Friday, July 13, 2012

Limitations of the Legal

A buck brazenly flaunts the law of the land
photo & title by Jason Molenda
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 Gd”—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.

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,
[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.
[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.
[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