Dust and Ashes – Valera 5785

The Chassidic Rebbe, Simchah Bunem, used to teach his students:” Everyone must have two pockets, so that he can reach into the one or the other, according to his needs. In his right pocket are to be the words bishvili nivra ha’olam.  “For me was the world created.” And in his left, va’anochi afar va’efer. “For I am but dust and ashes.” Knowing when to remove each piece of paper, is the challenge.  

Sometimes, we need to be assertive, to place ourselves and our own needs at the center of our concern. Other situations demand that we step down, and recognize how small and insignificant we are in the span of space and time.

As it turns out, va’anochi afar va’efer — “For I am but dust and ashes” — appears in this morning’s Torah portion.

וְאָנֹכִ֖י עָפָ֥ר וָאֵֽפֶר

But before we find out where, let’s see if we can figure out what it means. Afar va’eferAfar with an ayinEfer with an alef. Two different, unrelated words, but together, as an alliteration, expressing something profound.

Afar – “Dust” with an ayin — brings us back to creation. In the Garden of Eden, the first human is created out of the dust of the earth. Afar min ha’adamah. God gathers the raw materials together in the shape of a person, but it only becomes a human being when God blows the breath of life into its nostrils.

To compare oneself to dust, therefore invokes our origins, the raw materials from our physical selves are made.

Efer – “Ashes” with an alef,  are what are left over after something has been completely burnt. Through combustion, a thing that was once alive has been rendered into its inorganic parts. All of the organic components have become oxidized and are no longer present.  In other words, ashes are what are left over after all traces of life are gone. 

To compare oneself to ashes invokes the end of our physical selves. What is left over after anything that once marked us as individuals is gone.

Together “dust and ashes” describe the parts of our timeline which are devoid of life. Before the soul entered our bodies, and after the materials out of which our bodies are comprised have lost their cohesion.

This expression Afar va’efer, appears just three times in the entire Tanakh. Once in this morning’s Torah portion, Parashat Vayera, and twice in the book of Job. 

Vayera opens with three angels, disguised as men, coming to visit Abraham with a message that in one year, he and Sarah will have a son together. Message delivered, two of the angels leave, while one sticks around for a further conversation.

God has seen the wickedness of the people of Sodom and Gomorrah, and determined to destroy the cities entirely. But first, God turns inward to ask Godself:

Shall I hide from Abraham what I am about to do, 

since Abraham is to become a great and populous nation and all the nations of the earth are to bless themselves by him? 

For I have singled him out, that he may instruct his children and his posterity to keep the way of the Lord by doing what is just and right, in order that the Lord may bring about for Abraham what has been promised him.

True to God’s assessment of him, Abraham challenges God’s eagerness to punish the innocent along with the wicked, asking God to spare the cities if fifty innocent people can be found living there. In a bold rebuke, Abraham declares “Shall the judge of all the earth not do that which is just?!”

God agrees, and it turns out that this was just the opening of the negotiations. Abraham will lower the number to 45, 40, 30, 20, and finally 10 innocent people to spare the wicked cities. But first, he employs our phrase

Here I venture to speak to my lord, I who am but dust and ashes

What does this expression mean in this context?

At first glance, it might seem to be an expression of humility.  But what Abraham has just done and will continue to do seems quite bold. He has essentially told God that if You do not behave justly, you don’t deserve to be God. 

This is not behavior that most of people would describe as humble.

What about Job? He uses the expression twice. 

The first instance is in the midst of a long speech in which he is describing his suffering in most vivid terms. He laments how even the dregs of society, the worst of the worst, look down on him.

By night my bones feel gnawed;
My sinews never rest. 

With great effort I change clothing;
The neck of my tunic fits my waist.

And then comes our verse

He cast me down to the clay,
I have become like dust and ashes.

Here dust and ashes does not describe humility as a moral character trait, but seems to be almost literal. Just as people walk on dust and ashes without a second thought, without even noticing, Job too feels like he is being trampled underfoot.

His entire existence has been reduced to insignificance. “Dust and ashes” is a lament of self-pity. 

He uses the term once more, in the final chapter. In face, they are the last words he utters in the entire book that bears his name. After forty long chapters struggling to understand the meaning of his suffering, and rejecting all of the theological accusations and explanations of his so-called friends, God appears to Job out of the whirlwind.  And basically says, “I’m God.  Who the heck are you?”

And so, Job backs down.

Therefore, I recant and relent,
Being but dust and ashes.

This is Job’s final utterance. He realizes that his earlier complaints have been misguided. Job has been seeking some sort of reason for his suffering, a rational explanation for why he has been brought so low. 

But he never gets it. When he comes face to face with the awesome, terrifying Divine Presence, Job finally discovers that, as a mere mortal, comprised of “dust and ashes,” he is simply incapable of understanding God’s nature. Human concepts of justice and morality do not apply to God. It is pointless to try to discover any purpose to Creation that would make sense to us.

For both Abraham and Job, “dust and ashes” seems to be an expression of humility. It is a recognition that our existence on earth is temporary, that our imperfect bodies are made of material that comes together for only a brief moment in time.

We should also note that for both of them, the phrase “dust and ashes” occurs in the context of challenging God’s justice. They both react instinctively to what they percieve as God’s unjust behavior.

We all have that instinct. “It’s not fair.” Sometimes we experience it when we feel that we ourselves have been denied something we are owed.  Sometimes we experience when we see or hear of injustice perpetrated against someone else.

“Dust and ashes” is how Job describes himself when he finally stops accusing God of injustice. He realizes that human standards of morality do not apply to God.

For Abraham, it is the opposite. “Dust and ashes” is how he describes himself when he first begins to accuse God of injustice.

Perhaps another difference is that Job has been going through an existential crisis, arguing for justice on behalf of himself. Abraham, on the other hand, has been fighting to protect other people. 

Maybe that is the point of having this as one of the two phrases that we are supposed to have in our pockets. Recognizing our smallness, the limited time that we have on earth, means that we have to make use of that time for good.  To, as Abraham demonstrates, “keep the way of the Lord by doing what is just and right,” even when that might mean putting ourselves at risk.

But also, recognizing that the universe does not owe us anything. It is ok, as Job finally discovers, to accept ourselves as we are. To accept that God does not owe us any explanations. And then to make the most of it, as if the world was created for us. Maybe that is true humility.

The Problem with the Story of Sodom and Gomorrah – Vayera 5784

I have a problem with the story of Sodom and Gomorrah.

It is a story that is set up to be about Justice and righteousness. Those are the words that are used repeatedly over the course of the narrative.

Let’s review the story in broad outlines, so we know what we are talking about. God sees the cities of Sodom and Gomorrah and that they are evil, and decides to completely annihilate them. But first, God consults with Abraham. God reveals the plan. Abraham then argues on behalf of the cities. There may be innocent people there. In the end, not even ten can be found, and the cities are destroyed.

When we look at a story in the Torah, we have got to accept the way that the story is told, and the facts that the Torah presents, as being very deliberate. It is trying to tell us something, and so we have got to be true to the text when we approach and try to analyze it.

What are the starting assumptions?

First. Abraham has been singled out to instruct his children to “keep the way of the Lord by doing what is just and what is right—la’asot tzedakah umishpat.” (18:19) That is why God consults with Abraham.

Second. The cities are evil – so evil that God determines that the only course is to destroy them entirely, to literally turn them upside down. “The outrage of Sodom and Gomorrah is so great, and their sin is so grave.” (18:20) Justice demands that they be punished.

What is Abraham’s argument?

He argues that the presence of a few righteous individuals is sufficient to reverse the decree against a city that, in the eyes of God, is entirely wicked. Abraham starts with 50 innocent people. “Will You then wipe out the place and not forgive it for the sake of the fifty righteous individuals who are in it?” (18:24)

Throughout, in his description of the people living in Sodom and Gomorrah, Abraham uses the langague of tzadik and rashah: Righteousness in opposition to wickedness. Abraham’s argument is that it is unjust to bring the same punishment upon the righteous as upon the wicked. Collective punishment is wrong.

God agrees to follow Abraham’s basic premise. Over the course of their discussion, Abraham drops the number down from fifty until he eventually settles at ten. Also, God uses three different terms to express God’s willingness to not destroy the cities: nasa’ti – I will lift [their iniquity]; lo e’eseh – I will not do it; lo ashḥit – I will not destroy.

The argument that Abraham is bringing to God is that mercy should overcoming justice.

Notice that God and Abraham are making inverse arguments. 

God says: I’ll wipe out everyone because of the preponderance of evil people – This is justice taking precedence over mercy.

Abraham says: You should save everyone because of the minority of good people – This is mercy taking precedence over justice.

I would argue that there are some major gaps in their arguments. 

One. There is no call for repentance.  Just like with Noah, it does not even occur to Abraham to walk down the mountain to Sodom and Gomorrah to speak with the people themselves.

This is a successful tactic, after all. Think of Jonah, the most successful prophet in the Bible. God sends him to the people of Nineveh, who are also described as completely evil, all the way down to the livestock. Jonah’s mission, which he tries to avoid at all possible costs, is to call upon them to change their ways, to repent, so that they earn their own salvation.

And it works! Perfectly, to Jonah’s dismay.

Does Abraham have such a low opinion of the residents of Sodom and Gomorrah as to think that they are irredeemable?

Should he not have given them an opportunity to save themselves?

Here is my second problem with this story. Abraham is only partially concerned with justice. Justice is the premise that people get what they deserve.

Consider that if Abraham succeeds, two whole cities filled almost entirely with wicked people are going to get away with it. What then of their future victims? Will Abraham bear any responsibility? That does not sound like justice to me. With too much mercy, wickedness thrives. If we forgive too readily, we allow evil to spread.

How does the story end? Abraham goes to bed that night feeling good about himself. He is confident that the has saved the people of Sodom and Gomorrah by bargaining God down: the presence of just ten righteous people will save the cities. Mercy wins over justice.

When he wakes up and walks to the overlook from which he can gaze down upon the plain, he is surprised to see a smoking ruin. There were not even ten righteous people.

Meanwhile, God has taken it upon Godself to save the few innocent people: Lot, his wife, and two daughters. 

The coda to the story is strange: “Thus it was that, when God destroyed the cities of the Plain and annihilated the cities where Lot dwelt, vayizkor Elohim et Avraham—God rememberd Abraham and removed Lot from the midst of the upheaval.” (19:29)

What does it mean in this text to say that God remembered Abraham? This result does not resemble anything that they have discussed. It is, however, the solution that is the perfect execution of justice. The wicked are punished and the innocent are saved.

Maybe that is what Abraham should have demanded from God in the first place. Save the innocent. Bring them out, and then do what You are going to do.

As a model for justice, mercy, the question of collective punishment or collective redemption, this story is overly simplistic. It lacks nuance.

In this particular framework, the Torah depicts people as either wholly righteous or wholly wicked, and this is just not how people are. People are not so black and white.

This is not a story about repentance and reconciliation. It sees people’s character, their morale stature, as static, something that cannot change. Either the presence of the wicked dooms the fate of everyone, or the presence of innocents releases everyone from punishment. There is no nuance here.

These problems strike me as bearing certain similarities to what Israel faces right now.

An evil, unjustifiable act was perpetrated against innocent people by Hamas. I do not think that repentance and eventual reconciliation is a reasonable goal for the estimated 40,000 members of that organization who are hiding underground, often under schools, mosques, and hospitals. But what of the fate of the 2.3 million Palestinians living in Gaza? Many of us have tried to specify that this is a war between Israel and Hamas. Noa Tishby, the Israeli actress who has emerged as a strong voice explaining Israel and fighting against antisemitism and anti-Zionism, describes herself as “pro-Palestinian” and “anti-Hamas.” I identify with that.

But this is messy. How many dead and injured men, women, and children, destroyed homes, and uprooted lives are justified in the mission to eliminate Hamas and rescue the 240 hostages who have been held now for four weeks?

How does one balance justice and mercy in a situation like this? Should one lean towards collective punishment or collective redemption? Can those who commit atrocities be allowed to go free because of the cost to civilians? Is there a way to thread that needle? I do not pretend that there are any easy or obvious moral answers here.

I would just like to point out that the outcome of Abraham and God’s argument over the fate of Sodom and Gomorrah does not resolve the dilemma either, even when it paints people in moral black and white.

My prayer is that those in Israel who are responsible for waging this war are truly aware of these moral dilemmas and are putting them at the forefront of the very difficult decisions that they are forced to make. I wish there was more nuance in the discussions taking place around the country and around the world to recognize how difficult this situation is.

Might and Peace – Noach 5784

My heart is still broken, broken for 1,400 Israelis who were killed and their families. We have been witnessing the funerals and the shiva and a nation that is still in the midst of trauma.

I am relieved for the release of mother and daughter Judith and Natalie Raanan yesterday, and praying for the 200 others who were taken hostage, particularly 30 children whose fate and whereabouts remain unknown.

Once again, we have in our Torah portion a fitting story to describe our current reality.

By the end of last week’s parashah, the humans, who were created in the image of God, whom God blessed and declared to be tov me’od, very good, have failed to meet expectations. After just ten generations, God sees “how great was man’s wickedness on earth, and how every plan devised by his mind was nothing but evil all the time.”

How sad. The creation that God declared to be “very good” is now “nothing but evil all the time.”

As this morning’s Torah portion, Noach, opens, the Divine displeasure continues. 

וַתִּשָּׁחֵ֥ת הָאָ֖רֶץ לִפְנֵ֣י הָֽאֱלֹקִ֑ים וַתִּמָּלֵ֥א הָאָ֖רֶץ חָמָֽס׃ 

The earth became corrupt before God; the earth was filled with ḥamas. When God saw how corrupt the earth was, for all flesh had corrupted its ways on earth, God said to Noah, “I have decided to put an end to all flesh, for the earth is filled with ḥamas because of them: I am about to destroy them with the earth.

Genesis 6:11-13

The irony is tempting. Ḥamas is the Hebrew word for lawlessness. It is a word that expresses the chaos and evil of the world before the flood, the complete lack of boundaries and respect for the divinity contained within every human being. 

God decides to wipe it all away, to allow the waters of chaos to undo all of the order and good that God had created. And God decides to give us another chance.

After the flood subsides, Noah offers a sacrifice. When God smells the pleasing odor, God says to Godself, “Never again will I doom the earth because of Adam, since the devisings of Adam’s mind are evil from his youth…”

Notice that human nature has not changed one bit. God uses nearly identical language to describe humanity’s proclivity for evil. But this time, God provides some instructions. Among them, one stands out in this moment. 

For your own life-blood I will require a reckoning… of every man for that of his fellow man! Whoever sheds the blood of man, by man shall his blood be shed, for in His did God make man.

Genesis 9:5-6

This verse, considered by our tradition to be the basis of one of the seven Noachide commandments, forbids murder, the wrongful taking of human life. And, it obligates human beings to punish the one who commits murder.

This is the foundational principle of justice. Human beings may not wrongfully harm one another, and society must have institutions in place both for protection, as well as for lawful adjudication and punishment.

In a world that is prone to chaos, this is the only way that we can hope to live together.

In the next passage, God makes a covenant with Noah and his children, establishing the rainbow in the clouds as a sign of God’s commitment to never destroy the earth by flood again.

We tend to think of the rainbow as a symbol of peace, but that is not quite right. In the language of the Torah, the rainbow is a sign only for God. For God, it is a sign of stepping back. It is a sign of God being resigned to the inherently selfish and violent qualities of humanity. The Torah does not say anything about what the rainbow is supposed to mean for us.

But implied by stepping back is that God is saying to us, “I cannot solve your problems for you. From now on it is your resonsibility. You may not allow the lawlessness that existed before the flood to persist.  You are created in My image, and that means you have an obligation to rise above your evil nature.”

From this perspective, to hold someone accountable for their evil actions is to treat them as a human being. When Hamas commits its atrocities, justice demands a response. 

When innocent civilians are taken hostage, every effort must be made to bring them home, and those who took them must be punished. Why? It is because every human is made in the image of God.

We know the problem. Hamas and its allies surround themselves with civilians. They hide in schools and mosques, and fire rockets from right next to hospitals.

This makes it impossible for Israel to target its enemies without harming civilians. I trust that the IDF, in its training, its policies, and in its wartime decision making, strives to abide by the ethics and laws of war. But war is messy, especially in the Middle East. I do not envy those who have to make the decisions.

While none of us can know what the future has in store, this war will likely go on for some time. It will be ugly. Many civilians will die, mostly Palestinians. The propaganda battle will be intense, and we can predict how it will play out. As time goes on, Israel will come under increasing pressure to agree to a cease-fire.

The reality is that from here in San Jose, there is a little that we can do to impact any of this, other than by sending money and continuing to reach out on the human level to friends and family in Israel and here at home.

For me personally, I worry about what this war will do to my ability to see the Divine in every human being.

When news of the Ahli Arab hospital explosion came out earlier this week, my first reaction was to feel ill, saying to myself something along the lines of “I hope it wasn’t an Israeli bomb.” 

When it appeared to have been caused by an errant Palestinian Islamic Jihad rocket, I felt relief and vindication… and also anger and frustration that for so many, the truth of which side’s explosives caused the damage does not matter.

What I did not feel and still do not feel so much of, is sadness for the deaths of people who were already injured and already seeking shelter from violence. For them, what difference does it make whose bomb caused the explosion? They are human beings, made in God’s image. We are supposed to fell a connection to that. In the midst of war, it is so easy for that fact to be smothered by our tribalism. 

This is what war does. It hardens our hearts, making it difficult to feel compassion, making it hard to see the Divine in my fellow human being who is on the other side of the battle line.

It should be possible for us to simultaneously hold on to our love and support for our Israeli brothers and sisters, to pray for the safe return of the hostages, and also feel empathy for Palestinian civilians.

We should be able to pray for the defeat of Hamas, while also mourning civilian deaths.

And I know that there are not a lot of voices within the Muslim world that are calling for that kind of nuance right now. I was there were.

Is that not the burden that God placed on the children of Noah after the flood? To treat all life as sacred, as well as to hold to account anyone who violates that sanctity.

We recite Psalm 29 twice on Shabbat, once during Kabbalat Shabbat, Friday night, right before Lekha Dodi, and then when we return the Torah to the ark. The final two verses may sound familiar. Especially the last verse, which is used as the last verse in Birkat Hamazon, the Grace After Meals.

יְ֭הֹוָה לַמַּבּ֣וּל יָשָׁ֑ב וַיֵּ֥שֶׁב יְ֝הֹוָ֗ה מֶ֣לֶךְ לְעוֹלָֽם׃ 

יְֽהֹוָ֗ה עֹ֭ז לְעַמּ֣וֹ יִתֵּ֑ן יְהֹוָ֓ה ׀ יְבָרֵ֖ךְ אֶת־עַמּ֣וֹ בַשָּׁלֽוֹם׃

The Lord sat enthroned at the flood, the Lord sits enthroned, King forever

May the Lord grant oz, might to His people, may the Lord bless His people with shalom.

Psalm 29:10-11

I never thought about it before, but this last verse might seem contradictory. Asking for might sounds pretty militaristic, the direct opposite of peace. But history has shown that in our imperfect world, strength is what often makes peace possible. This is a lesson that the State of Israel certainly knows well.

Does shalom in this context really mean “peace.” I cannot accept that when we say “peace,” we mean “the annihilation of Gaza.”

I suggest that shalom, paired with oz, might paired with shalom, means something like wholeness and balance. When we are blessed with might, we pray that we not lose ourselves, that we not fall from the divine image, nor lose the ability to see the divine image in others, including even our enemies.

If we can’t strive for that, what business do we have praying for shalom?

An Eye for an Eye and Our Shared Humanity – Mishpatim 5782

For the past few months, I have participated in an interfaith Bible study group, with several other Rabbis, Pastors, Priests and Teachers.

Our learning is based on a book called The Bible with and without Jesus, by Amy-Jill Levine and Marc Zvi Brettler. The basic premise is that both Judaism and Christianity rely upon the same sacred Hebrew Scriptures, but interpret and implement them very differently.

These differing interpretations have led to deep misunderstandings over the centuries and have served as the basis for many of the classic antisemitic tropes of the past millenia.

As luck would have it, it was my turn to co-facilitate our discussion this past week, with the chapter in the book that we discussed coming from this morning’s Torah portion.

Before I get to that, I’d like to share a conversation I had with my daughter Noa a few days ago.  We were discussing the term the “Judeo-Christian Tradition” and trying to understand what it actually meant. From her perspective, whenever she heard the term, it did not really reflect her own experience and understanding of Judaism; and I have to say that I agreed with her.

What does it mean? It implies that there is a core set of shared values introduced by Judaism and then extended by Christianity. These values serve as the foundation of Western ethics.

But I had no clue where the expression comes from.

Enter Rabbi Wikipedia.

The first ever reference appeared in an 1821 letter and referred to Jews who had converted to Christianity. An 1829 reference used it to descrive a Church that had deliberately embraced some Jewish rituals so that it would better appeal to Jews. That’s not very good for us.

The earliest reference in something like the way we understand it today seems to have been in 1939. George Orwell referred to “the Judaeo-Christian scheme of morals.” This followed a lot of work that had taken place in the 1930’s to emphasize common ground between Christians and Jews so as to combat antisemitism and anti-Catholicism in the United States. 

The term gradually morphed into political use during the Cold War to contrast the ethics-based system of Western democracies with Communism. 

In 1952, President Eisenhower, one month before his inauguration, became the first President to invoke the term when he said, extemporaneously,

[The Founding Fathers said] ‘we hold that all men are endowed by their Creator … ‘ In other words, our form of government has no sense unless it is founded in a deeply felt religious faith, and I don’t care what it is. With us of course it is the Judeo-Christian concept, but it must be a religion with all men created equal.

One of my problems with the term is that it tends to over-emphasize shared values without recognizing that, in fact, there are some pretty profound differences. For example, it might focus on shared central texts like the Ten Commandments without acknowledging how differently each of our traditions might consider them.

In our group, we are learning how our respective traditions understand the same texts through completely different lenses.  Often, the Christian interpretation and the Rabbinic interpretations of central passages in the Hebrew Bible are in direct contradiction of one another.

Learning together, and openly addressing some of the passages that have historically been kind of thorny, has been a great way to increase mutual understanding as well as learn more about our own tradition.

Now we turn to this week’s Torah portion.  Among the many laws presented in Parashat Mishpatim, we encounter this one. Don’t get distracted by the first part.

When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment to be based on reckoning. But if other damage ensues, the penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.

Exodus 21:22-26

This is a strange combination of legal principles. We start with a discussion of an accidentally, but violently, induced miscarriage. Then, we are suddenly talking about “life for life, eye for eye,” and so on.

There are two other occasions in the Torah in which the “eye for an eye” principle appears.  Once in Leviticus, and again in Deuteronomy. Both of them appear in different contexts. This leads us to assume that, when it came to personal injury cases, this was a governing legal principle in ancient Israel.

This legal principle is referred to in Latin as Lex Talionis, which means “law of retaliation.” talionis – retaliation

At first glance, to modern readers, this might seem bloodthirsty and vengeful. Indeed, it has been used as justification for antisemitism for millenia. Jews are overly focused on law rather than mercy. Think of the character of Shylock in the Merchant of Venice demanding his pound of flesh. 

But the truth is quite the opposite.

To gain some understanding of what this principle meant, we need to consider the society in which it came to be, and also consider how Jewish tradition has understood and applied it.

The oldest human record we have dates back to the 18th century BCE Babylonian Code of Hammurabi.  Hammurabi establishes an underlying principle of proportionality, the purpose of which was to ensure, first of all, that retaliation did not get out of hand, and secondly, that a higher class perpetrator did not get off scot-free. The innovation here is that the state took upon itself the authority to regulate and standardize payments for injuries.

In a world in which the blood feud is so tempting—think the Montagues vs. the Capulets—an “eye for an eye” limits retaliation to only an “eye for an eye.”

Here are a few examples from the Code of Hammurabi:

If an awilu, an upper-class free person should blind the eye of another awilu, they shall blind his eye.

If he should break the bone of another awilu, they shall break his bone.

If he should blind the eye of a commoner or break the bone of a commoner, he shall weigh an deliver one-half of his value (in silver).

The Torah takes this a step further.  It does not draw any distinction between the poor and the wealthy.  In Leviticus, it is clear that it applies to Israelite citizens and resident aliens alike. The law of proportionality applies equally to all. This is consistent with the Torah’s general concern with the dignity of the human being, made in God’s image.

Think of the numerous times in which the Torah forbids favoring one side over the other in a court case, or warnings against judges taking bribes, or having a single law that is administered fairly to everyone.

An eye for an eye was an incredibly egalitarian innovation—we could say improvement—over the Code of Hammurabi.

What we do not know is how an “eye for an eye” was actually practiced in ancient Israel. Was it taken literally, as in if I poked your eye out than you would poke my eye out; or was it figurative, as in if I poked your eye out, I had to pay you the value of your eye in compensation?

We just do not have any evidence, and the Bible does not include any examples of it being implemented in practice. For a religion that put such a high value on human dignity, emphasizing that every human being was created in God’s image, it does seem hard to believe that the legal system would intentionally cause the defacement of the human form.

The Rabbis of the Talmud, however, tell us exactly how they understand an “eye for an eye”: it means monetary payment. 

The Talmud goes to great lengths to demonstrate that the Torah itself, when it requires an eye for an eye, means the value of an eye rather than the actual eye itself.

It goes through many creative midrashic attempts to prove it, but then finds cause to reject each of them in turn.  In the end, there is no conclusive proof, but of course that does not prevent the Rabbis of the Talmud from interpreting it in this way.

In the course of their discussions, they raise numerous practical and ethical problems with a literal interpretation. For example, they imagine a case in which someone who is blind causes another person to become blind. Or someone missing a limb causes another person to lose a limb. How could we then fulfill the Torah’s literal principle of “an eye for an eye?”

Furthermore, what good does it do the injured party to have their attacker lose and eye or a limb?  It does not help the victim’s situation at all other than possibly satisfying some urge for vengeance.

The Mishnah establishes, again based on close, creative textual reading, that a person who injures another is liable for five categories of damages:

  1. the injury itself
  2. pain and suffering
  3. medical costs
  4. loss of income
  5. the indignity or embarrassment that the injury caused

Because the injury cannot be taken back, monetary compensation is the best that can be done. For better or for worse, it is how human beings assign value. 

Rather than being an overly legalistic, merciless application of justice, “an eye for an eye” was a major step forward, in practice, of upholding the equal dignity of every human being.

The Rabbis’ wisdom was in understanding that every person’s situation is different, and we must do the best we can to pursue justice at every opportunity, recognizing that we are imperfect, but faithful in the belief that, in the words of Dr. Martin Luther King, whose birthday we celebrated a couple of weeks ago, “the arc of the moral universe is long, but it bends towards justice.”

Being able to speak with each other honestly about where our differences in interpretation are might lead us to find, not necessarily common ground in how we understand these texts, but common ground in our shared humanity.

Casting Truth to the Earth – Bereshit 5782

At the end of day six of creation, all but one thing has come into existence by the word of God.  And so God declares: 

נַֽעֲשֶׂ֥ה אָדָ֛ם בְּצַלְמֵ֖נוּ כִּדְמוּתֵ֑נוּ

“Shall we make humanity according to our form and likeness?”

Who is this “we?” Does God have a design committee?  Perhaps it is the “royal we?” The text is silent. So the midrash tells a story to answer the question.

When it comes time for the Holy Blessed One to create humanity, the ministering angels break off into factions and groupings.  Some of them say yibarei! Let humanity be created!  While others declare Al yibarei!  Don’t let them be created!

A verse in Psalms alludes to this epic argument:

חֶסֶד וֶאֱמֶת נִפְגָּשׁוּ צֶדֶק וְשָׁלוֹם נָשָׁקוּ

“Kindness and truth met, justice and peace kissed.” (Psalm 85:11)

But this was no meeting of friends, no kiss of love.  It was combat – pure and simple, with the fate of humanity in the balance.

Chesed, kindness, stands up and proclaims “Let humanity be created, for they will perform countless acts of gemilut chasadim, of lovingkindness.”

Then Emet, Truth, rises to object, “Don’t do it!  They will all be liars!”

Tzedek, Righteousness, takes his turn and declares “Let them be created, for they will give untold sums of tzedakah!”

Finally, Shalom, peace, steps forward and laments, “Let them not be created, for they will be full of violence!”

The arguments fly back and forth between the angels.  “Let them be created!”  “Don’t let them be created!” Nobody can convince the other.

So what does the Holy Blessed One do? God grabs Emet, Truth, and casts her to the ground.

Stunned, the angels look up at God and ask, “How can you treat your seal in this way?” For Truth is the seal of God.  “Let Truth rise back up from the ground!”

And then the angels turn back to each other, and the arguing breaks out again, even louder and more heated than before.

While they are otherwise engaged, God quietly sneaks out the back and creates the first human. God returns to the angels, shows them the new creation, and says “Why are you guys still arguing. Behold: humanity.”

According to this midrash, we should not read it as Na’aseh Adam (נַֽעֲשֶׂ֥ה אָדָ֛ם) – “Shall we make humanity?” but rather Na’asah Adam נַֽעֲשָׂה אָדָ֛ם – Humanity has been made in our form and our likeness.  It is not a question that God asks the angels.  It is a report, after the fact. A fait accomplis.

I love this midrash on so many levels.  It expresses the moral complexity of being human. We can be wonderful to each other, left one another up with kindness and restore each other’s dignity.  But we fight and argue. We deceive one another and behave as if we are always in competition. This is our struggle, as individuals and as a species.

The midrash also depicts a fight, a stalemate – in which nobody can convince each other of their point of view.  When we cannot agree on the truth, it is impossible to see things from another point of view, to compromise, to find common ground. To break the tie sometimes requires letting go of our need to be right. So God casts truth to the earth. It can sprout again, but only if it is fed by righteousness and kindness.

Finally, the image of God sneaking out the back to go create humanity while the angels fight is just wonderful. How often does our need to win hold us back from ever moving forward in positive direction?

Cash Bail in Jewish Law – Shoftim 5778

Of the many problems that California is currently facing, bail reform is one that has recently been in the news.

That is because there is a bill, SB10, that has been going through the California State Assembly and is going to be up for a vote this week after numerous modifications over the past year.

The latest version represents a compromise that does not please everyone.  The law would eliminate the cash bail system.  Instead, each county’s court system would determine whether to incarcerate an accused criminal based on a pre-trial assessment of whether a person would be a risk to society or pose a flight risk.

If SB10 passes the Assembly, it will still need to clear the State Senate and then be signed by the Governor.

Let me state at the outset that I do not know whether this law will solve the problem.  But the problem certainly needs solving.

Even though all of us are experts on the judicial system due to our careful viewing of Law & Order, please allow me to review a few details.

Bail is the release from custody of an accused person before the trial.  

It originated in England in medieval times as a way to make sure that a suspect would show up in court.  It does not necessarily involve the payment of money.

Cash bail, which SB10 would eliminate, means that the court requires the accused to come up with a certain amount of money in order to be released.  If the money is not raised, then the accused remains incarcerated through the end of the trial.  If the money is raised, the accused is released on bail, with the money being returned after the trial is complete, minus fees. 

In the 8th Amendment, the Founding Fathers included the clause – “Excessive bail shall not be required.”  The Supreme Court has never determined what “Excessive” means.

Under current federal law, certain crimes are not subject to bail.  Suspects must be kept in jail before the trial.  This includes cases in which there might be a sentence of death or life in prison, certain drug offenses, and a few other categories.  A judge who determines that a suspect would pose a risk to his/her community or be a flight risk can also deny bail.

For all other crimes, there is a bail hearing.  Most states use the cash bail system.  Accused persons who are unable to afford the bail amount face a choice.  In states where it is legal, like California, they can go to a bail bond agency, which loans them the money in exchange for a payment, usually 10% of the total bail amount.  The bail bondsman then makes sure that the accused shows up in court.

A person who cannot afford the bail bond must remain in jail, even though bail has been granted.

There are a number of problems with the cash bail system.

Keep in mind, first of all, that under American law a suspect is innocent until proven guilty.  This means that when a person accused of a crime who is kept in jail, he is kept there as a legally innocent person.

The median bail amount in California is $50,000.  Only 1 in 10 can afford to pay it.  63% of those who are currently sitting in jail have not been convicted of anything.  They are waiting for trial or sentencing.  A person who is in jail awaiting trial is unable to work.  He (it is usually a he) typically loses his job, and possibly his home.  He is unable to support his family.  He has great difficulty meeting with his legal team and preparing his defense.

In contrast, a person who has the means to post bail can continue to work and has a much easier time of meeting with his lawyer and preparing his case.  The result is that for those convicted of the same crime, those who post bail, on average, receive a lesser sentence than those who have to remain in jail before the trial.

There is evidence, as well, that bail rates for black and Hispanic defendants are set higher than for white defendants who are charged with the same crime.

Finally, the prospect of spending a long time in jail awaiting trial encourages innocent people to plead guilty to crimes they did not commit.  This gets them out of jail, but it also gives them a criminal record, which can have a lifetime impact.

SB10 tries to address these issues.  As the bill itself states:

It is the intent of the Legislature in enacting this act to safely reduce the number of people detained pretrial, while addressing racial and economic disparities in the pretrial system, and to ensure that people are not held in pretrial detention simply because of their inability to afford money bail. (SB10, Sec. 2)

I do not know whether SB10 will achieve these goals.  I am trying to learn more about it, but am certainly no expert.  I encourage all of us to educate ourselves on this issue.

When trying to understand an issue of criminal reform, it can be helpful to look at other systems.  While not perfect, our Jewish legal tradition is rooted in principles of fairness and equity.  It turns out that Jewish law, or halakhah, has something to say about bail as well.

This morning’s Torah portion, Shoftim, is primarily about the justice system.  Moses instructs the Israelites, collectively, to establish and maintain just institutions of government.  In the second verse.  Regarding judges, he declares:

Lo tateh mishpat, lo takir panim, lo tikach shochad ki hashochad ye’aver einei chakhamim visalef divrei tzadikim.

You shall not skew judgment.  You shall recognize no face and no bribe shall you take, for a bribe blinds the eyes of the wise and perverts the words of the innocent.  (Deut. 16:19)

These are the three principles of judicial fairness.  They appear numerous times in the Torah.  Usually, the Torah addresses them to judges specifically.  Here, Moses delivers these requirements to the Israelites collectively, as if to say that we all bear responsibility for the behavior of soceity’s officials.  We must make sure that those whom we appoint as justices and magistrates abide by principles of equality and fairness.

These three concepts present three aspects of judicial fairness.

Jewish law recognizes that judges are human beings.  A judge may not do anything in the court that would show favor to a wealthy person or an acquaintance.  Not only is a judge not allowed to take a bribe, for obvious reasons, a court is not allowed to charge fees to the plaintiffs in a case.  Mishnah Bechorot (4:6) states that “anyone who charges a fee to the litigants to judge – his judgment is nullified.”

The judge cannot allow anything to occur in the courtroom that might prevent a plaintiff from presenting the best possible case.

The judicial system the Torah describes is fairly uncomplicated.  In a real legal system, however, there are a lot more moving parts.  It is not difficult to imagine a flawed court that is comprised of well-intentioned, knowledgeable professionals of high moral character.

Regarding bail, the Talmud (BT Sanhedrin 78b) deals explicitly with the question of what to do with a suspect before the trial is held.  If it is a capital crime – in other words if the accused has been charged with murder – he must be jailed by the court until guilt or innocence can be determined.  In such a case, no bail is permitted.  If the accused has severely injured a person, and it is not clear if the victim will survive, he is also held in jail.  The reason is because the court does not yet know if he will need to be tried for murder or for injury.  Rashi explains that the accused is imprisoned out of a concern for flight-risk.  If the suspect injures another, but the injuries are not considered to be life-threatening, then he is released until the trial.  

The Mekhilta (Mishpatim, Ex. 21:19, 2), an early legal midrash collection on the book of Exodus, addresses the question of cash bail directly.  In the situation described in the Talmud, the accused is not permitted to post bail and go free.  He must remain incarcerated until the victim’s fate resolves.  

An entry under “Bail” in the 1906 Jewish Encyclopedia concludes as follows:

…as a rich man can readily give Bail and the poor man can not, the release of the prisoner on Bail would run counter to that other oft-repeated rule of the Torah, ‘One law there shall be to you.'”

Over the centuries, Jewish law has not traditionally employed incarceration as a punishment in the legal system.  It was basically used just for holding an accused murderer before trial out of concern for public safety and potential flight.

There are essentially three types of punishments that a Jewish court can administer.  For capital crimes, the punishment is death.  For sins, the court can administer lashes.  For civil and personal injury cases, there are fines.

One form of imprisonment that is mentioned in ancient sources is called the kippah.  It was a small cell in which a person would be imprisoned and fed meager rations until he died.  This could be used in a case in which a murderer was found guilty, but could not be sentenced to death because of a technicality.  There is no evidence that the kippah was ever actually used, though.

Dina d’malkhuta dina is an ancient concept that is applied in particular to monetary laws.  “The law of the land is the law.”  In order to participate in the economies of the societies in which they live, Jews need to adopt those society’s laws, including when they do not conform to Jewish law.

For most of the past two thousand years, Rabbis did not have the authority to issue legal rulings except in cases that were internal to the Jewish community.  Many of the discussions on criminal and civil law, therefore, are theoretical.  But there is a historical record of a cash bail system being utilized by a Jewish court.

Rabbi Yitzchak ben Sheshet Perfet, known by his acronym as the Rivash, was a 14th century Spanish Rabbi.  He wrote a teshuvah, a legal decision, that deals with a question of whether a debtor who could not pay off his debts could be incarcerated.  He rules that this would be forbidden under Jewish law.  But then he laments:

The truth is, in my own city, the judges’ custom is to imprison a person who is liable in this manner, according to an act of the community.  And they further enacted that even without being found guilty, any person can be held over a lawsuit, unless they pay collateral, and they call this a ruling of the court.  I did not want to allow this act to stand, because it is not in accordance with our Torah’s law.  And they said to me: this is in accordance with the “marketplace act” [a principle allowing new rules that make commerce smoother], because of swindlers, and so as not to bar the door in the face of borrowers. And I allowed their custom to stand. (Teshuvot HaRivash 484) 

In other words, in the Rivash’s day, Rabbinic courts were sending Jews to debtors prison and allowing them to post bail.  This was apparently the dominant practice in the area, and was deemed necessary by the leaders of the Jewish community to preserve the integrity of the marketplace.  Knowing that it was against the Torah, the Rivash reluctantly allowed it to stand.

The existence of the modern State of Israel has made the question of how to punish criminals in a Jewish legal system practical.  

Rabbi Haim David HaLevy, the former Chief Rabbi of Tel Aviv, who died in 1988, wrote a Tehuvah in which he stated categorically that a person who is being charged for a capital crime should be incarcerated without bail under any circumstance.  Citing the Rivash, he concludes that “that for all other crimes, for which the punishment is monetary, we let them go [on bail] until the determination of the sentence.”  (Aseh L’kha Rav 3:48)

Like any legal system, Jewish law is not perfect.  Nevertheless, for more than three thousand years, it has strived to conform to principles of justice and equity that are rooted in the Torah itself.  As such, it has something to teach us today.

I would never suggest that state or federal law must conform to Jewish law.  We Jews should be nervous whenever a religious group tries to impose its beliefs on secular law.

But our ancient tradition has much to teach us concerning the establishment of societies and institutions that are guided by justice and equality.  We would be wise to improve our understanding of Jewish law as we try to determine the best way forward for our community, our state, and our nation.

 

BIBLIOGRAPHY

Incarceration in Jewish Law: A Brief Overview

10 things you need to know about money bail

The Shemitah Ideal: Forego Profit and Renounce Ownership – Parashat Behar 5776

Parashat Behar presents the laws of shemitah, the sabbatical year.  The Israelites are allowed to plant and sow, prune and gather for six years.  Then, on the seventh year, the land is to be given a sabbath of complete rest.  No cultivation can take place, but people are allowed to consume whatever happens to grow on its own.  The Torah explains that when the laws of shemitah are followed, the sixth year will produce such abundant crops that there will be plenty of food to go around for the next two years.

Another aspect of shemitah required indentured servants to be set free during the seventh year.  There were elements of the shemitah system in effect during years one through six as well.  Landowners had to give ma’aser oni, 10% of their crops to the poor every 3rd and 6th year.  They had to allow the poor to come on to their fields to harvest the corners and gleanings every year.

Maimonides identifies two separate mitzvot, commandments, pertaining to shemitah (Hilchot Shemitah v’Yovel 1:1, 4:24).  1.  It is a positive commandment to suspend work on the land and cultivation of trees.  2.  It is a positive commandment to release all agricultural produce.  In other words, farmers are not allowed to put up barriers around their fields, vineyards, and orchards.  Their property must be open to the public.  Furthermore, Maimonides adds, farmers are not allowed to gather in excess produce into their homes.  Small quantities can be brought in.  But for the most part, everyone is supposed to have equal access to the produce that happens to grow during the shemitah year.

In his Guide for the Perplexed, Maimonides suggests two reasons for the shemitah requirements.  The first is that these laws promote sympathy for our fellow human beings.  The second is that by letting the land lie fallow on the seventh year, it will result in greater overall production.

Regarding the second reason, Maimonides is wrong.  Farmers have practiced crop rotation since ancient times.  Without going into specifics, simply letting land remain uncultivated once every seven years is not crop rotation.  Many other commentators specifically repudiate Maimonides for suggesting this.

Most agree with Maimonides, however, regarding his first explanation.  Sixteenth century Italian Rabbi Abraham Porto writes, for example:

This law was given in order that we may show sympathy for our fellow men who have neither land nor vineyards, and that they may be happy in the Shemitah year, as the rich are happy every year.  (Minchah Belulah)

Another commentator explains that

the suspension of work in every seventh year causes us to realize that our mission on earth is not to be slaves to the soil but a much higher and nobler one.  Work should only serve the purpose of providing food and other needs, while our task is to attain to the supreme end…  (Akedat Yitzchak)

Think about what it would be like to be an Israelite landowner in a society that observes Shemitah.  I have to stop all work on the land.  I cannot even allow my non-Israelite workers to do anything.  I have to take down any fences or barriers around my fields.  As for produce that happens to grow naturally, I am not allowed to harvest it.  Instead, it remains in the ground, on the tree, or on the vine.

When I need food, I can go out to my field.  But I will be joining everyone else from my community when I do so.  The poor, the strangers, the property-less Levites.  All of us have equal access to the lands that I once thought of us as mine.

For one year, all social and economic differences are set aside.  The wealthy stand side by side with their servants, the poor, and the strangers among them.  Just think about the impact on social interactions if our society followed an institution like shemitah – to forego profit and renounce ownership.

Perhaps this is a utopian socialist ideal – but remember that it is only once every seven years.  The Torah recognizes the inherent competitive nature of humanity.  Rather than try to suppress it, it asks us instead to harness it.

We desperately need this ethic here in California, where we are living the opposite of the shemitah ideal.

There is an unprecedented housing crisis in our state.  The cause of this housing crisis is not a secret: income inequality.

This week, the Mercury News reported the following statistics:  Home ownership rates statewide are at the lowest level since the 1940’s.  The median price of a home in Santa Clara County is $1,070,000.  To qualify for a mortgage for such a home, a homebuyer would need an annual income of $219,870.  Assuming the homebuyer made a down payment of 20%, the resulting payment on a 30-year fixed rate loan would be $5,500 per month.

So many people struggle to meet even their basic housing needs; the idea of taking off a year to pursue more spiritual matters is a pipe dream.

Our society is structured in such a way that people of different economic levels are separated from one another.  There is not a whole lot of social interaction taking place between blue collar and white collar workers.

These kinds of inequalities are precisely what Shemitah addresses.  The walls between us, quite literally, come down.  The pursuit of wealth is put on hold.  Rich and poor, executives and janitors, stand shoulder to shoulder as they pick food for themselves and their families.  And everyone uses their time to pursue spiritual matters: the study of Torah, the development of relationships, the cultivation of compassion.

Rav Kook, the early religious Zionist in the early twentieth century, wrote a book about shemitah called Shabbat HaAretz. – the Sabbath of the Land.  You can hear the idealism in his beautiful words as he imagines Jews living in harmony in with each other and the land.

It is a year of equality and rest, in which the soul reaches out towards divine justice, towards God Who sustains the living creatures with loving kindness.  There is no private property and no punctilious privilege but the peace of God reigns over all in which there is the breath of life…  Sanctity is not profaned by the exercise of private acquisitiveness over all this year’s produce, and the covetousness of wealth stirred up by commerce is forgotten.

Bibliography

Nehama Leibowitz, New Studies in Vayikra, pp. 509-522