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The Law-Who Decides What

"Shabbat Mishpatim: “The Law – Who Decides What?” — January 24, 2014"

By Rabbi James Gibson

My parents were brilliant at manipulating their children. I suppose it was a survival tactic. As I’ve shared with you many times, the challenges of raising me and my four sibs without death, jail or other major mishap stuns me when I consider my own shortcomings as a Dad.

Their classic move was to maneuver us into decisions that we would not likely make for ourselves. An example: At the end of 9th grade, I was looking forward to a long summer of hanging out with friends every day at the beach at Lake Harriet, in Minneapolis, where we lived.

My mother and father had different ideas. I was too young to work, but there was a great learning opportunity over at the University High School. They were offering courses that you could only dream about and my Mother was enamored with the idea I should be taking advantage of them.

This was the same mother who labored to convince me every time she bought clothing for me that was really questionable, that “trust me, Jamie – that will go with anything.” I learned later that this was code language for “this item was reduced twice and I got it for a song.”

So I found myself signed up for two courses that summer, the summer of 1969. And it only took two hours before a kid came up to me and said, “What did you do to have to be here?” I started to explain about the really great course I was taking when he cut me off and said, “Look, kid, you’re in summer school. No one does this of his own free will. So, tell me, what did you do to get forced to go to summer school?”

After that, no matter how interesting the learning was, I fumed. Yup, the kid was right. Instead of hanging out at the beach, I was up every morning by 7 and out the door to get a ride to the University – to take more classes! It made it hard to listen to the teacher, who really was quite good. We were learning rhetoric, the art of using the tools of language both to analyze and persuade.

One day the teacher said, “Part of this course is to do one piece of research.” And I thought, “Great, I am the only kid I know who is doing papers during the summer.” The teacher continued: “Your assignment? Write about anything you want. Try to convince me of something. As long as you let me coach you, you can write on anything you want. And, you can write with a friend. Try to convince me of something.”

There was another kid from my high school that I knew and we decided to do the paper together. And we thought, what is the stupidest thing we could write about? I’m pretty sure it was he who came up with the idea: How about looking up laws that are stupid but are still on the books? I smiled. It was great.

We took to our research with relish. I found a book with nothing but outdated laws still on the books. And we quickly agreed on our favorite: In Kansas there was a law that stated that when two trains approached an intersection from opposite directions and each was to stop and neither should move until the other had gone. Stupid, no? Neither should move until the other had gone! I imagined the trains just frozen there, like in a bad movie.

For the sake of authenticity, we tried to track down someone in Kansas Attorney General’s office to verify this. Now remember, there was only the telephone or snail mail. And our paper was due in a week. So we counted our nickels and dimes and gathered enough money to make one 10 minute phone call to Kansas.

The next day we called from my home. In the Kansas Attorney General’s office, a switchboard operator answered and said, “Kansas Attorney General’s office. Will you please hold?” “NO!” I screamed into the phone. “Well, I never…” she said. “Is this some kind of emergency?” And I said, “In a way – I’m calling long distance and only have enough money for a short call.” And she said, “Uhhh, ok. I’ll put you through.”

It turned out to be the shortest call you could imagine. I got a para-legal who laughed when I mentioned the train law. He said, “Lots of stupid laws are still on the books. You know what we do with them?” I said, “No.” He said, “We ignore them! It’s just too much of a bother to get them repealed.” And he hung up.

We included that interchange in our paper. The teacher liked it and gave it an A-. But he wrote a question at the end of the paper in the ubiquitous red ink that covered all school work in that time, a question that would stick with me to this very day: “Who gets to decide which laws are stupid?”

And that, of course, is the question that underlies our approach to the Torah portion this week, Mishpatim. Mishpatim are rules that go far beyond the Ten Commandments. Instead of setting out great moral principles, Mishpatim goes into the nitty-gritty of what to do in cases ranging from freeing slaves to theft, kidnapping and accidental injury or death. Some say the devil is in the details; others claim that is where God is truly to be found.

We as Reform Jews are ambivalent about the laws of Mishpatim. On one hand, we find laws that are way ahead of their time, like those limiting slavery to indentured servitude, and the law that requires a man to preserve rights of food, clothing and sex for his wife, even if she is not the favored wife. We are inspired by the laws that demand equal justice for all and guard against corruption:

  • Don’t subvert the rights of the needy in their disputes.
  • Don’t oppress widows or orphans.
  • Don’t take bribes, they blind the clear-sighted and upset the pleas of the just.
  • Don’t oppress a stranger, for you know the feelings of the stranger, having been strangers in the land of Egypt.

Who couldn’t support laws like this? Wouldn’t it be great if they were applied at every level of government in our own day? Refusal to tolerate corruption might at least keep the George Washington open from Fort Lee!

But then, our portion offers other laws, much harder to understand, much less to enforce:

  • Don’t tolerate a sorceress (that is, kill her).
  • Anyone who hits his father or mother should be put to death.
  • Anyone who curses his father or mother should be put to death. (we would have a lot fewer kids around!)
  • Don’t boil a baby goat in its mother’s milk.
  • Anyone who sleeps with an animal should be put to death (don’t even want to go there…)

The laws of Mishpatim are divided by scholars into two types. Pronouncements, like the ones I just listed. And Case Law, which tell us what to do in certain situations. These laws, instead of just saying “do” or “don’t,” tell us what to do if… and from the case described, the Torah extracts more general do’s and don’t’s principles.

For example, one of these laws, called the lex talionis, or according to the dictionary: “the principle or law of retaliation that a punishment inflicted should correspond in degree and kind to the offense of the wrongdoer…”

And where do we get this principle? From little known case:

When men fight and one of them pushes a pregnant woman and a miscarriage ensues, the one responsible shall be fined according to what the woman’s husband may exact from him, the payment to be based on a scale. But if other damage ensues, the penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise. (Ex. 21.22-25)

Far from the popular misconception that the Torah is blood-thirsty, it establishes the principle of proportionality. If you knock out my tooth I can’t kill your kid. If you bruise my arm, I can’t set fire to your house. If you blind me, I can’t wipe out the rest of your family. The rabbis limit this principle even more. They declare that the proportion must be repaid with money, not in physical damage. Oh, I wounded you, that damage is going to set me back $2,000. Welcome to the stage, Edgar Snyder!

But something else is going on here, buried deep in our story. Did you catch it? If a pregnant woman miscarries because she is shoved, she and her family are protected by the threat of a monetary award. But if a human life is lost, that life is protected by the threat of capital punishment. Born human beings are protected by the threat of taking another’s life. A fetus is protected by the threat of a monetary fine.

Throughout our history this principle has been accepted and enshrined. A fetus is a potential human being. It has neither the standing nor rights of a born human being. There is no doubt in Jewish law that a mother’s life is saved at the expense of the fetus.

This principle is worth keeping in mind now, this week. Thousands protested legalized abortion in Washington this week. Please understand — Judaism does not favor abortion nor does it claim the fetus has no value. But for 3,000 years our tradition has taught that a potential human being does not have rights that supersede those of a born one, especially the mother carrying that potential life.

The claim that a fetus is a full human being, to be accorded full Constitutional rights, is a religious claim, not a scientific or legal one. It is based on a religious argument from the Catholic church that the moment of conception is the moment of entry of the soul in a person. This position is not about viability, rather a theological statement of person-hood. In Judaism a fetus is to be nurtured, protected and cared for. It does not, however, have either standing or rights superior to born human beings.

Why is this? Judaism is based on our relationship with God — as a people and as individuals. We understand every born human being to be in relationship with God through the mitzvot, the commandments set out in Torah, such as we read tonight? Even impaired human beings, those physically or mentally disabled, have relationships with God that are expressed in commandments. A fetus, as a potential human being, does not.

The bottom line is that a mother has an absolute right to continue in life in order to continue her relationship with God. A fetus, a baby to be, does not have this right. Even though the very first commandment in Torah is p’ru u’r’vu, be fruitful and multiply, that commandment concerns us, mothers and fathers, not life in utero.

This is how the law is understood by both Rashi and Maimonides, two of the most well-known interpreters and legal decisors in Jewish history (I’m happy to give you their legal citations if you want them).

Why is this worth talking about on Shabbat Mishpatim? In discussing our Torah laws we uphold our responsibility to hold our own in the religious conversation going on in our country. To do that, we have to know our sources so we can apply it to the lives we lead.

Thirty years ago, my friend and colleague, Rabbi Shira Stern, in her first pregnancy, found that the fetus she was carrying did not have a brain. She also discovered that all of the internal organs of her fetus were on the outside of it, instead of where they belonged. The doctor said that the baby would be born and die on the same day.

She and her husband, Rabbi Don Weber, anguished over this. In the end, they decided to undergo a second trimester abortion (at 20 weeks). They thought if they remained in this impossible situation they might never go through pregnancy again. After the abortion they did get pregnant – three times over! They brought into the world Noach, Ari and Eitan — wonderful, wonderful young men who I am blessed to know.

And her decision, for which she was decried by the Catholic Church and lambasted in her local media, was perfectly permissible, according to Orthodox Jewish law. Mike Huckabee, Sam Brownback, Glenn Beck and even the Pope notwithstanding, my friend Shira was completely within her rights as a Jewish woman to not have to endure giving birth one day and burying a baby the next.

As Don put it to me today, most women who don’t want to have children want an abortion as soon as possible. Most all who have abortions in the late second or third trimester, really, really wanted their babies, but found there was a medical problem or disability so severe as to make health or child-rearing almost impossible. Those are the people who are hurt by laws prohibiting late term abortions, not those who may be more casual in their decision to have one.

Laws represent our attempt to put our ethics into action in society. The question is not the one from almost five decades ago, “Who gets to say a law is stupid?” It is rather, “Whose ethics will prevail in our laws?” We liberal Jews ignore our Torah laws at our peril. For others will use them against us by interpreting them in ways that are inconceivable to us as Jews.

My favorite story about the law concerns the Rabbi teaching his favorite students in the last hour before Shabbat. There is a knock on the door, the Rabbi says, “Enter.” The door opens and a woman opens it and walks it holding a chicken. This chicken is a scrawny thing, but she has bought it from the market, found something strange inside and wants to know if she can still cook it for Shabbat.

The Rabbi scrunches up his face in thought. He is thinking of every exception to the kashrut rules he can remember. He looks over the books in his study and picks out one, two, three, four books — researching citations from other masters. He finally slams the fourth book shut and says triumphantly, “Zu kasher – Gut Shabbes!” (It’s kosher – Good Shabbos!).

She leaves with a smile, but the students are all scowling. Finally, one of them gets the courage to say, “Rabbi, any first year rabbinical student would know that the bird was definitely not kosher.”

The Rabbi smiled and said, “You may be right. But do any of you know that woman?” Everyone shook their heads. “She is so poor she only eats chicken once every two weeks. And since she came here so close to Shabbos I know she bought the dregs of the market, at the last minute.”

“Now, the laws concerning the internal organs of chickens are actually quite complex and there are exceptions that would allow such a bird to be consumed. But we were under the pressure of time and I couldn’t think of which book had the citation I needed. You tell me, should she go hungry this Shabbos because I am not a very good and learned Rabbi?”

Moral: We don’t ignore the law. We learn it. We interpret it. We humanize it. We make it worth obeying. Tonight we prayed before the Shema, “Everlasting love You offered your People Israel by teaching us Torah and Mitzvot, laws and ordinances.”

The Law of Love is our Law of Life. Never harsh or cruel. The Torah’s laws call on us to make them livable. As the Torah itself says, observe My laws, v’chai ba-hem, that you might live by them. To live by them. To live by them. Let us learn them that we might live by them, too.

Sun, October 1 2023 16 Tishrei 5784