This was my D’var Torah on Parashat Emor in 2022/5782.
Our parasha describes the case of a fight between two men, and for some reason it’s worth mentioning that one of them had an Egyptian father and an Israelite mother, and the other had two Israelite parents, and in the middle of the fight the first guy cursed the Divine name. Moshe did not know what the law was, so they consulted the highest Court which was on high, and God conveyed a ruling for this case and a few others. The curser was to be stoned to death, and people who kill other people should also, but injuries should be punished by an eye for an eye, and the law should be the same for Israelites and resident aliens.
In the Talmud this passage is a significant source of teaching about how Jewish law works as law, and I thought it might be interesting to pull out a few points and see how Torah law does and does not resemble our law and our Constitution. It’s good to know how Jewish law works even if you don’t experience Judaism as law, as most of us do not in the same way we experience civil law. It’s also worthwhile to know how Jewish law works to see if there are parallels or lessons we can bring to the table, when it comes to making or understanding American law and our Constitution. Of course I have Roe v. Wade on my mind, I’m not hiding that, but I can’t argue that American law should be like Jewish law exactly — again you’ll have to think about whether I’ve pulled out some things that might apply.
So I want to pull out five points about Jewish law from this passage and make mostly some short comments.
The first thing is this moment when Moshe does not know what the law is. This is a big deal. This is Moshe, Moshe Rabbenu the master of the law. Now it’s true that we’re only in Leviticus and not all the laws have been given, but there isn’t that much left and laws about respect for the one single God and respecting God’s name have been covered.
So it’s not clear on the surface of the text what Moshe doesn’t know, but he will not rule on the case or issue a punishment until he does. Maybe he’s not sure if the issue of cursing God applies when it’s an impulsive situation, or the person grew up maybe as an idolator.
From the way God answers, it looks like Moshe wonders what other situations he should be thinking about to help him get this case right. God says this is connected to murder and to injuries. I’m not actually sure what the relationship is — for us it’s now something to study and try to figure out. I think the key point is that Moshe, who is clearly as big an expert on the law as there could possibly be, is still humble about it, and he is not ready to rule until he knows what else might flow from the ruling here. He wants to know if his knowledge about this particular case might be blinding him to other things.
Number two is that Moshe’s situation of getting more law is not the situation in Jewish law now. There is technically no new law in Judaism for basically 1800 years. Halacha has no legislature, God does not give us new laws and there is no Sanhedrin with the power to add new laws. The rabbis of the Mishnah made new laws but they put a label on things that they could not claim were derived directly from the Torah, so we have laws from the Torah and laws from the Rabbis.
So Jewish law is always only about interpreting what’s already there. Even things that seem really new, like prayer leaders who are not men, are drawn out from law that was there. That’s basically what God taught Moshe in this case — you can extend what you know about cursing God’s name to this case.
When rabbis later on don’t have access to God, they are cautious. Big changes do not happen fast, and the kinds of things rabbis think about include the actual effect on the wellbeing of people. And there are built-in principles about doubt and uncertainty — if there’s any question about whether someone’s life might be in danger, you always rule to protect their wellbeing, even if that means tolerating a violation of Shabbat or Yom Kippur or kashrut and generally, even when that violation takes place in public. Jewish law should be seen looking out for life, and actually for human dignity also. These are more important than making the best analytical argument.
Point number three is about the death penalty, which I’m sure you were disturbed by in our Torah reading here as a punishment for blurting out a curse at God. The death penalty is all over the written Torah yet almost completely erased in actual Jewish law. That’s a whole shiur, a whole session, just in itself. But basically the rabbis said the only way we would know for certain if a death penalty could be given would be if the person was warned about the consequence of this act and two witnesses can testify that the person acknowledged they understood and intended to do the thing anyway, and two people had to be eyewitnesses that the act was done with that frame of mind.
Then when it came time for the eyewitnesses to testify, the court would instruct the witnesses that their testimony could lead to death for the accused person, and taking that person’s life would mean destorying a whole world. All these conditions would never all be fulfilled, and therefore in practice no one would be executed.
And the Talmud says that even so the law is important to have in the Torah with the death sentences, even though we think it’s immoral — because actually the whole situation gets us talking about why we don’t execute people, and that discussion has to take place on a regular basis. The laws with capital punishment are there to get us to talk about why capital punishment is contrary to our understand of the Torah as a whole.
Number four is that the same thing happens to an eye for an eye. It’s says “an eye for an eye”, and the Rabbis say: you assess damages and pain and medical costs etc. The Talmud explains that this is not a contradiction; it’s actually what the Torah has to mean! They come up with all kinds of cases where an eye isn’t equal to an eye — if one person is blind, or one person has better eyesight, or one person experiences pain differently, or one is a child and one is an adult — and they say that the only way to have equal justice is to use a scale that’s the same for everyone and that’s money.
The idea of Torah achat yih’yeh lachem, “one law should there be for you,” means that no law can make the law as a whole seem unfair, or introduce an unfairness down the line. So you can’t implement a law literally even when the words are clear unless it promotes the idea of one law that treats people equally. And any possible interpretation of the law that does that is a better interpretation even if it stretches the original text.
So everything I’ve said makes it seem like the law is very often not what it originally looks like on the surface of the text, and sometimes the opposite of what the text looks like it’s saying. The job of the judge in Jewish law is not to look only at the words of this law, and often it is to change what the original law seemed to say clearly. That’s a lot of power and how do we trust that someone will use it right?
There is a story in the Talmud, a kind of thought experiment. Moshe is up on the mountain with God getting the original laws and he sees God writing a Torah scroll and putting little squiggles and decorations on some of the letters. And he asks God: Why are you doing that? God says: Oh, centuries from now there’s going to be this guy named Akiva and he’s going to interpret all these squiggles as laws. And Moshe says: Cool, let me see him. God says: Step into my time machine, and he puts Moshe in the back of Rabbi Akiva’s classroom and Moshe doesn’t understand a word of what’s going on.
Then one of the other students asks: Where did you get this Rabbi? And Rabbi Akiva says: It’s a law of Moshe from Mt. Sinai — and Moshe is relieved. He says to God: You’ve got this amazing guy, so why are you using me to give the Torah? Use him! And God says: Be quiet, this is how I want to do it. Moshe says: Show me more of how this Akiva’s story plays out. God shows him Akiva being martyred by the Romans, and says: This is how I want to do it.
So we see that there’s no originalism in the Talmud. If Moshe came and told us what the Torah meant it woldn’t mean anything because Rabbi Akiva gets to say what the law is in his time. But why do we trust Akiva? Isn’t it dangerous to be Akiva?
Well, it could be. So the Talmud says that Akiva cared about not just the words of the Torah but the letters and the squiggles. He wanted to know every possible way each law could help us understand the others. Akiva was a mystic, he was very prayerful, and he believed that you had to know when as a judge you were in the flow and when you weren’t, and say honestly when you weren’t and not make rulings when you’re not aligned — you can talk and teach and discuss, but you can’t rule unless you really are trying to see it all as Torah achat, as one unified Torah.
Akiva was willing to put his very life on the line for his people, to idenitfy with their freedom. He asked himself in easier times if he really understood what it meant to love God with all your soul, if he was really ready to offer his life in solidarity with his people. And then at the time of his death he knew, finally, that he was. That’s the kind of person you trust, and you can’t trust someone who looks more narrowly, at just a few words here or what they meant to someone else at one point in time. They have to earn your trust by going the extra mile to keep asking if there’s another layer even when they’ve gotten one thing right.
So those are a few things about Jewish law, and about how Jewish law works when we’re not sure what the answer is or should be, and about what should be the character of the people who decide and rule about laws and punishments. I don’t think American law should follow Jewish law. But I think some of these ways of experiencing law could be useful things to offer in the public square, when we are discussing contentious issues of the law and the Constitution, and some of them can help us pinpoint what we think is right and wrong when our authorities make or rule on such laws.
Shabbat Shalom!
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