Law and Flexibility: A Reflection for Parashat Pinchas, 10 July 2015

Adages, Adages!  All of us know some of them.  Here’s one, pertaining specifically to the law, but which many of us not in the legal profession have heard.  Hard cases make bad law.  This was attributed to Robert Rolf, the First Baron Cranworth, in 1842.  Rolf was a jurist from County Suffolk (where Clara and I lived for two years).  He used the expression in writing his opinion in the case Winterbottom v Wright.  It reflects the way that English Law works.  Law is decided by sitting judges, applying precedent to the case before them.  When the judges decide a particular case, they are said to be ‘making law.’  That is, their decision is added to the body of existing precedent which, in turn, will decide future cases.  That’s why it’s called, Case Law.  The point Cranworth was making, was that particularly hard cases, cases dealing with circumstances out of the ordinary, make law that is difficult to apply generally.

          John Chipman Gray, an American jurist writing an article titled Nature and Sources of the Law in 1908, offered what seemed to be the converse of the above.  He wrote:  Bad law makes hard cases.  Some would think he’s offering the opposite view

of Cranworth.  Or perhaps, he was suggesting a cyclical process leading to Bad Law and then, Hard Cases, which in turn produce more Bad Law.  It’s a compelling, yet utterly pessimistic view.

But the American law professor Arthur Linton Corbin, in 1923, disagreed with the original premise.  He wrote:  Hard Cases Make Good Law.  So Corbin is suggesting a decidedly optimistic result.  Ultimately Good Law will result as hard cases lead to new directions in law, created to address their circumstances.

We actually see an example of the latter in this week’s Torah reading, from the weekly portion Pinchas.  Some distance into the parashah, as the 27^th chapter of Leviticus opens, we read the narrative of the daughters of Zelophehad.  The man Zelophehad, of the half-tribe of Menasseh of the tribe of Joseph, had considerable wealth when he died.  He also had five daughters and no sons.  According to the then-accepted law, since the man had no sons his wealth would be inherited by his brothers.  The law gave his daughters no rights of inheritance.

The daughters petitioned Moses for an exception.  They were, after all, the valid offspring of their father.  They argued before Moses:  “Why should our father’s name be omitted from among his family because he had no son?”  In other words, if their father’s estate passes to his brothers and is therefore comingled with their own holdings, it will in effect wipe out their father’s memory from the tribe.

Moses consults G-d, who instructs him that the Law is henceforth changed.  A man’s sons have first right of inheritance.  If there are no sons but are daughters, then they get the estate.  If there are no children at all, then the man’s brothers get the inheritance.  A hard case, a set of circumstances not anticipated in the original law, causes a change in the law.

         Okay, I can hear you thinking.  Some of you.  What about wives?  And why do sons have precedence over daughters?  And if the inheritance goes to the brothers, what about the sisters?  If we’re correcting law for real-life circumstances, why are women still given an inferior position?  And if that’s what you’re thinking – you know who you are! – then why would this minor change, which preserves male privilege, be such a big deal?  And you’re right.  But…in Judaism as in ‘real life,’ the best, most enduring change is evolutionary.

          The basis of the ‘writing out’ of women from the inheritance laws, reflects the patriarchal nature of ancient Near Eastern Society.  There was an assumption that both men and women would marry.  The women would, in so doing, leave their ‘father’s house’ and join with that of their husband…and his extended, patriarchal family.  The ketubah, the marriage contract, sets out the terms of the marriage and its possible dissolution.  It names a price that the husband will pay the wife if the marriage does not survive.  If the woman is widowed and her husband’s wealth passes to her sons, then it is assumed that they will in turn care for her.  That’s why the Torah states multiple times the ethical principal that one must have compassion for the widow.

          The Torah thus takes an existing social order and assumes that it will hold over time.  And then an extraordinary situation like that of the daughters of Zelophehad comes along, and Moses prayerfully changes the law.  And then, over the centuries, additional changes are made to account for an unfolding array of possibilities, not anticipated originally, which cause the pos’kim, the decisors of later generations, to think out-of-the-box.  By and large, over time, it has worked.  Jewish Law no longer writes widows out, on the assumption that their sons will take care of them.

          Unfortunately, today there is an ever-deepening conservatism in Jewish law that is not open to judicious change.  Those for whom adherence to the normative law is important, tend to be ever more stringent.  The American author Blu Greenberg calls it the Chumrah of the Week Mentality.  A chumrah is a halachic stringency.  Her point is that traditional Jews today, tend to gleefully find and take on ever more stringent practices as a way of expressing their devotion.  Trying to put myself in the place of the traditionalist, I think I can understand the phenomenon.  In our world, it seems that every day some established principle is challenged or overturned.  It’s enough to leave even the heads of those of us who aren’t arch-traditionalists, spinning!  I think that all of us, in differing degrees, need the security that comes from constancy.  Oh yes, there are a few ‘true’ revolutionaries amongst us.  But most of us need as sense of security amidst change.

          So I understand the conservatism in traditional Judaism that is, it seems, ever-increasing.  At the same time, I regret it.  It is a departure from the halachah’s traditional role of serving as the interface between the Divine Will and the realities of everyday life.  As long as the traditional Orthodox establishment cannot provide remedies for real-life issues, Judaism will look ever more irrelevant to the lives of Jews.  For example, for the agunah or abandoned woman whose husband refuses to provide a gett.  And they will continue to absent themselves from the Jewish community, in ever-increasing proportions.  And that would be a tragedy.  As we all know, religion in any form is a tough sell in our world today.  If religion appears to be ossified so that it cannot respond to people’s reality, then even more so.  But you know what?  It’s Shabbat, so it’s forbidden to shrey gevalt…

          If the ossification of Jewish law is an impediment to creating a positive Judaism for today’s Jews to grab on to, Shabbat in all its joy is an enduring attraction.  Let us keep this in mind as we work to set aside our everyday cares and create, for one day, a more perfect life than can serve as a harbinger of the World-to-Come.  Let’s let Shabbat be a source of joy.  And let’s communicate that joy to those around us, be they Jewish or just curious about Judaism.  Judaism has its challenges in today’s world.  But if you believe that it has a positive message to enrich the lives of people today, then work with me to make that message clear.  Amen, and Shabbat shalom.