Thursday, July 10, 2014

Law and Flexibility: A Drash for Parashat Pinchas, Friday, 11 July 2014

I’ve been learning a lot about Australian law lately – perhaps more than I ever wanted to know!  It’s not radically different from American Law in most states of the US.  After all, it shares the roots of English Common Law.  As such, it is based partly on statute and partly on precedent as to the interpretation of the statute.  And perhaps, partly on one’s ability to make a compelling argument for a judgment outside the precedent.  But on the surface it seems fixed, rigid.  And government functionaries are always reluctant to go outside established precedent in discharging their duties.   After all, they’re not paid to be creative, right?  Please don’t hear in this a criticism of government functionaries in general.  Since I once was one once, I still have a soft spot in my heart for those who toil day in and day out to make the government work.  But the way that government departments work, does not foster creativity in interpreting the law.
          Jewish law, Halachah, is also flexible.  Those who have not studied it, seldom think that.  After all, Halachah is all about telling you exactly what you’re not supposed to do, right?  Actually, of the 613 Commandments that the Rabbis identified, ‘only’ 365 are negative – one for each day of the civil year.  248 are positive commandments – thou shalt’s.  That’s one for every major component of the human body, according to the prevailing medical view at the time of Maimonides.  But in any case, we do tend to see Jewish religious law as being rigid.  After all, prawns are forbidden and there’s just no wiggle room, right?  (Actually, there is; if you are in danger of fainting from hunger and prawns are all that there is to eat, you can eat as many prawns as you like.  But I’m guessing you’d prefer a little more ‘wiggle room’ than that!)
          Okay, I know you think I’m kidding around…because I am!  But I’m going to make my case with an area of law that is extremely important, that being inheritance law.  This is near and dear to many of us.  I have seen fights over inheritances literally tear families asunder.  Few areas of family life are so strife-ridden as the question of what we will pass on when we die, and to whom.  Almost everybody I know has a story about a family rift that never healed, caused by greed over an inheritance.  Many of you have a funny – or perhaps not so funny – story about heirs dividing up a relative’s estate amongst themselves long before that relative was dead or even in a moribund state!
          And in the Torah, we see the laws and customs concerning inheritances being repeatedly overridden.  For example, way back in the book of Genesis.  As you remember, Isaac and Rebecca had twin sons:  Esau and Jacob.  Esau was the firstborn, and as such he was entitled to the special inheritance rights of the firstborn.  Not to mention, a special blessing.  We saw how Jacob, with the urging and assistance of his mother, tricked Isaac into giving that blessing to him.  Whether you are a firstborn or not, you probably heard a voice inside you crying, Not Fair!  When you first read the 27th chapter of Genesis, you may have wondered why Jacob became the heir to the promise of Abraham.
          But he did.  And the reason he did, was that he was judged the heir who would  successfully carry out, through his own actions and those of his progeny, the Berit of Abraham.  So it’s not that the deception and shenanigans didn’t matter.  There were serious consequences arising from that.  As there are from all our own actions.  But at the end of the day, the Divine Will stood with Jacob’s inheriting his grandfather’s promise.  For all his flaws, he was the Man of the Hour.  Although it flaunted accepted law, the inheritance went to him, and Isaac his father understood that it had to.
          And now, generations later, another example of how the law of inheritance does not serve valid interests, has come up.  The five daughters of Tzelaf’chad, a man who has passed away, have petitioned for their father’s inheritance.  Their father had no sons.  Therefore, accepted custom was for the man’s estate to pass to his brothers.  But the daughters argue that that would result in their father’s name being blotted out.  And his daughters argue that there is no reason for this, since their father was not part of Korach’s rebellion.  (The presumption being that their father passed away at about the same time.)
          The very fact that Moses himself was hearing this case, speaks volumes.  Earlier, in the eighteenth chapter of Exodus, we saw Moses set up a hierarchy of courts.  This on the advice of Jethro, his father-in-law, who saw Moses wearing himself out trying to solve every little issue by himself.  So now, the fact that this has been brought to Moses’ attention and in the sight of all the assembly, tells us that the problem, whilst seemingly intractable, is being taken most seriously.  And then, even Moses cannot solve it himself; he consults G-d!
          And the solution?  The daughters get the inheritance.  And not only that, but the fact that a daughter should get her dead father’s inheritance before her uncles, is now written into the law code for all time.  Of course, some will see this as an insufficient change, since the daughters are still behind any sons in order of precedence.  So we’re not talking egalitarianism here.  But we are talking about a major change in the law, to address a situation that probably had not been thought of before.

          And my point?  Only one that I’ve made many times before.  We can see our Tradition, and the law-code that it spawned, as dated and onerous.  But if we realize that it is not so inflexible as it seems on the surface, then perhaps it is neither:  not dated, but dynamic; not inflexible but able to change to meet new contingencies.  Yes, there’s nowadays a tendency in the Traditional Jewish world, to be ever more machmir, more stringent, in interpreting Halachah.  And perhaps some of that tendency is understandable, given that religious tradition is so much under siege by contemporary sensibilities.  But if we look at the history of the Halachic process, even as reflected in the earliest of the Jewish sources, the Written Torah, we can see an essential flexibility.  Before we throw it out as irrelevant or ‘onerous,’ let’s learn more about how flexible it has been in the past, and perhaps try to reclaim it with that flexibility intact.  Shabbat shalom.  

No comments:

Post a Comment