Q&A: Jewish Law and the Legal System
Jewish Law and the Legal System
Question
My question relates to something I wasn’t able to express in the last class regarding the legal system. You tried, unsuccessfully, to steer the discussion to a different field, namely the legal system as a system that by definition forces the individual / the public to obey the law. What does Torah teaching say about this? Is there a need for such a system? Or perhaps more accurately: when, and in which areas, is there a need—and even a commandment—to establish and operate such a system: “Judges and officers shall you appoint for yourself in all your gates.” What are these “gates”? Gates / boundaries / jurisdictions. There is, for example, a consensus in the secular world of law: ma liberté s’arrête là où commence celle de l’autre—in English: the limit of one person’s freedom is the point where that freedom collides with another person’s freedom.
Many secular legal systems are built on this important principle of preserving the different spheres of freedom so that one does not harm the other. By contrast, in religious systems the realm of what is forbidden and permitted goes beyond interests or injuries to the individual’s freedom. And perhaps the distinction between obligations toward God and obligations toward one’s fellow is connected to the issue. It seems to me that in a religious system (no matter which religion) there is a clear statement that blurs the line between obligations toward God and obligations toward one’s fellow, and says that in principle duties and systems of what is forbidden and permitted exist in both mechanisms. This is unlike secular thinking, which says that in anything related to a person and himself, he should do whatever his heart desires—but once it collides with another person’s freedom or interest, the legal and judicial system has something to say. True, there are exceptional cases in which we would stop a person who may harm himself (for example, where it is estimated that he may endanger his own life), but even that can be questioned in societies that do not see the value of life as especially sacred. In any case, the question I’m having such difficulty expressing is this: after all, we know there is a large gap between the principled halakhic laws and the possibility of applying and implementing them—for example, the fact that in order to punish someone you need witnesses and prior warning, etc., conditions that are almost impossible to realize. Likewise, there is that statement that although the death penalty exists, it almost never happened that the Sanhedrin actually imposed a death sentence. It comes out that there may be a statement here, or even a hint, that there does not have to be a correspondence between law and judgment, between the laws and the need for a coercive system. Perhaps the laws exist, but when they are violated we will try in every possible way not to apply the punishment. Does that imply some reservation about the validity or credibility of these laws, or a desire to say that judgment belongs to God.
But even if we say that judgment belongs to God, when do we say that God will force the mountain of laws over a person like a barrel?
If we know that, perhaps we will get to “be killed rather than transgress.”
In any case, regarding gentile courts, could it be that the point is that judgment belongs to God, and if indeed for the sake of healthy social functioning we need a legal system, then at least that legal system should be as close as possible to reflecting the divine law, which God supposedly handed over to Torah scholars insofar as they in principle represent the Torah not only at the theoretical level of knowing laws and rules, but also at the personal level of character refinement, as appears in Maimonides regarding the inward duties of a judge.
And if so, the prohibition against going to gentile courts or to lay judges is an essential prohibition—that one may not approach them with the thought that they represent divine justice, just as in Nachmanides’ time there was hesitation about going to doctors if one thought that doctors had it in their hands to determine who would live and who would die. But once one uses medicine as a tool and not as an idol, then it becomes a non-issue. In parallel, one could say that as long as one turns to a secular legal system or that of gentiles without seeing it as a spiritual or divine system, but rather as an instrumentalist, functionalist system, with the understanding that it basically operates exactly like the mechanism of a referee judging a soccer game, then this is not a violation of the prohibition of gentile courts.
Answer
Every legal system imposes its laws on the individual, and Jewish law is also included in that. And indeed there are situations in which even death is decreed, although the Sages pushed this into realms that are almost impossible. As I explained, nowadays all of this is not relevant (and it is doubtful whether it was relevant in the past), since it is hard to imagine an offender who knowingly desecrates the Sabbath and also accepts prior warning. This is basically a theoretical law, almost not intended for implementation. An offender who thinks there is no prohibition involved is completely under duress and exempt from any punishment (there is a well-known responsum of the Radbaz about coercion in matters of belief, that it is coercion in every respect). See my article in Tzohar (it is also online) about causing a secular Jew to sin.
There is no basis for comparing Jewish law to other legal systems, because it is not a legal system (see my article in Akdamot, “Is Jewish law ‘Hebrew Law’?”). Unlike other systems, it tells a person what he may and may not do both in the private domain and even when he is not directly harming others (though there are those who would say that he is harming them, like one who drills a hole under his own seat in a ship). By the way, other legal systems also have such laws, though they are steadily diminishing. See, for example, the prohibition of incest and the refusal to recognize marriage between brother and sister even when both consent.
By the way, this is not a difference in outlooks but a difference in the essence of the systems under discussion. A legal system, by its nature, comes to regulate relations between people, and as such it has no right to intrude into the private domain when this does not harm others. Jewish law contains a legal component, but beyond that it also has demands concerning a person’s private life. A state legal system does not see itself as having the right or the need to interfere in private life. Take the prohibition of homosexuality as an example. As long as society thought this was forbidden, it prohibited it by law even though it harmed no one. When did the change happen? For some reason, exactly when society came to the conclusion that there is no problem with it at all. Notice that society did not say that it doesn’t care what people do in private; rather, it said that the act is not problematic, and therefore it permits it. Had the perception still been that this is forbidden, they would prohibit it even today. The discourse about not intervening in the private domain is only an argument against those who still think it is forbidden (such as religious people).
The distinction you made between turning to courts for instrumental purposes and turning to them in an essential sense is somewhat like the distinction of the Shach and Netivot HaMishpat that we saw in class. When what one wants from them is a compromise, that is precisely an instrumental appeal, and so there is no problem with it. But when one resorts to foreign law, that is something else.
If your meaning is that today’s law is intended only to regulate social life (and the indication is that it does not enter the private domain, as we saw), that shows that there is no alternative permitted/forbidden system here in opposition to Jewish law (which would be something like a foreign religion or idolatry), and therefore in its essence it is instrumental—I tend to agree. It is a very interesting argument, and I had not thought of it.
Discussion on Answer
I did not see that I wrote that a legal system without a statutory component does not threaten Jewish law. What I wrote is that ordinary legal systems do not contain a statutory component because of their nature (regulating relations between people).
Obviously the Torah requires observance of all of Jewish law, statutes and ordinances alike. But when people make stipulations or legislate in monetary law, that itself is the halakhic obligation. A stipulation against what is written in the Torah regarding monetary matters is halakhically possible (like Rabbi Yehuda against Rabbi Meir). And “the law of the kingdom is the law,” or the seven leading townsmen, determine monetary law according to their understanding, and that too is halakhically binding.
Following up on the question discussed above, in this week’s Torah portion we read a verse that relates to the issue:
Leviticus chapter 18:
4 “You shall do My ordinances, and keep My statutes, to walk in them; I am the Lord your God.”
5 “And you shall keep My statutes and My ordinances, which if a person does, he shall live by them; I am the Lord.”
26 “And you shall keep My statutes and My ordinances, and shall not do any of these abominations—neither the native-born nor the stranger who sojourns among you.”
30 “And you shall keep My charge, not to practice any of the abominable customs that were practiced before you, and not defile yourselves by them; I am the Lord your God.”
Above, you made a distinction between the “judicial” part and the “statutory” part of Jewish law and of the secular legal system, and you said that a legal system that does not contain a “statutory” component does not threaten Jewish law. But from the verses above it seems that the Torah equates keeping the ordinances with keeping the statutes. How does that fit with what you wrote above?