More Laws, Please: Jewish Law is Different from Ours

51ta-us7crlWelcome back to our discussion of Friedman, Leeson, and Skarbek’s Legal Systems Very Different from Ours. Today we’ll be discussing Jewish law.

Jewish law may be the best-recorded legal system in the history of the world; there are hundreds of thousands, perhaps millions, of pages of surviving primary sources covering about twenty-five hundred years.

I think I’ve mentioned before that I had this idea once back in college to do a project on parallel legal systems like Gypsy law, and thankfully someone talked me into switching to Jewish law, mostly out of concern for my physical safety.

But Jewish law is also massively better documented.

One thing I find amusing about Jewish law is that Jews seem to actually like the subject. I can’t tell if that’s something people feel like they’re supposed to say in the same way that people feel like they should claim to like school even if they actually hated it, but they certainly give the impression of being rather enthusiastic on the subject. Where the traditional practice of Chinese law can be summarized as “Please go away and leave us alone,” or “good people don’t need law,” the Jewish approach seems like “More laws, please.”

Problems of Divine Law

Jewish law was, in theory, based on a single unchangeable source–the Torah [first five books of the Bible.]… Basing the law in this way rather than on custom, precedent or legislation raised two problems shared with other legal systems similarly based, including Fiqh (Islamic Jurisprudence) and American Constitutional Law.

Note: I wrote a post about this: The Talmud and the Constitution. The trouble comes in when two scholars/judges/etc disagree about what exactly the law should be:

In a system that views law as the creation of a legislature, king, or court of last resort, the same authority that made the law can settle disagreements about it. That does not work for a legal system viewed not as created but as discovered, deduced from divinely inspired sources.

Obviously you need some way to resolve disputes about what exactly the laws should be; you also need some way to change laws should new circumstances arise that necessitate doing so.

The initial solution to the problem of legal uniformity was a simple one. Truth is not determined by majority vote but law can be. … the legal scholars took the position that the interpretation to be followed by judges was determined by the views of the majority of legal scholars.

There follows an amusing story about some rabbis who were arguing about whether an oven could be cleaned. The majority of rabbis held one opinion; the dissenting rabbi’s opinion was closer to the original religious text. God steps in on the dissenting rabbi’s side, at which point the other rabbis basically tell Him to back off, this is a rabbi matter.

His position was summed up by another Rabbi as “The Torah has already been given at Mount Sinai. We pay not attention to a heavenly voice because You have already written in the Torah at Mount Sinai, ‘Follow the Majority.'”

According to the story, God smiled and said to himself, “My children have bested me.”

Most people I have discussed this story with object to it. They just can’t fathom the idea of telling God to buzz off and let the humans interpret divine law. Yet, as a parent, there have certainly been times when my children, as God put it, bested me. And in those moments I didn’t feel irritated or angry, but proud of them for their growth and maturity.

Anyway, as for the Jews, the authors make a good point that you’re much more likely in normal life to encounter cranks and grifters claiming divine revelations than you are to encounter actual divine revelations, so it’s a good idea to just reject divine revelations.

There is an interesting parallel between the conflict between the two schools of Jewish law, ending in the victory of one of them, and the development of Muslim law almost a thousand years later. In the early centuries of Islam, Sunni legal scholars divided themselves into four schools of law named after, and to some degree based on the teaching of, four of the early legal scholars. The schools differed in details of legal interpretation but regarded each other as mutually orthodox–and still do. …

One solution to the problem of [Jewish] legal diversity was the development of geographical schools Judges in France mostly went by the legal opinion of whoever was currently the most prominent legal scholar among French Jews…

This makes sense, given the difficulties of disseminating legal opinions to a diasporic population spread thinly across thousands of miles before the invention of cheap printing and fast transportation.

One of the other difficulties with Jewish law is that after 2,500 or so years, so much has been written that the whole mass has gotten terribly unwieldy:

Once the Talmud was complete, legal scholarship was built on top of three layers. The first was the Torah. That was followed by rabbinic legislation and commentary and interpretation based on the Torah, culminating in the Mishnah. That was followed by commentary on the Mishnah, culminating in the Talmud. Scholarship thereafter consisted largely of commentary on the Talmud, which had the previous two layers embedded in it, along with additional legislation. Further layers were added as one or another work based on those sources–the Mishneh Torah of Maimonides is one example–itself became the subject of further commentary.

This has generally been resolved via books summarizing previous decisions accompanied by more detailed legal books if one needs them, and the development of the previously mentioned local or communal law. Of course, sometimes this led to conflicts between different levels of interpretation or commentary.

There follows an interesting discussion of how marriage customs and especially the laws around marriage could have been modified to increase parental control over whom their children marry, but it is too long to quote here–you will have to read the chapter yourself.

A theory on kosher rules:

Careful observance of such rules is evidence that the observer believes in the religion, since he is willing to bear substantial costs in order to conform to its requirements. The fact that he believe sin the religion means that he will be reluctant to sear, falsely, for fear of supernatural punishment.

Well, maybe. It’d be nice to have some data on the matter.

Maimonides [a famous Jewish legal scholar] goes on to describe in some detail the rules associated with the avenger of blood,t he heir of a killer’s victim, and the cities of refuge–of which, like kings of Israel, there had been none for more than a thousand years. A killer was supposed to go to one of the cities of refuge, be brought from there to the court of the city where the killing occurred, tried and, if guilty of deliberate murder, put to death by the avenger of blood. If found guilty of unintentional killing he was to be sent back to the city of refuge to remain there until the high priest, also nonexistent in Maimonides’ day, died. En route to or from the city of refuge he could be killed by the avenger of blood without penalty.

That looks rather like the remnant of a pre-existing feud system, untidily integrated into its replacement.

It’s late and I’m pretty tired, so let’s wrap things up. I’m sorry I don’t have more to say, but I’ve already hit the point of exhaustion and I said a lot on the subject back in Why Does my Fridge Have a Sabbath Mode? and The Talmud and the Constitution.

Advertisements

Re: Why does my fridge have a “Sabbath Mode?”

source
From the Geek Guide to Kosher Machines

So I got this letter from a reader: “I just got a new refrigerator, and it comes with a “Sabbath mode”–if Jews aren’t supposed to use electricity on Saturday, why don’t they just turn off the fridge? Isn’t this cheating?”

I may not be the most appropriate expert for this question, being not a Jewish lawyer, but it’s just too funny not to answer–but please consult with a real rabbi before making any important halakhic decisions about your fridge.

First, as you probably already know, there are basically 3 varieties of Jews: Atheist Jews, moderately religious Jews, and Orthodox Jews. About 2% of Americans are Jewish, of them, 10% are Orthodox–and as far as I know, only the Orthodox care about following all of the little Jewish laws and whether or not their fridges are sabbath compliant.

Noam Chomsky may be Jewish, but he probably doesn’t care what his fridge does unless it can prove the existence of universal grammar.

The Orthodox Jews are the ones who tend to dress most identifiably Jewish, with black hats, curly sidelocks, black suits, and beards. For this reason, I think people sometimes confuse them with the Amish.

Orthodox Jewish family
Orthodox Jewish family
Amish family
Amish family

Yes, they both wear beards, but there’s an obvious difference: the Amish live in PA and Jews live in NY.

From Time, "This Photo of Mark Zuckerberg's Closet is Ridiculous"-- I remember when Time was a respectable magazine and not just clickbait trash.
From Time, “This Photo of Mark Zuckerberg’s Closet is Ridiculous” (ugh clickbait titles)

(I do wonder if there is a connection between the Orthodox Jewish tendency toward identical clothes has something to do with Zuckerberg’s preference for only wearing gray shirts–but please note that many Orthodox Jews do not, in my experience, dress in the stereotypical way. Most I have met, while they dress modestly, are pretty much indistinguishable from everyone else.)

That business you’ve heard about Jews not using electricity is wrong. The Amish are the ones who don’t use electricity. Jews use electricity, even on Saturday.

However, some Jews (mostly Orthodox) try to refrain from turning electrical things on or off on Saturday. It’s just fine for an electrical thing to be on and stay on all day. It’s fine for an electrical thing to be off and stay off all day. It’s the flipping light switches on and off that’s a problem.

6df93d0c2319e0324710f55dcfcc5446But isn’t this cheating? Aren’t they supposed to not use electricity?

No. There is nothing in the Bible about not using electricity–not even in the Apocrypha. Nothing in the Talmud, either. I guarantee it.

The Bible does say, in the 10 Commandments, to honor the Sabbath day and keep it holy. In the Genesis account, God created the world for 6 days and then rested on the 7th, so traditional Jewish law proclaimed the Sabbath (aka Shabbat, aka Saturday,) a day of rest, when people went to synagogue or studied the Torah and didn’t do any work. “Work” is defined here in terms relevant to people in Biblical times, not today: agricultural activities like planting, plowing, reaping, and threshing; cooking: kneading dough and baking; clothes production: shearing, carding wool, spinning, weaving; animal-products: trapping, slaughtering, skinning, preserving; “creative” activities: writing, erasing, building, demolishing, kindling a fire or putting it out; and carrying around heavy stuff.

Yes, the law goes into A LOT more detail than this, like “Is it okay to trap a fly that’s buzzing around in your cupboard?” “What about a poisonous scorpion that’s in my shoe?” “What about a snail?” (IIRC, maybe, yes, and yes, respectively,) but this is the big picture.

Note that while there is a prohibition against lighting a fire (and against putting it out,) as this is considered a “creative” act and often involved carrying around large bundles of heavy wood, there is no prohibition against sitting near a fire and staying warm. Traditional Russian Jews would have gotten awfully cold in the winter if there had been. Instead they just built up a big fire on Friday afternoon and hoped it lasted until Saturday evening. There was never a requirement that they had to put out the fire and sit around and be cold.

The same holds for candles.

When electricity was first introduced, some folks decided that lightbulbs were an awful lot like candles and electricity like fire, especially electric sparks. So some Jews decided that turning lights on and off was analogous to lighting (or dousing) a fire, and thus shouldn’t be done on the Sabbath.

220px-refrigerator_sabbath_modeMost Jews who are concerned about the fridge light just take the easy route and unscrew it a little on Friday afternoon, but some people are now buying refrigerators with built-in display panels that let you program the ice maker or something. And these panels let you set the fridge to “Sabbath mode,” where the light and fan won’t turn on when you open the door.

(“Sabbath mode” is also available on ovens and other appliances.)

Note that, just as it is fine to leave the fire going overnight from Friday to Saturday so long as you don’t mess with it, it’s also fine to leave on an electric appliance. In fact, if the lights happen to be left on when the Sabbath starts, you’re not supposed to turn them off–you have to just leave them, even if you’re trying to sleep and they’re really annoying. Likewise, you are not required to turn off your refrigerator.

(Hey, don’t tell me I’m getting all Talmudic when the question was literally about Jewish law.)

I think you put the stylus in the holes and somehow it dials
I think you put the stylus in the holes and it dials.

Now, some people object that it seems like Jews are “cheating” by finding creative ways to circumvent the law instead of just obeying it. As someone who would never even bother about fridge lights, I don’t see how it’s “cheating” to turn it off by computer instead of unscrewing it. But perhaps more questionable is the old practice of hiring a non-Jew to show up on Saturday morning and make sure the fire is nice and warm or waiting for a neighbor to push the elevator buttons so you don’t have to walk up a bunch of stairs to your apartment. Or this telephone:

But the whole notion that Orthodox Jews aren’t being strict enough because they’ve developed funny work-arounds strikes me as trying to interpret Judaism as though it were a branch of Protestantism. Personally, I think they’re already over-thinking things and really don’t need to be encouraged to be stricter.

My impression of Judaism–and I could be wrong, because I’m mostly going off material on the internet–is that their attitude toward “the law” is quite different from the Christian attitude.

Christian theology teaches that because of Adam and Eve’s “original sin,” all humans are inherently sinful and destined for Hell–except that through Jesus’ sacrifice, they have been redeemed and can go to Heaven. (There are some variations on this throughout the many branches of Christianity, but this is pretty basic.)

Judaism–as far as I can tell–lacks this teaching entirely. Yes, Adam and Eve ate the fruit of the Tree of Knowledge and got expelled from the Garden of Eden, but this does not translate into “original sin” inherited by all humans. Humans are not inherently sinful and are not destined for Hell–in fact, Judaism doesn’t really have the concepts of “sin,” “Hell,” or “Heaven.” There is kind of a vague, nebulous belief that there might be an afterlife and something similar to Purgatory for sinners. The have a belief that the “messiah” (or “moshiach”) is going to come someday, but I don’t think they think of him the same way that Christians do.

In short: Christianity teaches that breaking God’s law is sinning and sinning => Hell. Jews don’t believe in sin or Hell, and so do not believe that turning on the lights on Saturday => Hell. Following the law is supposed to make you happy because God made the laws in order to show you the way to a nice life, (hence why it would be really stupid for God to require you to put out your fire and spend Saturday shivering,) but it’s not required.

Again, this is my impression; I am not an expert.

So why even debate matters like whether one is permitted to trap a fly on Saturday? To be honest, I think they enjoy the debate. The same for all of these silly work-arounds: I think they just do it because they find it amusing to think about their laws this way.

(That said, I get the impression that some of the stricter Hasidic sects take a much more hardline view and can be real kill-joys.)

How exactly a sect originally founded on the idea that unlearned peasant piety and mystical connection to God is superior to the Talmudic study of wealthy Jews became so devoted to strict halakhic observance remains a mystery for another day.