The Misuse of Power: Noble Ideas Tarnished

Rabbi Dr. Shmuly Yanklowitz
March 10, 2014
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Judaism reminds us that we must take responsibility and use our power for justice. In a radical rabbinic source (Midrash Rabbah, Vayikra 32:8), the rabbis declare that the Great Sanhedrin itself was an oppressor in how it treated the suffering of the mamzerim:

“I further observed all the oppression that goes on under the sun: the tears of the oppressed, with no one to comfort them; and the power of their oppressors—with none to comfort them” (Ecclesiastes 4:1). Daniel, the tailor, interpreted this verse as pertaining to mamzerim. “The tears of the oppressed”: their mothers transgressed, and these poor ones are excluded; this one’s father committed incest, but what has he done and why should he be affected. (There is) “none to comfort him,” (but rather they are subjected to) “the power of their oppressors”: this refers to Israel’s Great Sanhedrin, who come at them with Torah’s power and exclude them, applying (the verse,) “no mamzer shall be admitted into the congregation of the Lord’” (Devarim 23:3). “None to comfort them”—the Holy One says “It is for me to comfort them.” Yes, in this world some are spurned, but as for the future, Zechariah has said, “ I see a people all of gold” (Zechariah 4:2).

The Midrash imagines that God cries with the oppressors while the rabbis “oppress” the victim looking for respite. Another source reveals how much God cares about the correct administration of justice:

Rabbi said: Thus it says, “shall not judge [yadon].” The Holy One, blessed be He, said, “If they do not establish a court [sanhedrin] on earth, I will establish a court [sanhedrin] for them on high” (Avot D’Rabbi Natan).

This passage suggests that if human leadership fails to adequately handle justice on earth, G-d will mete out justice Himself “on high.” Thus, we clearly see the degree of value that G-d places on justice.

In order to understand the law, its evolution, and its applicability on a certain issue, a legal practitioner must study the precedent. The surest and most expedient path to legally liberate the suffering and oppressed is through skillful application and relation to past precedent. Consider the words of the late legal scholar Ronald Dworkin:

Any judge forced to decide a lawsuit will find, if he looks in the appropriate books, records of many arguably similar cases decided over decades or even centuries past by many other judges of different styles and judicial and political philosophies…. Each judge must regard himself, in deciding the new case before him, as a partner in a complex chain enterprise of which these innumerable decisions, structures, conventions, and practices are the history; it is his job to continue that history into the future through what he does today…. So he must determine, according to his own judgment, what the earlier decisions come to, what the point or theme of the practice so far, taken as a whole, really is” (A Matter of Principle, 159).

This unique system, known as the Common Law, developed in England over more than a millennium, beginning with the successful Norman Conquest in 1066 CE. Royal decrees quickly became too cumbersome for each case, and so it became customary for courts to note previous decisions in similar cases. For example, around the time of the Magna Carta in 1215 CE, what is known as the writ of habeas corpus (which forces the authorities to bring a prisoner to court to show evidence why the prisoner is being held) as well as the right to trial by jury were established under this system. The most famous application of Common Law, still the basis of legal decisions in America today, is the 18th-century work by William Blackstone, Commentaries on the Laws of England.

There are other times, however, where the principles exist, but the precedent does not. In many cases throughout history, legal authorities (secular and religious) have had the courage to apply ancient values in new ways to advocate on behalf of the suffering. Consider how one previous judge on the United States Court of Appeals for the District of Columbia molded the law in order to achieve a just result for the suffering. Legal scholar Alan Dershowitz, who worked for this judge early in his career, wrote:

David Bazelon was in the justice business, though he used the law—sometimes stretching it beyond existing precedent—to bring out what he regarded as a just result. He was a “judicial activist,” at least when it came to doing justice to the poor, the disadvantaged, and the sick—and he was proud of it. That catchphrase had not yet become a term of opprobrium, as it has so to many today (Taking the Stand, 63).

This activist principle was put into practice in the 1963 Supreme Court case of Gideon v. Wainwright. The defendant, Clarence Earl Gideon, was a poorly educated man who had been convicted of several petty crimes. When charged with breaking and entering (a felony in Florida), Gideon asked for a lawyer, but was denied, as Florida law did not require the state to hire counsel for defendants in felony cases. After being convicted and losing a state appeal, Gideon hand wrote out a writ of certiorari to the Supreme Court, which agreed to hear his case. The court ignored a previous case (disregarding a precedent) that the refusal of a court to appoint a lawyer for the defense of a poor defendant did not violate the “due process” clause of the 14th amendment. Instead, in a unanimous decision, the Court reversed this decision, mandating court-appointed lawyers in state courts for felony cases. As Justice Hugo Black wrote:

…reason and reflection require us to recognize that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.

In contrast, one Israeli thinker, Yeshayahu Leibowitz, argued that the intention behind Jewish law is merely to cultivate submission to command and not about addressing social moral issues:

If the mitzvot are in the service of God, not of man, they may not be directed toward the satisfaction of human wants. Any attempt to ground them in human needs—cognitive, moral, social, and national—deprives them of their religious meaning. If the commandments were expressions of philosophic cognition, had a moral function, or were directed at the perfection of social order or the conservation of the people of Israel, the observant Jew would be doing service to himself, to society, or to the nation. Instead of serving God he would be utilizing G-d’s Torah for his own benefit as an instrument for satisfying his needs…. Halakhah as a religious institution cannot admit the category of the ethical (Religious Praxis: The Meaning of Halakhah in Judaism, Human Values, and the Jewish State).

Professor Leibowitz correctly understands that mitzvot have an element of submission to command, but he has taken this value too far. There is also a clear value for halakhah to address societal issues, to make individuals, communities, and the world better. Halakhah commands that we do all we can to make the world and its entire people more just and holy.

In fact, this may be the noblest idea in Judaism (that Jewish law is a vehicle for global transformation) that has been tarnished. One major segment of the Jewish world has completely dismissed the high valuation of global citizenship and made the Jewish tradition narrow, parochial, and irrelevant. Another major segment of the Jewish community has embraced universalism, service, and partnership, but dismissed the value of Judaism in informing this work. These two portions of our people have chosen to ignore the breadth and depth of our religion and tradition, and instead narrow their focus and observance to such an extent as to effectively mitigate the noble impact our faith has made, and can continue to make.

The mandate of the Jewish people has been tarnished. We must reclaim this true destiny.

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Rabbi Dr. Shmuly Yanklowitz is the Executive Director of the Valley Beit Midrash, the Founder and President of Uri L’Tzedek, and the Founder and CEO of The Shamayim V’Aretz Insitute. Rav Shmuly completed his Masters at Yeshiva University in Jewish Philosophy, a Masters at Harvard in Moral Psychology and a Doctorate at Columbia in Epistemology and Moral Development. Rav Shmuly is the author of Jewish Ethics and Social Justice: A Guide for the 21st Century and his second book was Epistemic Development in Talmud Study.

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