July 29, 2011

Mediation

The reviving clash between religion and the civil state is gaining in heat, but now in reverse. The flash point, of course, is the issue of Sharia law and whether it should have any place in Western democratic legal systems. In parts of the USA, laws have been passed banning Sharia from having any role whatsoever, and in the UK, surprisingly, there is a bill in the House of Lords proposed by Baroness Cox seeking to limit the role of Sharia mediation in the lives of women in the UK.

In principle, there ought to be space for a religious option within and under the supervision of civil systems. In Britain and in the USA for many years it has been possible for Jews to go to state-recognized arbitration within the framework of Jewish law. Civil law is, in many respects, based on different values and fundamentals than Jewish law. In Israel, the civil legal system is a mélange of Ottoman, British Mandate, Roman, and Jewish legal systems.

The room that is given to religious systems to insinuate themselves into the state system are in the optional realms of arbitration, supervision of religious standards, and, more recently, financial transactions where, in Islam as in Judaism, interest is forbidden and there are ways of getting round the prohibition through special contracts.

Government-sanctioned mediation has been used as a legitimate alternative to the expensive and protracted court system in the UK since 1999, and Beth Din arbitrations are recognized by the legal system. But in recent years, the boundaries are being pushed to include family and marital arbitration and this is what is causing, in Britain at any rate, the reaction.

In Charedi circles there is a longstanding suspicion of civil systems. Reporting to the civil authorities is regarded as "messira"--snitching, betrayal. This comes from the experience of anti-Semitic regimes, Communist dictatorships, and even Western welfare agencies whose value systems are often in opposition to Jewish ones. However the increase in publicized cases of abuse where the perpetrators were protected and the victims victimized is a long standing embarrassment to the ethically sensitive . It is possible that prompt action could have prevented the Kletzky tragedy.

At last there is light! A recent decree from Rav Eliashiv, the Godfather of Charedi authority, is that although in principle one may indeed report sexual and other abuse to civil authorities, one should first seek the opinion of a rabbinic expert on these matters. The trouble is that neither I nor any Orthodox rabbis I know in Israel are aware of any such experts or whether there are any who have been trained in such matters.

The Rabbinical Council of America came out with an unambiguous statement in 2003, which they reaffirmed last year, but even after the terrible Kletzky tragedy some Charedi rabbis persist in their dubious if not immoral stand against calling in civil authorities. So thank goodness others are not so myopic.

And yet surprisingly and at the same time there has been an increasing interest in certain non-Jewish mechanisms such as arbitration (yes, I know that Jewish Law has long ago encouraged arbitration, but the theory too often got lost). In general however if voluntary arbitration, Jewish or say Muslim, within the framework of civil law is legitimate and praiseworthy, the problem the other way is that religions often have values that conflict with state law. The equality of the sexes is a case in point. In many Muslim communities, women are morally, emotionally, and physically coerced to accept religious arbitration against their will. How are we to protect them? Even in some Jewish circles we know women face male prejudiced courts that, in divorce settlements and child custody, favor the men (and of course in many secular civil courts the reverse is true). We should be encouraging the weak to seek the protection of the courts rather than encourage them to be at the mercy of internal coercion.

This is why I support bills that limit the areas of mediation outside the civil system, even if it would affect Halachic arbitration. So be it. We can always choose whether to accept the law of a land or move somewhere else. This issue was raised recently and well argued by Melanie Phillips.

Nevertheless, where there are adequate safeguards, I am a fan of mediation. Having had enough negative experiences with the law (matrimonial, civil, and even criminal), I will always advise anyone to void the law at almost any cost. Mediation seems to me to be a far better, cheaper, and less demeaning alternative. What is more, it is a cause of great regret to me that I know of too many Batei Din around the world that are biddable, and mediation is a far more acceptable halachic alternative. And it is a more acceptable alternative for those Jews who feel alienated from religious authority.

This is why I am stepping out of my usual zone to recommend a new Jewish mediation service that has in recent months become available in the UK called Jmediate, founded by an old friend, David Swede.

To quote its blurb, Jmediate "offers a professional approach to resolving disputes. It is fast, confidential, cost-effective and sets out to achieve results acceptable to both parties. Its mediators manage the entire process from first enquiry to eventual outcome. Initial consultation is free, always confidential and without obligation and have extensive experience of resolving conflict in a wide variety of contexts – business, communal and individual. All mediators are selected to meet the particular needs of the Jewish community."

Good luck, David.

July 21, 2011

Rabbi Lior and Torat HaMelech

We like to pride ourselves, we Jews, that our Orthodox firebrands aren't as violent as the Muslims. The more Orthodox you get in Islam, the more Jihad turns from peaceful to violent. But the more Orthodox in Judaism, the more the tendency toward the spiritual and the passive (Chasidic pyromaniacs excluded). The exceptions to this rule are the rabbis of Hebron/Kiryat Arba. Not all nationalist rabbis aggressively incite violence; think of Rav Fruman of Tekoa. But no one illustrates the moral evil of extremism better than some of them.

A few years ago a book purporting to be a rigorous halachic tome called Torat HaMelech (The King's Law) was published by (politically) right-wing Rabbis Yitzchak Shapira and Yosef Elitzur. It caused a furor. The authors argued that the Biblical prohibition "you shall not murder" applies only to a Jew who kills a Jew; non-Jews were described as "uncompassionate by nature" and attacks on them "curb their evil inclination". Babies and children of Israel's enemies may be killed, since it is clear that they will grow to harm Jews. Apologists argued that they used legitimate sources. They did. But over three thousand years in any system it would be surprising if there were not all sorts of minority views. They concluded without context or presenting the overwhelming body of halachic literature against their contentions.

Some well-known Orthodox rabbis initially wrote encomia in praise of the authors, which they subsequently retracted once they actually read the text. The book was (and is) inflammatory, dishonest and as much a distortion of Judaism as the ravings of anti-Semites who accuse Judaism of condoning murder, rape and theft so long as the victim is a non-Jew. But then remember these are men who regard Baruch Goldstein, who gunned down unarmed praying Muslims, as a hero. It was seized upon by all those sick and disturbed impressionable young nationalist fanatics as an excuse for violence and disobedience.

I understand why people can become morally crippled by the perpetual hatred and prejudice coming from around the world and the incitement, coldblooded murder and loss of loved ones they experience daily. These experiences can and do drag otherwise balanced minds towards extremism and they go both ways! I feel something of this pressure myself on occasion. But I have always tried my best to follow the advice of Shimon Ben Shetach in Pirkei Avot 1:9, "Be careful what you say lest others learn to lie from them."

The issue came back into the news recently because another Kiryat Araba/Hebron rabbi, Dov Lior, was rightly called in by the authorities, suspected of breaking the state law against incitement. He has repeated the distorted conclusions of Torat Hamelech and endorsed the book. Young hot head activists attempted to block the entrance to Jerusalem in protest.

A recent Haaretz editorial said:
The arrest of Rabbi Dov Lior…has aroused worrisome reactions. Those who favor freedom of expression will of course find it difficult to accept as self evident the arrest of a person, any person, for things that he said or wrote. An open and liberal democratic society is not tested by its support for speakers or writers of texts of which it approves, but by providing an opportunity to say harmful things, as infuriating and subversive as they may be, about it and even against it.
To its credit, Israel has a Supreme Court that can, if necessary, act as a moral counterweight to religious and fanaticism (just as the religious can occasionally act as a counterbalance to the excesses of the secular).

Nevertheless, the claims of these rabbis need answering, and for anyone fluent in Hebrew I can heartily recommend Ariel Finkelstain's thorough and impressive Derech HaMelech.

But the record needs putting straight for the world in general. It is true that the Bible says some unpalatable things regarding the treatment of Canaanites. But the truly great rabbis who lived over 2000 years ago agreed that these Biblical commands no longer applied. Regardless of how corrupt or dangerous the Canaanites might have been, one can no longer accurately identify them and therefore the laws were no longer applicable (Mishnah Yadayim 4:4).

To lump all non-Jews together and treat them the same as Canaanites or idol worshippers flies in the face of reason, morality, Torah, and all major halachic experts. It is no different than regarding modern homo sapiens as Neanderthals.

Secondly, the same rabbis insisted on maintaining good relations with non-Jews and instituted a halachic principle of Eyvah, avoiding enmity (Tosfot, Avodah Zara 2a), and Darkei Shalom, encouraging peaceful coexistence (Gittin 61a). These principles superseded those laws that gave preferential treatment to members of a self-ruling Jewish community. Indeed the great Chafetz Chaim said that this alone made killing anyone outside of Judaism the worst kind of crime.

Thirdly, they accorded equal civil rights to any non-Jew accepting the seven Noachide commandments of very basic moral obligations, even where the conditions for the egalitarian Biblical law of the Ger Toshav (a non-Jew living amongst Jews) had not been met.

Fourthly, medieval and early modern rabbis like the Maharal, Rav Lowe of Prague, drew a very definite distinction between idol worshippers (in the ancient sense of people who had no moral or civil constraints, but acted solely on the basis of pagan commands mediated by magicians, pagan priests, and random chance), and, on the other hand, those non-Jews "constrained by moral and legal codes" (Meiri, Bava Kama 113b).

It is true to say that when Christianity and Islam began to claim superiority and imposed exclusionary laws on us and persecuted us, Jewish self-protection responded by asserting its primacy over persecutors. Any civil distinction between Jew and non-Jew was only relevant as a protective measure and only when we ourselves were discriminated against first. The preference they gave to fellow Jews were no different than the rights any citizen might have had then or now over citizens of other countries or cultures.

Self-defense remains, to this day, the one area where killing is halachically allowed. But this applies Jews just as much as non-Jews. Besides, no one suggests you may generalize halachically and assume everyone of any group or nationality either hates you or wants to kill you. And one is still constrained by the Law of the Land, even in Israel.

In Israel today, of course, there is a unique political dimension. And Torat HaMelech is an overtly political tract, not a genuine legal opinion. That is why not one acknowledged giant in the Charedi world supports it, any more than under the worst excesses of Christian and Muslim persecution no authority justified gratuitous killing of anyone pagan or otherwise.

I pray that we remain strong enough to protect ourselves against our declared enemies of whatever age. But I also pray that we do not bring ourselves down to their level, and above all that we do not twist and distort our tradition to validate inhumanity against anyone. As we are now in the three weeks of mourning that lead up to the Ninth of Av, we should be reminded that twice our moral shortcomings led to the loss of a Jewish state.

July 14, 2011

UK Chief Rabbi

It's amusing to an outsider, as I now am, to observe the interest in the UK over a new Chief Rabbi. Ben Elton, author of Britain's Chief Rabbis and the Religious Character of Anglo-Jewry 1880-1970, wrote an article in the Jewish Chronicle recently in which he contrasted different styles of Chief Rabbis and argued that the next one, instead of representing Judaism to the wider world, "should concentrate more on internal matters... Anglo Jewry no longer need maintain boundaries so watchfully, because in today's Anglo-Jewry we are not going to confuse what is Orthodox, Masorti, Reform and Liberal, and which body stands for which theology."

I am really the last person to write about Chief Rabbis. Whilst recognizing the need for authority and religious power I have always detested authority and establishments. I was brought up in a home where Chief Rabbis were more objects of scorn than reverence. The rabbis I admire tend to be "hidden saints" rather than those who court position and publicity.

I have, indeed, known many Chief Rabbis around the world over the years. Some have been fighters, some have been good sincere men, some good expositors and some diplomats. A few have been Talmudic giants and scholars. I might also add a there have been some rogues too. None of them, in my opinion, had any fundamental innovative impact on Jewish life.

The reason is obvious enough; changes, paradigm shifts come either from movements that arise out of historical and social circumstances, mysticism, Chasidism, Wissenschaft, Reform or Torah Im Derech Eretz and are usually initiated from outside the establishments. The revival of Orthodoxy around the world, and indeed of cultural Jewish life, stems essentially from individuals or movements working from the outside. This does not mean that rabbis, even talented ones, have no impact. Of course not. But it is not to them we should look for innovation or taking risks.

Judaism has flourished most in countries without centralized authority, such as the United States. Ironically in Israel, where there is de jure centralized authority, the Charedi renaissance and plethora of informal religious groups have succeeded precisely because they have completely overshadowed it.

In little Britain (for it is marginal in world affairs, however much it might wish it were not) the role of Chief Rabbi is essentially a diplomatic one, and diplomats can rarely be creative leaders or radical reformers. It is a lay appointment and committees invariably choose safe candidates.

The Jewish world in our time has not been altered by Chief Rabbis but by the phenomenal growth of movements spurred on by their own inner dynamism. Charedim more than any other. They do not have appointed chiefs, but have nevertheless been responsible for the exponential growth of Torah (not to mention population). Think of the Baal Teshuva movements (the Jewish evangelicals). It is Chabad, Aish, Ohr Somayach (all outgrowths of the Charedi world), and the expansion of Chasidic sects, of yeshivot and of Torah study that have transformed Orthodoxy from a seemingly lost cause since the cataclysms of World War II.

But the very fundamentalism that has enabled these communities--Lithuanian, Chasidic and Sephardic--to flourish has also led to a split between those Orthodox Jews who think all knowledge can be found in Torah alone. In contrast others think that, even if Torah is the primary source of all spiritual knowledge and values, there is still much to be found beyond its borders. The Seven Pillars of Wisdom may be found amongst the nations too.

So to the UK, where the coming retirement of its Chief Rabbi has initiated debate. Recent articles have included demands for scrapping the role, a female Chief, a democratic vote, a foreigner, an ecumenical healer, a mystic and even a rosh yeshivah. The one leadership quality no one seems to have dared to mention is the willingness to fight.

Not one Chief Rabbi since Hertz has stood up to the Beth Din. No new one will be any more likely to than his predecessors. The hounds of the religious right are already baying. At the moment the only voices standing for open, honest, intellectual Judaism are in "academia".

Rabbis are tools of social cohesion, not spiritual innovation. The borderlines between Orthodox, Conservative and Reform have indeed been drawn. The one place that the borderline is still biddable is that of intellectual freedom, the ability to think freely and bring scholarship, scientific method and analysis to Jewish law and theology, without throwing the baby out with the bathwater. It is the borderline between the closed religious mind and the open one that is at stake.

That is the only area where a Chief Rabbi who was minded to fight could make a real difference. But, of course, it will not happen. Indeed, it cannot happen precisely because the person who will get the job will not be the sort of person to buck the system.

In some ways is not unlike the USA. Presidents Bush and Obama are very different in style and personality. But neither has had any significant impact on the way America does things. My advice to Anglo Jewry is to relax, not to expect too much. Above all, regardless of whomever the oligarchy appoints, not to give the poor fellow too rough a time. Because in the end it won't make much difference anyway.

July 07, 2011

Casey Anthony & Law

There are many types of legal systems. Ancient systems included Babylonian, Egyptian, Hindu, Jewish, and Roman. Legal thought inspired by Grotius (early 17th century) developed new legal concepts based on "natural law". Countries began to free themselves from the vice of the Church and developed their own systems. For example Scotland diverged from English law in various ways, most notably that it allowed for a verdict "not proven" (as opposed to either "guilty" or "not guilty"), which might have come in useful in the Casey Anthony verdict that is now causing such a stir in Florida.

There are many legal systems nowadays that are mongrels, such as Israeli civil law, which is a mixture of English Mandate, Jewish, and Ottoman. Now that the World Court and the European Court are up and running, often overriding national laws, it is probably true to say all systems are mongrels nowadays.

There is no universal system, and certainly no perfect system, but I would like to put a plea in for the ancient Jewish system (no, not stoning--we did actually update our legal system regularly these past thousands of years, though I admit we seem to have hit speed bumps of late).

I have never much liked the American system as it is practiced ( not preached of course) with its political appointments of prosecutors, even sheriffs, who are too often out to make names and careers for themselves, eager to court publicity and indulge in "perp walks." Arrests are public and great photo opportunities. (I have no doubt Cyrus Vance, Jr. will be more careful next time a roué Frenchman with a louche reputation is accused of rape.)

But more than that, I detest those features of legal systems that usually treat court cases not as honest attempts to find the truth but games to be played in order to win a conviction or a release, based not on facts but on style, tricks, and performances.

In Chapter 1 of Avot, Yehudah Ben Tabai said, "Do not, as judge, play the part of an advocate."

I take this to be a critique of the Greco-Roman system (which we have adopted in Britain and the USA), in which advocates argued rhetorically for their point of view. The Jewish approach involved judges trying to assess the situation, allowing both sides to plead, but having the responsibility to grill them rigorously. For better or worse, there was no jury system, which itself has its plusses and minuses. Very complex or technical cases can be beyond the capacity of many jurors. The Jewish judge (there were at least three) had the responsibility to make up his mind.

Also, in Jewish law circumstantial evidence was never acceptable in criminal cases. For all the times the Bible said, "He shall be put to death," it was almost impossible to convict. In effect, the "death sentence" was more a way of indicating how serious the offence was, rather than an expected result. You needed two unrelated witnesses who had actually seen what happened. In addition, the idea of warning required a further layer of evidence that the perpetrator knew not only the crime but the punishment too. There was no way a Casey Anthony could have been convicted of murder under Jewish law. But leaving her disturbing case aside (and the millions that will be made in our sick material world), the horrific history of men and women wrongly put to death on circumstantial evidence by seemingly civilized legal systems is a blot on modernity.

Nevertheless, even in Jewish Law, failure to convict did not necessarily mean the accused went free. The pastoral and spiritual role of judges required them both to take steps to protect society and to see that anyone brought before them was taken care of. A judge might have to convict a poor man of stealing bread, but then he had a religious obligation to see he and his family did not starve. If an accused person was clearly in need of support, whether material or psychological, it would be a responsibility on an individual level (and thereby on the court) to see that the necessary was done. This might mean keeping someone they considered a threat to society under lock and key, or ensuring they had proper medical treatment. Of course this is modern terminology for an ancient religious obligation.

It seems obvious that Casey Anthony is a disturbed individual. She was found guilty in the eyes of public opinion and the press. The lynch mobs were outside the courthouse. I doubt she will come to a good end, but I feel most strongly she needs support and help, and I only hope her defense team does not just walk away and abandon her.

No legal system is perfect. You can find fault with them all. Any Jewish lawyer has to work with the system he or she is born or moves into. Still, the Jewish system seems to me to have a great deal to commend it. The trouble is finding the enlightened and sensitive dayanim who know how to temper Jewish law with mercy and who know when "the widow and the stranger is denied justice". It is precisely this meta-legal dimension that I see missing in all systems today. And in our case women are still not be allowed to sit as judges. I guess we will have to wait for Elijah to come and open our hearts and minds a little more.