Be Positive! Jewish Law for Modern Americans
Yom Kippur 5771 / 18 September 2010
Rabbi Daniel Cotzin Burg
Rabbi David Saperstein, the Director of the Reform Movement’s Religious Action Center in DC, recalls the following story: He was attending a Supreme Court session a while back. One of the attorneys wished to make a point regarding the Ten Commandments, which are displayed in the courtroom itself in Weinman’s famous marble frieze entitled “Great Lawgivers of History.” In it, Moses is depicted holding a copy of the original Decalogue. Now, Rabbi Saperstein is well known to many in the Supreme Court, so the lawyer turned to him and asked him to translate the Hebrew. Saperstein looked closely at the frieze, paused and reported that there was a slight problem with the translation: you see, in it, Moses’ flowing beard obscures the all important word “lo,” meaning “thou shalt not” from the Hebrew text. In other words, the Supreme Court of the United States contains a depiction of the Ten Commandments which effectively reads: “murder,” “commit adultery,” “steal” and so on.
Sometimes things get lost in translation, particularly when it comes to the relationship between American and Jewish law. So, this evening, I want to talk to you about law. We’ll touch on American law, but I am a rabbi after all, so I want to deal more specifically with halakha, with Jewish law. Let me ask you this: to what extent is Jewish law relevant to your life? Let me be clear – I am not asking if you keep Shabbos or put on t’filin, if you observe the commandments. And I’m also not asking if you believe in the notion of mitzvah, of commanded-ness, though that would be an interesting discussion as well. No, on this Yom Kippur, this Day of Judgment, when we imagine ourselves standing before the “Supreme Court” on high, I want to explore whether to us, to members of Beth Am, to American Jews, this imagery is at all compelling. I want to explore whether the entire notion of Jewish law is relevant, if it speaks in any meaningful way to the question of “why we do what we do.”
But in order to do that, we should start with our understanding of law in general. Certainly, few of us would advocate for the absence of law in our society; we know that law plays an important, indeed an essential, role. Emile Durkheim, the father of modern Sociology, believed that law is first and foremost a function of necessity for ordered societies, a reflection of what he called “the common conscience of the people.” (Raise your hand if you’re an attorney.) If I were to poll the attorneys in the room, my guess is that one of the things that led you to practice law was a heartfelt belief in a country whose laws protect individual liberty and freedom. Few of us want to live in a society which tolerates murder, theft or fraud. But, I don’t have to tell you, there is also a deep distrust of law and those who practice law in America. We all know what Shakespeare had to say about lawyers (Henry VI, Act IV, Scene II)! But can you imagine people quoting the Bard with such glee if he had said, “Let’s kill all the nurses?!” or “let’s kill all the children’s librarians?!” Many Americans view the bulk of our laws as impinging on their individual liberties. Look at the recent Tea Party Movement! The sheer vitriol – the hate mail and phone calls – surrounding any number of legislative initiatives from health care reform to the stimulus package to immigration is dizzying to behold.
But the truth is that Americans’ distrust of the law long predates King George and “Don’t tread on me” or “taxation without representation.” Whether or not you agree with Sam Harris (or Ann Coulter for that matter) that this is a “Christian Nation,” it is hard to deny that our aversion to law is rooted in the earliest texts of Christianity. Paul, himself, put it pretty clearly in his “Letter to the Romans” when he said: “While we were living in the flesh, our sinful passions, aroused by the law, were at work in our members to bear fruit for death. But now we are discharged from the law, dead to that which held us captive, so that we serve not under the old written code but in the new life of the Spirit.” The law is dead, explains Paul. Salvation lies in the life of the spirit, or in other words, in Jesus. Whether Paul, himself, actually had so strong an aversion to the law is debatable. But there is no denying the profound impact that his words have had on generations of Christians since. Hundreds of years after Paul, Kant would echo the same doctrine: that man is saved by faith alone. Law, then, becomes a compromise, a “necessary evil,” necessary, perhaps for maintaining an ordered society, but hardly reflective of our best selves. The true life is the life of the spirit, not the body, the true religion transcends “the old written code” and faith, not works, becomes the primary mode of achieving salvation.
This is why Christians and Jews can read identical biblical texts through such different lenses. Consider the Haftarah for Yom Kippur (Isaiah 57:14-58:14):
“Is a fast like this, the one I asked for? A day for self-affliction, to bend the head like a reed in a marsh, to sprawl in sackcloth on the ashes?…
“[Rather] this is the fast I ask for: to unlock the shackles of evil, to loosen the thongs of the yoke… When you see the naked, clothe them, when you see your own flesh and blood, do not turn aside!”
Classically, Christianity viewed this text as a call for higher justice, to transcend the ritual strictures, the legalism of the Pharisees and embrace the duties of the spirit. You don’t need to fast on Yom Kippur! Quit wasting your time! Feed the hungry. Clothe the naked. Set free the captive…. But, before you run out to Woodberry Kitchen, let me share with you what I believe to be the clear intention of Isaiah’s words. We Jews have always understood that Isaiah is not suggesting that we abandon our fast, but rather that our fast should mean something. Ritual law, for us, has always been a means to an end, not an end in and of itself! Have we, at times, lost sight of this truth? Of course! That’s why Isaiah has to admonish us at all. But notice his words toward the end of the Haftarah:
“If you restrain your feet from Shabbat violations, from doing business on the day of My holiness…. Then you will become the delight of the Lord!”
Shabbat should mean something. Fasting should mean something. Law, says Isaiah, should mean something. Rabbi Morris Adler (z”l), the great 20th Century orator, once said: “The traditional Jew through the ages would not have comprehended such judgments as ‘the curse of the Law,’ ‘the dead weight of the Law,’ ‘the letter that killeth the spirit.’ He spoke of ‘simcha shel mitzvah,’ the joy of personal fulfillment that comes from observing the Law’” (The World of the Talmud. Schocken, 1963). The problem, as Adler saw it, is that Judaism’s elevation of halakha to a place of prominence has led to the “spurious allegation” that the rabbis were strict legalists. Nothing could be farther from the truth. “Law, at its best,” he says, “has its eyes upon a purpose beyond itself…” (Ibid). We say of the Torah, Etz hayim hi, lamachazikim ba, “It is a tree of life to those who hold it fast.”For Jews, law is a living, breathing organism, not an artifact etched in marble, but an ancient and evolving resource for moral action in the world.
Please understand that my goal here is in no way to denigrate Christianity, a faith tradition for which I have a great deal of respect, and to be fair, it is not only Christians who have neglected the value of Jewish law. Jews, too, have fallen into the trap of treating law as an end and not a means to better the world. In a 1923 letter to Martin Buber, Franz Rosenzweig takes his friend and colleague to task, essentially for Buber’s near abandonment of Jewish law in practice. What was his argument? That Buber misunderstands the very nature of halakha. Buber’s problem, says Rosenzweig, is that he, like the Orthodoxy of his day, views law as a “system” and not a living organism, and Buber rejects it as such (“The Builders: Concerning the Law,” from On Jewish Learning, 1965, N.N. Glatzer, ed.).
Rosenzweig is always fun to talk about on Yom Kippur because, in a very real way, his story is the modern Jewish story. He was raised a completely assimilated Jew, even on the brink of converting to Christianity, when in 1913, he happened to attend a Yom Kippur service. On a day when we are asked to “return,” to do t’shuvah and renew our commitment to God, Torah and Israel, Rosenzweig did just that. He began to study Jewish text and philosophy and soon became perhaps the strongest advocate of his generation for the importance of reconciling Jewish law and tradition with modernity. I admire him, not because he was the most observant Jew (remember his famous response when asked if he wore t’filin was “not yet”). I admire him because he was willing to be part of the conversation, to embrace Torah as a “tree of life.” And it is the roots of that tree, he understood, which must reach deep for it to withstand (or adapt to) a changing environment.
Because Rosenzweig, unlike many of his contemporaries, moved toward Jewish affinity, he is sensitive to a trend which I believe still dominates modern conceptions of Jewish law: this notion of halakha as a “system,” hermetically sealed, as it were. He understood that this view tends to relegate law to a dry inventory of permissible and impermissible, kosher and treif. Through that lens, law invariably becomes a burden, the singular and uninspiring question being “have I discharged my obligation.” By recognizing the living nature of halakha, however, Rosenzweig sees a great potential to focus again on the joy, the simcha shel mitzvah. He speaks in almost messianic terms: “Not the negative but the positive will be dominant in the Law,” he says. “Even the prohibitions may now reveal their positive character. One refrains from working on the Sabbath because of the positive commandment concerning rest; when refraining from eating forbidden food one experiences the joy of being… Jewish even in the everyday…” (Ibid) Ask yourself, how often have you heard the words “law” and “joy” uttered in one breath?
Part of the reason, I think, that we sometimes think Jewish law focuses on the negative is because American law tends to do so. While I was working on this sermon, I called up a couple of friends who are lawyers. I asked each for examples from American civil or criminal law of mitzvot aseh, “positive commandments.” We know you can’t steal, speed or drive drunk, or cry “fire” in a crowded theater. In many places, including most of Maryland, you can’t buy cars on Sunday; and in Baltimore I can’t seem to get a six-pack of beer in a grocery store. Those are all “negative” commandments, but in American law, are there any things we must do? Can you think of any? My friends and I came up with precious few. As an American you must pay taxes, you must serve on a jury when called upon and men must register for the draft. Aside from these three, any other examples we came up with were entirely what I would call “case or relationship specific.” That is to say, you must wear your seatbelt, but only if you choose to ride in a car. You must walk in the crosswalk, but only if you choose to cross the street. And, again, even these so-called “positive” requirements are viewed in a negative light by many as unnecessary government intrusion into the private sphere. In American law, individual liberties rule the day.
By contrast, there are lots of positive commandments in Jewish law – 248 to be exact. Thank God, not “murder” or “steal,” but give and guard and teach and learn. My teacher Rabbi Elliot Dorff points out that according to halakha, if you see someone drowning or accosted by robbers, you must take steps to save the person as long as you can also protect your own life (Sanhedrin 73a). Conversely, only two states – Wisconsin and Vermont – have any laws whatsoever that obligate me to aid another human being. And even in those states, the crime is only a misdemeanor (The Unfolding Tradition, pg. 16). Jews stress the positive commands no less than the negative ones. The primary goal of American law is to provide limitations, important though they may be. The goal of Jewish law, though, is to create a path for holiness.
In our day, as in Rosenzweig’s, a battle for the “soul” of Jewish law is still being waged, between those who tend to view it as a system, lifeless or even immutable, and those who see it as organic or dynamic. Rosenzweig, I think, would have liked the approach of Rabbi Gordon Tucker who views the law, not as an immutable system but as a reflection of the creative tension between God’s will and human narrative, between halakha and aggadah. Tucker argues that the tendency to divide up religious literature into “law” and “narrative” is a mistake. The story of the Jewish people is no less important in defining our practices. (“Halakhic and Metahalakhic Arguments Concerning Judaism and Homosexuality,” 2006)
Halakha and aggadah, law and story, are inseparable. Robert Cover, whose seminal essay “Nomos and Narrative” (Harvard Law Review, November, 1983) was a great inspiration to Tucker, brings the following example from the Torah (p.20). The stated law of Deuteronomy (21:15-17) is very clear on the issue of primogeniture, that the first born son inherits a double portion and the mantle of leadership. And yet, if you go through the book of Genesis, can you think of one example of a first born son who does? Isaac over Ishmael, Jacob over Esau, Judah and Joseph over Reuben, Ephraim over Manasseh; in each instance, the narrative details come to subvert the so called “letter of the law.”
Which is correct? Well, both are correct – the point is that one cannot exist without the other. The elegance of Cover’s example is that it reminds us that the narrative is as relevant as the articulated law. Torah is messy like the twisted roots or branches of an old tree, a blurry interplay between stories, laws, laws which might derive from stories and stories that emerge from the law. And because the law is fluid, rabbis (like this one) who may be asked to make halakhic decisions are free to explore not only the vast literature but also the unfolding narrative of our people, a story in which we, here in this room, play as essential a role as did Moses in his time or Rabbi Akiva in his. The creative tension between halakha and aggadah ultimately gives law a deeper relevance and meaning.
Let me give you an example of how Jewish law can be relevant for us today. This past June, Shalom Rubashkin received a sentence of 27 years for bank fraud. Though the sentence was perhaps overly harsh, the revelations which emerged from the Agri-Processors plant in Iowa – the mistreatment of workers and the abuse of animals – these are a black mark on the institution of kashrut. The case was a complex one, but the crux of the problem in my mind was that the Rubashkin family, ostensibly committed to halacha, allowed the systematized ritual aspects of the law to overwhelm the equally important ethical ones. When the law itself becomes God-like, then God is displaced from the equation. And once that happens, the bitter irony is that people who claim religious authority can justify all kinds of horrible things in God’s name.
Enter Hekhsher Tzedek, The Conservative Movement’s effort to develop a seal of “ethical kashrut,” to reemphasize those elements of Jewish law that have been increasingly overlooked. I asked you, Hevre, to what extent is Jewish law relevant to your life? Why is it important that we embrace the notion of Jewish practice as halakha, as law and not just a smorgasbord of observance options, or worse, an irrelevant reflection of ancient codes or inane commandments? I’ll be very clear: because then the Rubashkins of the world win. If halakha, the very backbone of Jewish practice for 3,500 years has no relevance to us as modern Jews, then we have absented ourselves from the ongoing narrative. Let’s not have the antinomianism of the 1st century become the Jewish American norm in the 21st. Law is no necessary evil but it can be an essential good! Remember, the very word halakha comes from the Hebrew verb lalechet, to walk. Law is not what our people did or did not do on their journey. Law is the journey, and that journey continues today. If you want to learn more about Hekhsher Tzedek, a truly exciting initiative, I will be discussing it on November 11th as part of our Adult Education department’s two-part series on ethics. I look forward to seeing you there.
My friends, on this Yom HaDin, this Day of Judgment, may we judge our tradition, its laws and its stories, for good. May we, with the fullness of our being, experience the joy that comes when we truly engage the mitzvot – understanding, as Rosenzweig did, that all of us are in process and that we are all somewhere on the spectrum of “not yet.” May the law serve as a means for bettering ourselves, our people and our world and may our fast today open our eyes to real suffering. Hevre, Isaiah’s passion should be our passion as well! The law matters only if it matters to you and me. Etz hayim hi, it is a tree of life but only if we hold it fast.If we let go of it, we relinquish one of our greatest gifts and cut loose our children’s inheritance. I pray that in the coming year we give ourselves permission to walk the path of halakha. Though surely a worthy work of art, the title of Weinman’s frieze, “Great Lawgivers in History,” is, in a way, antithetical to Jewish tradition. Moses did not give the law, Moses gives the law – then and now. For, law is not dead: it lives in us, in our Torah, our stories, our families our community and our God.
Shana tova u’gmar hatimah tovah; this year, may we all be inscribed for good!
My sincere gratitude to Rabbi Elliot Dorff who compiled several of these resources in his wonderful collection: Jewish Law and Modern Ideology, 1970, United Synagogue Commission on Jewish Education.