GOOD MORNING! One of the more polarizing topics in the United States of the 21st century surrounds the question of whether or not racism is systemic and “institutionalized.” This is a serious issue because systemic racism can lead to such issues as discrimination in criminal justice, employment, housing, health care, political power, education, etc.

This has resulted in a fierce debate over Critical Race Theory (CRT). Critical race theorists hold that the legal system and other institutions in the United States are inherently racist insofar as they function to create and maintain social, economic, and political inequalities between whites and nonwhites, especially African Americans.

This topic has exploded onto the educational landscape over the last few months as school boards discuss its merits while numerous state legislatures debate bills seeking to ban its use in public schools. Is CRT a legitimate way of understanding how racism has shaped the various American legal, educational, and economic institutions, or is it a divisive conversation that pits people of color against white people? Unsurprisingly, liberals and conservatives are in sharp disagreement.

Like many arguments there is an element of truth to both sides – truths that are conveniently ignored by the other side. Liberals conveniently ignore or reframe statistics (e.g. most of the murders in the country are committed by 13% of the population and their victims are overwhelmingly other minorities). Conservatives “forget” that for many decades all-white juries in the south almost never convicted a white person accused of attacking a black person, which of course led to a deep distrust of the American legal system.

Personally, I find CRT distasteful – and I certainly do not want to believe that racism is systemic in our various American institutions. But this is merely an opinion and it obviously colors how I see the facts.

Unfortunately, this type of prejudice is also the basis for much of the American legal system; judges and juries often decide law based on their preconceptions. When George Zimmerman was being tried (for the death of Trayvon Martin) his attorney began jury selection with the following joke: “Knock, knock. Who’s there? Zimmerman. Zimmerman who? Okay, you’re good for the jury.”

In common law (which is what the American legal system is based on), there is no absolute right and wrong; rather current opinions and values shape the law. For example, fifty years ago abortion was akin to murder while today it is mostly considered a fundamental right. Will a conservative Supreme Court overturn Roe vs. Wade in the future? Who knows?

(Roe vs. Wade also stunningly highlights how judges sometimes vote against what they believe the law should be. Chief Justice Warren Burger was a conservative who later voted to restrict abortions – and yet he voted with the Roe vs. Wade 7-2 majority in favor of abortion rights. Most scholars explain Burger’s vote as a simple strategic move; as long as he voted with the majority, Burger, as Chief Justice, could control who wrote the majority opinion in Roe, and thus partially control what that opinion said.)

Bottom line: The American legal system of common law is both fluid and based on the lowest common denominator. In other words, what can most of us agree upon?

By comparison, the Jewish legal system is much more rooted in concrete and unchanging fundamentals. This is because it is based on the Torah, which was given to us by the ultimate judge of right and wrong: The Almighty. However, there is also another unique element that makes the Jewish legal system far superior to any other.

In ancient Israel there was a sophisticated network of courts. The Jewish version of the Supreme Court (called the Beit Din Hagadol, “Great House of Law”) was comprised of 71 sages who would convene on the Temple Mount in Jerusalem. This court system dated back to the times of Moses, who appointed 70 sages to join him in guiding the nation – thus creating the original court of 71. This court had the final say on all legal matters.

There were several courts of 23 judges, which would meet in Israel’s larger cities. Like the great court, these courts were authorized to adjudicate monetary rulings, as well as corporal and capital punishments.

In small communities (comprising less than 120 adult males) there were courts of just three (or more, provided that the number remained odd), which were basically only authorized to adjudicate monetary disputes. Here is how Maimonides, the great codifier of Jewish law, described the court system (Mamrim 1:4):

“As long as there was the High Court in Jerusalem there was never a conflict among the Jewish people (as to what the law was). If someone needed to know a law he would ask his local court, if they knew the answer they gave it to him. If they did not, then both the inquirer and the judges would travel to Jerusalem to ask the (lower) court that was located on the Temple Mount [...]

If they didn't know then all the judges went to the higher court that was at the entrance to the courtyard and asked the question [...] If they didn't know then everyone went to the Beis Din Hagadol (the High Court of 71 sages) in the Lishkas Hagazis (Hewn Chamber – a room adjacent to the Temple).”

The High Court was the court of final appeal and they would determine the final law to resolve the original question. From here we see a remarkable aspect of the Jewish legal system; when there is an unresolved question every single court must accompany the original inquirer on this process until his question is answered.

Thus, we discover a critical element of Jewish law. In the Jewish legal system judges don’t merely adjudicate; they have a responsibility for the law. In other words, if they don’t know what the law is they don’t simply make it up based on their personal sentiments or the public opinion at the time. They also don’t shrug their shoulders and tell the applicants to go to a higher court.

Rather, they now have an issue that they themselves must resolve so they have to accompany the original inquirers to succeeding higher courts until the matter is concluded. Interestingly enough, this process made it possible to have well over a hundred people present while the question was being presented to the High Court, with all of the parties having an interest in the final ruling.

Several commentaries have wondered from where Maimonides sourced this law. It seems very likely that Maimonides sourced this law from this week’s Torah reading.

“The daughters of Tzelofchad came [...] and stood before Moses and Elazar the Cohen and in front of the leaders and the entire congregation” (27:1-2).

This week’s Torah reading relates the quandary of the daughters of Tzelofchad who wished to receive their father’s portion in the Land of Israel even though he died prior to the division of the land and had no male heirs to inherit. They argued that it wasn't fair that his portion should be taken away from his family just because he had no male heirs.

According to Rashi (ad loc), Moses forgot what the law was in such a case and therefore presented the question to the Almighty. Ultimately, God sided with the daughters of Tzelofchad and they were awarded their father’s share in Israel.

Clearly, Maimonides found a source in this story. The Torah makes a seemingly random observation; the daughters “stood before Moses and Elazar the Cohen and in front of the leaders and the entire congregation.” The Torah isn't in the habit of repeating irrelevant facts. Therefore, it must be that their presence had something to do with the original question. In fact, Rashi points out that this is very strange; if Moses didn't know then Elazar definitely wouldn't know either – so why was he there?

In most societies, the court system is intended to adjudicate and apply the laws that have been enacted by a separate legislature. There is no actual responsibility for the law – just its application. It is very different in the Jewish legal system. Every court has a responsibility for the law, therefore a lack of knowledge of the law is a problem for the court itself. Thus, the court itself now becomes a principal in the quest for a resolution as to what the law is. It is for this reason that every court must join the process of coming to a resolution.

This is how Maimonides knows that, after a question is presented through the normal chain of law, every person in that chain has a responsibility to see it through to the end. The daughters of Tzelofchad began with their local court and proceeded to each higher court until they reached Moses’ court. No one knew the answer. That is why all those individuals are mentioned as being present when the daughters of Tzelofchad finally presented question to Moses for a resolution.

Torah Portion of the Week

Pinchas, Numbers 25:10 - 30:1

This week's Torah portion, Pinchas acted to stop a public display of immorality. He thus stemmed the plague of retribution that was killing the multitudes. He is rewarded by being made a Cohen – by Divine decree.

The Almighty commands Moses to attack the Midianites in retribution for the licentious plot the Midianites perpetrated upon the Israelites. A new census is taken of the Jewish people revealing that there are 601,730 men available for army duty. God directs the division of the Land of Israel amongst the tribes. The Levites are tallied. The daughters of Tzelafchad come forward to petition Moses regarding their right of inheritance. Moses inquires of the Almighty, Who answers in their favor.

Moses asks the Almighty to appoint a successor and the Almighty directs Moses to designate Joshua (Yehoshua). The Torah portion concludes with the various offerings – daily, Shabbat, Rosh Chodesh, and holidays.

Candle Lighting Times

Wisdom is knowing what you don’t know
— Socrates


Dedicated with Deep Appreciation to

David and Mayra Lichter

 

In loving memory of
Rabbi Kalman Packouz
Kalman Moshe ben Reuven Avigdor
1950-2019

Shabbat Shalom,

Rabbi Yitzchak Zweig

Copyright © 2021 Rabbi Yitzchak Zweig