. There are over 200 eruvs (or eruvim) in the world.
An eruv must be 'completely enclosed'. The area is not enclosed by building a special wall round it - most of it is enclosed by existing natural boundaries like railway lines or walls. What matters is that the area is completely enclosed by boundaries that conform to Jewish law.
Britain's first, and biggest, eruv was created in February 2003. The eruv has a boundary 11 miles long and encloses an area of 6.5 square miles. It covers Hendon, Golders Green and parts of other suburbs.
The Australian Jewish News reported last year (April 2015) “Previous attempts to establish an eruv in St Ives have been met with stiff opposition and controversy. Comments on the North Shore Times website in 2010 spilled over into the realm of anti-Semitism while Channel Nine’s A Current Affair claimed in 2011 that Orthodox Jews were trying to turn the area into a religious enclave.
The NSW Land and Environment Court in 2012 upheld Ku-ring-gai Council’s refusal of a development application to erect a pole on public land that would have completed the eruv.”
So was it to be an enclave? An eruv is created using physical features, like walls and hedges, railway lines and roads, to completely enclose an area of land. The open spaces between the existing features are filled in by erecting poles with nylon fishing line (or wire) strung in between. The poles and lines are regarded as forming doorways in the boundary - the poles are the sides of the door and the lines are the lintel across the top.
The flimsier parts of the boundary are inspected every week to check that the boundary is intact and that none of the fishing line or poles has fallen down.
In other words, the fulfillment of the eruv is creating a ‘home’ out of the neighborhood. Thus we are fooling the Almighty with fishing line into his thinking that we are still at home, and thus we can carry objects previously forbidden like the keys to our house, books, prayer shawls, books, nappies, reading glasses, etc. It’s a legality which borders on the ridiculous. But in 200 communities worldwide it’s standard operating procedure.
Sabbath lifts and lights
In Israel and some major cities worldwide, one will find major hotels and even some boutique ones, with a very slow lift on the Sabbath. The elevator will stop on every floor going up and going down. Why? A Jewish person is forbidden from kindling a fire on the Sabbath and thus he cannot push the button on the lift to take him to a certain floor. But if the lift stops at each floor, and he hasn’t activated the lift, then he hasn’t broken any regulation.
The same thing happens with electric lights. We are prevented from turning them on or off, but if they are on and we enter the room, we may enjoy the use of their glow. That brings us to the subject of the Sabbath Gentile. Although the rules are fairly strict about what cannot be asked of a non-Jew, the popular practices are wide. I had a Sabbath Gentile who would come to my university room in St Louis (USA) in 1969 and 1970 to turn on my light on Friday evening and turn it off on Friday night after I came home from synagogue attendance and was ready for bed. He would return on Saturday and turn it back on for me during the day, then on Saturday evening when the Sabbath ended, I would return to my room again and be able to turn it off. (For more on this and what happened, read Bob's testimony )
Where there are laws, there will be lawyers. Where there are lawyers, there will be rulings and loopholes and mechanics of trying to win cases. This is standard in the Jewish world, and certainly in our Australian world.
Conclusions
In preparation for this lecture I asked on my Facebook page the following:
Please give me a phrase, a sentence, a word, even a blog to answer: “When I think about Jewish people and Law, I think...” The majority of the answers were simple as expected, ranging from Moses, Sinai, and other facts of history, to the almost derogatory no lobster, oppression, and bondage. Most answers demonstrated some negativity towards Law. Then others would join in with alternate views like holy, righteous, good, family, set apart for God, etc. Therein is the vox pop clarified. The range of feelings about Jewish people and Torah, or Talmud, or just rules in general is wide. What must be understood is that the current legal system in which we participate today is largely due to the relationship of Jewish people and Law.
Dr Richard Lee says, “In order for them (US founding fathers) to form such documents, they had to lean upon some common understanding of law, government, social order and a basic moral code. These understandings sprang from a common acceptance of what has come to be known as the Judeo-Christian Ethic. The term "Judeo-Christian" refers to "the influence of the Hebrew Bible and the New Testament on one's system of values, laws and ethical code." It is not just a system of theological thought, but a culture of values as seen in one's individual's right to life, liberty and the pursuit of happiness.
Some would argue that a few of our nation's Founding Fathers were not Christians; some were Deists. Whether they were Christians or not, their writings, words and votes indicate that the vast majority of them embraced the Judeo-Christian Bible as the basis for a civilized society and social order. It is especially important during these days of rampant pluralism and situation ethics that we pastors (and our people) remember these same anchors of faith and values that are brought to us through the Word of God.”
Sayings of the Fathers: 1.1
The men of the Great Assembly (a gathering of Jewish leaders in the days of Ezra (5th Century BCE)) who continued (and in new forms continue) are credited with the first sentence of Pirkei Avot (Saying, or Ethics, of the Fathers), which is one of the sections in Nezikin of Talmud. In it are no regulations at all, but only Aggadah. In the opening line they said, “Be deliberate in judgment, raise up many disciples, and make a hedge about the Torah.” Those three pillars are foundational to the Judaism of any age and to the courts which have followed the Judeo-Christian understandings. Without knowing Jewish laws, and the Jewish people, in a way, without knowing the Jewish messiah Jesus and what he taught, I don’t know how anyone even in these days can really understand real justice, real ethics, or real love.
I hope this overview of the Jewish people in relation to law is helpful as you students continue in your living out the Australian ideals, and seek to bring justice to bear in the 21st Century.
Please write me if you would like to discuss any of this lecture. I’m happy to be a resource to you in your studies and well beyond. bob.mendelsohn@gmail.com
ENDNOTES
Requirements of evidence in capital cases
It requires two witnesses who observed the crime. The accused would have been given a chance and if repeated the same crime or any other it would lead to a death sentence. If witnesses had been caught lying about the crime they would be executed. Two witnesses were required. Acceptability for witnesses was limited to:
1) Adult Jewish men who were known to keep the commandments, knew the written and oral law, and had legitimate professions;
2) The witnesses had to see each other at the time of the sin;
3) The witnesses had to be able to speak clearly, without any speech impediment or hearing deficit (to ensure that the warning and the response were done);
4) The witnesses could not be related to each other or to the accused.
5) The witnesses had to see each other, and both of them had to give a warning (hatra'ah) to the person that the sin they were about to commit was a capital offense;
This warning had to be delivered within seconds of the performance of the sin (in the time it took to say, "Peace unto you, my Rabbi and my Master");
In the same amount of time, the person about to sin had to:
a) Respond that s/he was familiar with the punishment, but they were going to sin anyway; AND
b) Begin to commit the sin/crime;
The Beth Din had to examine each witness separately; and if even one point of their evidence was contradictory - even if a very minor point, such as eye color - the evidence was considered contradictory and the evidence was not heeded;
The Beth Din had to consist of minimally 23 judges;
The majority could not be a simple majority - the split verdict that would allow conviction had to be at least 13 to 11 in favor of conviction;
If the Beth Din arrived at a unanimous verdict of guilty, the person was let go - the idea being that if no judge could find anything exculpatory about the accused, there was something wrong with the court.
The witnesses were appointed by the court to be the executioners.
As a result, convictions for capital offense were rare in Judaism
The forbidden categories of work on the Sabbath
39 prohibited kinds of labor as listed in Mishnah, Shabbat 7:2.
1. Sowing
2. Plowing
3. Reaping
4. Binding sheaves
5. Threshing
6. Winnowing
7. Cleansing
8. Grinding
9. Sifting
10. Kneading
11. Baking
12. Shearing
13. Washing wool
14. Beating (or Combing) wool
15. Dyeing wool
16. Spinning
17. Weaving
18. Making two loops
19. Weaving two threads
20. Separating two threads
21. Tying a knot
22. Loosening a knot
23. Sewing two stitches
24. Tearing in order to sew two stitches
25. Hunting a deer
26. Slaughtering it
27. Flaying it
28. Salting it
29. Curing its hide
30. Scraping it
31. Cutting up
32. Writing two letters
33. Erasing in order to write two letters
34. Building
35. Demolishing
36. Extinguishing
37. Kindling
38. Striking with a hammer
39. Carrying from one domain into another
Glossary of terms:
1) Aggadah meaning ‘story’ and refers to the tales of the rabbis, and stories which amplify rulings, usually.
2) Amoraim meaning ‘explainers’ or ‘interpreters’. They were the later rabbis (200-500 CE) who commented on the Mishnah and their collection is the Gemara which when incorporated with the Mishnah in Babylon or Palestine became the Talmud.
3) Antithetical parallelism. A devise in Hebrew poetry that has two clauses or ideas where the second is the opposite of the ideas in the first clause. (compare synonymous)
4) Beth Din meaning “house of judgment” meaning the official court.
5) Gemara, meaning ‘completion’ and is the commentary on the Mishnah by the Amoraim compiled about 500 CE.
6) Halacha meaning “the way to go” and refers to precedential rulings of law.
7) Kiddush meaning ‘sanctification’. The taking of a cup of wine, usually along with a piece of sacred bread. An initiation rite of the Sabbath and certain holidays.
8) Mishnah, meaning ‘study’, the original commentary on the Older Testament, formulated and developed in the land of Israel (then titled “Palestine”) in the 3rd century. Credited to the authorship (really redacted by) Rabbi Judah Hanasi (the prince) who died in 217 CE. The Mishnah consists of six orders (sedarim, singular seder סדר), each containing 7–12 tractates (masechtot, singular masechet מסכת; lit. "web"), 63 in total, and further subdivided into chapters and paragraphs or verses.
9) Rabbi. Meaning teacher. Carries significant interpretive authority over meanings of words and texts, but never in isolation. Always in a majority opinion.
10) Synonymous parallelism: A method of Hebrew poetry that has two clauses or ideas where the second is a repeat of the ideas in the first clause (compare antithetical)
11) Talmud. Meaning ‘learning.’ Contains both the Mishnah and the Gemara. Compiled from 200-500 CE. Contains both the Halacha and the Aggadah of the rabbis. The interpretation book of the Older Testament.
12) Tannayim meaning ‘teachers’ (Aramaic). They were the original rabbis whose views formed the Mishnah.
13) Torah. Meaning ‘instruction’ or “law” depending on who is being asked. The first five books of the Bible. Also by extension the entire Older Testament. Can also refer to the Oral Law (Torah she’b’al pe)
Recommended reading:
Beyond the commandments, Killgallon and Weber, Herder and Herder, NYC, 1964.
Christ in the Sabbath, Rich Robinson, Moody Press, Chicago, 2014.
Everyman’s Talmud, Abraham Cohen, Dutton & Co, NYC, 1949.
Jewish Annotated New Testament, Amy-Jill Levine and Mark Z Brettler, Oxford Press, 2011.
Jewish New Testament Commentary, David Stern, JNT Publications, Clarksville USA, 1992
Marital Relations, Birth Control, and Abortion in Jewish Law, David Feldman, NYU Press, NYC, 1968.
Pentecost and Haftorahs, JH Hertz, Soncino Press, London, 1978.
Rashi: the man and his world, Ezra Shereshevsky, Sepher-Hermon, NYC, 1982.
Rebbe, Joseph Telushkin, Harper Books, NYC, 2014.
The Jew in the Modern World, Edit by Paul Mendes-Flohr and Yehuda Reinharz, Oxford Uni Press, Oxford, 1980.
The Jewish Book of Why, Alfred Kolatch, Jonathan David Publications, NYC, 1981.
The Mishnah, Herbert Danby, Oxford University Press, Oxford, 1991.
To be a Jew, Hayim H Donin, Basic Books, NYC, 1972.
The Mishnah (The six divisions: Tractates)
Zeraim (Seeds)
Benedictions, Gleanings, Tithes, Fruits, etc
Moed (Appointments/ Feasts)
Sabbath, Holidays (Passover, Pentecost, Tabernacles), Esther
Nashim (Women)
In-laws, marriage vows, adultery, divorce, engagements
Nezikin (Damages)
Civil laws, Courts, Oaths, Testimonies, Fathers, Instructions
Kedoshim (holy things)
Offerings, vows, sacrilege, measurements
Tohoroth (cleanness)
Vessels, tents, leprosy, red heifer, immersion pools, menstruation, hands
Maimonides on Capital Punishment:
The 12th-century Jewish legal scholar Maimonides stated, "It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death." Maimonides argued that executing a defendant on anything less than absolute certainty would lead to a slippery slope of decreasing burdens of proof, until we would be convicting merely "according to the judge's caprice." Maimonides was concerned about the need for the law to guard itself in public perceptions, to preserve its majesty and retain the people's respect.
