Is the Law an Ass?
I was once asked by a respected rabbi to perform a task which I pointed out to him is criminal under Israeli law.
His response has troubled me ever since.
The rabbi did not respond by quoting from a classic Jewish halachik authority to justify his illegal instruction, such as from the Shulchan Aruch, from the Tor or from Rav Elyashiv….
The rabbi wrote to me that “if the law supposes that, then the law is an ass”.
He was quoting from Charles Dickens. Actually from Dickens’ fictitious buffoon, Mr Bumble, in Oliver Twist.
I could have written this off as one-time buffoonery by the Rabbi – we all make slips and errors of judgment.
However, the same Rabbi then went on to give the same advice, to similarly break the Law, to his whole community. (Without even bringing Mr Bumble as a source – just “take-it-from-me”).
In too many of my dealings with members of ultra-orthodox communities, they have taken such a frivolous, dismissive, nay, derisive approach to the Law – "zilzul".
There seems to be a recognition that the Law has an Authority of Power – ie Don’t Get Caught.
But there is no acknowledgement that the Law has any Moral Authority.
I was brought up in
to stand in respect for my teachers, stand in honour for the National Anthem
and to honour and respect the Law. A policeman, or bobby, was someone you asked
for street directions, and turned to when there was crime or danger. We were
taught we are all on the same side – of lawfulness against criminality, of
civilization against anarchy and primitivism. In other words that the Law has a
moral authority. England
In many orthodox circles, the sole moral authority is the Torah.
Whether the issue is declaring & paying taxes; fraud in managing businesses and institutions; breaking employer protection laws; ignoring building regulations; failing to report crimes; or covering up child abuse incidents – the dominant ethos appears to be that “the law is an ass”.
This is not entirely a chareidi vs national religious issue. We have recently seen from the fringe “tag mechir/price tag” incidents, that some national religious youth also put their understanding of the Torah, to be above the Law*.
I asked my 18 year old son Yonatan, who is studying at Mercaz HaRav (Kook) in Jerusalem, whether he holds that the Law has moral authority, or solely the authority of power?
Yonatan quoted Rav Kook as saying that the Law has moral authority; this authority is derived from the 7 Laws of Noach – of which one is the Law to develop a system of law and order.
Furthermore, in Orot Hakodesh, Rav Kook writes that man has an inherent understanding of right and wrong, and that anyone who learns Torah, and they find a contradiction with their innate sense of morality, then they should trust their sense of morality. Torah learning, which results in behaviour which is immoral, has no value.
I would point out that Rav Kook was recognizing the moral authority of the society and Laws around him in the early 20th Century – in Poland, and then under Turkish/Ottoman and British Mandate rule in Palestine.
In today’s democracies, such as in the
USA and UK ,
the Law is not designed simply to protect the ruling classes, but is a malchut
shel chesed, and aims to protect the weak. Israel
There are numerous layers of checks and balances, to ensure that the Law is as close as possible to the inherent ethical and moral justice, acknowledged 100 years ago by Rav Kook.
Of course the Law is imperfect. This is the reason for the checks and balances, parliaments, committees, judiciary and practical policing and implementation. Laws may be sometimes unreasonable and unjust, or simply archaic – and therefore the mechanisms are in place to correct these aberrations. This is a dynamic process which is sophisticated and self-correcting.
There is no comparison with Halacha.
Halacha, for all its sophistication and intricacy, has not developed criminal codes of justice for over a thousand years – due to the self-declared/acknowledged lack of jurisdiction of Batei Din for criminal matters in the diaspora/Galut. Batei Din have not been authorized, by Halacha itself, for example to even fine a thief (Kefel), or administer punishments to violent criminals.
Retaining a position that Halacha is morally authoritative and that the Law is not, is a zero-sum game. If not the Law, and Halacha has no jurisdiction, then what are we left with? The answer is a dangerous hefkerut (anarchy) and lawlessness.
This discussion has come to a head, in the
in a dispute between Agudas Yisrael and the more left-leaning Rabbinical
Council of America (RCA), following the death of Leiby Kletzky, the nine year
old boy, who was murdered and butchered in USA by an orthodox Jew. Borough
The RCA Statement demanded that laws which mandate reporting of suspicions of child abuse to the authorities must be followed, and that, beyond this, also people who are not mandated to report should also report child abuse, due to the Biblical admonition "not to stand by the blood of your neighbor". The RCA appealed for people to use their “common sense” to decide when to report suspicions of child abuse to the police - and only if still perplexed, to consult with experts, including Rabbis.
The Agudah stepped back from demanding that their flock respect and obey the Law, or should report of their own volition. Instead the Agudah demanded that people should always, without exception, refer such issues to their rabbis, who would tell them what to do.
No innate understanding of morals and ethics (“common sense”) is recognized by Agudah. Nor any moral authority of the Law.
In the Aguda’s books, the sole and exclusive moral authority is the Torah, via their rabbonim. As for the Law itself, if pushed, and acquainted with Oliver Twist, perhaps the Agudah would quietly whisper “the Law is an ass”.
This is the same discredited strategy which has shattered the Catholic Church - and has caused untold suffering and chilul Hashem in frum communities.
* Note: "Tag Mechir/Price Tag" is actually a politically motivated, tactical response in light of an historical event (the failed passive resistance to the evacuation of Gush Katif), and to a specific issue (how to avoid such evacuations at Outposts), rather than a general zilzul/disdain of law and order.