The Death Penalty
This morning the American State of California executed a murderer. This is a comparatively rare event in America, and in most Western countries the death penalty is no longer used at all. Around the world 122 countries have either renounced the death penalty or allowed it to become de facto obsolete: and the list of countries abandoning the death penalty grows at an average of 3 each year. But in 74 countries and territories around the world the death penalty is used, with varying degrees of frequency: in 2004, around the world 3,797 people were executed and another 7,395 sentenced to death. 97% of the executions took place in China, Iran, Viet Nam and the United States of America. Most countries use either hanging, shooting, electrocution or lethal injection. But Saudi Arabia and Iraq use beheading and Afghanistan and Iran use stoning. (The figures in this paragraph were taken from the website of Amnesty International – I have not attempted to verify them.)
There is a distinct ambivalence in the Jewish approach to the death penalty. On the one hand, our religious and natural principles of kindness and humanity cause us to recoil in horror from the idea of deliberate and cold-blooded killing of a human being, however guilty. On the other hand, we cannot forget that the Torah prescribes the death penalty for certain crimes, and that while this is not administered at a time when there is no Sanhedrin in the Temple precincts (Rambam, Hilchos Sanhedrin 14:13), it remains as much a part of Torah thought as any other mitzvah which is in temporary abeyance during the absence of the Temple and its attendant institutions.
It is clear that the same ambivalence is not only encountered but encouraged during times when the Sanhedrin is in place and the death penalty administered in accordance with Torah law. The Rabbis describe the degree of reluctance with which the dayonim approach the application of the death penalty, and condemn as “bloodthirsty” the hypothetical court that passes the death sentence as often as once in each seven years (Rambam, Hilchos Sanhedrin 14:10) (the Talmud records other opinions varying this period). And the halochoh of the imposition and administration of the death penalty shows many details designed to ensure not only that it is reserved for cases in which there can be no doubt as to guilt (and it is a staggering fact, again according to Amnesty International, that since 1973, 122 prisoners have been released in the USA after evidence emerged of their innocence of the crimes for which they were sentenced to death) but also that it is administered in as humane a way as possible. In particular, the modern pharmaceutical methods of ensuring insensibility prior to the act of killing find their counterpart in the halochoh (Rambam, Hilchos Sanhedrin 13:2) and would, were the death penalty reintroduced today with the re-establishment of the Sanhedrin, be one aspect of the halochoh that certainly both could and would be developed to embrace modern technological improvements. And the halochoh requires that once the judicial process is entirely concluded beyond all reasonable chance of reopening, administration of the death penalty is not delayed even by a single day, so as not to prolong the convict’s period of suffering waiting to die (Rambam, Hilchos Sanhedrin 12:4).
Incidentally, one of the most contentious aspects of the debate about whether one can ever be sufficiently sure of a person’s guilt to justify his or her execution concerns the use of confessions. While some regard it as an essential prerequisite of certainty, those with knowledge and experience of the processes of criminal law even in civilised countries that do not routinely interrogate by torture, regard confessions as sufficiently unreliable, for a variety of reasons, to make it unthinkable to rely upon an uncorroborated confession. And this receives interesting Biblical support: in Yehoshua (7:21) we find that Achan admits his guilt on a charge of plundering and goes on to mention the order in which the spoils were hidden; and the Torah records (7:22) that on investigation the order given was found to be correct – possibly the earliest recorded instance of what is now the modern practice of regarding a confession as inherently unreliable unless it contains details of a kind that could not reasonably be expected to be known to anyone other than the criminal.
It is not the purpose of this short message to debate the issue of capital punishment in detail or at any length. But I wish to offer one observation, based on this week’s parashah Vayishlach. When Yaakov struggles with and captures the angel, there is a puzzling passage in which he refuses to release the angel “unless you bless me” (Bereishis 32:27). This can be understood in a number of ways: one involves approaching the entire episode as an internal struggle of Yaakov with the evil inclination inside him (the “ish” that is always “imo” – 32:26). The rabbis (see, in particular, Michtav Me’Eliyahu volume 2, essay on parashas Vayeitzei) explain that Avrohom became expert in diverting his evil inclination, Yitzchok went further and became expert in confronting and destroying it, but Yaakov went further still and became expert in the even more demanding enterprise of converting his evil inclination into a positive influence. Hence the idea that he would not release the angel – end the struggle – until it had ceased to be a curse or threat and had become a positive influence or blessing (a thought which occurred to me and which I record here with the express approval of Rabbi Dovid Cooper shlito).
It is this idea of reclamation rather than destruction which colours the whole Torah approach to the treatment of offenders. Our starting point is always to aim for spiritual rehabilitation of even the worst criminal. Sometimes, the matter is taken out of our hands – where the Torah prescribes the death penalty and we are obliged to apply it as unquestioningly as we perform any other Divine commandment. But the cases in which the circumstances and evidence are such as to require the application of the death penalty in accordance with halochoh will necessarily be very few and far between. In the normal instance we are left with considerable discretion as to the treatment of an offender, and in such cases our aim will always be to improve and reclaim, rather than merely to punish and to protect society (both of which are also duties). (Hence the well-known story in the Gemoro (Brochos) where B’ruria reminds her husband to pray not for the downfall of sinners but for the downfall of sin – and the sinners’ rehabilitation.)
With this in mind the following comments of the Governor of California in relation to this morning’s execution are particularly interesting: “After studying the evidence, searching the history, listening to the arguments and wrestling with the profound consequences, I could find no justification for granting clemency. Stanley Williams insists he is innocent, and that he will not and should not apologise or otherwise atone for the murders of the four victims in this case. Without apology and atonement for these senseless and brutal killings, there can be no redemption.” So the Governor appears to have been significantly influenced by his assessment that the murderer did not have a sufficient appreciation of and remorse for his crimes to provide a foundation for spiritual reformation. Without that remorse – which in Torah thought also is an essential ingredient of teshuvah (Rambam, Hilchos Teshuvoh 2:2 and 3) – it will be impossible for the criminal to begin the three-stage process of diverting, confronting and finally transforming his evil inclination, and society will be unable to assist him in that process and will be able to address only the necessary duties of protection and punishment.
Provocation in crime
- This week’s parashah opens with an account of Avrohom eulogising and crying for Soroh who has just died. The word “and to cry for her” is spelled with a small letter chaf.
- The Baal Haturim offers a primary explanation that because Soroh had lived such a full and long life Avrohom’s grief was less extreme than had she suffered a tragically early death. Then he adds a secondary and alternative explanation: when Soroh challenged God to judge between her and Avrohom in the matter of her desire to expel Hagar from their home (Bereishis 16:5) she in one sense called down a judgment upon herself, as a result of which she was responsible for her own death – and we do not eulogise a person who is responsible for his or her own death.The first of these explanations makes immediate sense. The second is bewildering: how do we know that Soroh’s death was connected with her demand for Divine judgment (Soroh did not die until very much later, and when the same matter is next discussed between Avrohom and Soroh she receives express and unequivocal Divine approval (21:12))? And how does this fit with the many rabbinic assertions that Soroh died without sin (see, in particular, Rashi on 23:1 and the Malbim on 23:3)? And in any event, the prohibition cited by the Baal Haturim is the prohibition in eulogising, but it is a letter of the word “and to cry for her”, not of the word “to eulogise her” that is diminished.
- An explanation designated expressly as a second alternative is sometimes so designated because it is indeed problematic but is nevertheless capable of teaching an important idea.
- In this case, although it may be difficult or impossible for us to discern how or in what sense the point applied to Soroh, we can learn the general idea that it is both natural and acceptable for a person’s conduct to affect my emotional reaction to what happens to him or her as a result of it. The reason for not eulogising someone who is directly responsible for his or her own death (and the halochoh applies only to direct responsibility) is that the responsibility changes the nature of our emotional response to the death from a relatively straight-forward sense of loss, that can be marked and to some extent alleviated by recounting the deceased’s virtues, into something which may be more or less intense depending on the case but which in any event either is or should be more complicated.
- Amnesty International this week published the results of a survey in which about 25 per cent of those who responded thought that victims of a certain crime are “partly to blame” for the crime if they have behaved in a manner that might objectively be thought to increase the risk of their being targeted. Amnesty describe the results as shocking.
- I find the results disturbing not so much because they reveal malicious or wrong thinking but because they reveal confused thinking (on the part of those who compiled the survey as well as those who answered it). In particular, the results suggest that too many people fail to distinguish between their feelings about the perpetrator of a crime and their feelings about the victim.
- The commission of a crime is always a moral wrong, of a greater or lesser degree depending on the nature of the crime and the mental and other circumstances of the criminal. The wilful murder of a person who stands already condemned to death is no less a murder. Theft is no less wrong because the victim behaved unattractively and unwisely by flaunting his or her wealth.
- But what we feel about the victim, as distinct from what we feel about the criminal, will be affected by how he or she has behaved. The person who walks through a deprived area deliberately and ostentatiously displaying jewellery and other expensive accessories commits the wrong of placing a stumbling-block before the blind. His or her wrong does not excuse someone who then mugs him or her, and is not in itself a reason for treating the criminal more leniently. But it may, reasonably and constructively, affect how I feel about the victim and whether I feel the victim, and society in general, should have modified his or her behaviour.
- If we are as a society troubled by the levels of crime of all kinds, our thoughts as to how crime can be reduced should be as broadly-ranging as possible; and we should be prepared to examine our own behaviour and consider whether, without offering it as an excuse for criminals, we could sensibly be doing more to reduce temptations to crime, both immediate and indirect, and to assist either actual or potential criminals to recover or retain proper paths of behaviour. To coin a phrase, “tough on crime and constructive on the causes of crime”.
Bris Miloh: the painful truth
- Parashas Vayeiro opens with Avrohom Ovinu recovering from his bris miloh at a place belonging to Mamrei. The rabbis want to know why Mamrei deserves this express and apparently unnecessary mention in the Torah. Rashi answers from Bereishis Rabboh that “Mamrei gave Avrohom advice about the bris miloh and therefore Hashem revealed himself to Avrohom on Mamrei’s property”.
- So what advice did Mamrei gave Avrohom that merited such a reward? The Midrash Tanchumo records that Avrohom had three friends whom he consulted about bris miloh. The first friend warned him that it would weaken him to such an extent that he would be vulnerable to reprisals from allies of the kings whom he had recently conquered. The second warned him that the loss of blood would be fatal. The third, Mamrei, expressed surprise that Avrohom should ask for advice and suggested that someone who had already experienced miracles, including being saved from being thrown into a furnace, should have sufficient confidence in Divine protection simply to fulfil the direct command of Hashem.
- So Mamrei’s advice consisted in refusing to give advice!
- Bris Miloh is a surgical procedure. So it can be tempting to think that medical science will have advice to offer about it. But, then as now, the most frequent form of advice will be simply “don’t do it”; and if the medical community are treated by us as having a special standing in relation to bris miloh, they will not hesitate to take reasonable advantage of that to expound upon the physical or psychological harm that their scientific knowledge leads them to expect to result from it.
- Mamrei’s message to Avrohom Ovinu was to disclaim on the part of the scientific community any right to advise about the methodology or effects of bris miloh, any more than in relation to any of the other mitzvos which we have in direct command from Hashem.
- I have occasionally heard arguments, on the radio or elsewhere, between rabbis and doctors about bris miloh. The doctors have won every time. While the rabbis assert repeatedly that bris miloh causes no significant pain and does no lasting harm, the doctors not only deny it but adduce evidence (as to the quality of which I am ignorant) of occasional physical harm; and they regularly assert the possibility of long-term trauma.
- Bris miloh is not something we would ever have invented for ourselves: it is counter-intuitive for us, not only as Jews commanded to love others but even simply as sensitive human beings. But the Ksav Sofer on Devorim 22:6 (discussing the connection made by Devorim Rabboh 6:1 between bris miloh and kan tzipor) explains that the essence of performing bris miloh is that a person should feel the apparent cruelty of harming his defenceless child, and should nevertheless perform the bris in recognition that human understanding of cruelty or kindness is imperfect, and fades into irrelevance when faced with a clear and direct Divine command. So we conquer our instincts and perform bris miloh with the same obedience (although not necessarily unquestioning obedience) to the tradition handed down from Abraham Ovinu to the present day as that which underpins our entire commitment to Torah.
- Anyone who performs bris miloh cheerfully and asserts that it causes no significant pain, not only misses this message but contradicts the ruling of the rabbis that at the seudas mitzvah for a bris miloh we omit in birchas hamozon the celebratory introduction that we include at a sheva brochos, on account of our consciousness of and sensitivity for the baby’s suffering.
- Much of what we do as Jews must seem extraordinary to others, and bris miloh must seem not just extraordinary but barbaric. If we meet charges of barbaric cruelty with scientific argument or merely with unfounded protestations, we cannot expect other than the most hostile and contemptuous opposition. If we admit the apparent cruelty but present our commitment to this practice as based on devotion to, and trust in, a revealed Divine tradition transmitted to us throughout the generations, we can at least hope that our honesty will be regarded with an uncomprehending respect.
The end does not justify the means (1) – Anti-terrorism
- With much political attention being paid to anti-terrorist measures, two thoughts arising out of last week’s parashah (I wanted to send this issue out last Friday but encountered technical problems) indicate the Jewish attitude on particular aspects of the issue.
- Hashem creates people to rule over the natural world (Bereishis 1:26). Rashi points out that the word for to rule has an alternative possible root, the verb to go down. If humans are worthy, they will control the natural world. If not, they will descend beneath the level of the natural world and become controlled by it. We can use our intellect to use the natural resources of the world to perfect it for all. Or we can use our intellect to pursue individual self-gratification at the expense of others and become wholly controlled by the animal instincts inside us.
- It is tempting to apply torture to terrorist prisoners (perhaps helpfully re-labelled as moderate forms of coercive punishment) in order to elicit information capable of saving innocent life. But to do so – or to allow other States in effect to do so on our behalf – is to lower ourselves to the level of the terrorist, allowing the end to justify the means. I have no right to depart from the path of rational, sensitive and humane treatment of prisoners, even in order to protect my own life or the lives of others. The Torah confers a right and duty to kill an attacker before he can kill me or someone else, but not to torture him or otherwise to indulge in behaviour which when we describe it as bestial we wrong the animal kingdom in ascribing to it what is in fact a purely human form of cruelty.
- But there will be times when in order to protect innocent life I am obliged to do things which, while not inherently wrong or falling short of the standards required of humans created in the Divine image, nevertheless have undesirable consequences. The rabbis famously describe Adam as having committed the first sin for the sake of heaven. What is meant is that the first sin is not to be understood in the same way as later sins. We sin by using the free-will gained when Adam ate from the tree of knowledge of good and evil in order to choose to gratify our animal selfishness rather than to serve Hashem by keeping His laws. Adam sinned by doing that which God had already predicted that Adam would do (as is clear from a careful reading of Bereishis 2:16 & 17) with the primary purpose of acquiring free-will which can be used to demonstrate love of the Divine attributes and thereby to serve Hashem as he has commanded, but which had the inevitable consequence that the same freedom would sometimes be abused, causing pain and suffering for the innocent victims throughout the world and throughout the centuries.
- In Jewish thought, the end does not justify the means in the sense of enabling them to be disregarded or in the sense of making undesirable means inherently desirable. But we are required to be realistic, and to recognise that undesirable consequences will frequently flow from actions which are necessary in order to secure their primary purpose. When a terrorist is imprisoned, his or her family will suffer. When a terrorist is deported, he or she may suffer in the destination country (despite our compliance with our international obligations). These sufferings are not unimportant, nor are they to be in any sense welcomed as a form of deserved punishment: but they are to be accepted, with sensitivity, as the necessary and unavoidable consequences of taking reasonable and humane action to preserve the safety of the citizens for whom this country is responsible.
Nobel games and noble aspirations
- Professor Robert Aumann deserves warm congratulations from the world-wide Jewish community, not least for the wonderful kiddush hashem created by the international media coverage of his smile beaming out from under his kippah.
- That apart, like other practical social sciences applied games theory clearly has enormous benefits for society in all kinds of ways.
- Also like other sciences, it is important to understand its limitations, which Professor Aumann clearly does. In particular, asked about the application of games theory to the Israel-Palestine conflict, he is reported as having said “It’s been going on for more than 80 years and … it’s going to go on for at least another 80. I don’t see any end to it.”
- Without knowing the precise context of the question to which these remarks responded, it is impossible to be sure exactly what Professor Aumann meant. But knowing him to be a Torah Jew we can be sure what he did not mean: he may have meant that his particular science has nothing to offer for the acceleration of the resolution of conflict in Israel, but he certainly did not mean that there is therefore no hope for peace.
- Professor Aumann himself has witnessed miracles: a miraculous escape from the inferno and a miraculous rebuilding, in other lands in general and in Israel in particular, of so much of what was lost. Therefore he is better-placed than many to know that the cry of the believing Jew through the ages when confronted with the limits of science and human endeavour is not the cry of despair but the cry of hope beyond reason but within faith.
- Standing at the brink of the sea with the Egyptian armies massing behind them, Moses turns to the Jewish people and says not “my political, diplomatic and military strategies have reached the end of their potential and we may as well give up” but rather “my political, diplomatic and military strategies have come to the limit of their potential and we can therefore, all human effort having been expended and failed, confidently expect immediate divine intervention” (see Shemos 14:13-14).
- We are all deeply indebted to Professor Aumann and all other scientists, social and other, for their discoveries that enable us to work faster and more effectively towards the goal of a perfect world under the Kingship of God. But we never forget that the human effort can only succeed in accordance with the God’s blessings, and that ultimate success, personally, communally and universally, owes more to faith in God’s mercies and kindness than to our own efforts. And so the more impossible the task that we confront seems, the more confidently we trust in God to achieve it for us once we have deserved it.
Environmental distruption
- In news reports of natural disasters or of changes in the world (hurricanes, drought, flood, soil erosion, species-extinction and the increasing incidence of asthma and allergies, to name a random selection) it is frequently suggested that the disaster or change – or its severity, rate or impact – is partly a result of the way humans are using the planet and its resources. Some of these suggestions may be unfounded, but probably not all of them. Certainly, there seems little doubt that we are increasingly feeling the effects in numerous ways of courses of action begun decades ago; effects that were to some extent at least wholly unpredictable at the beginning of the process.
- An aspect of the Torah approach to the protection of our natural environment emerges from a technical law in yesterday’s parashah about the construction of the altar in the Tabernacle.
- In Devorim 27:5-6 the Torah says “You shall build a stone altar for God there, without using iron on the stones. Build the altar for God with whole stones …” Apart from the internal redundancy within that passage, the entire passage is a repetition of the law already given in Shemos 20:22. If it is repeated here in Devorim we can look for a message for a people making the transition from living under miraculous divine protection in the desert to managing and using the natural resources of a fertile and inhabitable land.
- When the law against using iron to hew the altar stones is given the first time, Rashi brings an explanation from the Mishnah in Middos (3:4): iron was created to shorten life, and the altar was created to prolong life. The obvious difficulty with this is that iron has potential for construction as well as for destruction, and the same is true of stone. Moreover, the Mishnah goes on to record (3:5) that some of the fittings of the altar were required to be made from iron.
- But one important difference in the environmental impact of iron and stone as building materials is suggested by the way in which the law against using iron to hew the altar stones is expressed the second time around. The Netziv analyses the internal redundancies of the verses and concludes that we are first obliged to choose stones that are without irregularities that might tempt us to cut them with iron, and secondly we are prohibited from using iron on those stones at any stage in the building process.
- The result was, as the Mishnah in Middos records, that the builders went to Beit Kerem and dug for stones, selecting only those of precisely the required size and shape, rather than quarrying large quantities of rock from the nearest place, cutting to size and discarding the waste. They used a more laborious process, slower and more expensive, but one that was less environmentally disruptive; searching for existing resources that suit the task rather than violently forcing the natural resources to conform to our requirements. That is a choice that was relevant only in the context of the use of stone. When it comes to the use of iron and other metals, one has no choice but to interfere considerably with the natural world – and with potentially far-reaching and unpredictable consequences – in order to extract the metal and adapt it for use.
- The picture that emerges is this: the Torah certainly allows and encourages us to use the whole range of the world’s resources for our purposes. When iron is required for fittings of the altar that have to be stronger and more flexible than stone, we should use iron. But when there is a choice of technique and one is less environmentally disruptive than the other, we should use the less disruptive process, even if more demanding or less advantageous in other ways.
- We are becoming increasingly aware both that the ecological impact of our actions is unpredictable and also that in many ways we may have progressed too far wholly to avoid undesirable effects of actions long past. But in so far as the future of the planet lies in our hands, we can learn from the Torah laws of the stone for the altar the importance of wherever possible adopting an attitude of humility, so that in harnessing natural resources we interfere with the world as little as possible.
- The practical implications of this philosophy could be immense. They might point, for example, to maximising opportunities to harness natural sources of sustainable power-generation rather than relying almost entirely on the oil, gas and nuclear power. It could also be relevant to choices between expensive and laborious irrigation systems to tackle third-world drought and the use of genetic modification to produce greater quantities of food in the developed world that can then be transported to areas of famine. And in smaller ways too, this approach may suggest actions of all kinds, including personal contributions to environmental sensitivity such as recycling – in which context, what a great blessing and opportunity for kiddush hashem it is that the London Borough of Hackney have now appointed two members of the Jewish community to act as community recycling officers.
- At a more abstract level, adjusting our view of the world along these lines could lead to a general desire to adapt more to the environment around us, to curb our desires to control and change, and generally to approach the new year in an attitude of greater humility and sensitivity.
Cutting pieces from the Machzor
- As shuls all over the world prepare for the Yomim Noro’im, the perennial question is raised at board meetings and between honorary officers: should we shorten the services by leaving out parts of the machzor that nobody finds important or inspiring?
- Particular targets for omission are the piyutim – liturgical poems interpolated for yomim tovim between parts of the regular daily prayers – which are generally replete with obscure Biblical or midrashic allusions and written in poetic language which is hard for all but expert scholars to understand and appreciate.
- Whether it was permitted to interpolate these poems was originally a halachic debate. See, in particular, Shulchan Oruch Orach Chayim Chapter 68 and compare the attitude of Rabbi Yosef Caro, who is inclined to discourage these additions, with that of Rav Moshe Isserles who notes that for the Ashkenazim at least they have become traditional.
- The Chofetz Chayim discusses these different attitudes to the piyutim (Mishneh Brurah note 4) and concludes that the most important principle is not to depart from the established traditions of each shul. In the biography of the Chofetz Chayim by his son, however, we learn that the Chofetz Chayim himself did not try to say all the piyutim prescribed by the traditions of the shul in which he was praying, but would focus intently on the meaning of a smaller number.
- There is no contradiction between what the Chofetz Chayim writes and what he practised. The former is the correct rule for the shaliach tzibbur or chazan and for the formal order of service in each shul: not to depart from the established local traditions. For each individual, however, it is impossible to concentrate intently upon every single prayer of the yomim noro’im, and what is important is to pray at a rate, and with a liturgical rhythm, adapted to each person’s linguistic capabilities, spiritual needs and personal circumstances.
- For a shul formally to omit a passage from the service is to assume a frightening responsibility of deciding what is important and inspiring for all congregants. But what inspires one person may leave his or her neighbour cold. And what inspires me today may not do so tomorrow.
- Those who attend orthodox services do so because they wish to be part of a chain of liturgical history. A man or woman may attend shul only once or twice a year: but it would be an error to assume that he or she must therefore wish the service to be as short as possible, or “modernised” by the removal of obscure passages. It may be that what moves the occasional attender most about the shul experience is the feeling of timelessness, and the knowledge of participating in the same service as that enjoyed by his or her parents and grandparents. Who knows what parts of the liturgy will be most reminiscent for that person of his or her childhood visits to shul, and how can I take the responsibility of “removing” from the service an obscure passage that may catch the imagination and open the heart of someone who has never prayed properly before in his or her life?
- For Ashkenazim, our yomim noro’im prayers will start properly next weekend with the first slichos service. Between then and the final strains of tefilas geshem on shemini atzeres, the machzorim will place in front of each of us the annual range of ideas and emotions, hopes and fears, lessons and aspirations. May we each find the right selection and balance among the available prayers to fashion into the most appropriate dialogue with God to build a good foundation for the coming year.
Hurricane Katrina – law and order
- The brutal anarchy reported from certain places affected by Hurricane Katrina, particularly in shelters resorted to by those displaced from their homes, vividly and horrifyingly illustrates the warning of the rabbis in pirkei ovos (3:2) that we should pray for the welfare of the state machinery because without it each person would swallow his neighbour alive.
- This striking piece of imagery is chosen, says the gemoro (avodoh zoroh 72) to create a picture of the strong bullying and exploiting the weak in much the same way as the larger fish in the sea habitually swallow those smaller than them: without either compassion or active hostility or dislike, but merely as an instinctive product of an all-absorbing self-interest.
- That instinctive self-interest is entirely natural to the animal world: and it is entirely natural to man but can be modified by discipline. One form of discipline is that imposed by the rule of law, the state machinery in its widest aspects, for which the rabbis exhort us to pray.
- But the rule of law is always fragile: quite how fragile, we have seen in the reports of behaviour during this most recent disaster in America. Its effectiveness depends entirely on the strength of those controlling the law, and their ability to restrain a partly reluctant population, many of whom are aware that the forces constraining them are themselves vulnerable to many greater forces, both natural and unnatural. When one of those greater forces intervenes to prevent the enforcement of law and order, chaos erupts.
- For this reason the Maggid of Kelm stresses that in this morning’s Torah reading the injunction to appoint judges and policemen (Devorim 16:18) is phrased in the second person singular, not plural. He therefore reads it as including a requirement for each person to develop methods of self-discipline, which will regulate, condition and train his or her selfish instincts more effectively and permanently than can be achieved by the imposition of outside constraints.
- A society that wishes the weak to be protected, and that wishes to see expounded in practice the Torah principles of kindness, sharing and caring, should see the forces of law and order only as a secondary line of recourse; the front line of the enterprise should be the task of educating and encouraging people to discipline themselves in matters of civic and community responsibility.
- In England today citizenship is a compulsory part of the curriculum for secondary school students. If taught imaginatively and creatively it can cause young people to think of themselves and others in an entirely new way. An urgent message of the lawlessness seen in America in the past two weeks is that too many people are being allowed to reach adulthood without acquiring a sufficient sense of citizenship to act as a control on their animal instincts of selfishness once the physical constraints of law and order are relaxed.
- Let us as Jews, with a mission inherited from our father Abraham who taught the whole world a concept of kindness based on the monotheist vision of all people as brothers and sisters created by a single God for a single purpose, resolve not merely to pray for the continued power of the forces of law and order but also to do whatever we can to provide an example of responsible citizenship and to encourage others to emulate it.
Disengagement from Gaza
- Having returned a few hours ago from spending the past four weeks in Israel I wish to mention, by way of an interim communication before the next planned issue of the Sceptic Tank, the two most powerful images which have stayed in my mind from all the things I saw and heard about the disengagement.
- There are two texts of the poem “El adon” which we sing on shabbos morning just after bor’chu. One has the phrase “chessed v’racahamim lifnei k’vodo” (kindness and mercy precede His glory) and the other has the phrase “chesed v’rachamim molei k’vodo” (His glory is filled with kindness and mercy). Each is used, by those praying according to different customs.
- As always when two texts have survived in mainstream use, it is because there is merit in each. The first version is along the lines of the famous saying “derech eretz kodmo laTorah” (good behaviour precedes Torah). Before one attempts to aspire to the Divine one must master the humane: one cannot become holy without first being a thoroughly decent human being. The second version stresses that the values of kindness and mercy are not just prerequisites for holiness but that they also permeate, and are inseparable from, Divine behaviour (which is why Abraham could say to God about Sodom “choliloh lecho …” – “it is inconceivable for you to behave in such a way as to kill the innocent”; see also paragraph 7 of the issue of 21st July).
- I saw both these texts exemplified in the sight of two Jews approaching each other on apparently irreconcilable courses destined for violent collision; a Jewish soldier bound by his understanding of Torah and secular law to evict a resident, and a resident bound by his understanding of Torah to resist the secular law of eviction so far as possible without infringing any Torah commandment. (As to why dina d’malchuso may not make observing the secular law a Torah requirement in this case, if there is a sufficient demand I will bli neder address this on another occasion). The resident’s behaviour towards the soldier showing dignity and understanding for the other’s position, and vice versa: a profound sensitivity for each other showing that the Torah of each is based on a profound humanity, and that his or her religious observance is also imbued with and permeated by sensitivity. The soldier lifts the resident carefully and respectfully and carries him out of the house: the resident is careful not to harm the solider who lifts him, and utters not even a word of protest, only cries; and when he is placed carefully on the ground outside his former home, the two cry together.
- I do not know whether you saw these images here, or only the occasional tyre being burned in the streets by a hot-headed youth who was probably not even a resident of Gaza. But it is the former images and not the latter which remain in my mind, as a picture of inspiring behaviour and a testament to Jewish values. Let the politics of the situation be what they may, and even leaving aside how one construes Torah obligations in the matters of settling the land of Israel and of obeying commands, a religion that teaches both sides of a bitter conflict to behave in this fashion to one another is clearly both founded on and imbued with principles of humanity and divinity inextricably entwined.
- Of course, not all residents of Gush Katif decided that it was necessary to be carried out of their homes; and my second most powerful memory of the past month is of being told by one of our friends in Israel that his uncle had been told by his rabbi that it was forbidden to leave in advance, forbidden to pack even the day before, but that in order to avoid loss of dignity and even a risk of violence the family should wait until the police were actually coming towards their house, so that the evacuation was for all practical purposes at last inevitable, and then stand up and walk out with dignity.
- We all suffer losses throughout our lives – most are relatively trivial although irksome enough at the time, and some unhappily are truly tragic. I have no idea what the political or security message of the disengagement process is; but I think the principal religious message for me is clear, to try to learn to suffer loss – and where necessary to inflict loss – with dignity, sensitivity and humility.
Pinchos and terrorism
- A religious zealot who in his determination to rid the world of the wickedness and idolatry of the unbeliever bypasses the rule of law and the judicial processes (even those established by his own religion) and takes it upon himself to impose and carry out a summary death sentence on wrongdoers as a public act of vengeance, following which his god grants him, according to his religion, a reward of a covenant of peace and eternal life.
- A chilling description of the behaviour of certain terrorists acting in the name of Islam today.
- But is it also an accurate description of the behaviour of Pinchos in last week’s parashah and his reward in this?
- Pinchos is a zealot, for which characteristic he is expressly commended and rewarded (B’midbar 25:11). He acts when the established leaders of the Jewish people consider themselves, deeply regretfully, unable to act in accordance with Torah law to suppress acknowledged idolatrous wrong-doing (25:6-7). He imposes and carries out a summary death penalty (25:8). The reward for his violence is a special hereditary bond with God and a promise of peace (B’midbar 25:12-13).
- There are of course a multitude of differences between Pinchos’ behaviour and the behaviour of today’s terrorists acting in the name of Islam. The most significant is that Pinchos confined his anger to those who were directly responsible for performing idolatry in a deliberately provocative, offensive and public manner: the modern terrorists target the innocent along with the guilty. And he acted only because he knew these wrong-doers to have incurred liability in accordance with Torah law for the death penalty, and that Moses and the elders were incapacitated as a result of righteous self-doubt born of Zimri’s sharp accusations about a superficial similarity of Moses’ own marital circumstances with the contemporary idolatrous behaviour. Finally, Pinchos was able to trust that his violence on this occasion was motivated only by a proper desire to preserve the dignity of God because he had trained his instincts so that his normal inclinations were to be a true exponent of the love of peace exemplified by his grandfather Aharon.
- But a striking aspect of every one of the differences specified above is that in each case Pinchos’ righteousness is not apparent on the face of the Torah but depends on a knowledge of the midrashic and rabbinic constructions of the circumstances of his activities.
- There is another striking example in this week’s parashah of a similar notion. God tells Moses to attack the Midianites (25:17 and 31:2). But Moses does not perform this commandment himself, but appoints Pinchos as leader of the army (31:6). The rabbis explain that Moses thought it would be wrong for him to attack the Midianites personally because they had sheltered him on his escape from Egypt (Sh’mos 2:15). But since when was it for Moses to alter God’s commandment because he thought it wrong?! I heard Dayan Lopian explain that because Moses knew that the concept of hakoras hatov (gratitude) is a fundamental part of God’s nature, he understood that any commandment from God to Moses had to be construed in such a way as to make compliance compatible with the principle of hakoras hatov (a little like, l’havdil, the operation of section 3 of the Human Rights Act 1998). Once again, then, the humanity of the Torah depends on giving a construction to its commandments in the context of, and subject to, the fundamental principles of Torah justice as expounded by the rabbis. (As to why the commandment had to be expressed in this way rather than as an express command to send Pinchos, see the Ohr Hachayim on B’midbar 31:6.) (“The spirit of God hovered over the face of the water” (B’reishis 1:2) – in the case of the Torah, often symbolised by water in aggadic literature, one often finds the spirit of God not apparent on the surface but only after contextual elucidation.)
- We can learn two things from this about contemporary inter-faith relations. First, we should remember that the justice and validity of Torah will not always be as apparent to others, who have to rely on the surface text out of context, as it is to us who are able to construe it in the light of tradition and an appreciation of context and background. Secondly, if that is true of Torah it is likely to be true of other religions as well: when terrorists cite as support for their actions blood-curdling passages from the Koran which appear to admit only of a violent and unjust construction, we should be aware that the true clerics of Islam will be as assiduous in putting those passages in their proper context so as to derive a proper meaning from them, as we are in the case of our own religion.
- We enter on Sunday the three weeks of mourning for the Temple. The Temple was a universal structure, open to and used by all humankind. And so it will be again. Different traditions and cultures will come together, as we pray on Rosh Hashanah, under the kingship of God as the final stage of a process which can begin only with each applying the most beneficial and generous construction to each other’s traditions and actions, and each seeking to find and support the best in each other.
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