In passing conversation I hear misconceptions about the Talmud. More broadly, I hear things about Jewish law that do not fit the reality.
This is natural, for if people have no firsthand knowledge of something, all they can do is filter it through the knowledge they do have. Like everyone else, I do this all the time.
From the trivial to the significant:
I am told something about rugby, about which I know nothing. All I can do is to compare it to football and say to myself, probably without much sophistication, oh, its just like football, except for . . .
A more significant example:
The US constitution and the Talmud.
They are both legal systems and, even among people with only a passing interest in either, it is natural to compare them.
Analogously, if I am told something about the legal system in Russia, it is only natural, given my ignorance, to filter the information Im given through my knowledge of the American legal system. Ill see Russia in terms of the US. That doesnt mean Ill regard the systems as the same, but Ill have no other way to understand the Russian system other than by projecting what I already know, which is the American system.
Which brings me to why some people are cynical about the Talmud, or more broadly, about the Jewish legal system. Its because of what they see in the American legal system.
Witness what the American legal system said about itself in the recent decision written by Chief Justice Roberts in the health care case.
Im not here to argue that Roberts decision was right or wrong in terms of the American system. Im not a lawyer. Im not here to argue for or against the Affordable Health Care Act on which the court ruled, and for which Roberts wrote the majority opinion.
Im here only to say what a layman looking at Roberts ruling would say about the American system, and then, if that layman had no firsthand knowledge of the Jewish legal system, what he would say about the Jewish legal system. It would be cynical.
Here is what Roberts said about the individual mandate requiring people to purchase health insurance: The Obama administrations law, as written, was unconstitutional, since the mandate was justified as legal under the interstate commerce clause of the US constitution. Not so, said the majority of the court. The commerce clause does not allow such a mandate.
However, said Roberts, there are other American laws which the Obama care law, as written, did not cite in order to justify the individual mandate. Lo and behold, those laws tax laws justify the individual mandate.
And the Supreme Court assumed the power of the legislature to determine the character of Obamacare.
And what the court said, stands. You can like it, you can want to repeal it in Congress, but you cannot reject it as is. Roberts ruling on behalf of the majority of the court stands.
If this is what I now know about the American legal system, what shall I say about the legal system I do not know, such as the Jewish legal system?
I shall say the Jewish legal authorities, or decisors of Halachah, can legislate at will. If they dont like a law, they can recharacterize it, or change it, or reject it, or accept it as is. It is within the power of the highest Jewish legal authority to do as he likes with the law, provided only that he can find some justification for his opinion just like Roberts did.
I shall say about the American legal system that its highest authority need only find a majority that need agree with his writing, or rewriting, of the law.
I shall not say that objective legal constraints require him to search for the absolute truth.
Yet, that is how the Jewish legal system operates: It is not the role of the ultimate Jewish legal authority to insert himself into the process of the adjudication of the law. Just the opposite. It is his role to humble himself before legal strictures regarded as Divinely given, and to search for the truth, wherever it might lead.
One could argue that it is extremely difficult for a human being to rid himself entirely of personal biases in order to see the truth within the law as it is, rather than as he would perceive it. This difficulty is inherent in the Jewish legal system. Nonetheless, the goal of the Jewish legal authority remains self-abnegation, search for truth, acknow- ledgement of and triumph over personal bias, rejection of a ruling merely because it is plausible or even because it can be elaborately justified based on legal precedent or reasoning, or both.
The type of justification offered by Roberts in his rewriting the law that stood before him, and that required his judgement as to its legality under the American system, would not be accepted under the Jewish legal process.
Yet, it is this type of personal input from the top legal authority in the American system that is projected by the person who is ignorant of the Jewish legal system, onto the Talmud. So, if a Talmudic ruling says one thing that somebody doesnt like, hell say: Change it. Switch it. Recharacterize it. You may do that. Thats how legal systems work.
No, thats how, in 2012, the American legal system works. Its not how Talmudic jurisprudence works.
Which doesnt mean that there is no debate or difference of opinion in the Talmudic jurisprudence. There is debate aplently. But it is always debate within the framework of the search for truth as it is, not as it would be nice to have it due to social or political considerations or even according to considerations of legal theory.
On the highest level, a Supreme Court justice does not function like a preeminent halachic decisor.
The two systems are qualitatively different.
To project from the one onto the other might yield cynicism, due to lack of familiarity with the Jewish legal system.
Copyright © 2012 by the Intermountain Jewish News
