Defending the human spirit: Jewish law’s vision for a moral society
by Rabbi Dr Warren Goldstein
(Feldheim Publishers)
Judaism is a way of life determined in every detail by a complex and sophisticated legal system based on holy scripture. Rabbi Dr Warren Goldstein (below), the Chief Rabbi of South Africa, explores in this, his second book, the building of a just society based on moral values as articulated in Jewish law.
An expert in Jewish and secular law, the book having arisen out of his doctoral thesis, Goldstein analyses Jewish law against actual international court cases, emphasising its “vulnerability principle”, namely its concern for the welfare and dignity of the weak in the face of temporal power and its abuses.
Focusing on four areas of Jewish law — how it deals with political power, the oppression of women, criminal justice and poverty — Goldstein argues that Jewish law, though ancient, is far more in line with democratic human rights principles than Western law, modern constitutional human rights being moral principles in a legal format.
The difference between Jewish and Western law is that the former is divinely commanded. As the giver of those laws is just and merciful, the Jew is meant to emulate these qualities in his/her dealings with the world. Aiming at the “ought” rather than the “is”, Jewish law seeks to create a society based on righteous laws in which all can reach their full potential.
Judaism’s pivotal revelation is the Exodus from Egypt, when God redeemed an unworthy band of slaves from bondage, formed them into a people and led them to their promised land. Their obligation to him was spelled out in a covenant, the Torah, whose laws govern their lives and through whose fulfilment they strive to hallow the everyday act.
Given the Jews’ humble origins, the vulnerability principle is fundamental: “The stranger who sojourns among you shall be as a home born among you, and you shall love him as yourself, for you were strangers in the land of Egypt” (Leviticus 19:34). It acquires particular poignancy in view of the Jews’ historic experience of powerlessness and marginality, as it was so often they who were shunted to the sidelines of history.
Although Jews had not, for almost two millennia, exercised political power, their laws on kingship are important, says Goldstein, because, stressing the importance of an independent judiciary, they limit human power, even kings being held to divine account. This irenic treatment of Jewish political law, however, sits uneasily with current realities in the Middle East.
Movingly discussing laws regarding the sexual oppression of women, Goldstein underscores the moral breakdown implicit in South Africa’s rape statistics. Using court cases in the United States and England, he shows that Western law, until about a century ago, sanctioned marital rape, a wife’s initial consent to sexual intercourse through marriage binding her to it under every circumstance, irrespective of her health or feelings.
Jewish law disallows making women into sex objects by forbidding male sexual dominance. Regarding physical pleasure as potentially holy, it encourages sexual interaction in marriage, having always viewed marital rape as illegal and immoral. Legally bound to sexually satisfy his wife, a Jewish husband must attain her consent on every occasion, displaying sensitivity to her sexual desires.
There is an inherent flexibility in Jewish criminal law, says Goldstein, that would permit resort to the death penalty for a limited period under certain exigencies. Because South African society is today the vulnerable party and needs protection, he takes issue with the Constitutional Court’s interpretation of specific cases, claiming that it gives privilege to individual over societal rights.
In confronting poverty, Western law has treated beggars and vagrants punitively, tending to emphasise either direct welfare or financial self-reliance, says Goldstein. Jewish law encourages charity, holding in tension the ideal of financial independence and a person’s unconditional entitlement to welfare funds, its highest form of charity being to give enough to make the indigent financially self-sufficient.
There are at least two ways of approaching the study of religion germane to reviewing this book. One is the “devotional” approach, characterised by intensive study of holy scripture as a guide for life, orthodox Judaism’s object of study being the Torah and its oral interpretations, which are accepted with wholehearted reverence as God’s word — immutable and unaffected by time or space.
The other is the historical approach, one characterised by a critical study of Judaism’s scriptures, history and institutions. Having grown out of the European Enlightenment, it accentuates development, regarding growth and change as universal concomitants of all human institutions.
Unsurprisingly, Goldstein’s book is an example of the former. Dating rabbinic Judaism’s origins to Sinai, Goldstein does not, as a historian would, see it as becoming normative only after the fall of the second temple in 70 CE, supplying both meaning for the disaster and a programme for life to ensure Judaism’s survival in dispersion.
Thus, when analysing Western law’s attitude to women, for example, Goldstein indicts patriarchy, but seems oblivious to Judaism’s own patriarchal worldview, one that, alas, has provoked anti-Semitism among some feminists, who see patriarchy as a specifically “Jewish” contribution.
Rabbinic law’s immutability appears to obscure from consideration the fact that, although orthodox Jewish law is deeply sensitive to women’s sexual needs, its divorce laws entirely favour men, who can withhold from women the freedom to remarry, a situation that has, in South Africa, been solved by civil law.
The book’s strength derives from Goldstein’s intimate familiarity with legal systems and his moral passion in assessing them. Though somewhat repetitive, it gives fine insight into the humane nature of Jewish law and how it operates.