Thursday, September 1, 2011

Authority, Compliance, Defiance – Hazare, Gaddafi & the “Malaysia Solution” Shoftim

I have seriously revised this post, after writing the first version of this. We had a great discussion on Shabbat afternoon at Chabad House about dissent. Added a whole bunch of new sources. Also learned some things from the other participats in our group today. Thanks to loyal attendees. Here is the link,

There was a moment in my working life when I was ordered to act against my own conscience, this infuriated me. I thank God I was able to stand my ground.

Photo by Josh Lopez Used with General Permission
In recent days we have witnessed the capture of Gaddafi’s compound, the cave-in of the Indian Government to a hunger striker and in Australia, the successful challenge of our Government’s strategy to transfer Asylum seekers to Malaysia in the courts. My Muslim friends have celebrated their Eid festival on two different days this week, only some of them in compliance with the Australian Imam’s Council. Regardless of what one thinks about each of these cases, I think, that just as defying authority is noble in some situations, there are times when falling into line is wise, pragmatic, or just plain right. It is a good time to consider what the Torah has to say on the topic.

Value of authority
We are commanded, judges and police officers shall you put in all your gates...and they shall judge the people a just justice[i]. Clearly the value of maintaining order is high.

Even if they are wrong?
One view is that we only obey the sages if they are correct. We are instructed to come to the priests, the Levites and the judge that will be in that will do according to the word they tell shall not turn from what they tell you to the right of to the left[ii]. This is interpreted by the Jerusalem Talmud to mean that you must only obey them when they get it right, and declare right to be right but not when they tell you that right is left[iii].

This same phrase is interpreted in the exact opposite way by Rashi. He takes it to mean that even if he tells you about right, that it is left and that left is right...[iv] This staggering statement essentially says that if the religious authority instructs you to do the wrong thing you should do it anyway. According to one view in the Talmud if the dissenter has a tradition that something must be done one way and the majority asserts that they see it differently if he acts on his view he is killed so that there should not increase disputes among Israel[v].

The most challenging for me is the explanation by the Ramban. He lived over 1000 years since Jewish law courts had the authority to preside over capital cases, so his talk about killing an innocent person had no bearing on practical on actual decision making. With this disclaimer in place, let us explore his words. “Even if you will think in your heart that they are mistaken and this matter is a simple in your eyes as your knowledge between your right and your left you should act according to their command. You should not say how can I eat this completely forbidden fat or (how can I) kill this innocent person. But you should say this is what I have been commanded by the master who commands me about all the commandments that I should do his commands in accordance with what I will be guided by those who stand before him...even if they err...[vi]. I have to assume that this very different to the Nuremberg defence of “I was just following orders”, perhaps the distinction is between religious and secular orders but I have don’t find that a compelling difference.     

Are they really wrong?
Another approach is both more comfortable and confronting. In this view, you only think you are right, but in fact the majority is right and you are wrong. The original phrase that Rashi quotes is even if it seems to you (that he tells you about) right, that it is left and that left is right, listen to them. [vii]Or this interpretation, if he tells you about right, which you thinks is left, or about left which you think is right you should listen to him and not attribute the mistake to them, instead attribute the mistake to yourself. ...Because God will protect them from all errors so that (nothing but) the truth will come out of their mouths[viii]. The overall effect of these ideas is while you are not being asked to do something that is really wrong, you are being told to dismiss your our own views and trust that the authority has got it right. Ouch.

Another explanation is that being that these are matters of logic, there cannot be a “right and left”.[ix]. I understand this to be bringing in the principle that matters of logic are open to debate and are not to be thought of absolutes.

Corruptible Sages
The idea that the sages will be given divine assistance never to get it wrong must be considered alongside other teachings that warn of the corruptibility of all people including the greats. Do not believe in yourself until the day of your death[x]! The judge is warned not take bribes because the bribe will blind the eyes of the wise and ruin the words of the righteous[xi]. Similarly, The Holy One Blessed be He does not called a righteous person, righteous until he has been put in the grave. Why? Because all the days of his life he is beset by the evil inclination and God does not trust him in this world till the day of his death[xii].
Corruption by the King Makers
There is also concern about the influence of the people who are the powers behind the throne who might retain an influence after installing someone as a judge. The change in form from the beginning to the end of the verse quoted above is instructive. judges and police officers shall you put in all your gates...and they shall judge the people a just justice[xiii]. We start with an imperative instruction to the people to תתן appoint judges, this refers to people who are in a position of influence who can help select and appoint the judges. Then the language shifts to talk about what will happen “they will judge, justly” as if by themselves with the appointers out of the picture. This hints at the need for complete independence of the judiciary from the king makers, because if they remain dependent on those people there will never be justice[xiv]. No naïve assumptions of religious leaders retaining purity just by virtue of their office and past righteousness.

Civil Disobedience
Despite the strong guidance about the need to obey the sages, obeying political leaders is quite a different matter[xv]. This is especially true with the midwives in Egypt who defied the evil king Pharaoh’s order to kill Jewish baby boys[xvi]. Even the generally righteous King Saul could get it wrong and his guards are seen to have done the right thing by refusing to obey his orders to kill priests in the city of Nov[xvii]. Maimonides makes it very clear that when a King’s instructions contradict those of the Torah, the king is to be disobeyed[xviii]. This follows the Talmudic idea, “the words of the teachers and the words of the students, which is to be obeyed?[xix] 

There is value in the preservation of authority but this is not an absolute value. There are certainly situations where human authority is overridden. Is Hana Hazare acting appropriately by fighting corruption or wrongly by holding democratic institutions to ransom? I am not across the details of that situation, nor do I have much more to contribute to the other instances I mentioned of defiance of the powers that be. I am still challenged by the sources I have gathered about this whole issue from Torah sources. Further study would be useful as this topic is far from closed for me.

[i] Deuteronomy 16:18
[ii] Deuteronomy 17:9-11
[iii] Jerusalem Talmud Horiyos 1:1
[iv] Rashi on 17:11
[v] Talmud, Sanhedrin 88a, the view of Rabbi Elazar
[vi] Ramban on 17:11
[vii] Sifre
[viii] Sifse Chachamim
[ix] Sifse Chachamim
[x] Pirkey Avot (Ethics of the Fathers) 2:5
[xi] Deuteronomy 16:19
[xii] Midrash Socher Tov 61a, cited in Weiss, Rabbi S, (1990) Insights: A Talmudic Treasury, Feldheim, Jerusalem,  p.41
[xiii] Deuteronomy ibid
[xiv] Klei Yakar
[xv] The material in this paragraph is based on the work of Amsel, N, (1996) The Jewish Encyclopaedia of Moral and Ethical Issues, Jason Aronson, Northvale NJ, USA, p.43
[xvi] Exodus 1:15-19
[xvii] Samuel I, 22:16-17
[xviii] Maimonides, Yad Hachazakah, laws of Kings 3:9
[xix] Talmud, Kiddushin 42b

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