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.
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