Dissent! When you think the Authority is Mistaken Shoftim 2011

Photo by Louisa Catlover

(Revision of post of 1 Sept 2011, Authority, Compliance, Defiance – Hazare, Gaddafi & the “Malaysia Solution” Shoftim)

I remember well, the moments in my working life when I was asked to act against my own conscience, these infuriated me or at least made me feel defiant. I thank God I was able to stand my ground. I can see the value of deferring to others and I accept that it cannot be right for everyone to do as they fit in all situations. Where does one draw the line?

In recent days we have witnessed the capture of Gaddafi’s compound, the cave-in of the Indian Government to hunger striker Anna Hazare and in Australia the successful court challenge of our Government’s strategy to transfer Asylum seekers to Malaysia. My Muslim friends have celebrated their Eid festival on two different days this week, some of them in compliance with the Australian Imam’s Council, others doing it their own way. Our Torah reading today is Shoftim/Judges, it is a good time to consider what the Torah has to say on the question of deferring to authority.

Obeying the Guidance

If there is a matter that is hard to determine, we must come to the priests, the Levites and the judge that will be in that time...you will do according to the word they tell you...you shall not turn from what they tell you to the right or to the left[i]. The simple meaning of “to the right or the left” is that we should not deviate at all from their instructions[ii].  But, this is also the jump off point for a discussion about dissent and compliance with the ruling of the Sanhedrin, the religious high court.

Even if they are wrong?

There are four perspectives on this. 1) We obey them even if they are wrong. 2) We not only obey them in spite of being convinced that they are wrong, we are also required to assume that we are mistaken. 3) We only obey the ruling of the Sanhedrin (Torah high court) if their rulings are correct. 4) There are complex ideas to consider when thinking about Right and wrong.

Even if they tell you right is left

Sifre states, “Even if it seems to you that they are telling you that right is left and left is right, obey them[iii]”. This phrase is quoted in Rashi, with one difference; he omits the words “it seems to you” and states it as if it were a fact, that the ruling is mistaken and telling to that right is left[iv]. Rashi’s intention is not entirely clear, one commentator on Rashi states that,” even if a person had a tradition from the great Beth Din in Jerusalem (the Sandhedrin) that he was present with them and they had told him that the law and now another Beth Din (religious court) is telling him the opposite that he received from many who were greater in wisdom and number, in spite of this he should not deviate as the one who commanded him to obey the Torah about that which forbidden and allowed has commanded this too..[v]”. This staggering statement essentially says that if the religious authority instructs you to do the wrong thing you should do it anyway.

You only think they are 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. You should 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[vi]. This approach is more in keeping with the original phrase that Rashi is based on, which states that even if it seems to you (that he tells you about) right is left…[vii]. The overall effect of this ideas is that 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.

A Commentary whose meaning is disputed

The most challenging for me is the explanation by the Ramban who he lived over a thousand years after Jew law courts lost the authority to carry out capital punishment. He writes, “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...[viii]. Other commentaries debate the meaning of Ramban because at the end of his explanation he mentions that God would protect the Sanhedrin from mistakes, while others see him as supporting the need to obey even mistaken guidance. Like natural laws that are generally good such as appetite but may occasionally cause harm, the overall impact of obeying the sages cancels out the harm of complying with the rare mistake[ix].

In practice both of these approaches tells the individual to disregard his own view. If follows a 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[x]. This view is taken to be correct and is included in Jewish law[xi]. This is in relation to acting on different views after a decision was reached, prior to that robust debate is standard practice and appropriate. 

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[xii]! The judge is warned not take bribes because the bribe will blind the eyes of the wise and ruin the words of the righteous[xiii]. 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[xiv].

                                                                 

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[xv]. 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[xvi]. No naïve assumptions of religious leaders retaining purity just by virtue of their office and past righteousness.

Only when they get it right

The same phrase telling us not to deviate right or left is interpreted in the exact opposite way 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[xvii]. This view is echoed in a later work “If they truly tell you that right is left eg. They allow the eating of forbidden fats…it is certainly forbidden to obey them[xviii]”.

More Complex than simple right or wrong/A need for Adaptation to Circumstances

Another explanation is that being that these are matters of logic, there cannot really be a “right and left”[xix], perhaps a warning to those who reduce complex judgements down to a simple right or wrong, just like right and left instead of recognising the nuances and validity of arguments to support either conclusion[xx].  Another view by Abarbanel[xxi] is that in normal circumstances the norms of Jewish law are “right”, such as the very narrow set of circumstances that would allow a court to execute a murderer, needing him to be warned right before the act etc. This “right” approach is completely wrong (or Left) in a situation of rampant murders when there is a need for greater deterrent[xxii].  The temple was destroyed because they judged (matters) by the (normal) law of the Torah[xxiii], rather than being adaptive.

Civil Disobedience

Despite the strong guidance about the need to obey the sages, obeying political leaders is quite a different matter[xxiv]. This is especially true with the midwives in Egypt who defied the evil king Pharaoh’s order to kill Jewish baby boys[xxv]. 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[xxvi]. Maimonides makes it very clear that when a King’s instructions contradict those of the Torah, the king is to be disobeyed[xxvii]. This follows the Talmudic idea, “the words of the teachers and the words of the students, which is to be obeyed?[xxviii]” 

Conclusion

There is value in the preservation of authority but this is not an absolute value. The difference between following the sages when you think they are wrong or actually wrong is hypothetical, in both cases from the perspective of the dissenter the experience is the same. There must be recognition that the feeling that my perspective is as absolutely correct as my knowledge of my right and left hands is foolish. Every situation is different and requires flexible and sometimes subtle as well as bold judgement that will deviate from normal procedures. It can appear to an individual that left is being labelled as right, when in fact ultimate justice is being served by subverting normal Torah procedures. Deference and humility are useful here as is robust discussion where appropriate. Yet, there are certainly situations where human authority is overridden. I am not across the details of Anna Hazare’s anti-corruption efforts in India, but I think he is acting appropriately by fighting corruption, even if he is holding democratic institutions to ransom with his hunger strike. The rule of law is important but conscience and the rule of God must be given a lot of weight against simply “following orders” as we heard in the infamous Nuremburg defence. Further study would be useful as this topic is far from closed for me.

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[i] Deuteronomy 17:9-11

[ii] Oonkelus translation, Bchor Shor

[iii] Sifre Piska 154

[iv] Rashi on 17:11

[v] Gur Aryeh, Rabbi Judah Loew ben Bezalel, (c. 1520 –1609) widely known as the Maharal of Prague, or simply The MaHaRaL

[vi] Sifse Chachamim

[vii] Sifre

[viii] Ramban on 17:11

[ix] Rabbenu Nissim

[x] Talmud, Sanhedrin 88a, the view of Rabbi Elazar

[xi] Maimonides, Yad Hachazakah, Hilchot Mamrim, 4:1

[xii] Pirkey Avot (Ethics of the Fathers) 2:5

[xiii] Deuteronomy 16:19

[xiv] Midrash Socher Tov 61a, cited in Weiss, Rabbi S, (1990) Insights: A Talmudic Treasury, Feldheim, Jerusalem,  p.41

[xv] Deuteronomy 16:18

[xvi] Klei Yakar

[xvii] Jerusalem Talmud Horiyos 1:1

[xviii] Torah Temima, Rabbi Baruch ha-Levi Epstein 1860-1941

[xix] Sifse Chachamim

[xx] Klei Yakar

[xxi] Isaac ben Judah Abrabanel, (1437 –1508),

[xxii] Let us put aside contemporary arguments about the actual deterrent value of capital punishment, this was written over 500 years ago

[xxiii] Talmud, Bava Metzia, 39b, a statement by Rabbi Yochanan which is applied to the need for going beyond the letter of the law but lends itself quite plausibly to this interpretation as well

[xxiv] 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

[xxv] Exodus 1:15-19

[xxvi] Samuel I, 22:16-17

[xxvii] Maimonides, Yad Hachazakah, laws of Kings 3:9

[xxviii] Talmud, Kiddushin 42b