Rabbi Freedman’s Shabbat Message

In one of the most famous and yet unusual stories in the Talmud, the rabbis describe the moment that Moses is projected forward like some time-traveler and finds himself sitting at the back of a classroom where the legendary Rabbi Akiva is giving a lesson in Jewish Law.  Moses is confused as he listens to the lesson.  The way in which Rabbi Akiva extrapolates Jewish Law from the text of the Torah seems quite different from the words recorded originally by Moses.

 When Moses ascended on High, he found the Holy One, Blessed be He, sitting and tying crowns on the letters of the Torah.  Moses said before God: Master of the Universe, who is preventing You from giving the Torah without these additions?  God said to him: There is a man who is destined to be born after several generations, and Akiva ben Yosef is his name; he is destined to derive from each and every thorn of these crowns mounds upon mounds of halakhot.  It is for his sake that the crowns must be added to the letters of the Torah.

 Moses said before God: Master of the Universe, show him to me.  God said to him: Return behind you. Moses went and sat at the end of the eighth row in Rabbi Akiva’s study hall and did not understand what they were saying.  Moses’ strength waned, as he thought his Torah knowledge was deficient.  When Rabbi Akiva arrived at the discussion of one matter, his students said to him: My teacher, from where do you derive this?  Rabbi Akiva said to them: It is a halakha transmitted to Moses from Sinai.  When Moses heard this, his mind was put at ease, as this too was part of the Torah that he was to receive.  (TB Menchot 29b)

 This passage appears to justify the on-going evolution and interpretation of the Mosaic Law.  Jewish Law is sometimes accused of being an ancient code created for an age long gone.  But this passage gives authority to the rabbis of every generation to re-appraise the meaning of the text and make sense of it in the light of changing circumstances.

 Proof of this is found in the diversity of customs and traditions which is tantamount to a state of de facto legal pluralism.  This occurs because communities are guided by different halakhic authorities.  While special status is accorded the local authority, known as the mara deatra – the local rabbi, he himself will doubtless consult with leading international figures to arrive at his psak din, his rabbinic ruling.

 A ruling made by an Ashkenazi rabbi may well differ from a Sephardi rav, similarly making a ruling for a community in chutz la’aretz may well differ from one which resides in Eretz Yisrael.  Either way, they may also demonstrate a different viewpoint from one in the original Torah text.

 The reality is that while no rigid school of thought exists in the Jewish world, and consequently one cannot state that there is a single version of halakha, nonetheless from a sociological point of view, religious Jews see themselves globally as constituting a single people under the authority of traditional Jewish Law.

 This concept becomes apparent as one reads Parashat Shoftim.  For example, the Torah appears to give carte blanche to retributive punishment when it uses the words: נֶפֶשׁ בְּנֶפֶשׁ עַיִן בְּעַיִן שֵׁן בְּשֵׁן – a life for a life, an eye for an eye, a tooth for a tooth (see Deuteronomy 19:21), yet the Talmudic sages make clear that these words should not be taken literally, instead the guilty party must make financial restitution.  On what basis do the rabbis have the right to determine Jewish Law?  Once again the answer is found within this week’s sidra:

 If cases come before your courts that are too difficult for you to judge—whether bloodshed, lawsuits or assaults—take them to the place the Lord your God will choose.  Go to the Levitical priests and to the judge who is in office at that time. Inquire of them and they will give you the verdict.  You must act according to the decisions they give you at the place the Lord will choose.  Be careful to do everything they instruct you to do.  Act according to whatever they teach you and the decisions they give you.  Do not turn aside from what they tell you, to the right or to the left.  (Deuteronomy 17: 8-11)

 As far as Rashi is concerned, basing himself on the ancient work known as the Sifrei, this final verse gives authority to the sages to determine how the halakha is to be applied.  He states this in his commentary:

לֹא תָסוּר מִן-הַדָּבָר אֲשֶׁר-יַגִּידוּ לְךָ–יָמִין וּשְׂמֹאל

Do not turn aside from what they tell you, to the right or to the left:

Even if the judge tells you something that appears to you to be right – that it is left; or about what appears to you to be left – that it is right; you have to obey him.

The following story (TB Bava Metziah 59b) famously demonstrates the role of the sage in bringing תּוֹרָה מִן הַשָּׁמַיִם – the Divine Law down to earth:

It was taught: “On that day Rabbi Eliezer used every possible answer to prove his view but they did not accept his view.  He said to them, ‘If the halakha is as I say then let this Carob tree prove it.’  The tree then moved from its place one hundred cubits (some say it was four hundred cubits).  They said to him, ‘We don’t bring a proof from a Carob tree.’

Then he said to them, ‘If the halakha is as I say then let this steam of water prove it.’  The stream then reversed its course.  They said to him, ‘We do not bring proof from a stream of water.’

Then he said to them, ‘If the halakha is as I say then let the walls of the Bet Midrash prove it.’ The walls of the Bet Midrash bent over and started to fall.  R. Joshua reproved them, and said to them,’ When Torah scholars are disagreeing in halakha what is it to you?’  They did not fall due to the honor of R. Joshua nor did they return upright due to the honor of R. Eliezer. They remained leaning.

He said to them, ‘If the halakha is as I say then let heaven confirm it.’  A heavenly voice was heard: ‘Why do you contend with R. Eliezer, the halakha is always according to his view.’  R. Yirmiya said, ‘We no longer consider significance of heavenly voices for it is written in the Torah – You shall follow the majority.’

So it is, that writers on Jewish Law, such as Jeffrey Radon affirm that traditional rabbinic Judaism, based upon the Hebrew Bible and Talmudic literature, does not live by the plain meaning of Scripture alone.

The implications, according to Radon are enormous – ‘in principle, traditional rabbinic Judaism is not fundamentalist in the sense of a literal understanding of Biblical texts.  The Talmudic method of interpretation was one of not being bound by the plain or literal meaning of Biblical texts, and this method of exegesis allowed Judaism to evolve and develop.  An important image of Torah Judaism in the Talmudic tradition is עֵץ חַיִים /Etz Chaim (a tree of life) – and a tree is organic constantly growing and changing, while at the same time preserving its identity.’

All of the above brings me to an ethical question that has concerned legislators, Jewish and non-Jewish, throughout history.  Is it morally correct for the courts to take the life of an individual who has been found guilty of first degree murder – is execution a legitimate form of punishment?

In this week’s sidra (see Deuteronomy 18:20), and in many other places throughout the Torah, capital punishment is the prescribed penalty for a wide range of offences.  Notwithstanding the written text, the rabbis were altogether more ambivalent about carrying out the death penalty.

Perhaps the most famous rabbinic comment on the subject is found in TB Makkot 7a: “A Sanhedrin that carries out an execution once in seven years, is characterized as cruel.”  Rabbi Eliezer ben Azariah went even further and extended this statement to a court that applied the death penalty once in seventy years.  Rabbi Tarfon and Rabbi Akiva added to the discussion by saying that if they would have been members of the court – no person would have ever been put to death.  Moses Maimonides (1135-1204) famously said of capital punishment: “It is better to acquit a thousand guilty persons than to put a single innocent one to death.”

Not that every rabbi agreed with this liberal approach – Rabban Shimon ben Gamliel suggested that if a Sanhedrin had only one execution every seventy years then that court would serve to “increase murderers among the Jewish people.”  In his opinion, there would be no deterrent and potential murderers would take advantage of the leniencies in place.

Recent research however demonstrates that there is no credible evidence that the death penalty deters crime more effectively than a custodial sentence.  In fact crime figures from countries that have banned the death penalty have not risen.  In some cases they have actually gone down.  In Canada, for example, the murder rate in 2008 was less than half of that in 1976, when the death penalty was abolished.

A 2009 survey in the USA revealed that over 88% of criminologists believed the death penalty was NOT a deterrent to murder.  The murder rate in non-death penalty states has remained consistently lower than the rate in states with the death penalty.  The threat of execution at some future date is unlikely to enter the minds of those acting under the influence of drugs and/or alcohol, those who are in the grip of fear or rage, those who are panicking while committing another crime (such as a robbery), or those who suffer from mental illness or mental retardation and do not fully understand the gravity of their crime.  The execution of terrorists is also a moot point, since such people in their death become martyrs for the cause and inspire others to adopt the cause and follow in their footsteps.

If this is statistically true, the next logical step in Jewish thought on this matter is full abolition.  The truth is that Jewish Courts do not have the power to sentence an individual to death – they function under the general policy of dina malkhuta dina – that the law of the land is the law – although this maxim initially related to financial matters, it seems to apply additionally to the criminal code of the country.  Israel of course, being a Jewish country might be influenced by Jewish Law, but it is also impacted by British and Turkish Law that existed in Palestine until 1948, as well by legal precedent established under Israeli law, the legal code of Medinat Yisrael, a western, secular, democratic country – which owes no specific debt to halakha.

In Israel, Meir Tobianski, an officer in the IDF, was executed in 1948 as a traitor on circumstantial evidence.  He was the first individual executed by the State of Israel.  A year after the execution, he was exonerated of all charges.  The other execution by the State of Israel was that of Nazi perpetrator, Adolf Eichmann.  This matter was not without comment or criticism.  Martin Buber, Gershom Scholem, Holocaust survivor Nelly Sachs and other Jewish human rights activists in the wake of the Shoah, were staunch opponents to his execution; Buber labelling it “a great mistake.”

I was especially interested in an interview with Rabbi Lord Jonathan Sacks who was asked directly, “What do you think would be a just punishment for the atrocities committed by the Nazis?”  Rabbi Sacks answered as follows: “A just punishment would be, in my view, in most cases, life imprisonment.  After the Nuremberg trials ten of the leading Nazis were sentenced to execution although that was an international court.  In the history of Israel there has only ever been one civil death sentence inflicted, and that was Adolf Eichmann who was a major planner of the Holocaust and of mass murder.  Historically Judaism has been skeptical of the value of capital punishment, certainly since the days of the Mishna, eighteen centuries ago.  So it really was an exception in the case of Adolph Eichmann and I think life imprisonment makes more sense.”

Given that the death penalty is found so many times in the Torah – Sacks demonstrates how the rabbis have been unafraid to adapt the law to modern times.  Long may the rabbis be courageous in their interpretation of the Biblical text, even while demonstrating enormous respect for the word of God as given to Moses and written into the Torah some three thousand years ago.

On the surface, capital punishment looks like the perfect embodiment of justice.  What could be more appropriate than to execute the very people who take others’ lives?  The Torah at first glance seems to support the death penalty unequivocally.  Parshat Shoftim, however, reflects a more complex perspective.  Although our parasha affirms the use of capital punishment, a deep ambivalence surfaces in the text long before the Talmudic sages come to discuss it.  Witnesses are to play a significant and somewhat uncomfortable role in carrying out the sentence; and the rest of the people are never allowed to see themselves as bystanders (see Deut. 17:7).  Blood is therefore on everyone’s hands; no one is permitted the luxury of feeling detached or disconnected from the uncompromising harshness of the legal process.  This ambivalence deepens in the Talmud.  The Rabbis effectively abolish capital punishment, primarily on the grounds that human systems are inevitably fallible and that executing wrongly convicted individuals can never be deemed acceptable.

So the Torah’s words were reassessed and eventually the sages decided that the death penalty should be left in the hands of God alone.  The rabbis exercised the authority granted to them by the Torah in order to limit the power of the courts and ensure that the sanctity of human life would always take priority.  Morality replaced legality and in so doing began to effect changes to Jewish Law that have continued to the present day – improving and refining it one step at a time, forever cognizant of the underlying principles of Judaism – the sanctity and integrity of human life.

Shabbat Shalom

Rabbi David Freedman