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| A buck brazenly flaunts the law of the land photo & title by Jason Molenda http://www.molenda.com/ used under creative commons license |
I read some parenting advice from a psychotherapist in a Jewish
newspaper column[i] that really annoyed me. A mother is driving her 10 year old
daughter who has fallen asleep in the front seat of the car. Three minutes from
her home she stops to pick up her 11 year old son. He is furious when he sees
his sister in the front seat. Their family has a rule that the oldest child
sits in the front seat. He hits his sister and begins shouting “you’re sitting
in my seat! You’re sitting in my seat!” The mother shouts at him and he finally
gets into the back.
The advice given is
that although the violence of the son was wrong, the situation could have been
avoided if the mother was “more sensitive to the dynamics of sibling
rivalry…you could have woken your daughter shortly before arriving at your
son’s friend’s house…” and ask the daughter to move to the back because she
would have to wake up in a few minutes anyway.
Follow the rules?
The question of how much importance we should give to rules is a
difficult one. On one hand there are times when the law needs to be the primary
consideration. Laws are one great way to
pursue justice. Disregarding laws out of compassion for one side of a dispute
is unjust toward people on the other side[ii]. Despite the importance of laws,
we are taught that thinking; “what is mine is mine, what is yours is yours”… is
the attitude of the people of the wicked selfish city of Sodom[iii]. Failure to
go beyond the letter of the law is given as one of the causes of the
destruction of the Jewish temple[iv]. In the case of the “oldest in the front
seat rule”, I would not be telling the mother to be more sensitive to the sense
of entitlement her older son feels. I would be more concerned about his rigid
insistence on getting everything he is entitled to under “the rules” and helping
him work on developing a more flexible attitude.
Challenging the rules from
within– the first feminists
An important variable is the option not to challenge the system of laws
but instead seek “clarification” or reinterpretation for an equitable outcome.
This was the case with a woman named Noa and her four sisters known as the
daughters of Zelophehad who challenged the position of the inheritance law that
only men could inherit a portion in the land of Canaan[v]. Initially, the
sisters were given the run-around, first going to Moses to be told to speak to
leaders of hundreds, only to be told that this is a difficult matter that only
Moses can deal with. Eventually they approached them all at the same time.
Moses is so taken with their argument that he wished to advocate for them
before God but he is told that they are right and don’t need an advocate[vi].
The sisters don’t challenge the legitimacy of the system of law.
According to commentary Noa et al. displayed great tactical and legal wisdom.
“Their petition followed a razor-sharp line of reasoning that incorporated all
the relevant laws and principles, and even formulated the proper decision. This
is why Scripture says, “And Moses brought their judgment before G‑d”—their judgment, not their question, for their petition
included the legal argument and its ruling[vii]”. This approach assumed that they did not
overcome the law but that in response to their complaint the existing but not
yet revealed law was uncovered. “The daughters of Zelophehad speak rightly” is
explained as God saying: “[As they spoke it,] so is this section of Torah
written before Me on high[viii].” This approach could be applied to divine
laws, when it comes to man-made laws, of course they can be wrong and often
are, it is then a question of the principle and value of the rule of law vs. a
particular poor law.
Parallel in Islam?
An intriguing idea in Islam that seems related to this is the principle
of Maqasid[ix] (Maqasid at Shari’ah). My understanding of this approach is that
it considers the broad purposes of the law alongside the letter of the law. Key
purposes are compassion and benefit. “A mere conformity to rules that went
against the purpose and vision of the Shari’ah was therefore generally
unacceptable”. An Imam I know suggested that the Malaysians liberal approach to
a widow’s rights to the family home might be following Maqasid[x].
Justice seen to be done
Perhaps what is most challenging is when law appears legalistic and out
of touch with “common sense”. Insisting on following the rule about who sits in
the front seat when another child is half asleep, I think would qualify. Either
way, legalistic or “common sense” the losing party is likely to feel resentful.
With self-interest bias, there is the danger that justice will not appear to
have been done to those who have lost and may result in conflict. The Truth and
Reconciliation process in South Africa is one example that appears to have
transcended the normal legal process and whatever its imperfections, South
Africa seems to be in a much better place than many have feared it would be
when the blacks came to power.
Laundered land? Perfectly legal
This dilemma is the background to the dramatic story of Balaam and his
donkey. He is recruited by the king of Moab and ends up blessing the Israelites
instead of cursing them. Prior to this we have a brief battle in which an area
in present day Jordan between the rivers Jabbok and Arnon, thought to be the
modern Wady Mojib[xi], is conquered from an Emorite king[xii]. This area was
originally Moabite land and the Israelites had kinship ties [xiii]and strict
instructions from God not to distress or provoke them to war[xiv]. Despite
these ties the Israelites feel justified in holding on to the land because it
has been conquered from them by the Amorites and so he “purified it for
Israel”[xv]. It has been described as “theft that is without wrongdoing[xvi]”.
What a fascinating phrase!
The Israelites saw this as Kosher but the text does not tell us how the
people of Moab-Amon felt about it[xvii]. A midrash suggests that they felt
afraid because they saw the Israelites have conquered “our land”[xviii]. A few
verses later, their king hires Balaam the sorcerer to try to harm the
Israelites. 300 years later, the king of Amon refers to this conquest “Because
Israel took away my land, when they came out of Egypt, from Arnon and up to the
Jabbok…and now restore them peacefully [xix]”. Jephthah, the Israelites’
leader, counter this claim, “Israel did not take the land of Moab and the land
of the children of Ammon… the God of Israel, delivered Sichon (King of the
Amorites) and all his people into the hand of Israel, … and Israel possessed
all the land of the Amorites…from the Arnon up to the Jabbok…when Israel dwelt
in Heshbon and its towns…and in all the cities that are along Arnon, three
hundred years; why did you not recover them at that time”? In Jewish law about
land quarrels, undisputed occupation for three years is seen as proof of
ownership[xx]. This argument does not
persuade the Amonites, instead they go to war.
Conclusion
The informed view in my community is that going even to a religious
court to resolve a dispute is a very bad outcome. Laws are great things, but in the real world
their value is sometimes, somewhat limited.
[i] Wikler,
Dr. M, Hamodia 28 June 2012, p. C14
[ii] While
Jewish tradition encourages charity, mediation and compromise it warns against
“glorifying the poor” in legal disputes, which means that if a very rich person
is legally correct in a dispute with a poor person the judge would still decide
in favour of the rich person and cannot change the ruling out of compassion.
[iii] Pirkei
Avot 5:13
[iv] Talmud
Bava Metzia 30b
[v] Numbers
27:1-7
[vi] Abarbanel
[vii] Anaf
Yosef commentary on Ein Yaakov, Bava Batra 119b, cited by Schneider, S,
http://www.chabad.org/library/article_cdo/aid/2222/jewish/A-Daughter-of-Zelophehad-Speaks.htm
[viii] Rashi
to Numbers 27:7; Targum Yonatan ibid.; Yalkut Shimoni ibid.; Sifri ibid cited
in Schneider
[ix] Kamali,
Mohammed Hashim (2010), He is Professor of Law at the International Islamic
University Malaysia. He is author of numerous articles published in learned
journals and many works including Principles of Islamic Jurisprudence, Criminal
Law in Islam and Freedom of Expression in Islam.
http://www.faithinallah.org/higher-objectives-of-islamic-law-maqasid-ash-sharia/
[x]
http://torahforsociallyawarehasid.blogspot.com.au/2012/05/inheritance-laws-gender-sharia-halacha.html
[xi] “A river
and wady of eastern Palestine, the modern Wady Mojib (or Wady el-Mojib). The
name means perhaps "noisy," a term which well describes the latter
part of the course of the river. Its length is about 45 miles, from its rise in
the desert to its entrance into the Dead Sea. It spreads out to a breadth of
100 feet here and there, but for the most part is narrow; and though low in
summer, in the winter season it is in places 8 or 10 feet deep. It runs at
first north-westerly, but afterward its course becomes westerly. Its striking
feature is the steepness and narrowness of the ravine through which it passes
shortly before it empties into the lake, opposite Engedi. Between the lofty
limestone hills, which cause this precipitous descent, and the lake, the river
expands into a shallow estuary nearly 100 feet wide.
http://www.jewishencyclopedia.com/articles/1799-arnon
[xii] Numbers
21:25
[xiii] Moab
and Amon were descendants of Abraham’s nephew Lot
[xiv]
Deuteronomy 2:9
[xv] Talmud
Hulin 60b, Rashi to Numbers 21:26, I found it interesting to read that Rabbi
Shimon Ben Lakish states that there are many verses that are fit to be burned
but they are in fact the body of the Torah such as the verse explaining the
legal basis for the annexation of these lands
[xvi] Midrash
Tanchuma Balak 2
[xvii] A
midrash states that Balak saw Israel sitting calmly, surrounded by the clouds
of glory, Manna falls on them, the Slav birds rise, a well (in a rock) goes
with them… (cited in Torah Shlaima Vol. 42, p.6)
[xviii]
Midrash Tanchuma Balak 2
[xix] Judges
11:13
[xx] Talmud
Bava Batra chapter 3
