Jewish Law and American Law, Volume 2: A Comparative Study 9781618116581

Citation preview

Jewish Law and American Law A Comparative Study Volume 2

Jewish Law and American Law A Comparative Study Samuel J. Levine

Volume 2

New York 2018

Library of Congress Cataloging-in-Publication Data Names: Levine, Samuel J., author. Title: Jewish law and American law : a comparative study / Samuel J. Levine. Description: New York, NY : Touro College Press, 2018. | Includes bibliographical references and index. | Description based on print version record and CIP data provided by publisher; resource not viewed. Identifiers: LCCN 2017042989 (print) | LCCN 2017043274 (ebook) | ISBN 9781618116567 (e-book) | ISBN 9781618116581 (e-book) | ISBN 9781618116550 (vol. I) | ISBN 9781618116574 (vol. II) Subjects: LCSH: Law—United States—Jewish influences. | Jews—Legal status, laws, etc.— United States. | Mishpat Ivri. | BISAC: LAW / Essays. | SOCIAL SCIENCE / Jewish Studies. Classification: LCC KF358 (ebook) | LCC KF358 .L48 2018 (print) | DDC 349.73—dc23 LC record available at https://lccn.loc.gov/2017042989 Published by Touro College Press and Academic Studies Press. Typeset, printed and distributed by Academic Studies Press. ISBN (hardback) 9781618116550 (vol. I) ISBN (hardback) 9781618116574 (vol. II) ISBN (electronic) 9781618116567 (vol. I) ISBN (electronic) 9781618116581 (vol. II) Book design by Kryon Publishing Services (P) Ltd. www.kryonpublishing.com Cover design by Ivan Grave ©Touro College Press, 2018 Touro College Press Michael A. Shmidman and Simcha Fishbane, Editors 27 West 23rd Street New York, NY 10010, USA [email protected] Academic Studies Press 28 Montfern Avenue Brighton, MA 02135, USA [email protected] www.academicstudiespress.com

Table of Contents

Acknowledgments vii Section Six Law and Narrative 17 Halacha and Aggada: Translating Robert Cover's Nomos and Narrative 18 Professionalism without Parochialism: Julius Henry Cohen, Rabbi Nachman of Breslov, and the Stories of Two Sons Section Seven Legal History

01 01 42 61

19 Lost in Translation: The Strange Journey of an Anti-Semitic Fabrication, from a Late Nineteenth-Century Russian Newspaper to an Irish Legal Journal to a Leading Twentieth-Century American Criminal Law Textbook 61 20 Louis Marshall, Julius Henry Cohen, Benjamin Cardozo, and the New York Emergency Rent Laws of 1920: A Case Study in the Role of Jewish Lawyers and Jewish Law in Early Twentieth-Century Public Interest Litigation 80 21 Jewish Law from out of the Depths: Tragic Choices in the Holocaust 112 22 Untold Stories of Goldman v. Weinberger: Religious Freedom Confronts Military Uniformity 121 23 Richard Posner Meets Reb Chaim of Brisk: A Comparative Study in the Founding of Legal Intellectual Movements 142

vi

Table of Contents

Section Eight Law and Public Policy 24 Reflections on Responsibilities in the Public Square Through a Perspective of Jewish Tradition: A Brief Biblical Survey 25  Looking beyond the Mercy/Justice Dichotomy: Reflections on the Complementary Roles of Mercy and Justice in Jewish Law and Tradition 26  Teshuva: A Look at Repentance, Forgiveness, and Atonement in Jewish Law and Philosophy and American Legal Thought Index

171 171 189 205 222

Acknowledgments

T

he chapters in these volumes were written over the course of fifteen years and originally published as individual articles, with most appearing in law journals across the United States. The chapters are collected here, organized sequentially by topic, with each chapter building on the previous chapter. As such, the volumes can be studied as a single work, while at the same time, each chapter can be read and understood on its own. It should be noted that, although the chapters have been lightly edited for inclusion in this collection, they are not presented chronologically, and there remains some repetition in material among the chapters, as well as occasional variation in writing style and citation form. A list of references to the original articles is provided below. I would like to briefly express my appreciation to family, friends, teachers, and colleagues, who have offered me advice and encouragement over the years, in connection with these chapters and beyond. Among countless others, Russell Pearce, Thomas Shaffer, Kent Greenawalt, Judge Loretta Preska, and the late Abraham Abramovsky provided thoughtful guidance and support, and in my capacity as Director of the Jewish Law Institute at Touro Law Center, I have had the pleasure of working alongside a terrific staff and faculty, under the leadership of Deans Lawrence Raful, Patricia Salkin, and Harry Ballan. In connection with these volumes, I would also like to thank Dr. Alan Kadish, President and CEO of the Touro College and University System, and Dean Michael Shmidman, Editor at Touro College Press, as well as Alessandra Anzani, Senior Editor, and Kira Nemirovsky, Production Editor, at Academic Studies Press. Second Annual Holocaust Remembrance Lecture at Washington UniversityJewish Law From Out of the Depths: Tragic Choices in the Holocaust, 10 Washington University Global Studies Law Review 133 (2011)

viii

Acknowledgments

Applying Jewish Legal Theory in the Context of American Law and Legal Scholarship: A Methodological Analysis, 40 Seton Hall Law Review 933 (2010) Goldman v. Weinberger: Religious Freedom Confronts Military Uniformity, 66 Air Force Law Review 205 (2010) Miranda, Dickerson, and Jewish Legal Theory: The Constitutional Rule in a Comparative Analytical Framework, 69 Maryland Law Review 78 (2009) Of lnkblots and Omnisignificance: Conceptualizing Secondary and Symbolic Functions of the Ninth Amendment in a Comparative Hermeneutic Framework, 2009 Michigan State Law Review 277 (2009) Louis Marshall, Julius Henry Cohen, Benjamin Cardozo, and the New York Emergency Rent Laws of 1920: A Case Study of the Role of Jewish Lawyers and Jewish Law in Early Twentieth Century Public Interest Litigation, 33 Journal of the Legal Profession 1 (2008) Taking Ethical Obligations Seriously: A Look at American Codes of Professional Responsibility Through a Perspective of Jewish Law and Ethics, 57 Catholic University Law Review 165 (2007) Lost in Translation: The Strange Journey of an Anti-Semitic Fabrication, From a Late Nineteenth Century Russian Newspaper to an Irish Legal Journal to a Leading Twentieth Century American Criminal Law Textbook, 29 Dublin University Law Journal 260 (2007) Reflections on Responsibilities in the Public Square, Through a Perspective of Jewish Tradition: A Brief Biblical Survey, 56 Catholic University Law Review 1203 (2007) A Look at American Legal Practice Through a Perspective of Jewish Law, Ethics, and Tradition: A Conceptual Overview 20 Notre Dame Journal of Law, Ethics and Public Policy 11 (2006) Looking Beyond the Mercy/Justice Dichotomy: Reflections on the Complementary Roles of Mercy and Justice in Jewish Law and Tradition, 45 Journal of Catholic Legal Studies 455 (2006) Richard Posner Meets Reb Chaim of Brisk: A Comparative Study in the Founding of lntellectual Legal Movements, 8 San Diego International Law Journal 95 (2006) An Introduction to Self-Incrimination in Jewish Law, With Application to the American Legal System: A Psychological and Philosophical Analysis, 28 Loyola of Los Angeles International and Comparative Law Review 257 (2006)

Acknowledgments

Reflections on the Practice of Law as a Religious Calling, From a Perspective of Jewish Law and Ethics, 32 Pepperdine Law Review 411 (2005) The Yale L. Rosenberg Memorial Lecture: Taking Prosecutorial Ethics Seriously: A Consideration of the Prosecutor’s Ethical Obligation to “Seek Justice” in a Comparative Analytical Framework, 41 Houston Law Review 1337 (2004) Taking Ethics Codes Seriously: Broad Ethics Provisions and Unenumerated Ethical Obligations in a Comparative Hermeneutic Framework 77 Tulane Law Review 527 (2003) Professionalism Without Parochialism: Julius Henry Cohen, Rabbi Nachman of Breslov, and the Stories of Two Sons, 71 Fordham Law Review 1339 (2003) Playing God: An Essay on Law, Philosophy, and American Capital Punishment, 31 New Mexico Law Review 2 77 (2001) Teshuva: A Look at Repentance, Forgiveness and Atonement in Jewish Law and Philosophy and American Legal Thought 27 Fordham Urban Law Journal 1677 (2000) An Introduction to Legislation in Jewish Law, With References to the American Legal System, 29 Seton Hall Law Review 916 (1999) Teaching Jewish Law in American Law Schools: An Emerging Development in Law and Religion, 26 Fordham Urban Law Journal 1041 (1999) Halacha and Aggada: Translating Robert Cover’s Nomos and Narrative, 1998 Utah Law Review 465 (1998) Unenumerated Constitutional Rights and Unenumerated Biblical Obligations: A Preliminary Study in Comparative Hermeneutics, 15 Constitutional Commentary 511 (1998) Capital Punishment in Jewish Law and its Application to the American Legal System: A Conceptual Overview, 29 St. Mary’s Law Journal 1037 (1998) Jewish Legal Theory and American Constitutional Theory: Some Comparisons and Contrasts, 24 Hastings Constitutional Law Quarterly 441 (1997)

ix

Section Six Law and Narrative CHAPTER 17

Halacha and Aggada: Translating Robert Cover’s Nomos and Narrative INTRODUCTION

I

n his groundbreaking 1983 article Nomos and Narrative,1 Robert Cover began to develop the themes that would dominate his writings for the rest of his life. Two of these themes, in particular, would exert a profound influence on legal scholarship, while at the same time, they also illustrate the impact of Cover’s ideas on the broader academy as well.2  One of the striking elements of Nomos and Narrative is its heavy reliance on Jewish sources as a basis for analyzing contemporary American legal t­ heory.3   1 Robert M. Cover, The Supreme Court, 1982 Term—Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4 (1983) (hereinafter Cover, Nomos and Narrative).   2 The breadth of Cover’s influence on the academy is apparent in the diversity of journals that have published tribute volumes to him, including 8 Cardozo Studies in Law and Literature 1 (1996); 45 Conservative Judaism 1 (1993); 7 J.L. & Religion 1 (1989); 17 Yale J.L. & Human 1 (2005); 96 Yale L.J. 1699 (1987). Other tributes to Cover can be found in Narrative, Violence, and The Law: The Essays of Robert Cover (Martha Minow et al. eds., 1993).   3 Cover continued to rely on Jewish sources in his legal scholarship. See Robert M. Cover, Bringing the Messiah Through Law: A Case Study, in Nomos XXX: Religion, Morality and The Law 201 ( J. Roland Pennock & John W. Chapman eds., 1988); Robert M. Cover, Obligation: A Jewish Jurisprudence of the Social Order, 5 J.L. & Religion 65 (1987); Robert M. Cover, The Folktales of Justice: Tales of Jurisdiction, 14 Cap. U. L. Rev. 179 (1985).

2

Section Six    Law and Narrative

Many scholars have commented on Cover’s turn to Jewish sources,4 including some who have offered careful critiques of Cover’s approach.5  Another theme that Cover began to develop in Nomos and Narrative, as indicated in the title of the article, was the use of “narrative” in legal theory.6 For Cover, the basis of this theme was the thesis that “[n]o set of legal ­institutions or prescriptions exists apart from the narratives that locate it and give it meaning,” and “[o]nce understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live.”7 Cover’s explanation of these ideas coincided with, and contributed to, the emergence of what has become known as “legal storytelling.”8   4 See, e.g., Bernard J. Hibbits, Making Sense of Metaphors: Visuality, Aurality, and the Reconfiguration of American Legal Discourse, 16 Cardozo L. Rev. 229, 339 (1994) (describing Cover as “the prime mover in the reintroduction of Jewish values to contemporary American legal discourse”); Suzanne Last Stone, In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory, 106 Harv. L. Rev. 813, 820 (1993) (stating that in law, “Robert Cover made it respectable to draw on the Jewish tradition in public discourse”); Steven L. Winter, The Cognitive Dimension of the Agon Between Legal Power and Narrative Meaning, 87 Mich. L. Rev. 2225 n.3 (1989) (acknowledging “the liberating effect” of Cover’s work on the author’s “sense of my own past,” showing how the “intellectual abundance of [Jewish sources] can be a profound source of analytic insight”). For discussions of the effect of Cover’s Jewish identity on his intellectual commitments, see Joseph Lukinsky & Robert Abramson, Robert Cover, A Jewish Life, 45 Conservative Judaism 4 (1993); Joseph Lukinsky, Law in Education: A Reminiscence with Some Footnotes to Robert Cover’s “Nomos and Narrative,” 96 Yale L.J. 1836 (1987); Gordon Tucker, The Sayings of the Wise Are Like Goads: An Appreciation of the Works of Robert Cover, 45 Conservative Judaism 17 (1993); Stephen Wizner, Tributes to Robert M. Cover, 96 Yale L.J. 1707 (1987); Nomi M. Stolzenberg, Un-covering the Tradition of Jewish Dissimilation: Frankfurter, Bickel, and Cover on Judicial Review, 3 S. Cal. Interdisc. L.J. 809 (1994).   5 See Richard K. Sherwin, Law, Violence, and Illiberal Belief, 78 Geo. L.J. 1785 (1990); Stone, supra note 4.   6 Cover continued to explore narrative and its relationship to law in Cover, Bringing the Messiah Through Law: A Case Study, supra note 3; Robert M. Cover, The Bonds of Constitutional Interpretation: Of the Word, the Deed, and the Role, 20 Ga. L. Rev. 815 (1986); Cover, The Folktales of Justice: Tales of Jurisdiction, supra note 3; Robert M. Cover, Violence and the Word, 95 Yale L.J. 1601 (1986).  7 Cover, Nomos and Narrative, supra note 1, at 4-5.   8 The list of scholarship relating to legal storytelling, often referred to as legal “narrative,” is a long and varied one, including, for example, Derrick Bell, And We Are Not Saved: The Elusive Quest For Racial Justice (1987); Richard Delgado, The Rodrigo Chronicles (1995); Law’s Stories: Narrative and Rhetoric in the Law (Peter Brooks & Paul Gewirtz eds., 1996); Richard Weisberg, Poethics and Other Strategies of Law and Literature (1992); Robin West, Narrative, Authority, and Law (1993); Patricia J. Williams, The Alchemy of Race and Rights (1991); Kathryn Abrams, Hearing the Call of Stories, 79 Cal. L. Rev. 971 (1991); Benjamin L. Apt, Aggada, Legal Narrative, and the Law, 73 Or. L. Rev. 943 (1994); Jane B. Baron & Julia Epstein, Is Narrative Law?, 45 Buff. L. Rev. 141 (1997); Jane B. Baron, Resistance to

Halacha and Aggada    Chapter 17

In this chapter, I examine the interrelationship in Nomos and Narrative between these two themes—the reliance on Jewish sources and the presentation of the concept of “narrative” in law. I suggest that a proper understanding of Cover’s use of the two themes requires that they be viewed as interdependent components of his thinking. Specifically, I look to explore Cover’s ­concept of “narrative” in the law through an analysis of how he viewed the parallel ­concept of aggada in Jewish law. Through this study, I aim to show that, although “­ narrative” Stories, 67 S. Cal. L. Rev. 255 (1994); Jane B. Baron, Intention, Interpretation, and Stories, 42 Duke L.J. 630 (1992); Jane B. Baron, The Many Promises of Storytelling in Law, 23 Rutgers L. Rev. 79 (1991); Colloquium on Legal Scholarship, 13 Nova L. Rev. 1 (1988); Mary I. Coombs, Outsider Scholarship: The Law Review Stories, 63 U. Colo. L. Rev. 683 (1992); Mary I. Coombs, Telling the Victim’s Story, 2 Tex. J. Women & Law 277 (1993); Anne M. Coughlin, Regulating the Self: Autobiographical Performances in Outsider Scholarship, 81 Va. L. Rev. 1229 (1995); Cover, Nomos and Narrative, supra note 1; Cover, The Folktales of Justice: Tales of Jurisdiction, supra note 3; Richard Delgado & Jean Stefancic, Norms and Narratives: Can Judges Avoid Serious Moral Error?, 69 Tex. L. Rev. 1929 (1991); William N. Eskridge, Jr., Gaylegal Narratives, 46 Stan. L. Rev. 607 (1994); Feminist Jurisprudence Symposium, 24 Ga. L. Rev. 761 (1990); Lynne N. Henderson, Legality and Empathy, 85 Mich. L. Rev. 1574 (1987); Hibbits, supra note 4; Alex M. Johnson, Jr., The New Voice of Color, 100 Yale L.J. 2007 (1991); Charles R. Lawrence III, The Word and the River: Pedagogy as Scholarship as Struggle, 65 S. Cal. L. Rev. 2231 (1992); Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323 (1987); Pedagogy of Narrative: A Symposium, 40 J. Legal Educ. 1 (1990); Edward B. Rock, Saints and Sinners: How Does Delaware Corporate Law Work?, 44 UCLA L. Rev. 1009 (1997); Vicki Schultz, Telling Stories About Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument, 103 Harv. L. Rev. 1749 (1990); Norman Silber & Geoffrey Miller, Toward “Neutral Principles” in the Law: Selections from the Oral History of Herbert Wechsler, 93 Colum. L. Rev. 854 (1993); Symposium, Legal Storytelling, 87 Mich. L. Rev. 2073 (1989); Symposium on Reproductive Rights, 13 Nova L. Rev. 329 (1989); Symposium, The Voices of Women, 77 Iowa L. Rev. 5 (1991); Symposium, Excluded Voices: Realities in Law and Law Reform, 42 U. Miami L. Rev. 1 (1987); Mark Tushnet, The Degradation of Constitutional Discourse, 81 Geo. L.J. 251 (1992); Patricia J. Williams, Commercial Rights and Constitutional Wrongs, 49 Md. L. Rev. 293 (1990); Patricia Williams, Reordering Western Civilization, 43 Stan. L. Rev. 1327 (1991); Winter, supra note 4. Notably, Nomos and Narrative is one of the earliest of these works, and is often acknowledged, explicitly or implicitly, as one of the seminal works in this area of legal scholarship. See also R. Richard Banks, The Political Economy of Racial Discourse, 9 Yale J.L. & Human. 217, 218 (1997) (citing Nomos and Narrative as evidence of the fact that “the use of narrative in legal scholarship is not a recent development”); Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 Stan. L. Rev. 807, 807 (1993) (stating that “the law and literature movement taught us that stories have much to say to lawyers, and Robert Cover taught us that law is itself a story”); Paul Schiff Berman, Note, Rats, Pigs, and Statues on Trial: The Creation of Cultural Narratives in the Prosecution of Animals and Inanimate Objects, 69 N.Y.U. L. Rev. 288, 291 n.21 (1994) (stating that “[o]ver the past several decades, anthropologists, literary critics, and legal scholars have increasingly studied the role of narratives in structuring our experience of the world,” and listing Cover as representative of category of legal scholars).

3

4

Section Six    Law and Narrative

may find expression, at times, in the literary form of storytelling, Cover’s ­conception of “legal narrative” is a broader one, encompassing the wider ­societal context in which law functions, and one which may best be understood in light of the complex interplay between halacha and aggada in Jewish law.9  Toward the goal of understanding Cover’s conception of narrative, part one of this chapter takes a close look at Cover’s definition and descriptions of narrative. Though recognizing that Cover examines the relationship between nomos and narrative in a number of contexts, this part suggests that focusing on his analysis of the relationship between halacha and aggada in Jewish law is ­particularly helpful in shedding light on his understanding of nomos and ­narrative in other contexts as well. In an attempt to flesh out Cover’s concept of halacha and aggada, part two discusses the rich tradition and significance of the interplay between halacha and aggada in some of the classical sources of Jewish law, including the Torah, the Talmud, and Maimonides’ Code of Law. Finally, building on the ideas developed in parts one and two, part three compares Cover’s thoughts on the nature of, and relationship between, nomos and narrative to parallel observations of Hayim Nahman Bialik, an important Jewish modern literary figure, regarding halacha and aggada. The article concludes with the observation, based in part on the comments of some of Cover’s friends, that his emphasis on integrating the study of nomos and narrative with halacha and aggada seemed to reflect a similarly integrated world-view and way of life.

PART ONE | WHAT ARE NOMOS AND NARRATIVE? A. Cover’s Analysis of American Legal Narrative In contemporary legal scholarship, the term “narrative” is often equated with legal “storytelling.” An early example of this equation is found in the opening of   9 In Cover’s framework, halacha parallels nomos, while aggada parallels narrative. See infra notes 93-102 and accompanying text. Because the words halacha and aggada are transliterations of Hebrew, they appear in English works in a variety of forms. Halacha is sometimes written as halachah, halakha, or halakhah, while aggada is sometimes written as aggadah. In addition, both words are occasionally capitalized even when used in the middle of a sentence, and they are not always italicized in English works. In the interest of consistency, I have altered the spelling in some quotations to conform with a uniform transliteration of halacha and aggada, and their adjective forms, halachic and aggadic. In the interest of faithfulness to the original, however, I have not altered the spellings of the titles of the works cited.

Halacha and Aggada    Chapter 17

Professor Kim Scheppele’s Foreword to the influential 1989 Michigan Law Review Symposium, Legal Storytelling: “Why is there such a rush to ­storytelling? Why has narrative become such an important and recurring theme in legal scholarship these days?”10 In a footnote documenting the emergence of “storytelling” or “narrative” in legal scholarship, Professor Scheppele cites numerous books and law review articles relating to the “law-and-literature movement, in which the legal narrative theme sounds prominently.”11 Professor Scheppele includes Robert Cover among the “founders” of this “movement,” and she cites a number of his works, the earliest of which is Nomos and Narrative.12 Indeed, in Nomos and Narrative, Cover does look to “literature”—­notably, biblical literature—as a means toward understanding law. In addition, as indicated by his careful attention to, and respect for, societal n­ arratives, Cover recognizes the value of storytelling in legal analysis. Nevertheless, as Cover himself observed, certain terms, such as “Torah,” nomos, and “the Law,” are “amenable to a range of meanings that serve both to enrich the term and to obscure analysis of it.”13 The same can be said of the term “narrative.” The aim of this part is to identify the meanings that Cover intended for ­“narrative,” by focusing on the definitions he supplied for this term, and his view of its relationship to what he called a nomos. An analysis of Cover’s use of the term ­“narrative” suggests that Cover was developing an idea broader than, though not inconsistent with, legal storytelling. Cover introduces his article by mapping a connection between nomos and narrative. According to Cover, a nomos is a “normative universe,” a “world of right and wrong, of lawful and unlawful.”14 Although “formal institutions of the law, and the conventions of a social order are, indeed, important to that world,” Cover is careful to emphasize that they are “but a small part of the normative universe.”15 Rather, legal institutions and prescriptions must be “understood in the context of the narratives that give [them] meaning,” narratives that complement legal precepts to create a nomos, “a world in which we live.”16  Elaborating on the structure of this world, Cover emphasizes the important place of a “legal tradition” within a “complex normative world.”17 Thus, a nomos 10 Kim Lane Scheppele, Foreword: Telling Stories, 87 Mich. L. Rev. 2073, 2073 (1989). 11 Id. at 2073 n.1. 12 Id. 13 Cover, Nomos and Narrative, supra note 1, at 11 n.31. 14 Id. at 4. 15 Id. 16 Id. at 4-5. 17 Id. at 9.

5

6

Section Six    Law and Narrative

includes “not only a corpus juris, but also a language and a mythos—narratives in which the corpus juris is located.”18 It is these narratives, or myths, that give meaning to the corpus juris, so that the law is understood within the broader context of societal norms and actions, ranging from “ordinary legal doctrine at work in mundane affairs,” to “utopian and messianic yearnings,” to “apologies for power and privilege” and critiques of “the justificatory enterprises of law.”19  Cover is particularly interested in examining the phenomenon by which communities place legal precepts within their societal narratives. In fact, Cover entertains a “fantasy” in which individual communities inhabit a “somewhat distinct nomos,” dependent on their narratives and precepts, through which they “create law” and “give meaning to law.”20 Thus, he admires the attitudes of the Mennonite and Anabaptist communities toward the Free Exercise Clause of the United States Constitution.21 In Cover’s view, the Mennonites and the Old Order Amish, like other insular communities, inhabit a unique normative world, in which legal precepts such as the First Amendment have meaning only against the backdrop of the community’s historical narrative.22  Cover further admires the means through which these communities communicated their concerns, indeed their own “understanding of the First Amendment,” which, Cover asserts, “within the domain of constitutional meaning . . . assumes a status equal (or superior) to that accorded to the understanding of the Justices of the Supreme Court.”23 He observes that the Mennonites’ brief, submitted to the court in Bob Jones University v. United States,24 appears “in the form of a simple narrative” that described the ­historical persecution the church endured, and thus explained the basis for the Mennonites’ ­expansive view of the First Amendment’s protections of religious liberty.25 Similarly, Cover notes, in Wisconsin v. Yoder,26 the Amish depicted, in their brief, a “common narrative” that placed the Amish approach toward First Amendment religious protections within the context of the broader nomos they inhabited, a nomos that incorporated a history of religious persecution.27  18 Id. 19 Id. 20 Id. at 40. 21 See id. at 27. 22 See id. at 27-28. 23 Id. at 28. 24 461 U.S. 574 (1983). 25 Cover, Nomos and Narrative, supra note 1, at 26. 26 406 U.S. 205 (1972). 27 Cover, Nomos and Narrative, supra note 1, at 26.

Halacha and Aggada    Chapter 17

As Cover further examines the Mennonites’ brief, he identifies narratives, including “the quasi-sacred tales of martyrs” and “the more recent stories of ­conscientious objectors,” which “help to create the identity of the believer and to establish the central commitment from which [the] law . . . of the state will be addressed.”28 Thus, Cover acknowledges the value of stories as an instrument for conveying the attitudes underlying a community’s normative world. Such an expression of a community’s narrative can help judges and others outside the community appreciate, and consider the viability of, the community’s understanding of the law of the state, as seen through the lens of the community’s unique nomos. Nevertheless, when Cover conceives of “narrative,” he appears to refer to a concept that goes beyond literary creations taking the form of specific stories or myths that reflect a community’s perspectives on legal precepts and their place within a wider normative world. Cover uses “narrative” to refer to the ­community’s broader societal norms, attitudes, and aspirations, which “bespeak the range of the group’s commitments” and “provide resources for justification, condemnation, and argument by actors within the group, who must struggle to live their law.”29 Indeed, according to Cover, basic to the “[c]reation of legal 28 Id. at 28. See, e.g., C. Arnold Snyder, The Life and Thought of Michael Sattler 89-107 (1984) (tracing life of Swiss Anabaptist martyr and noting that throughout history, many would follow his example). 29 Cover, Nomos and Narrative, supra note 1, at 46. Thus, the word “narrative,” in Cover’s system, can have more than one meaning, depending on its context. At times, “narrative” denotes the literary device of storytelling. When used in connection and in contrast with the concept of a nomos, however, the word “narrative” takes on its broader meaning described above. The two meanings of “narrative” in this system may parallel the distinct, but complementary, concepts of a “metaphor” and its accompanying “images.” See James R. Elkins, The Stories We Tell Ourselves in Law, 40 J. Legal Educ. 47, 48 (1990). Professor Elkins writes of his own “various notions about how life works and what it means to be a lawyer and law teacher.” Id. at 47. He refers to these “notions” as “metaphors, accompanied, as metaphors inevitably are, by images: the lawyer as hired-gun, the lawyer as friend, the teacher as midwife, life as a journey, life as a story.” Id. In Elkins’ scheme, metaphors are literary devices that “orient us toward a story” and “connect with and energize the story that we are trying to tell. . . . They . . . fit a story I am living or a story that I hope to live or want to avoid living.” Id. Extending his discussion to “images,” Elkins describes finding “a metaphor (and an image of yourself) that can take hold of you. The images that accompany the metaphor work their way into your life and your story.” Id. at 48. He adds that “[t]o live as I do with the metaphors and images . . . is to adopt—­consciously and willingly, quietly and unconsciously, or violently and against my will—a particular story. The particularity of the story that I find myself living and trying to articulate is a bundle of metaphors and images.” Id. Elkins’ notion of a “metaphor” parallels the use of “narrative” as a specific literary device. Indeed, Elkins defines narrative as “a primary source of metaphors.” Id. at 47 n.1. The broader notion of “images” is closer to Cover’s use of “narrative” to describe the societal norms, goals, and commitments that contribute to a normative world that a community inhabits.

7

8

Section Six    Law and Narrative

meaning” is “a commitment to projecting the understanding of the norm . . . [i]nto the teleological vision that the interpretation implies.”30 Therefore, Cover explains, the Amish interpret the legal principle of separation of church and state in the United States Constitution through the perspective of the Amish narrative, which places a supreme value on the community’s maintaining its traditional insularity.31 It is the commitment of the Amish community to its fundamental values—its “sacred narratives”32—that gives legal meaning to the community’s understanding of the First Amendment, within its own nomos.33  The Mennonites and the Amish, in their respective briefs to the Supreme Court, used storytelling as an effective vehicle for expressing their c­ ommunal narratives to those outside the community. Yet, while their approach may illustrate the usefulness and power of storytelling, such stories are not always On a communal level, the dual usage of “narrative” in Cover’s system may be mirrored in Professor Michael Perry’s depiction of the distinct, but related, concepts of a “tradition” and a “foundational text” of a religious community, which he extends to a constitutional community. See Michael J. Perry, Morality, Politics and Law: A Bicentennial Essay 136-37 (1988). Perry defines a “tradition” broadly, as “a history or narrative in which the central motif is an aspiration to a particular form of life, to certain projects, goals, ideals.” Id. at 137. He adds that “the central discourse, in the case of a living tradition, is an argument—in Alasdair MacIntyre’s terms, ‘an historically extended, socially embodied argument’—about how that form of life is to be cultivated and revised.” Id. (quoting Alasdair MacIntyre, After Virtue 207 (1981)). Perry offers a more narrow definition of a “foundational text”: “the text that, in the community and tradition in question, is seen to charter, to mandate, the form of life to which the community and tradition aspire, and thus the text that, for the community and tradition, symbolizes that mandate.” Id. Perry emphasizes the “writtenness” and “permanence” of the literary form of the text, which he contrasts with the living and more inclusive nature of a communal “tradition.” Id. Perry’s view of a tradition, which he defines, in part, as a “narrative,” parallels Cover’s use of “narrative” to depict a combination of communal history, values, and aspirations. This understanding of Cover’s view of “narrative” is also, I think, consistent with that of Professor Steven Winter, who has suggested that Cover’s “narratives” are themselves best understood not as prototypical stories of specific historical events. Rather, if they are to operate meaningfully as law for the group, they must make the transition from specific historical narratives to stylized cultural constructs that operate as idealized cognitive models. In this view of his work, the phenomenon of polynomia that Cover describes is not a function of the subjective power of the various narrators, but rather a nondeterminate product of the imaginative cognitive constructions of different social experiences. Winter, supra note 4, at 2270. See infra note 90. 30 Cover, Nomos and Narrative, supra note 1, at 45. 31 See id. 32 Id. at 29. 33 See id. at 45.

Halacha and Aggada    Chapter 17

available, and, even when produced by a community or by individuals within a community, may not sufficiently convey the richness of the societal attitudes that contribute to the creation of a nomos. Indeed, without reference to specific instances of storytelling, Cover identifies a number of insular communities, each of which created its own unique nomos, together with the corresponding societal forces that set the boundaries in which the normative worlds functioned. For example, Cover cites Professor Carol Weisbrod’s study of nineteenth-century utopian communities—in particular the Shaker community—in which “the voluntaristic character of the ideology of these communities . . . dominated their constitutional thought.”34 Thus, “the center of the Shaker nomos” was the strong communal narrative that emphasized “a vivid and literal social contract.”35 Likewise, Cover points to historical instances of “law creation,” in which private actors used property and corporation law to assert control over societal norms.36 This phenomenon, which occurred in settings such as the “company town” of Pullman, Illinois, and the Massachusetts Bay Colony,37 illustrates the important role that a community’s narrative can play, in not only giving meaning to a set of laws imposed on the community, but in actually creating a system of public law that grows out of that narrative.38  As much as Cover admires and is fascinated by the capacity of insular ­communities to create and live within their own nomos, such an approach does not satisfy Cover’s view of the transformative power of law. Cover describes law as a “bridge, linking a concept of a reality to an imagined alternative . . . a ­connective between two states of affairs, both of which can be represented in their normative significance only through the devices of narrative.”39 In this vein, borrowing heavily from his own study of judicial and societal attitudes toward slavery,40 Cover portrays a more ambitious use of c­ ommunal Id. at 30 (citing Carol Weisbrod, The Boundaries of Utopia 61-79 (1980)). Id. at 32. Id. at 30-31. See id. Cover cites Professor Barbara Black’s description of “the processes by which a private law document came to have overpowering effect as the public law of the Massachusetts Bay Colony.” Id. at 31 n.89 (citing Barbara Black, The Judicial Power and the General Court in Early Massachusetts (1634-1686) ch. 1 (1975) (unpublished Ph.D. dissertation, Yale University Department of History)). 39 Cover, Nomos and Narrative, supra note 1, at 9; infra text accompanying notes 177-78. For discussions of the concept of law as a bridge, see generally Milner S. Ball, Law and Prophets, Bridges and Judges, 7 J.L. & Religion 1, 1 (1989); Ronald R. Garet, Meaning and Ending, 96 Yale L.J. 1801, 1808-15 (1987). 40 See Robert M. Cover, Justice Accused, passim (1975). 34 35 36 37 38

9

10

Section Six    Law and Narrative

or a­ ssociative n­ arrative, “redemptive constitutionalism.”41 In contrast to the Garrisonian abolitionists, who employed “nomian insularity” to withdraw from participation in a nomos that accepted slavery, the radical constitutionalists held “a vision of an alternative world in which the entire order of American slavery would be without foundation in law” requiring no less than “the transformation of the conditions of social life.”42 Indeed, Cover celebrated the “radical constitutionalists” for asserting their anti-slavery construction of the Constitution against the opposing public nomos, thus seeking a redemptive end to slavery in the United States.43 In addition to presenting the notion of insular and redemptive models, and their relationship to communal narratives, Cover’s discussion of antislavery constitutionalism demonstrates a more subtle function of narrative in r­ elation to legal precepts. As Cover notes, many actions have meaning only with regard to a norm. Indeed, the very same action can convey different s­ ymbolic messages, dependent on the actor’s relationship to a set of rules governing the action. For example, Cover observes, the action of sleeping late on Sunday takes on s­ pecial significance when it expresses a refusal of the Sacraments; eating a snack on the tenth day of the Jewish month of Tishrei carries a unique meaning as a conscious desecration of the norm of fasting on Yom Kippur.44 Similarly, in relation to the institution of slavery and its accompanying norms, such as the fugitive slave acts, rescuing fugitives and assisting them and their rescuers was not only a practical act, but a symbolic one as well.45 In the context of a public nomos that permitted slavery, those who actively violated the fugitive slave acts did so as an expression of a constitutional philosophy, grounded in an abolitionist narrative at conflict with the legal institutions of the time. Thus, Cover’s analysis of the constitutionalism of antislavery provides, on a number of levels, an instructive illustration of his theories of the r­ elationship between nomos and narrative. Yet, the most illuminating quality of Cover’s focus on slavery may lie not so much in the substantive discussion of antislavery ­constitutionalism, as in an important conceptual comparison he draws to b­ iblical principles. Cover dedicates a significant and substantial portion of his article to a discussion of the nomos and narrative of the biblical law of ­succession.46 Cover writes that “[i]n the Bible there is no earthly or heavenly precept so heavily 41 Cover, Nomos and Narrative, supra note 1, at 34. 42 Id. at 38‑39. 43 Id. 44 See id. at 8. 45 See id. at 35. 46 See id. at 19‑25.

Halacha and Aggada    Chapter 17

loaded as that of Deuteronomy chapter 21, verses 15 through 17, because there is no precept rendered so problematic by the narratives in which the law is embedded.”47 In introducing his discussion of slavery, Cover ­poetically suggests that “[i]f there was a fault line in the normative topography of American constitutionalism—akin in significance and expressive power to the principle of succession in biblical life—it was, for four score and ten years, the place of slavery within the union.”48 Similarly, he describes the “expressive potential” of certain rules of slavery, such as the fugitive slave acts, as “comparable to that of Deuteronomy 21:15–17.”49 These explicit comparisons between the “expressive power” in the biblical passages and American constitutional law suggest that a full understanding of Cover’s conception of nomos and narrative might require a close look at his conceptual analogue. Thus, a deeper appreciation for Cover’s ideas could depend on an analysis of the biblical principles of succession, as well as a broader analysis of the place of nomos and narrative in Jewish thought.

B. Cover’s Analysis of Biblical Narrative The passages Cover cites read as follows: If a man has two wives, one beloved and the other hated, and they have born him sons, both the beloved one and the hated one; and the first-born son is that of the hated one. On the day that he wills to his sons that which he ­possesses, he may not grant the son of the beloved wife the birthright in place of the first-born, the son of the hated wife; but he must recognize the son of the hated wife as the first-born, by giving him a double portion of all that he possesses. Because he is the first of his manhood; the birthright is legally his.50

Cover considers the legal meaning and significance of the biblical p­ rinciple of succession in the context of the nomos inhabited by “ancient Israel.”51 Cover first imagines a social setting bound by a law identical to the biblical precept, but one in which the precept is “simply stated, routinely obeyed, and subject only to the ordinary tensions of human psychology and ingenuity.”52 47 Id. at 21. 48 Id. at 35. 49 Id. 50 Deuteronomy 21:15‑17. 51 Cover, Nomos and Narrative, supra note 1, at 19. 52 Id. at 19.

11

12

Section Six    Law and Narrative

Cover contrasts this relatively simplified model against the social environment of the Bible, one filled with narratives creating a complex nomos within which the laws of succession had to be understood and applied.53 Focusing on narratives found in the book of Genesis, Cover observes a recurring theme in which, contrary to the precept commanded in Deuteronomy, the eldest son was denied the right of primogeniture or a corresponding birthright, which instead was granted to his younger and more deserving sibling.54 This theme is initiated in the very first family, with the rejection of Cain’s sacrifice, his exile, and his younger brother Seth’s emergence as the ancestor of Noah, and, thus, of all human beings.55 The theme continues in Noah’s family, as Shem receives a blessing greater than that of his older brother Yefeth, and becomes the progenitor of Abraham and Israel.56 Perhaps the most dramatic example of the phenomenon Cover identifies, and the one most significant to the communal narrative of ancient Israel, involves the patriarchs. The lineage of the patriarchs consistently travels through a younger son, transmitted from Abraham to Isaac and finally to Jacob, who in turn endows Joseph with the birthright in place of Reuben, the eldest.57 In Cover’s words, “all of the stories of the patriarchs revolve around the overturning of the ‘normal’ order of ­succession—a pillar of the legal civilization that is formally enunciated in the code portions of Deuteronomy itself.”58  Indeed, the narratives in Genesis are striking in their incongruence with the legal rules of succession delineated in Deuteronomy, providing a phenomenon ripe for discussion and discovery. Yet, for the legal theorist interested in construing the place of the biblical rules within the biblical nomos, Cover’s ­conclusion that the narratives “can never be wholly squared . . . with the formal rule”59 raises some questions. Cover rejects the approaches by “later rabbis” to “reconcile the stories to the rule by creating exceptions or by positing circumstances that would remove the case from the rule.”60 While acknowledging the efficacy of these approaches for “the later legist whose concern is a consistent body of precepts,” Cover finds 53 See id. at 19‑21. 54 See id. at 20‑21. 55 See Genesis 4:1-26; 5:9‑29. 56 See id. at 9:26-27; 10:10‑26. 57 See id. at 17:19-21; 28:1‑4. 58 Cover, Nomos and Narrative, supra note 1, at 21 (citing M. Weinfeld, Deuteronomy and the Deuteronomic School 188 (1972)). 59 Id. 60 Id. at 21-22.

Halacha and Aggada    Chapter 17

them less helpful in his own project, because “[l]ife in the normative world of the Bible . . . required a well-honed sense of where the rule would end and why.”61 However, a reading of the biblical text on its face suggests that the grounds for Cover’s objection are themselves somewhat problematic. The stories in Genesis depict the lives of the earliest human beings and the patriarchs, who are described as living in a time long preceding the institution of the legal precepts set forth in Deuteronomy. In fact, in light of the heavily legalistic society prescribed in the other books of the Torah, the world in which the patriarchs lived appears strangely bereft of a systematic nomos. While perhaps every ­society inhabits a certain nomos, and, to be sure, social norms are evidenced in the book of Genesis and the early sections of the book of Exodus, it is not until the revelation at Sinai that a more express nomos is established. Thus, it would seem that Sinai, where the Nation of Israel received the Law of God, provided the “well-honed” point of demarcation that Cover seeks for those living in the normative world of the Bible.62 It is possible that, to those living at the time that the law was given, the rule of succession added a new shade of complexity to the stories in Genesis, which had been an integral part of the national narrative. Nevertheless, there was no need to “create exceptions” to “reconcile” the rule with the stories; the stories occurred in the context of a different normative world, that which existed before the revelation provided the nation a new nomos, one that included a rule of succession.63  Perhaps ironically, it is the more complex hermeneutics of some of the “later rabbis” that actually may provide support for Cover’s depiction of a ­normative world in which the stories in Genesis contradict legal precepts. Although the rule of succession is not delineated until Deuteronomy, some medieval ­biblical c­ ommentators identified allusions to the rule in the 61 Id. 62 Id. at 22. 63 In his Code of Law, based on biblical and Talmudic sources, Maimonides succinctly portrays the development of the law from the time of Adam and Eve until the revelation at Sinai. According to Maimonides, Adam and Eve were given six fundamental commandments, while a seventh was commanded to Noah, completing the seven Noahide laws. A number of additional commandments were given to the patriarchs and then to the enslaved Nation of Israel in Egypt. The vast majority of the 613 commandments were presented to Moses and the Nation of Israel at Sinai. Maimonides, Mishne Torah (hereinafter Maimonides, Code of Law), Laws of Kings 9:1. For discussions of the status of the majority of the commandments prior to the revelation at Sinai, see Judah Rosanes, Parashat Derakhim; 1 Nachmanides, Commentary on the Torah 149‑51 (Chaim Chavel ed., 1960) (commenting on Genesis 26:3); Asher Weiss, Minchas Asher, Bereishis 280-85 (2017).

13

14

Section Six    Law and Narrative

patriarchal stories. In particular, Jacob’s statement to Joseph that “I have given you one portion above your brothers”64 is seen as endowing Joseph with the right of primogeniture in place of the eldest son, Reuben. As a result, Joseph’s descendants received two portions in the Land of Israel, while the other tribes each received a single portion.65  An irony inherent in these hermeneutics—one acknowledged by the commentators—is that the narrative of Jacob and Joseph, which demonstrates the existence of the rule of succession prior to the revelation, stands as a challenge to the rule. Indeed, Cover cites the story of Joseph, among the many narratives in Genesis, as a prime example of such a challenge.66 Like Cover, the medieval commentators work to understand the narrative as it relates to this rule. While their primary goal may have been to offer a solution for a specific exegetical question, these scholars provide a broader method for explaining the place of the narrative of Jacob and Joseph within the biblical nomos. In fact, a close look at these scholars’ methods may help illuminate more generally the relationship between nomos and narrative, in a manner that can be applied beyond the Bible to other normative worlds. Cover writes of the effort to “creat[e] exceptions or . . . posit ­circumstances that would remove the case from the rule.”67 Although Cover finds this approach “tempting” because it results in “a consistent body of precepts,” he attributes it to “later rabbis” and legists, and therefore rejects it as u­ nhelpful in understanding the attitudes of those living in the normative world of the Bible.68 Indeed, the Talmud offers a number of exceptions to the rule of ­succession,69 at least one of which provides an explanation for Jacob’s actions. 64 Genesis 48:22. 65 See 1 Nachmanides, supra note 63, at 264 (commenting on Genesis 48:22); Abravanel, Commentary on the Torah (commenting on Deuteronomy 21:15). 66 See Cover, Nomos and Narrative, supra note 1, at 20, 22. It is interesting that Cover emphasizes the events through which Joseph “is favored by his father, dreams of his own primacy, provokes retaliation, and comes to rule over his brothers, in an improbable political ascendancy in another land.” Id. at 20 (citing Genesis 37:1‑47:12). Although these events may be seen as somewhat incongruous with the rule of succession, they do not present the same legal challenge to the rule as that inherent in Jacob’s granting Joseph a double portion, an episode that Cover does not discuss or cite. For an analysis of the events of Joseph's life, see Samuel J. Levine, Was Yosef on the Spectrum? Understanding Joseph Through Torah, Midrash, and Classical Jewish Sources (Urim Publications 2018). 67 Id. at 22. 68 Id. at 21-22. 69 See Babylonian Talmud, Bava Bathra 108a-139b; see also id. at 126b, 156a. But see Cover, Nomos and Narrative, supra note 1, at 20 n.51 (stating that “[t]he later, Davidic legal traditions of the Israelites did not recognize a right on the part of the patriarch to designate an ‘eldest’ son”).

Halacha and Aggada    Chapter 17

The Talmud acknowledges a modification of the rule of succession, finding that the father is precluded from favoring a younger son only if he does so as a result of his dislike for the mother of the eldest son. The father does not violate the rule, however, if he deprives the eldest son of the birthright as a result of the son’s own wrongdoing.70 Some medieval biblical commentators understand Jacob’s actions as an application of the Talmudic principle, depriving Reuben of the birthright as a result of his wrongdoing.71  It does not appear accurate, however, to view either the Talmudic hermeneutics or the commentators’ understanding of Jacob’s actions as an attempt by “later rabbis” to develop a legal system, consistent with the story of Joseph, that would have been unfamiliar to those living in biblical times. The Talmud’s ­derivation of exceptions to, and modifications of, the rule of succession as stated in the Bible is not dependent on the story of Jacob and Joseph. It is the medieval commentators, not the Talmud, who applied the Talmudic principles in order to understand Jacob’s actions. The Talmud, however, does not appear to aim to reconcile the biblical narrative with the rule. Rather, the responsibility and primary interest of the rabbis of the Talmud is to interpret the legal text. Like many legal texts, the verses comprising the rule of succession contain language that inherently lends itself to different interpretations, and must be applied to circumstances beyond those described in the three verses. As evidenced by the episode of the d­ aughters of Tzlaphchad in Numbers,72 legal interpretation of the rule of succession was just as important—and necessary—for those living in the normative world of the Bible as it was for the rabbis of the Talmud. If the Talmud’s derivation of the exceptions to the rule of succession would be meaningful to those living in the times of the Bible, then the ­application of the exception to the story of Jacob and Joseph may not have surprised those who inhabited the biblical nomos. In fact, the medieval commentators who offer this explanation for Jacob’s actions rely on a later biblical passage that appears to explicitly support their analysis. The verses in Chronicles state, “And the sons of Reuben, the first-born of Israel—for he was the first-born; but because he defiled his father’s couch, his birthright was given to the sons of Joseph the son of Israel. And he was not considered in the genealogy as 70 See Babylonian Talmud, Bava Bathra 133b‑134a. Generally, however, the Talmud discourages a father from denying the oldest son the birthright. See id. 71 See Sforno, Commentary on the Torah (commenting on Deuteronomy 21:16) (citing Babylonian Talmud, Bava Bathra 133b‑134a; 1 Chronicles 5:1‑2); Abravanel, supra note 65; see also Genesis 35:22; 49:4. 72 See Numbers 27:1‑11; Abravanel, supra note 65 (discussing episode in light of rule of s­ uccession).

15

16

Section Six    Law and Narrative

f­irst-born; because Judah prevailed among his brethren and from him came the prince; but the birthright was Joseph’s.”73 The Bible itself thereby provides the reason for Jacob’s actions; the medieval commentators merely synthesized the Talmudic rule with the biblical explanation.74 As such, these ­commentators employ principles of standard legal interpretation to situate Jacob’s actions within the range of normative practice incorporated as part of the rule. It seems consistent with Cover’s i­nterest in redemptive constitutionalism that, in contrast to these ­commentators, he p­ refers an explanation of the narrative that “associate[s] the divine hand of destiny with the typology of reversal of this particular rule.”75 Cover thus ­pictures perhaps a more complex biblical nomos, in which the “inhabitant[s] . . . ­understand, first, that the rule of succession can be ­overturned; second, that it takes a conviction of divine destiny to overturn it; and third, that divine destiny is likely to manifest itself precisely in overturning this specific rule.”76 To be sure, there are many biblical narratives that are viewed by the Talmud and later commentators as instances of divine destiny overturning a rule. Indeed, one of the commentators who explains Jacob’s actions according to the Talmudic principle adds that Jacob acted under divine command.77 Nevertheless, in light of Cover’s appreciation for the role of narrative in ­creating a community’s nomos, his rejection of plausible legal interpretation in favor of divinely mandated noncompliance appears to be more than a r­ ejection of a specific hermeneutic. Cover prefers to see the “biblical narratives” as “reveal[ing] and reinforc[ing] a great fault line in the normative topography of the Israelites.”78 Cover depicts a narrative challenge to legal precepts, which serves as a model for his understanding of the role of narratives relating to the laws of slavery,79 as well as his view of the more general relationship between nomos and narrative.

73 1 Chronicles 5:1‑2. 74 Commenting on the manner in which the Bible presents the rule of succession, Cover writes that “[t]he very casuistic phrasing of this precept suggests an extremely problematic psychodynamic.” Cover, Nomos and Narrative, supra note 1, at 20. Abravanel, however, suggests that the Bible’s scenario is, in fact, intended as an allusion to the story of Jacob and Joseph, which was an exception to the rule. See Abravanel, supra note 65. 75 Cover, Nomos and Narrative, supra note 1, at 22. 76 Id. 77 See Abravanel, supra note 65. 78 Cover, Nomos and Narrative, supra note 1, at 22. 79 See id. at 35.

Halacha and Aggada    Chapter 17

Despite the complexities involved in analyzing the biblical rule of succession, Cover refers to the Bible as a “highly simplified case,” calling it “a literary artifact of a civilization [that] . . . no more captures the full range of contested possibilities of ancient Israel than any similarly small composite of our texts would capture the full range of our normative potential.”80 Additionally, Cover observes, unlike the Bible, American legal texts do not include “an ­official, privileged canon of narratives.”81 Instead, Cover describes a “diffuse and unprivileged character of narrative in a modern world,”82 which results, in the United States, in a “complex nomos”83 consisting of “manifold, equally dignified communal bases of legal meaning that constitute the array of commitments, ­realities, and visions extant at any given time.”84 Yet, it may be this “simplified” quality of the biblical canon that makes it particularly effective for understanding Cover’s vision.85 Before investigating a complex dynamic, it is often helpful to analyze a more basic model to arrive at conclusions that can then be applied to the more complex case. As Cover explains in his introduction: I elaborate the unfamiliar idea of a nomos by providing an extended ­illustration through the use of biblical texts. I have chosen this material because the Bible constitutes a conventionally circumscribed corpus of integrated prescriptive and narrative material that can serve as an artificially simplified model. The sections that follow then apply the model to the more complex problems of creating constitutional meaning—problems that we meet in our own world—but concentrate on the creation of such meaning outside the official courts.86

Indeed, it may be the integration of, and corresponding interrelationship between, precepts and narratives in the Bible that Cover sees as an ­illuminating “illustration of the ways in which precepts and narratives operate together to ground meaning.”87 In discussing his reliance on the Bible for an analysis of 80 Id. at 19. 81 Id. at 4 n.3. 82 Id. 83 Id. 84 See id. at 66. 85 See id. at 19. 86 Id. at 10. 87 Id. at 19.

17

18

Section Six    Law and Narrative

“the problem of legal meaning,” Cover describes the Bible as “­conventionally bounded,” due to a “canon establish[ing] both that all biblical narrative is ­relevant to normative meaning and that no other material is.”88 In addition, he writes, the Bible “demonstrates the irrelevance of genre to the creation of legal meaning. The narratives in question are relevant to the meaning of the biblical nomos not because they are true, but because they are biblical. That is, they are within a convention of established materials for interpretation.”89 Building on his understanding of the simplified, bounded system of the Bible, Cover embarks upon a further analysis of the “problems of ‘meaning’ within our own nomos,” in which “materials are less well bounded” and “[t]here are no easy conventions for the creation of meaning.”90 While the absence of a canonized narrative in the modern nomos,91 replaced instead by communal and often competing narratives, lends complexity to Cover’s discussion, in Cover’s 88 Id. at 24‑25. 89 Id. 90 Id. at 25. Cover’s ambitious aim is to investigate the creation of legal meaning, emphasizing the “jurisgenerative” capacity of “communities that affirm a legal meaning opposed to that of the state.” Id. at 10, 25. These creators of legal meaning include “insular communities [that] establish their own meanings for constitutional principles through their constant struggle to define and maintain the independence and authority of their nomos,” as well as “groups dedicated to radical transformations of constitutional meaning as it affects the application of state power.” Id. at 25. Cover contrasts the function of these groups against the “jurispathic” nature of courts, which, in their official capacities, must choose between competing narratives, such as, in the case of Bob Jones University, those of “the redemptive constitutionalism of an excluded race” and “of insularity, the protection of association.” Id. at 66. Professor Winter has described the role of “the judge or other legal storyteller,” in Cover’s view, as tell[ing] a story that will be both meaningful and compelling . . . [to] make use of preexisting cultural knowledge in ways that will seem natural to those subject to the legal rule because already grounded in social experience and mediated by existing cultural models. . . . This view of lawmaking acknowledges that those who comprise the legal hierarchy do exercise substantial power in choosing legal rules or cultural norms; they may pick and choose from amongst a broad stock of practices those that will be institutionalized in legal rules. Winter, supra note 4, at 2270. 91 Some scholars have observed the presence of narrative in what is generally viewed as strictly legal material. See, e.g., David Ray Papke, Discharge As Denouement: Appreciating the Storytelling of Appellate Opinions, 40 J. Legal Educ. 145, 145 (1990) (suggesting that “appellate opinion has an inherent tendency to tell stories”); Rock, supra note 8, at 1017 n.15 (“What, for me, is so striking about the Delaware [corporate law] cases is that s­ torytelling is so prominent in the decisions and so unabashedly normative.”); cf. Cover, Nomos and Narrative, supra note 1, at 9 (“The normative meaning that has inhered in the patterns of the past will be found in [among other sources] the history of ordinary legal doctrine at work in mundane affairs.”). In Halachah and Aggadah, Hayim Nahman Bialik states,

Halacha and Aggada    Chapter 17

view, the difference between the biblical nomos and the more complex modern nomos is one of degree rather than of kind. Thus, conceding that “[i]n our own normative world, there is no obvious central text . . . that exhaustively supplies both narrative and precept,” Cover nevertheless follows his examination of the biblical nomos with an effort to “understand the creation of legal meaning” in this more complex nomos.92 Ultimately, both models are best understood through a similar method of exploring the fundamental question of the relationship between nomos and narrative. In fact, Cover’s very conception of nomos and narrative appears influenced by, if not a direct application of, the parallel notions of halacha and aggada in Jewish legal thought. Acknowledging that the “idea of a nomos” is “unfamiliar,”93 Cover offers several explanations for the term, starting with the very first line of his article, which declares, “We inhabit a nomos—a normative universe.”94 [T]he Hebrew halacha is almost entirely free from abstractions; almost throughout it is descriptive and concrete. “Two men take hold of a shawl”; “When the potter puts in his pots”; “When a man puts down his cask”—this is the invariable style of the Hebrew halacha. Almost from beginning to end it is a kaleidoscope of pictures, large and small, of actual Hebrew life over a period of a thousand years and more . . . . When, for instance, a Jew reads the Tractate Zera’im [talmudic agricultural law], does it never happen that there comes to him from its pages a breath of life, a scent of the earth and the grass, so that of a sudden he forgets that he is sitting and studying . . . and sees the common people—the “men of the earth”—at their work in field and garden and vineyard and threshing-floor, with the priest doing his round, and the poor and the needy gathering the stray ears, falling on them, or spreading a cloak over them to establish a claim, and fighting over the booty with their sickles; or the variegated field, with its wheat and rye-grass and asparagus, its fenugreek and purslane, and the vine trained on the fig-tree, and the ant-hills in the standing corn, and the wind stirring the vines, and the gatherer of wet leaves and the collector of dry twigs, and the grape-gatherer snipping off the cluster which, in its tangle of leaves, slips from his hand to the ground and breaks; or the basket of wheat with the one grain that exempts it from the tithe; or the stag bought with tithemoney; or the shepherds eating dog-biscuit; or the ripe pomegranate tied up with a reed; or the young pigeons on the baskets—and so forth and so forth? And when he goes on to the Tractates Mo’ed [holidays] and Nashim [family law], does he not see with his own eyes the family life of the Hebrews, complete in all the fullness of its detail? And then N’zikin [torts]—can he take up this Tractate without seeming to see the Hebrew street and market-place, frozen suddenly one day in the midst of their business and bustle? Hayim Nahman Bialik, Halachah and Aggadah, 22‑24 (Leon Simon trans., 1994). 92 Cover, Nomos and Narrative, supra note 1, at 25. 93 Id. at 10. 94 Id. at 4.

19

20

Section Six    Law and Narrative

This normative world consists not only of legal precepts and institutions; an important component of the normative world is the narratives that “locate” and “give . . . meaning” to the rules.95 Cover emphasizes that “[t]o inhabit a nomos is to know how to live in it.”96 Living in a nomos provides “an integrated world of obligation and reality from which the rest of the world is perceived.”97  Similar to Cover’s definition of a nomos, the Hebrew term halacha, though implying a legal order and often used to denote “Jewish religious law,” suggests a broader range of ideas than those included in legal rules. A more literal translation of halacha would evoke a “path” of life; to inhabit the halacha is, by ­definition, to live in it.98 Thus, the halacha truly provides a “worldview”99 through which all of the world and life’s experiences are perceived.100 Moreover, as a path of life, halacha incorporates those aspects of normative life that complement the legal precepts, the aggada.101 Like “narrative,” the        

95 Id. 96 Id. at 6. 97 Id. at 31. 98 Professor Jeffrey Roth compared Cover’s conception of law as a bridge with the concept of halacha. See Jeffrey I. Roth, Crossing the Bridge to Secular Law: Three Models of Incorporation, 12 Cardozo L. Rev. 753, 753 (1991). Professor Roth cites Cover’s depiction of law as “the way a group of people will attempt to get from here to there.” Id. (citing Cover, The Folktales of Justice: Tales of Jurisdiction, supra note 3, at 181); see supra note 39 and accompanying text. Roth suggests that [d]efining law as “a way” has an unmistakable Jewish resonance. The Hebrew word for Jewish law, halacha, is derived, according to some ­scholars, from the root halach, meaning “to walk” or “to go.” Jewish law is thus a way or path, the road Israel follows to transform itself from an ordinary nation into a holy people and a nation of priests. Id. at 753 n.3 (citations omitted).   99 Joseph B. Soloveitchik, Halakhic Man 94 (Lawrence Kaplan trans., 1983). 100 Rabbi Joseph Soloveitchik has written eloquently and extensively about the power of halacha to create a worldview. For example: According to the outlook of halacha, the service of God . . . can be carried out only through the implementation, the actualization of its principles in the real world. The ideal of righteousness is the guiding light of this worldview. . . . The halacha is not hermetically enclosed within the confines of cult sanctuaries but penetrates into every nook and cranny of life. The marketplace, the street, the factory, the house, the meeting place, the banquet hall, all constitute the backdrop for religious life. Id. 101 Cf. Aaron Kirschenbaum, Modern Times, Ancient Laws—Can the Torah be Amended? Equity as a Source of Legal Development, 39 St. Louis U. L.J. 1219, 1219 (1995) (“Halacha refers to the entire gamut of human behavior: ritual as well as ethical, religious as well as ‘secular.’”).

Halacha and Aggada    Chapter 17

term aggada can take on various meanings. However, when used in contrast to, and in conjunction with, halacha, the term evokes some of the philosophical, ­emotional, religious, and social expressions that provide a context for, and a deeper meaning to, the legal precepts.102  Therefore, an attempt to better understand Cover’s thoughts might b­ enefit from a fuller understanding of the complex interrelationship of halacha and aggada in Jewish thought. Towards that end, part two of this chapter continues with an examination of the interplay between halacha and aggada as demonstrated in central Jewish religious texts that integrate the two concepts.103

PART TWO | NOMOS AND NARRATIVE IN JEWISH LEGAL SOURCES A. Halacha and Aggada in the Torah Though often translated as “narrative,”104 the term aggada is somewhat ­ambiguous in meaning,105 and open to a wide range of interpretations.106 Rejecting ­various narrow definitions offered by “modern scholars,”107 David Stern observed that aggada includes “a widely heterogeneous body of materials that range from extra-biblical legends and tales about the rabbis to snippets 102 Some of Cover’s friends have noted the parallel between nomos and narrative and halacha and aggada. For example, Rabbi Joseph Lukinsky, who knew Cover as a teenager and to whom Cover declared his “deepest debt” for “first open[ing] my eyes to the complexity of moral choice,” see Cover, Justice Accused, supra note 40, at xi, wrote, and stated on a number of occasions, that “nomos and narrative” is “a conscious translation of the conceptions of halacha and aggada.” Lukinsky & Abramson, supra note 4, at 11; cf. Wizner, supra note 4, at 1710 (“Bob was a committed Jew. He experienced fully the halacha and aggada, the nomos and narrative, the myth, law, and history, the ethical aspirations, of the Jewish people.”); see also Tucker, supra note 4, at 21 (“Nomos and ‘narrative’ were, to some of us who read this article, changelings which had supplanted the more resonant terms halacha and aggada.”). 103 Cf. Apt, supra note 8, passim (offering different approach to relationship between aggada, narrative, and law). 104 See, e.g., 2 Encyclopedia Judaica 354 (1972) (translating term aggada). 105 As one scholar put it, “The term aggada . . ., literally ‘that which is told,’ tells us more about the manner of its transmission than about the content of what was transmitted. The rabbis themselves never define aggada. . . .” David Stern, Aggadah, in Contemporary Jewish Religious Thought 7 (Arthur A. Cohen & Paul Mendes-Flohr eds., 1987). 106 As Cover observes in discussing “Torah,” nomos, and “the Law,” certain terms are “amenable to a range of meanings that serve both to enrich the term and to obscure analysis of it.” Cover, Nomos and Narrative, supra note 1, at 11 n.31. 107 Stern, supra note 105, at 7. These definitions included “‘scientific mythology,’” “‘a tale implied or derived from Scripture,’” and “‘speculation with edification in view.’” Id. (citations omitted).

21

22

Section Six    Law and Narrative

of popular folklore and fully elaborated homilies.”108 This definition ­acknowledges that the significance of aggada, like that of Cover’s “narrative,” owes less to its literary form than to its power to convey national, cultural, and societal attitudes. Yet, even such a broad definition restricts the scope of aggada to the “body of rabbinic tradition,”109 thereby excluding narrative portions of the Bible such as those analyzed by Cover. Notably, though, Stern’s work is a technical and systematic attempt to explain the literal meaning of the term aggada in Jewish literature. Cover’s analysis discusses the broader concept of narrative, and by association aggada, which includes not only rabbinic literature but sections of the Bible as well.110  Indeed, Cover’s discussion of the relationship between the biblical rule of succession and the Genesis narratives illustrates the important role that ­biblical narratives play, together with biblical precepts, in creating a “normative universe.”111 Even a cursory reading of the Torah reveals a literary work consisting of a continuous amalgamation of both precept and narrative. In some parts of the Torah the demarcation between the two forms is apparent, while in other areas precept and narrative are intertwined to comprise a single unit. Regardless of these distinctions, however, the Torah, as a whole, ­constitutes 108 Id.; cf. 2 Encyclopedia Judaica, supra note 104, at 356 (“The aggada comprehends a great variety of forms and content. It includes narrative, legends, doctrines, admonitions, words of encouragement and comfort, and expressions of hope and future redemptions.”). 109 Stern, supra note 105, at 7; cf. 2 Encyclopedia Judaica, supra note 104, at 354 (defining aggada as “that portion of rabbinic teaching which is not halacha,” but “in common with the halacha is part of the literature of the Oral Law”). 110 See Bialik, supra note 91, at 25. Specifically, Bialik comments, The words halacha and aggada come from the Talmud, where they have each a fixed meaning; but from the point of view of their inner reality their meaning is capable of extension and enlargement to cover the whole range of related phenomena, whether earlier or later than the Talmud. They are two definite forms, two distinct styles that go together in life and literature. To each age its own aggada; to each aggada its own halacha. Id. 111 Cover, Nomos and Narrative, supra note 1, at 4. 112 Rabbi Gordon Tucker has equated Cover’s notion of “sacred narratives” with the “fact that Torah gives us law deeply intertwined with aggada.” Tucker, supra note 4, at 26. Professor Bernard Jackson similarly observes that “[t]here is an integral relationship between law and narrative in the Bible.” Bernard S. Jackson, The Literary Presentation of Multiculturalism in Early Biblical Law, 23 Int’l J. Semiotics L. 181, 182 (1995) (analyzing this relationship in number of contexts).

Halacha and Aggada    Chapter 17

a foundation for the nomos of ancient Israel, as the aggada complements the legal precepts to inject meaning into the actions commanded, on both national and individual levels.112  Still, it is the final four books of the Torah that contain nearly all of the precepts commanded to the Nation of Israel. To be sure, these books are not bereft of narrative, including such dramatic events as the exodus from Egypt, the revelation at Sinai, the travels and travails in the desert, and the death of Moses. Indeed, the significance and meaning of the legal precepts are colored by the pivotal events that accompany their presentation. The book of Genesis, in contrast, consists almost entirely of narratives. While these narratives may suggest a certain nomos, they do not form the complex and comprehensive normative universe created by the other four books of the Torah. Cover’s focus on the rule of succession is particularly insightful because he identifies an area in which legal precepts are implicated by the Genesis narrative. Unlike the rule of succession, however, most of the ­precepts contained in the last four books of the Torah are not as clearly linked with events depicted in Genesis. This apparent lack of explicitly legal material in Genesis has led a number of scholars to examine closely the connection between the Genesis narratives and the nomos created by the Torah as a whole. The different approaches of some of these scholars may illuminate more generally the relationship between nomos and narrative. Rashi, one of the earliest and greatest of medieval Bible scholars,113 inaugurates his biblical commentary with a citation to a rabbinic source that asks why the Torah begins with the Genesis narrative, rather than with the section of Exodus114 that contains the first command to the Nation of Israel.115 Rashi’s question, like much of his commentary, inspired further discussion by ­generations of scholars who succeeded him. Rabbi Judah Loew of Prague (Maharal), in his sixteenth-century supercommentary on Rashi, explained that Rashi’s question reflects a fundamental observation about the nature of the book of Genesis and its place in the Torah. According to Maharal, Rashi looked to the purpose of the Torah, suggested by the very name “Torah,” which is a d­ erivation of the verb “to teach.” Rashi’s question thus rested on the premise that the Torah’s primary, if not exclusive, function is to teach the nation 113 See Chaim Chavel, Introduction to Rashi, Commentary on the Torah (Chaim Chavel ed., 1986). 114 See Exodus 12:2. 115 See Rashi, supra note 113, at 1 (commenting on Genesis 1:1).

23

24

Section Six    Law and Narrative

the proper path of life it should follow, which is presumably enumerated in the commandments and not depicted in narrative.116  Rashi’s answer to this question not only lends a legal context to the ­creation narrative, but also, like the narrative of Jacob that Cover examined, helps ­illustrate the normative world inhabited by ancient Israel. Again citing the earlier rabbinic source, Rashi states that the creation narrative, e­ stablishing the Omnipotent God as Sovereign over the world, provides the legal and moral authority for God’s dispossessing those nations living in the Land of Israel, and granting the land to the Nation of Israel.117 While Rashi’s answer may be understood on a number of levels—and has, like his question, evoked a number of responses by later scholars—on a basic level, the answer provides a legal significance to a narrative that otherwise appears unconnected to legal precepts. Yet, this explanation may remain insufficient to some who, like Maharal, suggest that the narratives in the Torah should relate more directly to actual legal precepts.118  To those raising such objections to Rashi’s analysis, the commentary of another medieval biblical and legal scholar, Nachmanides, may prove more satisfying.119 Though apparently relying on the same rabbinic source as Rashi, Nachmanides interprets the source differently.120 Like Rashi, Nachmanides understands the Genesis narrative as a legal foundation for God’s granting the Land of Israel to the Nation of Israel. Nachmanides, however, views the narrative as an expression of the legal principle of reward and punishment.121  Various stories in the book of Genesis tell of individuals and nations whose moral behavior is judged by God. In particular, Nachmanides notes the parallel between Adam and Eve, who were placed in the paradise of Eden and See Maharal, Gur Aryeh (commenting on Rashi, supra note 113). See Rashi, supra note 113. See Maharal, supra note 116. See 1 Nachmanides, Commentary on the Torah, supra note 63. Significantly, Maharal explains Rashi’s answer in a manner that connects more directly to commandments. Maharal notes that the majority of the commandments in the Torah are either agricultural commandments or relate to the service in the Temple. Because all of these commandments can be observed only in the Land of Israel, the lesson Rashi learns from the Genesis narrative, explaining the legal basis for the nation’s inhabiting the Land of Israel, is intrinsically connected to the commandments. See Maharal, supra note 116. 120 Nachmanides interprets the question of why the Torah did not begin with the commandments in Exodus somewhat differently from Rashi. Nachmanides refers to the esoteric nature of the biblical depiction of creation, which, he says, is not properly understood on its face, and requires an explanation that is known only to select individuals. See 1 Nachmanides, supra note 63, at 9 (commenting on Genesis 1:1). 121 See id. at 9‑10 (commenting on Genesis 1:1). 116 117 118 119

Halacha and Aggada    Chapter 17

subsequently expelled for their sin, and the nations who occupied the Land of Israel but were ultimately uprooted from the land because of their sins.122 In the context of these narratives, the nomos of ancient Israel included a ­realization that inhabiting the Land of Israel was conditioned on moral behavior. Moreover, a number of specific precepts, found later in the Torah, are presented together with admonitions against engaging in conduct similar to that of the nations who would be expelled from the land. A chapter in Leviticus delineating prohibited sexual conduct is framed by references to the immoral practices of those living in the Land of Israel.123 Nachmanides alludes to the closing verses of the chapter, which state—in stark and explicit terms—the legal ­principles of reward and punishment that are apparent in the Genesis narrative: “In all of these [practices] the nations that I send from before you have been defiled . . . and the Land has spit out its inhabitants . . . you shall not commit any of these abominations . . . and the Land will not spit you out . . . as it has spit out the nations that were before you.”124 Therefore, the Genesis aggada complements the legal portions of the other books of the Bible, p­ roviding a societal narrative that contributes to a national nomos in which living in the Land of Israel is contingent on national morality.125  Yet, even in this view of the Genesis narrative, the connection to legal rules is still somewhat indirect. Although the narrative serves as a powerful means for conveying the legal meaning and importance of commandments delineated elsewhere, the narrative itself does not teach independent legal precepts. An ­additional approach, offered by a contemporary scholar, Rabbi Joseph Soloveitchik, pictures biblical narrative not merely as aggada that lends m ­ eaning to legal precepts, but as another source of law. According to this approach, while narrative may differ, in form, from commandments, it too has the power to mandate obligations. 122 See id. at 10 (commenting on Genesis 1:1) (citing Leviticus 18:24‑28). 123 See Leviticus 18:3, 24‑28. 124 Id. at 18:24‑28. 125 Professor Ronald Garet has observed that “the ethics of the religion of Israel could never simply be equated with an ethics of divine command.” Ronald R. Garet, Natural Law and Creation Stories, in Nomos XXX: Religion, Morality and the Law 218, 224 (J. Roland Pennock & John W. Chapman eds., 1988). Instead, he writes, they are also based in “the complex moral messages transmitted by the biblical narratives.” Id.; cf. Aharon Lichtenstein, Does Jewish Tradition Recognize an Ethic Independent of Halakha?, in Modern Jewish Ethics: Theory and Practice 62 (Marvin Fox ed., 1975) (stating that “[w]hat I reject emphatically is the position that, on the one hand, defines the function and scope of halacha in terms of the latitude implicit in current usage and yet identifies its content with the more restricted sense of the term”).

25

26

Section Six    Law and Narrative

Relying on a Talmudic exposition of the Genesis narrative relating the c­ onversations of Abraham’s servant, Eliezer,126 Rabbi Soloveitchik concludes that “[e]ven the Scriptural narratives serve the purpose of determining ­everlasting law . . . . Our Torah does not contain even one superfluous word or phrase. Each letter alludes to basic principles of Torah law, each word to ‘well-fastened,’ authoritative, everlasting [legal precepts].”127 Thus, it is the task of the scholar to “discern[] in every divine pledge man’s obligation to bring about its fulfillment, in every promise a specific norm, in every eschatological vision an everlasting commandment . . . . The conversations of the servants, the trials of the fathers, the fate of the tribes, all teach the sons Torah and commandments.”128  Applying this principle to the creation narrative, Rabbi Soloveitchik declares that if the Torah spoke at length about the creation of the world and related to us the story of the making heaven and earth and all their host, it did so not in order to reveal cosmogonic secrets and metaphysical mysteries but rather in order to teach practical Halacha. The Scriptural portion of the creation narrative is a legal portion, in which are to be found basic, everlasting halakhic principles, just like the portion of Kedoshim or Mishpatim.129

The legal precept that Rabbi Soloveitchik derives from the creation narrative is “that man is obliged to engage in creation.”130 In fact, according to Rabbi Soloveitchik, through the creation narrative “[m]an, the creature, is ­commanded to become a partner with the Creator in the renewal of the 126 See Soloveitchik, supra note 99, at 100 (citing Bereishith Rabbah 60:11). 127 Id. at 99‑100; cf. Winter, supra note 4, at 2267‑68 (stating that “[t]he entire Jewish tradition of . . . interpretive storytelling, is a tradition of lawmaking” and observing that rabbinic sources interpret a Genesis story of Abraham as a source of the legal obligations of “visiting the sick” and “entertaining strangers”). 128 Soloveitchik, supra note 99, at 100. 129 Id. at 100‑101 (scriptural citations omitted). These references are to portions in Leviticus and Exodus expressly prescribing numerous legal precepts. Professor Garet has similarly written that an “aspect of the biblical narratives that does not neatly fit into a simplistic picture of divine commandments is the cosmogonic aspect: the creation stories of Genesis, and their echo throughout the Hebrew Bible.” Garet, supra note 125, at 226. Garet concludes that, in place of express commands, “[t]he natural order that God has created is in many ways a source of moral insight and instruction. The book of Job, for example, draws ethical instruction from our created nature.” Id. 130 Soloveitchik, supra note 99, at 101.

Halacha and Aggada    Chapter 17

cosmos”131 as an expression of “[t]he peak of religious ethical perfection to which Judaism aspires.”132 While the human act of creation can take on many forms,133 Rabbi Soloveitchik emphasizes the spiritual element, summarized in his portrait of the individual who “creates an ideal world, renews . . . and ­transforms himself into a man of God, dreams about the complete ­realization of the Halacha in the very core of the world, and looks forward to the kingdom of God . . . appearing in the midst of concrete and empirical reality.”134 Thus, the extensive account of creation not only teaches 131 Id. at 105. 132 Id. at 101. 133 In his lectures, Rabbi Soloveitchik provided a more expansive picture of the human role as creator: The convertibility of faith principles into moral directives may be implicit in the Creation story of Genesis 1. Why does the Torah devote an entire chapter to the story of creation when, actually, all that emerges is a story which is unclear, incomplete, enigmatic, half-told, and half-concealed? The mystery of creation is thereby magnified, rather than dispelled. Even the chronology of creation as indicated in the text cannot be taken literally, as Rashi and others have indicated . . . . Perhaps this elaborate emphasis in the book of Genesis on God’s creation was meant to be converted into a moral challenge to man, that as God created, so should man. The foundation of our morality is: “And you should walk in His ways,” that we imitate God. Man, like God, is often faced with utter desolation and he does not know where to begin. He doubts his ability to say “let there be light.” It seems that the world can never be illuminated, such is the prevailing gloom. Yet man is bidden by the principle of imitatio Dei to create, to be a partner in fashioning form out of chaos. Of course, man does not create ex nihilo, as did God, though at times it seems to man that his task is as formidable as if it were from absolute nothing. Man must be creative in both the material and spiritual realms. There are diseases to conquer, rivers to control, miseries to extirpate . . . . There is also the mandate to be creative in the spiritual realm . . . education . . . is creativity par excellence. A formless, undirected child is transformed into a refined Torah scholar. An undisciplined child, without any identity, is gradually changed into a spiritual personality . . . . This is the spiritual dimension of parenthood, even as the commandment to bear children is physical creation. Thus Genesis 1 challenges man to create, to transform wilderness into productive life; thereby, an article of faith becomes a moral principle. Abraham R. Besdin, Reflections of the Rav: Lessons in Jewish Thought 25‑27 (1979) (adapted from Lectures of Rabbi Soloveitchik) (citations and Hebrew phrases omitted); see also Hershel Schachter, Nefesh Harav 63-69 (1994) (describing Rabbi Soloveitchik’s views). 134 Soloveitchik, supra note 99, at 137. Rabbi Soloveitchik develops these ideas at length in Part Two of Halakhic Man. See id. at 97‑137. A number of Rabbi Soloveitchik’s statements provide poignant expressions of his ideas. For example: “When God created the world, He provided

27

28

Section Six    Law and Narrative

an important legal precept, but provides the framework for a fundamental narrative lending a ­profound meaning to the entire biblical nomos: “Just as the Almighty constantly refined and improved the realm of existence during the six days of creation, so must man complete that creation and transform the domain of chaos and void into a perfect and beautiful reality.”135 Significantly, while Rashi, Maharal, Nachmanides, and Rabbi Soloveitchik offer different explanations for the role of the Genesis narrative in the context of the other four books of the Torah, they all emphasize the importance of understanding the relationship between the aggadic material in Genesis and the halachic material found in the rest of the Torah, both of which—together—form the broader biblical nomos.

B. Halacha and Aggada in the Talmud Although the Written Torah serves as the fundamental source of Jewish law, it is supplemented by the Oral Torah—the traditions and interpretations that were transmitted orally, from the times of Moses until they were ultimately compiled as the Talmud.136 In part as a result of the method of its transmission, the Talmud includes more than strictly legal material. Rabbi Adin Steinsaltz has described the Talmud as “a conglomerate of law, legend and philosophy, a an opportunity for the work of His hands— man—to participate in His creation. The Creator, as it were, impaired reality in order that mortal man could repair its flaws and perfect it.” Id. at 101. “The perfection of creation . . . is expressed in the actualization of the ideal halacha in the real world.” Id. at 107-8. “The most fundamental principle of all is that man must create himself.” Id. at 109. “When a person creates himself, ceases to be a mere species man, and becomes a man of God, then he has fulfilled that commandment. . . .” Id. at 128. “[T]his whole process of development unfolds in an ethical-halakhic spirit. The intellect, the will, feeling, the whole process of self-creation, all proceed in an ethical direction.” Id. at 137. Cf. Garet, supra note 125, at 249 (finding, in summary by Leo Strauss of creation story in Genesis, “an imago dei argument for human nature as self-creation or self-transformability, coupled with an account of the normative or political consequences that flow from human nature so described. . . . Only humanity can be self-creating, and in that sense mirror God the creator”). 135 Soloveitchik, supra note 99, at 106. 136 Many scholars have discussed the history, structure, and methodology of the Jewish legal system, including the relationship between the Written Torah and the Oral Torah. See Irving A. Breitowitz, Between Civil Law and Religious Law: The Plight of The Agunah in American Society 307‑13 (1993); Menachem Elon, Jewish Law: History, Sources, Principles 228‑39, 281‑399 (Bernard Auerbach & Melvyn J. Sykes trans., 1994); David M. Feldman, Birth Control in Jewish Law: Marital Relations, Contraception and Abortion 3‑18 (1968); Aaron Kirschenbaum, Equity in Jewish Law: Halakhic Perspectives in Law: Formalism and Flexibility in Jewish Civil Law 289‑304 (1991); Menachem Elon, The Legal System of Jewish Law, 17 N.Y.U. J. Int’l L. & Pol. 221 (1985). See also Chapter 3 in Volume 1.

Halacha and Aggada    Chapter 17

blend of unique logic and shrewd pragmatism, of history and science, logic and humor,” in short, “the repository of thousands of years of Jewish wisdom.”137 Thus, the Talmud is more than a legal code; it constantly enriches discussions of legal precepts with narrative elements that contribute to the broader Jewish nomos.138 In fact, Rabbi Steinsaltz has estimated that one fourth of the material in the Talmud may be classified as aggada.139 Just as the Talmud offers a much broader exposition of legal concepts than that found in the text of the Torah, the aggada in the Talmud provides extensive narratives that help create the normative world in which the legal precepts function.140  One of the most well-known and compelling of Talmudic narratives is the story of the oven of Akhnai.141 In this story, the Talmud recounts a dispute 137 Adin Steinsaltz, The Essential Talmud 4 (Chaya Galai trans., 1976). 138 See id. at 3. As Rabbi Steinsaltz has put it, If the Bible is the cornerstone of Judaism, then the Talmud is the central pillar, soaring up from the foundations and supporting the entire spiritual and intellectual edifice. In many ways, the Talmud is the most important book in Jewish culture, the backbone of creativity and of national life. No other work has had a comparable influence on the theory and practice of Jewish life, shaping spiritual content and serving as a guide to conduct. Id. 139 See id. at 251. 140 For an eloquent and moving testimony to the complementary nature of the legal and aggadic material in the Talmud, see Shmuel Ha-Levi Edels (Maharsha), Introduction to Chidushei Halachoth. One of the great Jewish scholars of the sixteenth and seventeenth centuries, Maharsha composed separate running commentaries, corresponding respectively to the legal and aggadic portions of the Talmud. When publishing his works, Maharsha expressed regret for not following the format of the Talmud, a single work that blends legal and aggadic material. Maharsha acknowledged that the law as a whole is comprised of both legal precepts and aggada, which he called “sisters.” Moreover, he observed the numerous moral imperatives contained in aggada. Therefore, Maharsha implored the reader to view his works as a single unit, to be read as a running commentary following the order of the material as presented in the Talmud. See id. To facilitate his wishes, Maharsha’s commentaries, printed in most editions of the Talmud, have been rearranged and synthesized to correspond to the order of the Talmudic material analyzed. 141 Professor Suzanne Stone has referred to this narrative as “possibly the most frequently cited talmudic passage in modern literature,” and “one of a handful of legal narratives that has captured the imagination of philosophers, psychologists, and literary critics, as well as legal scholars.” Stone, supra note 4, at 855, 841. Cover was one of the legal scholars who cited this passage, writing that “[t]he issues raised by this midrash are connected to the theoretical, philosophical, and theological disputes that raged in Judaism for hundreds of years concerning the relative authority of law and prophecy.” Cover, Nomos and Narrative, supra note 1, at 23 n.66 (citations omitted).

29

30

Section Six    Law and Narrative

between Rabbi Eliezer and the majority of sages relating to the ritual purity of a particular kind of oven.142 In order to demonstrate that his view was c­ orrect, Rabbi Eliezer summoned a number of miraculous events, culminating in a heavenly voice declaring that the law should follow Rabbi Eliezer’s opinion.143 The sages responded by noting that the law is “not in Heaven,”144 but instead, subsequent to the revelation at Sinai, was placed in the province of humans. Therefore, the dispute was settled in accordance with the view of the majority of sages and against the view of Rabbi Eliezer.145  On a concrete level, this narrative is important to the Jewish legal system because it resolved a specific legal issue that was subject to debate among ­decision-makers. For centuries, however, scholars have found that on a broader level, the narrative illuminates many aspects of the normative world of the Talmud.146 Specifically, the narrative dramatically depicts and endorses a ­process of decision-making that is fundamental and central to the worldview of those inhabiting the Jewish nomos. In analyzing the issue of legal authority in Jewish law, the medieval scholar Rabbenu Nissim Gerondi (Ran) relies heavily on the story of the oven Another legal scholar, Professor Garet, makes a different observation, regarding what he calls “stories of deliverance, covenant, and law-creation.” Garet, supra note 125, at 225. Garet asserts that [t]he adjudicative function of such stories presupposes their authority to expound the law. The story of R. Eliezer mobilizes support for that supposition. Certain texts, the story suggests, have standing to shape or govern the understanding of the law. The Heavenly Voice, by contrast, lacks such standing. The authority of the canonical texts is traceable to the divine commands that the texts mediate; yet the texts enjoy an autonomy . . . . Id. Some contemporary American legal scholars have applied the lessons of the story of the Oven of Akhnai to American legal theory. See David R. Dow, Constitutional Midrash: The Rabbis’ Solution to Professor Bickel’s Problem, 29 Hous. L. Rev. 543, 569‑71 (1992); Daniel J.H. Greenwood, Akhnai, 1997 Utah L. Rev. 309, 327; Joshua Gutoff, The Necessary Outlaw: The Catastrophic Excommunication and Paradoxical Rehabilitation of Rabbi Eliezer ben Hyrcanus, 11 J.L. & Religion 733, 736 (1995); Stone, supra note 4, at 840‑47, 855‑65 and accompanying footnotes. 142 See Babylonian Talmud, Bava Metzia 59b. 143 See id. 144 Id. (analyzing Deuteronomy 30:12). 145 See id. (analyzing Exodus 23:2). 146 See Izhak Englard, Majority Decision v. Individual Truth: The Interpretations of the “Oven of Achnai” Aggada, 15 Tradition 137 (1975) (compiling and discussing different interpretations of this narrative by scholars of Jewish law).

Halacha and Aggada    Chapter 17

of Akhnai. Ran explains that, as a result of the various miraculous events, the majority of sages recognized that Rabbi Eliezer’s analysis was, in fact, “closer to the truth” than was their own.147 The sages understood that the miracles were indeed a divine validation of Rabbi Eliezer’s view.148 Nevertheless, the sages followed their own opinion, based on the principle that the duty and authority to interpret the law was given to humans, and thus the law is ­determined according to human, rather than Divine, logic.149  According to Ran, because this principle of human legal authority is so fundamental to the Jewish legal system, it finds its fullest expression in the very first legal precept commanded to the Nation of Israel as a community. In the opening of the twelfth chapter of Exodus, before commanding the nation to defy its Egyptian enslavers and conduct the original Passover ceremony, God directs Moses and Aaron to relate to the nation that “[t]his month shall be for you the beginning of the months; it shall be the first month of the year for you.”150 The oral tradition, documented in the Talmud, interprets this verse as

147 Ran, Derashot 44, 112 (Leon A. Feldman ed., 1973). Cf. Yosef Albo, Sefer Ha-Ikarim 3:23. 148 See id. at 45. 149 See id. Other scholars and legal authorities have relied on this narrative to similarly illustrate the power, and accompanying responsibility, of those who decide the law. See Moshe Feinstein, Introduction to Igroth Moshe (1959); Aryeh Leb Heller, Introduction to Ketzoth Ha-choshen. Although the Sages rejected the view of Rabbi Eliezer pursuant to the Torah’s dictum establishing majority rule, Rabbi Eliezer’s reasoning clearly represented a viable legal interpretation, indeed one more consistent with divine logic. The sages, however, followed an alternative interpretation, one they found more consistent with human logic. Thus, as I have developed elsewhere at greater length, the narrative exemplifies the principle that there can exist in legal reasoning more than one viable interpretation. See Chapter 3 in Volume 1; see also Elon, supra note 136, at 240‑72 (discussing multiplicity of Jewish law interpretations); Michael Rosensweig, Eilu ve’Eilu Divrei Elokim Hayyim: Halakhic Pluralism and Theories of Controversy, in Rabbinic Authority and Personal Autonomy 93, 93-122 (Moshe Sokol ed., 1992) (exploring importance of controversy and pluralism in Jewish law). In fact, the Talmud relates that, in the absence of an authoritative ruling by the High Court on a particular matter, individual communities, such as that of Rabbi Eliezer, followed their own minority interpretations. See Elchanan Wasserman, Kuntrus Divre Soferim, in Kobetz Shiurim 112 (Eliezer Wasserman ed., 4th ed. 1989). The Talmud’s acceptance of both a theoretical and practical application of an individual community’s minority interpretation evokes Cover’s description of “a multiplicity of coherent systems,” “interpretive efforts or traditions, each of which is independently defensible, or even ‘right,”’ and “the nomic integrity of each of the communities that have generated principles and precepts.” Cover, Nomos and Narrative, supra note 1, at 28, 17 n.45, 42; see Chapter 3 in Volume 1. 150 Exodus 12:2.

31

32

Section Six    Law and Narrative

a command to the High Court to sanctify the start of each month of the lunar calendar, based on lunar observation. The Talmudic exegesis of the verse focuses on the phraseology of the ­command, which instructs the nation, represented by the High Court, that “this month shall be for you.”151 This language is understood to emphasize that the establishment of the annual and monthly calendar is assigned to the Court, rather than being dictated by Divine decree.152 The extent of the Court’s authority in this matter is unique, in that it validates even a declaration of a new month that is later found to have been issued in error.153 Thus, the very first legal precept presented to the nation carried a powerful message about the function of legal authority within the broad communal nomos. In light of the form and substance of both the Torah and the Talmud, it is ­perhaps not surprising that aggada occupies a central place in these works. Though filled with legal precepts, the Torah and the Talmud are also designed to ­document and demonstrate the broader historical and social condition of the Jewish nation at important stages of the law’s development. A more striking illustration of the importance of aggada to the meaning and understanding of Jewish legal precepts may be found in a more strictly legal work, the Code of Maimonides.

C. Halacha and Aggada in Maimonides’ Code of Law Establishing his status as one of the greatest of medieval Jewish scholars, Maimonides produced a number of works that had a nearly unparalleled ­influence on both Jewish law and Jewish philosophy.154 In his magnum opus, Mishne 151 Babylonian Talmud, Rosh Hashana 25a. 152 See id. The communal recognition of the authority and responsibility of the Court in setting the monthly calendar, and thereby establishing the dates of the holidays, finds expression in the festival liturgy. See id. Beitza 17a. 153 See id. Rosh Hashana 25a; cf. Owen M. Fiss, Objectivity and Interpretation, 34 Stan. L. Rev. 739, 755, 758 (1982) (observing that “[j]udicial interpretations are binding, whether or not they are correct,” and that “[a]n interpretation is binding even if [it is] mistaken”). 154 See Isadore Twersky, Introduction to the Code of Maimonides (Mishneh Torah) 1 (1980). Twersky observed that [Maimonides’] reputation needs no inflation or exaggeration, for his stature is nearly sui generis and his commanding influence has been almost universally recognized. . . . He wrote epoch-making works in the central areas of halacha and religious philosophy—an achievement that is unquestionably, almost overpoweringly, characterized by monumentality, using the term very literally. His works, representing an unprecedented conjunction of halachic authority and philosophic prestige, were extensively studied, meticulously annotated, frequently translated, and intensively interpreted. Their influence, direct as well as indirect,

Halacha and Aggada    Chapter 17

Torah, often translated as a “Code of Law,” Maimonides codified the entire corpus of legal precepts found in the Talmud. His compilation was so comprehensive that Maimonides declared in his Introduction that a person who read only the Written Law—the Bible—and the Mishne Torah could become ­familiar with all of Jewish law, without having to refer to the Talmud or any other works of the Oral Law.155 Like most codes in American law, ­however, and unlike the Talmud, the Mishne Torah does not always present a full e­ xplanation for the derivation and application of the legal precepts encompassed.156 Instead, the Code of Maimonides consists chiefly of legal c­ onclusions, as applied to specific fact patterns. Nevertheless, at a number of points in this legal code, Maimonides included aggadic material that lends an added dimension of meaning and significance to the corresponding precepts.157 In one of the most powerful uses of aggada in reflected through many works in various genres by a host of authors, was global. Id. 155 Maimonides, Introduction to Code of Law, supra note 63. 156 See Twersky, supra note 154, at 97. Twersky writes, The codificatory form of Maimonides’ work was central to his purpose. He aimed to produce . . . a truly all-inclusive code[ ], a . . . collection[ ] through which all halachic material would be sifted, pruned of associative discussion, digression, and indeterminate debate, and recast in a purified or rarefied form of uniform and normative conclusions and practical directives. This literary goal was frequently and unequivocally underscored by Maimonides, presenting the massive material in crisp and concise form, unobstructed and unencumbered.

Id. (footnote omitted). Indeed, some scholars criticized Maimonides for his failure to provide the sources and derivations of his legal conclusions. See Ra’avad, Commentary to Maimonides, Code of Law, supra note 63; Twersky, supra note 154, at 102‑05, 107‑08. Professor Twersky documents a number of “exceptions to the austere codificatory form” of the Code, and reconciles these phenomena with Maimonides’ stated goal. Id. at 108‑75. 157 See generally Jeruchem Leiner, Halacha and Aggada at the Conclusion of the Books in the Mishneh Torah, 7 Talpioth 214 (1957) (noting and analyzing this phenomenon in Mishne Torah). Twersky also notes, Aggada was a treasure trove which could be diligently searched and then creatively used to reinforce or refine a halachic formulation, to sustain a philological connection or conjecture, to exemplify an ethical trait, or to bolster a philosophic position. Maimonides, who had a sustained and life-long interest in Midrash, its hermeneutic problematics as well as its ideational potential, freely and effectively utilized nonhalachic materials throughout the Mishneh Torah. Aggada and halacha had a synchronic relationship; the tendency to separate completely these two cognate areas, which often merged, should not obscure the literary-conceptual reality of Maimonides’ work, or indeed of his age as a whole.

Twersky, supra note 154, at 150.

33

34

Section Six    Law and Narrative

the Mishne Torah, Maimonides relies on the centrality of the concept of imitatio Dei in Jewish thought to impress upon the reader the importance of helping the poor and underprivileged.158  In the final chapter of the section of the Mishne Torah dealing with estates, Maimonides discusses the obligations of those who are appointed legal guardians for orphans. After discussing the technical legal issues involved, Maimonides concludes with a prescription that “a guardian for orphans must be particularly careful in apportioning their property, for their Father is He Who rides in the Highest Heaven, as it is written, ‘extol Him Who rides in the Highest Heaven, etc., Father of the orphans.’”159  As scholars have observed, Maimonides carefully chose these references to God, taken from the Psalms, as a literary allusion to a passage in the Talmud.160 The Talmud states that “in every place that the grandness of God is found [in the Bible], so too is His humility found.”161 As one of the proof-texts for this statement, the Talmud quotes the verses from Psalms which refer to God as both “Him Who rides in the Highest Heaven” and “Father of orphans.”162 By quoting these verses, then, Maimonides sends the strong message depicting an obligation—incumbent not only upon the guardians of orphans but on all those who wish to follow the Divine path—to care for those who are in need. In fact, the quotation closes not only the section of the Mishne Torah relating to estates, but also a larger segment of the Code of Law that includes many of the laws of commercial transactions and litigation. Maimonides uses aggada to remind those who are successful in business that their success should not lead them to believe that they are above helping others who are less fortunate; even God, as it were, couples His Own exalted nature with dedication to the downtrodden. Thus, Maimonides recognized that a Code of Law that contained only legal precepts could not fully serve the role he envisioned for the Mishne Torah, a work that would not merely state the law, but would, in connection with the Bible, demonstrate the function of legal precepts within the broader national nomos.163 In order to present a more complete picture of the halacha, 158 See Schachter, supra note 133, at 59‑71 (discussing centrality of imitatio Dei in Jewish thought). See also Samuel J. Levine, Taking the Ethical Duty to Self Seriously: An Essay in Memory of Fred Zacharias, 48 San Diego L. Rev. 285, 288‑89 n.13 (2011) (citing sources). 159 Maimonides, Code of Law, supra note 63, at Laws of Estates 11:12 (quoting Psalms 68:5‑6). 160 See Leiner, supra note 157, at 221‑22; Twersky, supra note 154, at 134‑35 n.123. 161 Babylonian Talmud, Megilla 31a. See also Maimonides, Code of Law, supra note 63, at Laws of Yom Tov 6:18; Laws of Megilla 2:17. 162 Psalms 68:5‑6. 163 See Twersky, supra note 154, at 166 (“A code . . . in Maimonides’ conception, should teach and expound while it directs, combining prescriptions with their rationales. Fixed laws . . .

Halacha and Aggada    Chapter 17

Maimonides thus included segments of aggada that would resonate in the communal consciousness to complement the law and illustrate its meaning in the nation’s societal universe.164

PART THREE | ROBERT COVER AND HAYIM NAHMAN BIALIK: TWO SIDES OF A SINGLE SHIELD Robert Cover was among the first of American legal scholars to analyze the ­relationship between nomos and narrative, and the first to use these terms to describe his unique vision of the interaction between legal precepts and the should be studied and understood, not just obeyed . . . . There was no antipathy between brevity and completeness, systematic summation and thorough understanding, norm and explanation.”). Twersky also notes, [Maimonides] aspired to produce a law code which instructs as well as commands, thereby providing an effective instrument of education and edification, for law itself is an educative force leading to ethical and intellectual perfection. Law must, therefore, be understood and appreciated as well as obeyed and implemented . . . . His Code, in short, would reflect his organic-philosophical conception of law. Id. at 372. 164 See id. at 371‑72. Twersky writes, [T]he Mishneh Torah itself provides a full and almost polychromatic reflection of [Maimonides’] unified preoccupation with philosophy and law, or the philosophic-spiritualistic perception of law. The Mishneh Torah, anything but a cut and dried, rigorously functional code, pays attention . . . to physics, metaphysics, psychology, dietetics, astronomy, Messianism, and the hereafter. It contains many philosophical comments, theological principles and rationalistic directives, comments on the history of religion and prophecy, science and medicine, and a full ethical system. It also has frequent ethical digressions and interpolations, for . . . Maimonides’ systematization of the halacha included a good measure of ethicization and rationalization. Ethical assumptions and commandments are spelled out and made explicit. Ideals concretized in a particular law are articulated. Reasons for enigmatic precepts are suggested. Philosophical principles which provide the underpinning of legal details are identified. The thread of intellectualization and spiritualization . . . is thus especially discernible in the texture of the Mishneh Torah . . . . Maimonides tried to bring about the unity of practice and concept, external observance and inner meaning, visible action and invisible experience . . . . This comprehensive Code takes within its purview, in other words, not only the laws but the theological stimuli and ethical underpinnings which suffuse the legal details with significance and spirituality, freshness and fullness. It was concerned . . . with the religious consciousness and theological sensibility. The fixed law and the experiential component, action and reflection, were combined . . . . Polarity recedes and yields to complementarity.

35

36

Section Six    Law and Narrative

larger societal forces and attitudes that give them meaning. In Jewish thought, from Rashi to Rabbi Soloveitchik, legal scholars and philosophers have recognized that a ­complete understanding of the law requires an understanding of the aggada that contributes to and interacts with the halacha.165 Yet, perhaps the writer whose work can best help illuminate Cover’s ideas was known not as a legal scholar, but as a modern literary figure, Hayim Nahman Bialik. Indeed, there are striking parallels between the thoughts of Bialik, a literary writer with a great respect for the law, and Cover, a legal scholar who saw literature as a means to gain a deeper understanding of human conduct and how such conduct relates to law. It may be fitting, then, that a study of Cover’s ideas and their parallels in Jewish legal thought should include a comparison between Cover’s writings and those of Bialik. The conceptual similarities between the works of Cover and Bialik resonate in the very titles of their landmark essays. The title of Cover’s article, Nomos and Narrative, echoed the title of Bialik’s essay, Halachah and Aggadah, written nearly seventy years earlier. Bialik’s fundamental thesis is that “halacha and aggada are two things which are really one—two sides of a single shield.”166 “Halacha is the crystallization, the highest quintessence of aggada, while aggada is the refinement of halacha.”167 Central to Cover’s writing is a similar acknowledgment that societal narrative is not alien to a nomos, but rather contributes to and is c­ rystallized in the normative world, in which narrative refines and gives meaning to technical legal precepts. In Cover’s language, No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning . . . . Once understood in the context of Id. 165 Martha Minow has written that Cover “inaugurated contemporary law school discussion of narrative and hermeneutics by reaching across time and space to the talmudic discussions by people who never knew law could be separated from narrative and hermeneutics.” Martha Minow, Introduction: Robert Cover and Law, Judging, and Violence, in Narrative, Violence, and The Law: The Essays of Robert Cover, supra note 2, at 11. Rabbi Gordon Tucker has referred to Nomos and Narrative as a “landmark in jurisprudential writing,” in which Cover “sought to effect a revolution in how people would see the legal universe.” While “[t]he revolutionary character of this understanding was not lost on at least some of its readers,” Tucker writes that “for others, nomos and ‘narrative’ did not so much point to a revolution as bestir deep memories. Nomos and ‘narrative’ were, to some of us who read the article, changelings which had supplanted the more resonant terms halacha and aggada.” Tucker, supra note 4, at 21. Tucker also notes briefly the parallel between Cover’s ideas and those of Bialik. See id. at 21‑22. 166 Bialik, supra note 91, at 9. 167 2 Encyclopedia Judaica, supra note 104, at 354 (translating Bialik, supra note 91, at 9).

Halacha and Aggada    Chapter 17 the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live. In this normative world, law and narrative are inseparably related.168

Thus, in American constitutional law, the religious freedoms guaranteed by the First Amendment take on a special significance and meaning to those normative communities whose historical narrative includes being the victim of religious persecution.169 In Jewish law, the imperative to help those in need has added meaning when viewed in light of a communal narrative that values emulating God, Who is pictured as caring for the unfortunate.170  Indeed, the sum total of legal and social attitudes and phenomena comprises a communal normative universe. As Bialik describes it, “[t]he creations of halacha . . . grow little by little, piece by piece, out of all the stream of human life and action, till in the end the fragments add up to a single total, and produce a single form.”171 Ultimately, though, halacha requires an underlying ­commitment to God and His law: “Halacha . . . has shaped and trained a whole nation, and every line that it has graven on the nation’s soul . . . has been inspired and guided by a supreme wisdom which sees the end in the beginning. Day by day, hour by hour, minute by minute, it is intent on its task of creating one form and one form only—the true likeness of God’s creatures, the image of God in man.”172 Cover similarly sees a nomos comprised of both legal precepts and the underlying historical communal values and commitments that give meaning to the laws. Thus, a lexicon of normative action . . . may be combined into meaningful patterns culled from the meaningful patterns of the past. The normative 168 Cover, Nomos and Narrative, supra note 1, at 4‑5. Bialik’s description of halacha and aggada as “two things which are really one,” Bialik, supra note 91, at 9, resonates in Cover’s opening quotation from a poem by Wallace Stevens: A. A violent order is disorder; and B. A great disorder is an order. These Two things are one. Cover, Nomos and Narrative, supra note 1, at 4 (quoting Wallace Stevens, Connoisseur of Chaos, in The Collected Poems of Wallace Stevens 215 (1954)) (italics omitted). David Stern contrasted the “chaotic richness” of aggada against the more rigid and systematic nature of law. See Stern, supra note 105, at 12. Cover similarly writes of the “radically uncontrolled” nature of narrative, compared with the “social control” that exists over “[t]he precepts we call law.” Cover, Nomos and Narrative, supra note 1, at 17. 169 See supra text accompanying notes 20‑28. 170 See supra part two, section C. 171 Bialik, supra note 91, at 11. 172 Id.

37

38

Section Six    Law and Narrative meaning that has inhered in the patterns of the past will be found in the history of ordinary legal doctrine at work in mundane affairs; in utopian and messianic yearnings, imaginary shapes given to a less resistant reality; in apologies for power and privilege and in the critiques that may be leveled at the justificatory enterprises of law.173

Ultimately, Cover finds that “[t]he range of meaning that may be given to every norm” is defined “both by a legal text, which objectifies the demand, and by the multiplicity of implicit and explicit commitments that go with it.”174 It is “[t]he narratives that any particular group associates with the law [that] bespeak the range of the group’s commitments.”175 In accordance with its communal narrative and commitments, the group possesses a vision of its role and destiny in the world. It is the aggada, writes Bialik, through which the nation “deals with what ought to be and what might be . . . the desires, the pre-occupations, the ideal of the Jewish people.”176 Cover paints a similar picture of the law as “a bridge linking a concept of reality to an imagined alternative—that is, as a connective between two states of affairs, both of which can be represented in their normative significance only through the devices of narrative.”177 Echoing Bialik, Cover refers to narrative as i­ntegrating the “‘is,’” the “‘ought,’” and the “‘what might be.’”178  Nevertheless, both Bialik and Cover emphasize that the relationship between nomos and narrative is premised on the abiding need for, and ­authority of, actual and concrete law. Like a nomos, “halacha, fed by the actual world, deals with what exists and is established; it shows us unmistakably, in small but clear vignettes, the actual, concrete life of the people.”179 In fact, according to Bialik, “[t]he value of aggada is that it issues in halacha.” Therefore, he warns, “aggada that does not bring halacha in its train is ineffective. Useless itself, it will end by incapacitating its actor for action.”180 

173 Cover, Nomos and Narrative, supra note 1, at 9. 174 Id. at 46. 175 Id. 176 Bialik, supra note 91, at 22. 177 Cover, Nomos and Narrative, supra note 1, at 9. 178 Id. at 10. 179 Bialik, supra note 91, at 22; see supra note 91. 180 Bialik, supra note 91, at 22.

Halacha and Aggada    Chapter 17

Near the end of his essay, Bialik writes poetically and at length about the emptiness of an aggada that exists in the absence of law and a normative world: If a man professes to have nothing but aggada, his aggada should be narrowly examined; you may suspect it of being no more than a pretty flower. Such a man wants to pluck the flowers, but cares nothing for the fruit. In the end not even the flowers will reward him; for without fruit there is no seed, and if there is no seed, where is the flower to come from? The shafts of aggada are uncertain in their aim, and come with a swerve, as though shot from a loose bowstring; those of halacha fly straight and true, with the strength and directness imparted by a well-drawn bow . . . . Where aggada has no aftermath of halacha in the national life, the nation will wander endlessly in the vague, and will be in danger of forgetting the straight and only way from will to action, from aspiration to achievement. Halacha linked with aggada means assurance of health and a certificate of national maturity; but wherever you find aggada in isolation, be sure that the nation’s power to act and instruments of action are weak and need medicine.181

Cover, whose admiration for narrative mirrors Bialik’s admiration for aggada, issues similar warnings. Having developed the notion that a nomos consists, in part, of “alternity,” Cover declares that the concept of a nomos is not exhausted by its “alternity”; it is neither utopia nor pure vision. A nomos, as a world of law, entails the application of human will to an extant state of affairs as well as toward our vision of alternative futures. A nomos is a present world constituted by a system of tension between reality and vision. Our visions hold our reality up to us as unredeemed. By themselves the alternative worlds of our visions . . . dictate no particular set of transformations or efforts at transformation. But law gives a vision depth of field, by placing one part of it in the highlight of insistent and immediate demand while casting another part in the shadow of the millennium . . . . 181 Id. at 26; cf. Stern, supra note 105, at 11‑12 (“The possibility of a new aggada freed from the fetters of the halacha, which some modern thinkers have invoked as the basis for a Judaism redivivus, is in fact unattractive: such an aggada would be groundless, soft, a kind of piety lacking the hard commitment and demand of law.”).

39

40

Section Six    Law and Narrative Law is a force . . . through which our worlds exercise an influence upon one another, a force that affects the courses of these worlds through normative pace. And law is that which holds our reality apart from our visions and rescues us from the ­eschatology that is the collision in this material social world of the c­ onstruction of our minds.182 

Indeed, Cover’s vision of nomos and narrative may best be summarized through Bialik’s vision of halacha and aggada: “Halacha [is] a concrete and definite form of actual life, of a life which is not in the clouds, which does not depend on vague feeling and beautiful phrases alone, but has physical ­reality and physical beauty. Halacha in that sense, I assert, is but the inevitable c­ ontinuation and sequel of aggada.”183

CONCLUSION Robert Cover’s Nomos and Narrative appears to have been one of the catalysts for a growing body of interdisciplinary scholarship in the areas of legal narrative184 and the comparative study of Jewish law and American legal theory.185 Yet, the terms “interdisciplinary” or “comparative” do not adequately capture the vision that Cover incorporated into his works and, according to his friends, into his life.186 Cover’s depiction of the relationship between nomos and narrative transcends the notion of integrating two apparently distinct concepts, ­ 182 Cover, Nomos and Narrative, supra note 1, at 9‑10. Cover similarly writes, If law reflects a tension between what is and what might be, law can be maintained only as long as the two are close enough to reveal a line of human endeavor that brings them into temporary or partial reconciliation. All utopian or eschatological movements that do not withdraw to insularity risk the failure of the conversion of vision into reality and, thus, the breaking of the tension. At that point, they may be movements, but they are no longer movements of the law. Id. at 39. Cover later explored the tension between legal and eschatological visions, in the context of the efforts by sixteenth-century legal scholars and mystics in Safed to renew semikha, the ancient form of rabbinic ordination. See Cover, Bringing the Messiah Through Law: A Case Study, supra note 3; Cover, The Folktales of Justice: Tales of Jurisdiction, supra note 3. 183 Bialik, supra note 91, at 26. 184 See supra note 8. 185 See supra note 4; works cited in Chapter 3 in Volume 1; works cited in Stone, supra note 4, passim. 186 See supra note 4.

Halacha and Aggada    Chapter 17

representing distinct intellectual disciplines, to arrive at a better ­understanding of each concept. Cover does not need to devise a method for connecting nomos and narrative, because he starts from the premise that they are already inherently and inextricably linked.187 His project, then, is to investigate their relationship and how they function in society.  Likewise, Cover does not merely compare Jewish law and American legal theory. Cover’s incorporation of biblical narrative and, if only ­implicitly, the concepts of halacha and aggada, characterizes his broader intellectual approach. His work reflects a fundamental appreciation for the underlying relationship between different intellectual strands. As his friends and teachers, Rabbis Joseph Lukinsky and Robert Abramson, observed, [Cover’s] mind and taste for argumentation were not first sharpened at the yeshivah on the whetstone of talmudic logic and then transferred to law in general. It was more profound; from youth he had come to see law as the embodiment of values and a way of thinking about and acting upon them, the medium in the American and Jewish legal traditions for making . . . justice tangible . . . . Bob’s world was not so much inter-disciplinary as inclusive. For him the humanities, religion, and the law were not distinct, but interactive synergistic. Law was a humanistic attempt to create meaning in the ethical sphere and beyond.188

It is thus fitting that Cover’s friend, Professor Stephen Wizner, spoke of a similarly integrated life, in which Cover “experienced fully the halacha and aggada, the nomos and narrative, the myth, law and history, the ethical ­aspirations, of the Jewish people,”189 and a life in which “[t]he confluence of religion, law, and politics, in . . . Bob’s last scholarly project, was a summation of his vision of law as a sacred art, a bridge from reality to a new world.”190 187 See Tucker, supra note 4, at 21 (explaining that Nomos and Narrative “went far beyond mere interdisciplinary daring . . . . Cover sought to effect a revolution in how people would see the legal universe. Rules and the narratives in which they are embedded would henceforth have to be treated with parity, as equal partners in the creation of a normative universe”). 188 Lukinsky & Abramson, supra note 4, at 11. 189 Wizner, supra note 4, at 1710. 190 Id. at 1711 (referring to Cover, Bringing the Messiah Through Law: A Case Study, supra note 3); cf. Minow, supra note 165, at 11 (“[Cover] himself made a bridge. He connected the communal and the liberal, the religious and the secular, the moral and the legal. . . . Cover insisted that legal scholarship connect to the largest issues of spiritual and emotional meaning.”).

41

CHAPTER 18

Professionalism without Parochialism: Julius Henry Cohen, Rabbi Nachman of Breslov, and the Stories of Two Sons INTRODUCTION

I

n recent years, legal scholars and practitioners have engaged in a ­voluminous debate over the characterization of legal practice as a business or a p­ rofession.1 In the face of increasing evidence suggesting that, in at least some   1 See, e.g., Samuel J. Levine, Faith in Legal Professionalism: Believers and Heretics, 61 Md. L. Rev. 217, 218-20 & nn.6‑14 (2002) (citing sources); Russell G. Pearce, The Professional Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. Rev. 1229 (1995); Symposium, Conference on the Commercialization of the Legal Profession, 45 S.C. L. Rev. 875 (1994); Symposium, Defining and Refining Professionalism: Assessing the Roles and Regulation of Lawyers in the Twenty-First Century, 27 Fla. St. U. L. Rev. 1 (1999). Notably, the issue of law as business or law as profession has taken on a global significance as well. See, e.g., Nancy J. Moore, Implications of Globalization for the Professional Status of Lawyers in the United States and Elsewhere, 40 Fordham Urb. L.J. 217 (2012); Thomas D. Morgan, Inverted Thinking About Law As A Profession or Business, 2016 Prof. Law. 115; Okechukwu Oko, Consolidating Democracy on a Troubled Continent: A Challenge for Lawyers in Africa, 33 Vand. J. Transnat’l L. 573, 640 (2000) (“The notion of materialism celebrated by Nigerian lawyers has resulted in a decline in professionalism and has engendered public contempt for the legal profession . . . . The public will never support or appreciate a legal profession that is more interested in making money than serving the public.”); Detlev F. Vagts, Professional Responsibility in Transborder Practice: Conflict and Resolution, 13 Geo. J. Legal Ethics 677, 679 (2000) (“Each legal system of a developed country that I have examined has had contradictory impulses in situating itself along the continuum between the strictly business/economics and the strictly professional.”); Christopher J. Whelan, The Paradox of Professionalism: Global Law Practice Means Business, 27 Penn St. Int’l L. Rev. 465 (2008).

Professionalism without Parochialism    Chapter 18

respects, the practice of law now resembles a business, many scholars have resisted the c­ onclusion that law has become more a business than a profession.2  Some of this resistance has taken the form of a rather parochial view of law as distinct from—and, in some sense, superior to—other occupations.3 According to Robert Cochran, a leading ethics scholar, “[t]he lawyer’s claim that the practice of law is an honorable profession is in itself an elitist claim,” because “[t]he implication is that we are in an honorable profession, [and] others are not.”4 It is further arguable that “[t]he elitist nature of the legal profession may be most apparent in the vehement claims that it is a profession, not a business.”5 Indeed, Anthony Kronman, a leading commentator on the state of the legal profession, has emphasized the distinction between lawyers, who are professionals, and such “tradesmen” as “the butcher, the brewer, or the baker.”6  Although the issue continues to be raised and explored, with increasing urgency and attention, the question of law as business or profession is not a new one; in fact, the current discussion is but the latest stage of an ongoing conversation that has produced, in the words of Bruce Green, a “perennial debate.”7 This chapter looks back at one of the earliest works examining the question, Julius

  2 See Levine, supra note 1, at 231‑35, 238‑41.   3 See Thomas Ross, Knowing No Other Duty: Privity, the Myth of Elitism, and the Transformation of the Legal Profession, 32 Wake Forest L. Rev. 819, 828 (1997) (“Lawyers view their occupation as distinct from most other occupations: they are ‘professionals.”’).   4 Robert F. Cochran, Jr., Honor as a Deficient Aspiration for “The Honorable Profession”: The Lawyer as Nostromo, 69 Fordham L. Rev. 859, 887 (2000). See also Thomas L. Shaffer & Mary M. Shaffer, American Lawyers and Their Communities: Ethics in the Legal Profession 49 (1991) (asserting that “[p]rofessionalism is as elitist as class is” and that “the hubris of its rhetoric is so arrogant as to begin to sound like worship”).   5 Cochran, supra note 4, at 887-88; cf. Mary Ann Glendon, A Nation Under Lawyers: How the Crisis in the Legal Profession Is Transforming American Society 70 (1994) (“[L]awyers’ stubborn refusal to recognize their affinities with other highly skilled, well-educated sellers of services seems to rest either on the arrogant assumption that businesspeople have no ethics or on the dubious proposition that businesspeople invariably place short-term profits ahead of all other considerations.”).   6 Anthony T. Kronman, Chapman University School of Law Groundbreaking Ceremony, 1 Chap. L. Rev. 1, 3‑4 (1998); see Anthony T. Kronman, Legal Professionalism, 27 Fla. St. U. L. Rev. 1, 4-6 (1999); Anthony T. Kronman, Professionalism, 2 J. Inst. Stud. Legal Ethics 89, 91 (1999); Anthony T. Kronman, The Fault in Legal Ethics, 100 Dick. L. Rev. 489, 496‑97 (1996). But see Steven Lubet, Professionalism Revisited, 42 Emory L.J. 197, 198 (1993) (insisting that “the quest for professionalism is hardly a contest between occupations”).   7 Bruce A. Green, The Disciplinary Restrictions on Multidisciplinary Practice: Their Derivation, Their Development, and Some Implications for the Core Values Debate, 84 Minn. L. Rev. 1115, 1130 & n.66 (2000).

43

44

Section Six    Law and Narrative

Henry Cohen’s aptly titled 1916 book, The Law: Business or Profession?, which ­anticipates many of the concerns that inform the contemporary debate.8  Specifically, the chapter considers the lessons that may be learned from Cohen’s fictional story9—a parable of sorts10—of two sons, whose different ethical natures, and corresponding career paths, symbolize two different approaches to the practice of law. At the same time, the chapter looks back more than one hundred years further into the past, finding significant parallels to Cohen’s story in a tale by a Chasidic master, Rabbi Nachman of Breslov,11   8 See Julius Henry Cohen, The Law: Business or Profession? (1916). A number of law review articles cite Cohen’s book as an early discussion of the issue of law as business or law as profession., See, e.g., Green, supra note 7, at 1130 & nn.66-69; Steven H. Hobbs, Ethics in the Age of Entrepreneurship, 39 S. Tex. L. Rev. 599, 603 (1998); Erik M. Jensen, Book Review, 1990 Colum. Bus. L. Rev. 133, 160; Herbert M. Kritzer, The Professions Are Dead, Long Live the Professions: Legal Practice in a Postprofessional World, 33 Law & Soc’y Rev. 713, 722 n.17 (1999); Kenneth Lasson, Lawyering Askew: Excesses in the Pursuit of Fees and Justice, 74 B.U. L. Rev. 723, 730 n.34 (1994); Milton C. Regan, Law Firms, Competition Penalties, and the Values of Professionalism, 13 Geo. J. Legal Ethics 1, 3 & n.9 (1999); S.S. Samuelson & L. Fahey, Strategic Planning for Law Firms: The Application of Management Theory, 52 U. Pitt. L. Rev. 435, 437 n.18 (1991); Ted Schneyer, Policymaking and the Perils of Professionalism: The ABA’s Ancillary Business Debate as a Case Study, 35 Ariz. L. Rev. 363, 369 n.44 (1993); Vagts, supra note 1, at 679 n.7. See also Samuel J. Levine, Rediscovering Julius Henry Cohen and the Origins of the Business/Profession Dichotomy: A Study in the Discourse of Early Twentieth Century Legal Professionalism, 47 Am. J. Legal Hist. 1 (2005); Symposium, The Law: Business or Profession? The Continuing  Relevance of Julius Henry Cohen for the Practice of Law in the Twenty-First Century, 40 Fordham Urb. L.J. 1(2012); Chapter 20 in this Volume.   9 See Cohen, supra note 8, at 173‑76. 10 Professor Green refers to the story as a “parable,” Green, supra note 7, at 1130, apparently because of the underlying message it conveys. Rabbi Nachman’s stories are more classically categorized as parables, with intended alternate levels of meaning beyond those evident from a plain reading of the stories. See Adin Steinsaltz, The Tales of Rabbi Nachman of Bratslav, at viii (1993) (“On the one hand, any child can read [the stories] as one would a tale of ancient days, as the author himself put it; and, on the other hand, one can as an adult read them again and again, analyze and study them, and constantly discover in them layer upon layer of hitherto unrevealed symbol and meaning.”). 11 See Nachman of Breslov, Sippurey Ma’asioth [Rabbi Nachman’s Stories] 160‑96 (Aryeh Kaplan trans., 1983) [hereinafter Rabbi Nachman’s Stories]. It should be noted that “[t]here seems to be considerable confusion among English writers about how to spell Rabbi Nachman’s city.” Aryeh Kaplan, Gems of Rabbi Nachman 181 (1980). For example, “Bratzlav, the spelling adapted by most contemporary writers, is based on a transliteration of the modern Russian,” while “[o]ther variant spellings are Brazlaw, Braclav, Bratslav, and Braslavl.” Id. (citations omitted). Nevertheless, “the spelling Breslov is preferred by all English speaking readers of Rabbi Nachman” and “[t]here is considerable evidence from oral tradition that this was the way the name was pronounced in the time of Rabbi Nachman.” Id. Similarly, the name “Nachman” is an English ­transliteration that

Professionalism without Parochialism    Chapter 18

who presents a parable of two sons whose lives and career paths similarly signify fundamental ­differences in character and personal integrity.12 The chapter relies on these two stories to offer a more inclusive model of legal practice, viewing law as a potentially noble profession, but a profession whose virtues may find nearly universal expression in other occupations as well.

PART ONE | RABBI NACHMAN OF BRESLOV’S STORY OF TWO SONS It may be helpful to introduce Cohen’s story of two sons by first exploring a narrative analogue that not only predated Cohen’s story by more than one ­hundred years, but that first appeared in a cultural milieu far different from that of the lawyers whose work Cohen examined.13 One of the most famous and influential of the European Chasidic masters, Rabbi Nachman of Breslov was renowned for the parables he told.14 According to a prominent contemporary translator, these stories, “among the great classics of Jewish literature [,] . . . have been r­ ecognized . . . for their depth and insight into both the human condition and the realm of the mysterious.”15  also appears as “Nahman.” See, e.g., Steinsaltz, supra note 10 (using the spellings “Nachman of Bratslav”); Elie Wiesel, Souls on Fire: Portraits and Legends of Hasidic Masters 169 (Marion Wiesel trans., 1973) (using the variant spellings “Nahman of Bratzlav”). 12 This chapter, which focuses on stories by Julius Henry Cohen and Rabbi Nachman, aims, in part, to contribute to the body of ethics scholarship relating to narrative and storytelling. As one scholar observed, a list of “[t]he works of legal scholarship focused on or exemplifying storytelling no longer fit in a symposium, let alone in a footnote.” Barbara Stark, After/ word(s): “Violations Of Human Dignity” and Postmodern International Law, 27 Yale J. Int’l L. 315, 321 n.40 (2002). For one collection of such works, applied to a broad range of legal issues, see Chapter 17 in this Volume. For a discussion of narrative in the work of several leading ethics scholars, see Chapter 14 in Volume 1. 13 As Professor Gerald Torres has observed, “[t]he context within which the story is told and the context within which the story is heard are critical in determining the meaning of the story. . . . Thus, because every narrative is rooted in a particular time and circumstance, retelling the ‘same’ story in a different context changes its meaning.” Gerald Torres, Translation and Stories, 115 Harv. L. Rev. 1362, 1366 (2002). In a sense, the comparison of Rabbi Nachman’s story of two sons to that of Julius Henry Cohen operates inversely to the principle set forth by Torres, suggesting that two “different” stories may share a similar meaning when understood in the context of the time and circumstance in which each is rooted. 14 For English discussions of the life and teachings of Rabbi Nachman, see, e.g., Aryeh Kaplan, The Chasidic Masters and Their Teachings 103‑21 (2d ed. 1989) [hereinafter Kaplan, Chasidic Masters]; Kaplan, Gems of Rabbi Nachman, supra note 11, passim; Rabbi Nachman’s Stories, supra note 11, passim; Steinsaltz, supra note 10, passim; Wiesel, supra note 11, at 169‑202. 15 See Aryeh Kaplan, Translator’s Introduction to Rabbi Nachman’s Stories, supra note 11, at x.

45

46

Section Six    Law and Narrative

Since they were first published, the stories have provided fertile ground for exploration and explication by both devotees of Rabbi Nachman and later ­scholars, some who have uncovered allusions to the Bible, Talmud, Midrash, and Kabbalah,16 and others who have focused on the literary style of the tales, ­finding them “[m]ore daring than the most daring of the surrealists,”17 with p­ arallels to the work of Franz Kafka.18 Nevertheless, as related by Rabbi Nachman’s chief disciple and collector of the stories, the tales were intended for the masses, embarked upon after Rabbi Nachman concluded that “my lessons and conversations are not having any effect in bringing you back to God,”19 and the stories were told in the Yiddish vernacular so that they could be understood by all.20  16 Id. See Aryeh Kaplan, Translator’s Notes on Rabbi Nachman’s Stories, supra note 11, passim [hereinafter Kaplan, Translator’s Notes]; see also Steinsaltz, supra note 10, at xix (stating that “sources from which the [stories’] details of plot and tale are drawn are many and varied,” including “Kabbalah, folk tales, Bible and Halachah, history and contemporary events”). 17 Wiesel, supra note 11, at 180. 18 Id. at 172; see Steinsaltz, supra note 10, at xvi (stating that Kafka’s work “has much in common with” Rabbi Nachman’s); see also Kaplan, Chasidic Masters, supra note 14, at 106 (observing that in Rabbi Nachman’s tales, “we encounter kings and generals rubbing shoulders with mystics and beggars in a fairyland of Kabbalistic symbolism,” and noting that “[m]any books and learned articles have been written in an attempt to unravel this symbolism, using everything from Jungian psychology to the Kabbalah itself”). One contemporary scholar has compared Rabbi Nachman’s work to a Breughel painting, “where even the seemingly trivial or scarcely seen detail is portrayed as exactly as the central figures themselves,” and to the work of Chagall, consisting of “pictures of figures of speech.” Steinsaltz, supra note 10, at xx‑xxi, xxii. 19 See Rabbi Nathan Sternhartz of Nemerov, Introduction to Rabbi Nachman’s Stories, supra note 11, at 9; see also Steinsaltz, supra note 10, at xvii (quoting Rabbi Nachman as declaring “[f]rom now on I will tell you tales” and “adding that he believed that thus he would be better able to explain his teachings in a more profound and penetrating way”). Some contemporary American legal scholars have similarly explained the use of “narrative form” in place of the “legal voice.” As one article has observed, “First, the narrative form of discourse permits the author to express a range of emotions.” Robert L. Hayman, Jr. & Nancy Levit, The Tales of White Folk: Doctrine, Narrative, and the Reconstruction of Racial Reality, 84 Cal. L. Rev. 377, 435 (1996). Specifically, [t]here are some things that just cannot be said by using the legal voice . . . . Rage, pain, elation, the aching, thirsting, hungering for freedom on one’s own terms, love and its joys and terrors, fear, utter frustration at being contained and constrained by legal language; all are diffused by legal language. Id. at 436 (quoting Lucinda M. Finley, Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning, 64 Notre Dame L. Rev. 886, 903 (1989)). “Second, narrative form is not confined or limited to formal legalistic arguments.” Id. Though more expansive than the concise statement attributed to Rabbi Nachman, these rationales appear consistent with Rabbi Nachman’s explanation for his turn to storytelling. 20 See Rabbi Nathan Sternhartz of Nemerov, Second Introduction to Rabbi Nachman’s Stories, supra note 11, at 28; Wiesel, supra note 11, at 179.

Professionalism without Parochialism    Chapter 18

Typical of Rabbi Nachman’s stories, “The Sophisticate and the Simpleton”21 contains many of the characteristic elements that fascinate scholars, while at the same time it ­conveys a more evident message, relevant beyond the realm of the Chasidic adherents to whom the tale was addressed. The story tells of two wealthy individuals who live in the same city and send their respective sons to the same school.22 These sons, however, are of substantially differing character, ­accounting for the story’s title. “One of these sons had deep understanding and was quite sophisticated. The other one was simple; he was not lacking in intelligence, but had a straightforward, humble approach, without any sophistication.”23 Elaborating on this description, Rabbi Aryeh Kaplan notes that “wisdom is usually considered a positive trait.”24 Yet, in the context of the story, the ­connotation of the original term25—which Rabbi Kaplan translates as “sophisticated”—refers to wisdom that is not “accompanied by humility and piety,” but instead is in the nature of “arrogan[ce] and skeptic[ism] . . . often le[ading the Sophisticate] to conclusions that [are] totally wrong.”26 Conversely, Rabbi Kaplan continues, the “simple”27 son is more fully understood as “without guile, and shunn[ing] casuistry and roundabout reasoning.”28  21 See Rabbi Nachman’s Stories, supra note 11, at 160‑96. 22 See id. at 160. 23 Id. at 161. 24 Kaplan, Translator’s Notes, supra note 16, at 161. 25 In Yiddish, the term “chakham” is used. See id. 26 Id. Thus, the term “sophisticated” is used in the sense of “deceptive” or “misleading.” See Random House Webster’s Unabridged Dictionary 1820 (2d ed. 1997) (definition 3) [hereinafter Dictionary]. Similarly, as Maimonides and others have explained, the purpose of God’s command not to eat from the “tree of knowledge” in the Garden of Eden, see Genesis 2:17, was not to prevent humans from obtaining knowledge per se, but to prevent the use of “knowledge” in an improper and intellectually dishonest manner. See Maimonides, Guide of the Perplexed 1:2. See generally Samuel J. Levine, The End of Innocence, Hamevaser, Dec. 1989, at 8. Rabbi Kaplan notes a further parallel to the Torah’s depiction of the deceptive serpent in the Garden of Eden as “clever” or “subtle,” similar to Rabbi Nachman’s characterization of the Sophisticate. Kaplan, Translator’s Notes, supra note 16, at 161 (citing Genesis 3:1). Indeed, another contemporary translation of the story refers to the “Clever Man and the Simple Man,” Steinsaltz, supra note 10, at 165, and describes the simple man as having a “plain mind, not subtle.” Id. at 167. 27 As Rabbi Kaplan further notes, the term “tam,” found in the original, is also the biblical term whose root is used to describe individuals of “simple”— in the sense of pure or complete— virtue, such as Noah, Abraham, and Jacob. See Kaplan, Translator’s Notes, supra note 16, at 162 (quoting Genesis 6:9; 17:1; 25:27). 28 Id. at 162. The Simpleton thus stands in contrast to the Sophisticate, whose name derives its negative connotation from the term “sophism.” See Dictionary, supra note 26, at 1820

47

48

Section Six    Law and Narrative

This difference in character finds expression in the two sons’ respective choices of occupation as well. The Simpleton learns the trade of a ­shoemaker,29 evoking Kronman’s reference to the butcher, the brewer, and the baker.30 In fact, it appears that Rabbi Nachman chose a shoemaker to epitomize a figure who lacks public esteem. As Rabbi Kaplan suggests, of all the trades, “[a] ­shoemaker is usually seen as the lowliest of occupations.”31 The Sophisticate, in contrast, repeatedly deems himself worthy of a more prestigious line of work, which he sets off to pursue in a number of other cities.32 Starting as a merchant’s apprentice, he achieves a number of different positions until he ­ultimately studies medicine and becomes a physician.33  Nevertheless, just as the appellations of the sons belie the value of each one’s character—the Simpleton being of higher ethical character than the Sophisticate34—the level of commercial success each has attained belies the level of happiness and sense of personal fulfillment each possesses. With each additional achievement, the Sophisticate finds himself more dissatisfied with his position.35 Because of his constant concern for status and personal glory, he (offering definition 5 of “sophistication” as “the use of sophistry; a sophism, quibble, or ­fallacious argument,” and definition 1 of “sophistry” as “a subtle, tricky, superficially plausible, but generally fallacious method of reasoning”). 29 See Rabbi Nachman’s Stories, supra note 11, at 163. 30 See supra note 6 and accompanying text. 31 Kaplan, Translator’s Notes, supra note 16, at 163. Rabbi Kaplan attributes this attitude to the fact that shoes are often unclean, a condition that, he observes, carries with it ritual ramifications as well. Id. The picture of a simple or honest shoemaker as a model of virtue has older roots in Jewish thought. In Genesis, the Torah states that “Enoch walked with God.” Genesis 5:22. A Midrashic exegesis of this verse describes Enoch as a shoemaker, who worshipped God with each stitch. See 1 Eliyahu Dessler, Michtav M’Eliyahu 34 (Aryeh Carmell & Alter Halpern eds., 1954); see also Steinsaltz, supra note 10, at 203 (noting the similarity to Enoch). Analyzing this explication of the verse, some later commentators were troubled by the possible implication that Enoch engaged in a form of prayer while working, potentially distracting him and detracting from his work, and thereby violating the duty to place all of his efforts into the job for which he was hired and paid. Alternatively, some interpret the Midrashic reference to worshipping God on a more metaphorical level, suggesting that Enoch worshipped God through careful, faithful, and meticulously ethical performance of his job. Dessler, supra, at 34‑35. That such conduct, according to this understanding, is singled out in the Genesis text as a form of “walking with God” powerfully mirrors the lesson of Rabbi Nachman’s tale, emphasizing the importance of personal virtue instead of societal status. 32 See Rabbi Nachman’s Stories, supra note 11, at 163‑64; see also Steinsaltz, supra note 10, at 200 (noting that the Sophisticate is “attracted to the most superficial characteristics of status”). 33 See Rabbi Nachman’s Stories, supra note 11, at 164‑67. 34 See supra notes 26-28 and accompanying text. 35 See Rabbi Nachman’s Stories, supra note 11, at 164‑67.

Professionalism without Parochialism    Chapter 18

worries that if he remains away from his home, “who will know what I have accomplished?”36 Therefore, he determines that he must return home for all to see what he has achieved. Even upon his return, however, his work is not appreciated by others.37 In addition, when the Sophisticate travels abroad in pursuit of his ambitious goals, there is no one to care for the possessions he leaves behind, and thus the mansion—metaphorically, the set of values—he inherits from his father is “neglected and in ruins, so that nothing remain[s] of it.”38  Meanwhile, the Simpleton, despite his relative lack of financial success and status, is content with his life.39 Moreover, in contradistinction to the Sophisticate, when confronted with the opinions of those who compare his product and profit to those of others, he responds, “What do I care about that? That is their work, and this is my work! Why must we speak of others?”40 Finally, because he remains at home, the Simpleton inherits and lives in his father’s mansion.41  Though the story continues,42 with the metaphors and their meanings becoming more complex and mysterious,43 for the purposes of the current study, the clear lessons about the ultimate and overriding value of personal ethics and integrity provide a fitting introduction to a discussion of Julius Henry Cohen’s story of two sons, which would be set more than one hundred years later, within the very different world of early twentieth-century New York City.

PART TWO | JULIUS HENRY COHEN’S STORY OF TWO SONS Cohen dedicates the second section of his book, titled “Profession?,” to a discussion of aspects of the practice of law that he deems more befitting a business venture than the profession of law.44 Cohen opens the section with the story of two sons.45  36 37 38 39 40 41 42

43 44 45

Id. at 167. Id. at 176. Id. at 174. See id. at 168. Rabbi Kaplan notes the allusion to the Talmudic dictum, “Who is [truly] wealthy? One who is satisfied with one’s lot.” Talmud, Avoth 4:1, cited in Kaplan, Translator’s Notes, supra note 16, at 168. Rabbi Nachman’s Stories, supra note 11, at 171‑72. Id. at 174. The brief summary offered here digests less than half of the complete story, which subsequently follows the sons’ individual journeys. Ultimately, the Simpleton becomes ruler of the land while the Sophisticate’s condition repeatedly and increasingly deteriorates, until— with the help of the Simpleton—he is finally redeemed from his suffering. See id. at 175‑96. Scholars have offered varied interpretations of the story and its messages. See, e.g., Kaplan, Translator’s Notes, supra note 16, at 160-96; see also Steinsaltz, supra note 10, at 206‑15. Cohen, supra note 8, at 173. Id. at 174.

49

50

Section Six    Law and Narrative

Immediately evoking Rabbi Nachman’s parable, Cohen’s story also presents a shoemaker as a central character, in the figure of a father of one of the sons.46 In fact, Cohen puts the reader in the place of the hypothetical shoemaker, setting forth the parallel legal careers of “your son” and the “son of Thompson.”47 “Your” son, at the age of twenty-five or twenty-six, opens a law office, “maintaining always the standards of the profession which you yourself honor sufficiently to desire him enrolled in its ranks.”48 Owing to hard work and “[h]is personal character,” he develops “the small commercial litigation with which all lawyers of the preceding generation began their practice.”49 “Gradually,” approaching the age of thirty and “thoroughly trustworthy in all his dealings,” he gains the respect of courts and clients.50 Finally, at the age of thirty-five or thirty-six, he has “the best commercial practice in your part of the country.”51 Thompson’s son, in contrast, who lives in the same city, is “of more or less shady reputation.”52 He is admitted to practice despite being of “little ability and with less character,” though he is “crafty.”53 He “soon becomes known in your part of the country for what he really is, until he scarce can find a client in the county who will confide in him.”54 As such, Cohen’s story is set in a way that parallels Rabbi Nachman’s story of the Sophisticate and the Simpleton. The two sons in Cohen’s story are then presented with offers to have their cards placed in a “directory” and to represent the trade and collection agencies and the trade associations of the large cities in the county. Your son, “because he has been properly bred and trained, turns down the offer.”55 Thompson’s son, however, accepts the offer, thereby becoming the leading bankruptcy lawyer in the town, while your son “has the character and respect of your community but not much else.”56 Still, “in spite of the unfair competition, your son continues to maintain his practice,” loyal, like the Simpleton, to

46 Id. at 173. 47 Id. at 174. 48 Id. 49 Id. 50 Id. 51 Id. 52 Id. at 174‑75. 53 Id. at 175. 54 Id. 55 Id. 56 Id.

Professionalism without Parochialism    Chapter 18

his own values and those he has inherited from his father.57 Thus, both the ­character and the financial p­ ositions of the sons continue to echo those of the Sophisticate and the Simpleton. As the story concludes, like the Sophisticate, whose conduct—in spite of his success as a physician—is held in disrepute by the members of the city, Thompson’s son “brings a new reputation to your community,” which has become “a place where men are readily petitioned into bankruptcy, where there are ‘quick settlements.’”58 Most disturbingly, “your friends in the shoe line begin to think of the whole profession (which includes your son, do not forget) . . . : ‘The law is a sort of hocus-pocus science, that smiles in yer face while it picks yer pocket.”59  Beyond the similarities to Rabbi Nachman’s parable, Cohen’s story is fascinating on a number of levels, not least for its relevance to ­contemporary controversies in legal ethics relating to advertising by lawyers60 and ­multidisciplinary practice.61 For the purposes of this chapter, however, it may be most notable that, in calling for lawyers to adopt professional conduct and to eschew business conduct, Cohen neither exalts the practice of law as ­inherently virtuous nor disparages business or other occupations as less capable of providing a means for virtuous conduct. Significantly, Cohen refuses to measure the level of professionalism in legal practice through the achievement of financial success or personal acclaim. Indeed, in Cohen’s story, the “leading bankruptcy lawyer,” who holds— by ­contemporary standards, at least—one of the most prestigious p­ ositions in the legal establishment,62 and who apparently achieves substantial ­financial 57 Id. 58 Id. 59 Id. 60 See, e.g., Symposium on Lawyer Advertising, 49 Ark. L. Rev. 671 (1997); Allen Chair Symposium 2001, 36 U. Rich. L. Rev. 1 (2002). 61 See, e.g., Symposium, The Brave New World of Multidisciplinary Practice, 50 J. Legal Educ. 469 (2000); Business Law Symposium, Multidisciplinary Practice, 36 Wake Forest L. Rev. 1 (2001); Future of the Profession: A Symposium on Multidisciplinary Practice, 84 Minn. L. Rev. 1083 (2000); Symposium, Multidisciplinary Practice, 20 N.Y.L. Sch. J. Int’l & Comp. L. 153 (2000); Multidisciplinary Practice Symposium, 32 Loyola U. Chi. L.J. 543 (2001); Symposium, Professional Responsibility and Multi-Disciplinary Practice, 52 Case W. Res. L. Rev. 861 (2002); Symposium, 20 Pace L. Rev. 43 (1999); ABA Commission on Multidisciplinary Practice, Report to the House of Delegates, Symposium on Multidisciplinary Practice (2001). Indeed, these two subjects are central areas of focus in Part II of Cohen’s book, titled “Profession?” 62 Though this observation is admittedly anachronistic, and may not reflect the attitude of the legal establishment in Cohen’s times, in the context of the story, the bankruptcy lawyer appears to have attained a significant level of professional status as a result of his financial success.

51

52

Section Six    Law and Narrative

s­ uccess, epitomizes—in his conduct—the failure of some attorneys to ­maintain personal values or professional ideals.63 Instead, it is the lawyer of personal integrity, who has gained the respect of the community “but not much else,” who wins Cohen’s admiration for exemplifying conduct worthy of the legal profession.64  Moreover, consistent with his view of personal virtue as more important and more meaningful than professional status, Cohen does not restrict his call for, or appreciation of, improved ethical performance to the work of lawyers, or even to occupations that may be included in the category of the ­“professions.” In the introduction to his book, Cohen acknowledges the inspiration and leadership of two individuals, Dr. Felix Adler and Mr. Charles Boston.65 The ­relevance of Boston’s work to Cohen’s project is not surprising; after all, Boston was an attorney who, at the time of the appearance of the book, was Chairman of the Standing Committee on Professional Ethics for the New York County Lawyers’ Association.66  Cohen’s reliance on Adler, however, may be more telling. As the founder of the Society for Ethical Culture, Adler, in Cohen’s words, “devoted himself to stimulating ethical thought in every active field of endeavor.”67 Describing what he sees as Adler’s chief contribution to the field of ethics, Cohen cites Adler’s assertion that because “duty is a matter of daily vocational service, preachment without active application is of no avail.”68 Cohen emphasizes Adler’s conclusion that “[t]herefore, each vocation—business, industry, the professions— must solve its own ethical problems.”69 As a result of the broad range of this concern, Adler “turned to the lawyers as well as the business men, and spurred them to the formation of groups for the study of applied ethics.”70  Echoing Adler, Cohen likewise finds common ethical imperatives and potential among different vocations, describing “the idea of service” as one that is “true to-day of other businesses as it is of railroads and retailers” and one that also “runs through the whole of the ethics of the legal profession.”71 In fact, Cohen 63 Cohen, supra note 8, at 175. 64 Id. 65 See id. at xviii. 66 See id. at xvi. 67 Id. at 158 (emphasis added). 68 Id. 69 Id. 70 Id. at 158-59 (emphasis omitted). 71 Id. at 42.

Professionalism without Parochialism    Chapter 18

largely bridges the ethical distinctions among different occupations, observing that “[t]he ethics of trade are approximating the ethics of the profession.”72  Cohen’s focus on personal ethics, rather than on professional status, is perhaps best exemplified in his choice of and attitude toward the shoemaker. In the story of two sons, the shoemaker has instilled in his son the overriding values of personal and professional integrity, protecting his son from the p­ owerful temptations that succeed in capturing Thompson’s son, who is not of the same ethical caliber. Addressing the reader as shoemaker, Cohen neither condescends nor insults, but instead treats a practitioner of a “trade” as an ethical equal to a member of the legal profession. Indeed, the shoemaker is ethically superior to Thompson’s son—the financially successful lawyer—and Cohen appeals the shoemaker’s ethical fortitude in setting forth his aspirations for the ethical conduct of lawyers. Thus, the chapter that opens with the story of two sons closes with a final message to the shoemaker, including a reminder that, as in law, in the decidedly business-like activity of selling shoes, “service is set above profit.”73

PART THREE | PROFESSIONALISM WITHOUT PAROCHIALISM Contrary to elitist claims of legal professionalism, Rabbi Nachman and Julius Henry Cohen both use stories of two sons to teach that the true measure of an individual’s value to society is more a function of personal character than of professional status.74 In both stories, the ambitious but unscrupulous son initially finds financial success, yet ultimately fails to gain the respect earned by the other son, who forgoes personal glory in deference to the more important goal of maintaining ethical integrity.75  72 Id. at 43. 73 Id. at 198. 74 Cf. Cochran, supra note 4, passim; Shaffer & Shaffer, supra note 4, at 49 (finding that professionalism’s “esteem for professional fraternity is an ethic of honor rather than of virtue”). 75 Professor Lisa Lerman’s study “explor[ing] the relationships among ambition, greed, and integrity in the legal profession” further highlights the relevance of these stories and their lessons to the ethical dilemmas facing today’s lawyers. Lisa G. Lerman, The Slippery Slope from Ambition to Greed to Dishonesty: Lawyers, Money, and Professional Integrity, 30 Hofstra L. Rev. 879, 880 (2002). Lerman finds that “[m]any lawyers are preoccupied with gaining power within their law firms and with expanding their own incomes,” while “[f]or some lawyers, income is the clearest measure of their status.” Id. In either event, “[p]reoccupation with money tends to have a corrosive effect on integrity.” Id. Professor Deborah Rhode has observed, “Addictive ambition” fuels desires not readily satisfied. Attorneys who look hard enough can always find someone getting something more. And the

53

54

Section Six    Law and Narrative

Recognizing this lesson may prove helpful for lawyers in formulating a more meaningful notion of professionalism, one based in ethical commitments rather than in unfounded and unnecessary assumptions and judgments about the relative importance of different occupations. Such professionalism may be grounded in the acknowledgment of common ethical principles that the ­practice of law shares with other endeavors, including business. Though such an approach may require proponents of professionalism to accept a new model of legal practice—a new “paradigm,” as Russell Pearce calls it76—this view of law is not a novel one. Mary Ann Glendon has poignantly cited Abraham Lincoln in support of the proposition that “law is a business” and “virtue in a lawyer [is] not much different from common decency in any other calling.”77 On a similar note, Cohen references Adler’s views in a chapter titled “Applying Ethics to Daily Life in One Profession,”78 illustrating an approach— espoused by Adler and adopted by Cohen—that places the practice of law as one among many occupations that allow for, and call for, ethical and virtuous behavior.79 More recently, Pearce has credited Thomas Shaffer with “find[ing] an ethic of service consistent with all occupations and derid[ing] the Professionalism Paradigm’s characterization of lawyers as somehow superior to others in money-making occupations.”80  At the same time, renouncing claims to the legal profession’s intrinsic superiority includes rejecting the assumption that law is inherently e­ thical purchases that signal status today may look inadequate tomorrow. Well-paid ­professionals can always find another category in which to compete: trips, cars, fashion, charity, even children’s parties. The market is inexhaustively obliging. 76

77 78 79 80

Deborah L. Rhode, In the Interests of Justice: Reforming the Legal Profession 33 (2000); id. at 23‑38 (describing the “dynamics of discontent” in legal practice as rooted in “the priority of profit”). See Pearce, supra note 1, passim. Notably, however, according to at least one leading ethics scholar, this shift may be more in the nature of nomenclature than substance. See Bruce A. Green, Public Declarations of Professionalism, 52 S.C. L. Rev. 729, 737 n.18 (2001) (“It may fairly be argued that most, if not all, of the values conventionally associated with professionalism are simply common values given specific application in the context of legal practice.”). Glendon, supra note 5, at 70 (quoting Abraham Lincoln, Notes for a Law Lecture, in Selected Speeches, Messages, and Letters 33 (T. Harry Williams ed., 1957)). Cohen, supra note 8, at 157‑71. See supra text accompanying notes 65‑73. Pearce, supra note 1, at 1266 (citing Thomas L. Shaffer, Lawyer Professionalism as a Moral Argument, 26 Gonz. L. Rev. 393, 403-4 (1990-91)); see also Russell G. Pearce, Law Day 2050: Post-Professionalism, Moral Leadership, and the Law-as-Business Paradigm, 27 Fla. St. U. L. Rev. 9, 23 (1999) (describing “the understanding that all people, whether in the elite or not, share responsibility for the public good in whatever work they do.”). As Pearce emphasizes, “this obligation appl[ies] equally to business and to law practice.” Pearce, supra note 1, at 1260.

Professionalism without Parochialism    Chapter 18

and virtuous and that, therefore, those who practice law are deserving of respect and esteem regardless of the ethical quality of their conduct. Instead, in this perspective, lawyers will begin to appreciate the broad range of human endeavors and occupations, each of which carries with it both ethical challenges and the potential opportunity for contributing to a virtuous life. Accepting their position as one among many occupations, lawyers will thus acknowledge, both as a group and on an individual level, that respect must be earned through their virtuous conduct, rather than expected by virtue of their choice of work.81 In short, again in Pearce’s words, lawyers will have “no choice but to accept that they [are] accountable for their actions[,] just like everyone else.”82  Once lawyers realize, more fully, that the virtue of their work is dependent on the ethics of their conduct, attempts to improve professionalism and the ethical practice of law will likely involve a more honest and searching effort to incorporate values beyond those leading to the successful and profitable outcome of a case. A less parochial conceptualization of legal ­professionalism might involve looking to the actions of members of other occupations, in ­addition to actions outside of the workplace, for examples of ethical values and conduct that may be incorporated into the practice of law as well. The adoption of a legal professionalism that looks outside the legal context to identify ethical guidelines for the practice of law may lead lawyers to i­ncreasingly turn to religion and other value systems to help articulate such e­ thical principles. Moreover, incorporating a lawyer’s religious or other 81 Cf. Fred C. Zacharias, Specificity in Professional Responsibility Codes: Theory, Practice, and the Paradigm of Prosecutorial Ethics, 69 Notre Dame L. Rev. 223, 268 (1993) (“By creating an aura of ‘professionalism’—the notion that lawyers are, by intellect, training, and special characteristics, unique—the [ethics] codes enable lawyers to command respect and financial reward exceeding that of blue collar workers and other professionals who perform similar services.”). 82 Pearce, supra note 80, at 21; cf. Shaffer & Shaffer, supra note 4, at 71 (criticizing professionalism’s “claim of immunity” that “[p]rofessionals operate outside the boundaries of ordinary morality”); Thomas L. Shaffer, Faith and the Professions 71-72 (1987) (asking “[i]s there a separate morality for professional life?” and answering “[i]n terms of experience, convention, and argot, the answer to that question would appear to be: Yes . . . [o]ur forebears have not followed, and we do not follow, the same morals in public and professional life that we follow in personal life”). These changes in perspective may lead lawyers to ask the uncomfortable question: “How dysfunctional are we lawyers if we have to be continually reminded, over the course of decades, to behave in our professional lives in the way people are ordinarily expected to behave in their lives and work?” Green, supra note 76, at 737 n.18. As troubling as the question may be, and as difficult as it may be to answer, it would seem more troubling to permit the question to remain unasked and thereby to preclude even the possibility of addressing it and attempting to answer it.

55

56

Section Six    Law and Narrative

personal values may not only improve the state of legal professionalism, but may also provide a means for lawyers to attempt to bridge their seemingly separate personal and professional lives.83 Indeed, the importance of living a consistently ethical life, both “at home” and “in town” in Shaffer’s words,84 is central to the work of both Rabbi Nachman and Julius Henry Cohen. Of course, it is not surprising that the work of Rabbi Nachman, a Chasidic master, highlights the imperative of engaging in ethical conduct in all areas of life. Starting with the text of the Torah and continuing through the teachings of contemporary scholars, Jewish tradition has emphasized the all-encompassing nature of religious and ethical duties and obligations.85 Rabbi Joseph Soloveitchik has eloquently expressed the unity of the ethical lifestyle, writing that “[t]he marketplace, the street, the factory, the house, the meeting place, the banquet hall, all constitute the backdrop for the religious life.”86 Thus, he explains, in Jewish thought an individual “stands before God not only in the synagogue but also in the public domain, in [the] house, while on a journey, while lying down and rising up.”87 Indeed, it is striking that in tales such as that of the two sons, Rabbi Nachman does not, on a literal level, invoke religious ritual or even refer 83 See, e.g., Samuel J. Levine, Responding to the Problems of Ethical Schizophrenia, 38 Cath. Law. 145 (1998); Martha Minow, On Being a Religious Professional: The Religious Turn In Professional Ethics, 150 U. Pa. L. Rev. 661 (2001); Symposium, Faith and the Law, 27 Tex. Tech L. Rev. 911 (1996); Symposium, Lawyering and Personal Values, 38 Cath. Law. 145 (1998); Symposium, Rediscovering the Role of Religion in the Lives of Lawyers and Those They Represent, 26 Fordham Urb. L.J. 821 (1999); Symposium, The Relevance of Religion to a Lawyer’s Work: An Interfaith Conference, 66 Fordham L. Rev. 1075 (1998). 84 See Thomas L. Shaffer, On Living One Way in Town and Another Way at Home, 31 Val. U. L. Rev. 879 (1997). Shaffer’s use of the concepts “town” and “home” are drawn from the statement of Harper Lee’s Atticus Finch, who declares that “I can’t live one way in town and another way in my home.” Id. at 879 (quoting Harper Lee, To Kill a Mockingbird 267 (Fawcett Popular Library 1962) (1960)). 85 See Aryeh Kaplan, The Handbook of Jewish Thought 78 (1979) (stating that the commandments “penetrate every nook and cranny of a person’s existence, hallowing even the lowliest acts and elevating them to a service to God” and that “the multitude of laws governing even such mundane acts as eating, drinking, dressing and business, sanctify every facet of life, and constantly remind one of [one’s] responsibilit[y] toward God”); see also Moshe Silberg, Law and Morals in Jewish Jurisprudence, 75 Harv. L. Rev. 306, 322 (1961) (“The Jew’s mode of dress, his diet, dwelling, behavior, relation with men, his family affairs, and his business affairs were all prefixed and premolded, in a national cloak, in a set of laws that was clear, severe, strict, detailed, that accompanied him day by day, from cradle to grave.”). 86 Joseph B. Soloveitchik, Halakhic Man 94 (Lawrence Kaplan trans., 1983) (originally published in Hebrew as Ish ha-halakhah, in 1 Talpiot 3‑4 (1944)). 87 Id. at 93.

Professionalism without Parochialism    Chapter 18

expressly to Judaism or to God.88 Instead, through the depiction of apparently temporal pursuits, such as “simple” shoemaking,89 Rabbi Nachman’s tales powerfully illustrate a more profound lesson: as Rabbi Soloveitchik d­ ramatically puts it, the synagogue and the study house are merely “minor sanctuaries,” while “[t]he true sanctuary is the sphere of our daily, mundane activities, for it is there that the realization of [religious and ethical obligation] takes place.”90  Rabbi Soloveitchik cautions against a contrasting model, portraying a person for whom “the world of prayer and the world of reality have nothing to do with each other.”91 Such an individual “enters [the] sanctuary humble and contrite, in a mood of submission and humility . . . divest[ing] himself of his arrogance, of his rigid, unbending character.”92 In the moment of prayer, this person is not the “possessor of riches and chattels, estates and factories, who drives his impoverished workers ruthlessly, and whose hands are often stained with the blood of the outcast and the ill-gotten gain wrung from the hands of the unfortunate.”93 “However,” Rabbi Soloveitchik concludes, “no sooner does [this individual] step outside into the noisy, clamorous street than he reverts back to his original persona, to his previous haughty and conceited self-centeredness.”94  Though it may be argued that his Jewish heritage informed his work and values,95 there is little evidence in his book suggesting that Cohen looked 88 Cf. Wiesel, supra note 11, at 188 (observing that Rabbi Nachman’s tales “speak not of saints or . . . Rebbes but of princes and shepherds, of anonymous beggars and horsemen, of sages and messengers—and not. . . Jewish ones at that”). 89 See supra part one. 90 Soloveitchik, supra note 86, at 94‑95; see also Samuel J. Levine, The Broad Life of the Jewish Lawyer: Integrating Spirituality, Scholarship and Profession, 27 Tex. Tech L. Rev. 1199, 1205 (1996) (citing Moses C. Luzzatto, Mesillat Yesharim 336‑39 (Shraga Silverstein trans., 1966); Maimonides, Mishne Torah, Laws of De’oth 3:2-3) (concluding that “according to Maimonides, through my professional career I could actually serve G-d, while Ramchal taught that I could utilize my career as a means towards piety”); Samuel J. Levine, Further Reflections on the Role of Religion in Lawyering and in Life, 11 Regent U. L. Rev. 31 (1998). 91 Soloveitchik, supra note 86, at 93. 92 Id. 93 Id. at 92‑93. 94 Id. at 93; cf. Randy Lee, Faith Through Lawyering: Finding and Doing What is Mine to Do, 11 Regent U. L. Rev. 71, 87‑88 (1998) (“[L]awyers need a way to link what they do on the job with their deepest values and commitments. They need to reconnect what they do on Monday with what they profess and pray on Sunday . . . [and] begin to break down the walls that have separated work from faith . . . .”). 95 This suggestion seems implicit in Professor Andrew Kaufman’s observation contrasting the work of Benjamin Cardozo with that of a number of other Jewish lawyers, including Cohen. See Andrew L. Kaufman, Cardozo 99 (1998) (“Nor did [Cardozo’s] career resemble those of Jewish lawyers like Morris Hillquit or Julius Henry Cohen, who were deeply involved

57

58

Section Six    Law and Narrative

to Jewish thought—or to religion more generally—in support of his e­ thical ideals.96 Indeed, Cohen appears ambivalent, at best, and at times openly with new immigrant groups, unionism, the use of arbitration in industrial disputes, and public service as counsel to various administrative agencies.”). 96 In contrast to Cohen, at least two of his illustrious predecessors in the field of legal ethics, David Hoffman and George Sharswood, incorporated religion into their lives and, at least to some degree, into their writings. See Susan D. Carle, Lawyers’ Duty to Do Justice: A New Look at the History of the 1908 Canons, 24 Law and Soc. Inquiry 1, 10 (1999). As Professor Carle noted, David Hoffman and George Sharswood, the authors of the two most important early-nineteenth-century American treatises on legal ethics, approached the field of legal ethics from a tradition this article will refer to as “religious jurisprudence.” Their view, based on religious conviction and a belief that a divine intelligence gave human beings moral faculties that would not lead them astray, posited that lawyers could and should exert their sense of justice in individual cases to steer the legal system toward just results.

Id. Significantly, though both of these scholars extolled the work of lawyers, viewing lawyers—in Professor Pearce’s term—as America’s “governing class,” see generally Russell G. Pearce, Lawyers as America’s Governing Class: The Formation and Dissolution of the Original Understanding of the American Lawyer’s Role, 8 U. Chi. L. Sch. Roundtable 381 (2001); Samuel J. Levine & Russell G. Pearce, Rethinking the Legal Reform Agenda: Will Raising the Standards for Bar Admission Promote or Undermine Democracy, Human Rights, and Rule of Law?, 77 Fordham L. Rev. 1635, 1654-57 (2009), they both insisted that the work of lawyers is not inherently virtuous absent the incorporation of ethical values and conduct. Hoffman, whom Professor Shaffer considers the “father of . . . legal ethics,” Shaffer, supra note 82, at 47, “was not only a careful student of religion . . . but also a law teacher who claimed that the Bible was essential to his craft.” Id. at 49. Indeed, as Shaffer notes, “Hoffman began his consideration of the law —not ethics, but law—with the Bible . . . [and] recommended it as a primary source for learning law, for learning professional skill, for being introduced to professional culture, and for personal advancement in the profession.” Id. at 50. Hoffman posited that “great[ness] in law [required] great[ness] in every virtue.” Pearce, supra, at 389 (quoting David Hoffman, Course of Legal Study 26 ( J. Neal 2d ed., 1836)) (alterations in original). Thus, Hoffman “asserted that the virtuous lawyer should reject any distinction between personal and professional morality.” Id. (citing Maxwell Bloomfield, David Hoffman and the Shaping of a Republican Legal Culture, 38 Md. L. Rev. 673, 684 (1979)). In short, Hoffman wrote, “[w]hat is morally wrong, cannot be professionally right.” Id. (quoting Hoffman, supra, at 765). Sharswood, whose work, according to Pearce, “overshadowed” Hoffman’s and whose book, after its publication in 1854, “would dominate the field of legal ethics for the next hundred years,” id. at 389-90, was, according to Shaffer, apparently a devout Christian. Shaffer & Shaffer, supra note 4, at 196. Like Hoffman, Sharswood begins his discussion, not of ethics but of law, through reference to the Bible. See George Sharswood, An Essay on Professional Ethics 10-14 (5th ed. Fred B. Rothman & Co. 1993) (1884). Again like Hoffman, Sharswood insisted that “no man can ever be a truly great lawyer, who is not in every sense of the word, a good man.” Id. at 168, quoted in Pearce, supra, at

Professionalism without Parochialism    Chapter 18

h­ ostile, toward the role of religion in public ethics, quoting the conclusion that, in mid-nineteenth-century America, “formal religion did not . . . lead in the world of ideals, nor even in the true moral purpose of a people eagerly seeking spiritual growth.”97 Moreover, he cites the position that “[a]s late as 1876 . . . ‘[t]he nation was apparently without ideals, save those of industrial progress[, and r]eligion shared in this apathy, spending its energy in seizing what it could of the tide of national prosperity . . . and . . . retreating to the stronghold of religious dogma.’”98  Instead, Cohen turned for guidance to Dr. Adler’s “Society for Ethical Culture,”99 which offered exhortations that, in both tone and substance, echo religious teachings, but which, at the same time, avoided direct reliance on religion. Thus, these ethical imperatives take a decidedly secular humanistic form: “We are here—no matter who put us here, or how we came here—to fulfill a task. We cannot afford to go of our own volition until the last item of our duty is discharged.”100 Though the dedication to ethical conduct may evoke religious fervor, “[t]he moral view of the professions leads their representatives to subordinate the claims of ambition and of material gain”—not to the will of God, but “to the enduring interests of science, of justice, and to all the permanent social interests that are confided to their keeping.”101  Nevertheless, despite his general aversion to religion as a source of legal ethics, Cohen does rely on an episode involving religious practice to emphasize the importance of living a uniform and consistently ethical life. Illustrating what some Europeans saw as “an irreconcilable contradiction between the keen business instincts of the [American], and his professions of religion,”102 Cohen 390. In fact, Sharswood appears to have endorsed the lesson of Rabbi Nachman’s and Julius Henry Cohen’s stories of two sons, see infra Parts I and II, writing that “an invisible hand of reputation ensured that the most virtuous lawyers would be the most financially successful.” Pearce, supra, at 390 (citing Sharswood, supra, at 75). It should be noted, though, that in spite of both Hoffman’s and Sharswood’s apparent personal devotion toward, and professional reliance on, religion, Shaffer concludes that “there is little indication that the principal influences in the development of legal ethics in America were thoughtfully or even consciously rooted in the moral teachings of Moses, or of Jesus, or of the eighteenth-century English clergy.” Shaffer & Shaffer, supra note 4, at 196.   97 Cohen, supra note 8, at 157 (quoting Ephraim D. Adams, “The Power of Ideals in American History,” Dodge Lectures on the Responsibility of Citizenship (Yale University Press)).   98 Id. (quoting Adams, supra note 97).   99 See supra text accompanying notes 65-69. 100 Cohen, supra note 8, at 158 (quoting Felix Adler, Life and Destiny 3). 101 Id. (quoting Adler, supra note 100, at 52). 102 Id. at 33 (quoting Adams, supra note 97) (emphasis omitted).

59

60

Section Six    Law and Narrative

offers a brief tale that closely resembles Rabbi Soloveitchik’s depiction of the individual whose virtuosity at prayer does not carry over to conduct outside of the sanctuary.103 In Cohen’s tale, which he calls “one of the oldest British gibes at America,”104 a shopkeeper is seen “instructing his clerk, preparing for the business of the morrow, to ‘sand the sugar, flour the ginger, lard the butter, and then come in to prayers.’”105 This concise—yet powerfully cautionary—tale captures some of the key elements of the lessons more fully explored in Cohen’s and Rabbi Nachman’s stories of two sons. As in Rabbi Nachman’s story of the Sophisticate and the Simpleton, the main character is not a lawyer, but an individual engaged in business, whose “sophistication” expresses itself in a refusal to apply to professional life the “simple” virtues that are permitted to find expression, if at all, only in his personal life. And as in Cohen’s story of two lawyers, this individual places professional ambition and financial success above personal values, thus failing to uphold the ethical ideals that Cohen propounds.

CONCLUSION Cohen’s brief story of the shopkeeper serves as a fitting complement to his story of two sons. Together, the stories tell of both lawyers and those involved in business, of individuals whose personal values may be based in religion or in other sources of ethics. Ultimately, the stories illustrate Cohen’s vision of a legal professionalism that looks beyond platitudes and presumptions of virtue based in status, a professionalism rooted instead in an honest and searching ­assessment of ethical conduct in the practice of law, informed by a broader appreciation for the role of ethics in other occupations and other areas of life. It is a vision, ­articulated more than one hundred years ago, that today remains as valuable as ever.

103 See supra notes 86-94 and accompanying text. 104 Cohen, supra note 8, at 33 (quoting Adams, supra note 97). 105 Id. at 33-34 (quoting Adams, supra note 97).

Section Seven Legal History CHAPTER 19

Lost in Translation: The Strange Journey of an Anti-Semitic Fabrication, from a Late Nineteenth-Century Russian Newspaper to an Irish Legal Journal to a Leading Twentieth-Century American Criminal Law Textbook INTRODUCTION

T

his chapter introduces and explores an apocryphal and anti-Semitic story, published in an 1882 issue of the Irish Law Times1 and later quoted in several editions of Albert J. Harno’s Cases and Other Materials on Criminal Law and Procedure.2 The story reads as follows:  1 See Irish Law Times, 16 December 1882, at 612.   2 See Albert J. Harno, Cases and Other Materials on Criminal Law and Procedure (1933), at 207-208 n2 [hereinafter Harno]; Albert J. Harno, Cases and Materials on Criminal Law and

62

Section Seven    Legal History In 1879 a strange case occurred at Littowk on the Russian frontier. Two Jews, father and son, had long lived on bad terms, and at last the son hired a peasant for twenty pieces of silver “to facilitate the departure of the old man from this vale of tears.” On the day fixed for the execution of the crime the peasant repented, and, going to the intended victim, confessed all that had passed. The father made him promise to pretend to his employer that the crime had been committed, and he then went to the rabbi, Joseph Beer, before whom he laid the matter. After due deliberation the rabbi determined to see the son and to inform him that his murdered father had appeared to him in a dream, and he asked his murderer whether he would appear before a terrestrial or celestial jury. The son, quite overwhelmed, chose the former tribunal, which was accordingly formed, and consisted of ten influential parishioners. The father was placed behind a curtain. The prisoner having been placed at the bar, the judges rose, and the rabbi solemnly invited the spirit of the dead man to bring forward his accusation. Hardly had the son recognized the voice of his father when he was seized with terror and fell down dead. The procurator of the province, on learning what had passed, at once caused the rabbi and other members of the court to be arrested.3

The publication of the story, in both a leading Irish legal periodical and a ­leading American criminal law textbook, is notable—and troubling—on a number of grounds. As part one of this chapter details, the story’s apocryphal origins date back to an 1879 issue of the Russian Courier, a social and political newspaper published in Moscow. A close look at the original version reveals more fully the anti-Semitic tone and substance of the story, consistent with the virulent anti-Semitism prevalent in late nineteenth-century Russian society. At the same time, elements of the original help identify the prominent European scholar and communal leader, Joseph Baer Soloveitchik, as the mysterious Procedure (2nd ed., 1939), at 296-297 n2; Albert J. Harno, Cases and Materials on Criminal Law and Procedure (3rd ed., 1950), at 283‑284 n2; Albert J. Harno, Cases and Materials on Criminal Law and Procedure (4th ed., 1957), at 279 n2. I gratefully acknowledge the work of Rabbi Yisrael Herczeg, which first alerted me to this story and its appearance in an American legal textbook, and which referenced the work of Rabbi Chaim Karlinsky. See Yisrael Isser Zvi Herczeg, “R Yosef Dov Ber Soloveitchik,” in Rav Yosef Dov Ber Soloveitchik, Beis Halevi: Bereishis (Yisrael Isser Zvi Herczeg trans., 1990), at 14-15. I likewise acknowledge Rabbi Karlinsky’s book, which, in turn, cited Harno’s textbook and identified the story’s origins. See Chaim Karlinsky, Ha-rishon L’shalsheleth Brisk (1984), at 316‑20.   3 See note 2.

Lost in Translation    Chapter 19

rabbi at the center of the alleged story. Part two of the chapter traces the evolution of the story into English through its unusual appearance in an 1882 issue of the Irish Law Times. Though more concise than the original, the English version of the story contributes a number of anti-Semitic characteristics of its own. Moreover, in some ways the story’s inclusion in an Irish law journal seems more unsettling that its placement in a Russian newspaper. In light of this background, part three examines the surprising and ­disconcerting presence of the story in successive editions of Harno’s textbook, published in 1933, 1939, 1950, and 1957. Coupled with the story’s anti-Semitic tone and substance, the anomalous manner in which it appears amplifies the disturbing nature of its publication. Specifically, the story is quoted directly from the Irish Law Times, verbatim and without any editorial comment, thus providing it an air of accuracy and legitimacy. Moreover, the story seems to lack significant value in relation to the legal issue it is ostensibly intended to illuminate. Finally, because the story appeared in numerous editions of Harno’s textbook, spanning a period of thirty-six years, it thereby comprised part of the curriculum for generations of twentieth-century American law students and their professors. This chapter concludes that, among other lessons, Harno’s publication of the story may serve as a cautionary tale, illustrating the potential perils of the increasing contemporary reliance upon sources, such as foreign materials and internet websites, that are often not readily susceptible to authentication and verification.

PART ONE | THE ORIGINS OF THE STORY: AN 1879 ISSUE OF THE RUSSIAN COURIER The story’s origins can apparently be traced back to an 1879 issue of the Russian Courier, a daily social and political newspaper published in Moscow from 1879 to 1891.4 The story was reprinted, in Hebrew translation and accompanied by an ­editorial comment expressing utter incredulity with the account, in the 21 October 1879 edition of Hamelitz, a Hebrew newspaper published weekly in St. Petersburg.5   4 See Karlinsky, note 2, at 318. This description of the Russian Courier is based on the catalog record at the Slavic and East European Library of the University of Illinois, the only library in the United States that houses a collection of the newspaper.   5 See Karlinsky, note 2, at 317‑318. According to Vladimir Karasik of the Jerusalem Center for Jewish Press, Hamelitz was one of the first and most significant Hebrew newspapers in Russia. It was published in Odessa from 1860 to 1871 and then in St. Petersburg from 1871 to 1904. See Email from Vladimir Karasik, Jerusalem Center for Jewish Press, to Samuel J. Levine, Associate Professor of Law, Pepperdine University School of Law (26 December 2004) (on file with author). A microfilm collection of the newspaper is housed at the Dorot

63

64

Section Seven    Legal History

According to Hamelitz, following its appearance in the Russian Courier, the story was published in other Russian newspapers as well.6

A. Differences between the Original Version of the Story in the Russian Courier and the Later Versions in English Sources The original version of the story in the Russian Courier, as translated into Hebrew in Hamelitz, is more extensive and more dramatic than the version that later appeared in the Irish Law Times and in Harno’s textbook. At the start of the story, the encounter between the father and the peasant is described in greater detail, providing a more complete explanation of the process through which the father recruits the peasant to participate in retaliating against the son. According to the original, the peasant is initially offered twenty-five roubles by the son before approaching the father and revealing the son’s plot.7 The father then enlists the peasant’s cooperation by giving him five silver roubles and promising to pay, upon completion of his own plan, the sum of twenty-five roubles.8 The father also requests that the peasant bring the father’s outer clothing to the son, to demonstrate that he has killed the father and has “concealed his blood.”9 Finally, after agreeing to the father’s plan, the peasant promises to escort the father to the city to protect him, in case the son has hired others to kill the father.10 In addition, the Russian Courier portrays the rabbi’s conduct more fully, as well as in a harsher light, than does the later version of the story. For example, the original provides the context in which the rabbi asserts that the father has appeared to him in a dream. Specifically, when he is initially approached by the father and told of the son’s plot, the rabbi is shocked by what he has learned and determines not to act upon the information until the next morning.11 The rabbi arranges for the father to sleep in his house that night, and orders all of the members of his household to keep secret what he has been told.12 Against this backdrop, it seems more plausible for the rabbi to decide in the morning to summon the son, and then to claim that the father appeared to him in a dream the previous night. Jewish Division of the New York Public Library. For a brief description of Hamelitz, see I Louis Greenberg, The Jews in Russia (1944), at 105‑106.   6 See Hamelitz, 21 October 1879, at 830‑831.   7 Ibid., at 830.  8 Ibid.  9 Ibid. 10 Ibid. 11 Ibid. 12 Ibid.

Lost in Translation    Chapter 19

More strikingly, the original version provides considerably more e­ xtensive and dramatic details surrounding the proceedings of the tribunal. As the son enters, the rabbi greets him with a glare and imposes silence in the room.13 When the son volunteers, “I am ready,” the rabbi does not allow him to speak further, observing that no noise has emanated from behind the curtain because “the accuser” will not be present.14 However, at that moment the curtain begins to move, prompting the rabbi and the other members of the tribunal to rise from their chairs, with the rabbi calling out, “Behold, the accuser has arrived!”15 A hushed silence fills the room and the rabbi orders the judges to return to their seats, leaving the accused standing alone in the middle of the room with his face turned toward the curtain.16 The rabbi then addresses the supposedly dead father in a sad and somber voice: Dweller in the world of truth, you appeared to me last night in a dream and you summoned your son to judgment. Behold your son is here with us; the proper number of judges have been assembled; I sit at the head of the tribunal and I promise you that I will bring forth a just ruling in ­accordance with the laws of our holy Torah. Now, if you will speak first, we are waiting to hear your complaint in strong and clear words.17

The father then appears behind the curtain and begins to state his claim in a strong voice.18 Upon hearing the voice of his father, the son, whose face has become covered with the “paleness of death,” falls to the ground.19 Everyone, including his father, begins to rush to his side, but they realize that he has died instantly out of shock and fear.20 The Russian Courier concludes that the prosecutor ordered the rabbi to be imprisoned as chiefly responsible for the death of the son, and this caused great concern among the Jewish community in Vilna.21 Yet another detail found in the original account proves indispensable in establishing the identity of the mysterious central character of the story, Rabbi 13 Ibid., at 831. 14 Ibid. 15 Ibid. 16 Ibid. 17 Ibid. 18 Ibid. 19 Ibid. 20 Ibid. 21 Ibid.

65

66

Section Seven    Legal History

“Joseph Beer.”22 Unlike the later version of the story, which refers cryptically to the location of the events as “Littowk,”23 the version printed in Hamelitz includes a more complete reference to the town of Brest-Litovsk, which was commonly known as “Brisk de-Lita” (“Brisk of Lithuania”) or simply “Brisk” among its Jewish inhabitants.24 This additional piece of information leads to the unmistakable conclusion that Rabbi “Joseph Beer” refers to Joseph Baer Soloveitchik, an important nineteenth-century scholar of Jewish law, who had assumed the position of rabbi in Brest-Litovsk less than one year before the appearance of the story in the Russian Courier.25 The identity of Rabbi Joseph Baer lends additional significance to the story and its later publication in an American legal textbook. Rabbi Joseph Baer remains among the most important figures in modern Jewish legal scholarship, not only because of his own scholarly output, but also because of the ­intellectual movement he inspired.26 The title of Rabbi Joseph Baer’s biography, The First of the Chain of Brisk,27 attests to the legacy he initiated, a legacy further developed by his son Rabbi Chaim, who succeeded him as the rabbi of Brest-Litovsk.28 Greatly influenced by his father, Rabbi Chaim is generally credited with founding an innovative and highly influential methodology for the ­academic study of Jewish law, earning the label the “Brisker method.”29 Rabbi Chaim’s children and other students applied and expanded the Brisker method, producing an intellectual movement that continues to prevail as one of the dominant approaches in many academies of Jewish law throughout the world.30 Notably, one of the most prominent contemporary practitioners of 22 Ibid. 23 See Harno, note 2, at 207 n2. 24 See Hamelitz, note 6, at 830. For a discussion of the history of Jewish communities in BrestLitovsk, see 4 Encyclopedia Judaica (1972), at 1359‑1363. See also www.jewishgen.org/ yizkor/Brest2/bre227.html. 25 See 15 Encyclopedia Judaica (1972), at 131‑132. 26 Ibid. 27 See Karlinsky, note 2. See also Herczeg, note 2, at 9-17. 28 See Encyclopedia Judaica, note 25, at 129‑130. 29 See ibid. 30 For discussions and applications of the Brisker method, see, e.g., Yitzchak Adler, Lomdus: A Substructural Analysis (1989); Lawrence Kaplan, Rabbi Joseph B. Soloveitchik’s Philosophy of Halakha, 7 Jewish Law Annual 139 (1988); Rabbi Aharon Lichtenstein, Leaves of Faith: The World of Jewish Learning (2003), at 19-60; Moshe Lichtenstein, “What” Hath Brisk Wrought: The Brisker Derekh Revisited 9 The Torah u-Madda Journal 1 (2000); Marc B. Shapiro, The Brisker Method Reconsidered: Review Essay 31 Tradition 78 (1997); Norman Solomon, The Analytic Movement: Hayyim Soloveitchik and His Circle (1993); Joseph B. Soloveitchik, Mah Dodech Midod in Joseph B. Soloveitchik, Besod Hayachid V’hayachad (1970), at 231. For comparisons between the Brisker method and American legal theory, see, e.g., Chapter 23

Lost in Translation    Chapter 19

the Brisker method was Rabbi Joseph Baer’s great-grandson and n­ amesake, Rabbi Joseph Baer (Dov) Soloveitchik, who began to lecture at Yeshiva University in New York City in 1941 and served throughout the ­century as a renowned American communal leader and scholar of Jewish law and philosophy.31

B. The Apocryphal and Anti-Semitic Nature of the Story In addition to the generally implausible qualities of the narrative, several specific details of the story, including the manner in which it portrays Jewish religious practices and various Jewish characters, demonstrate its apocryphal nature. Although the rabbi is quoted as telling the son that the tribunal will “bring forth a just ruling in accordance with the laws of our holy Torah,”32 the proceedings of the tribunal find no support in the laws of the Torah. Most obviously, there is no basis in the Torah or the Jewish legal system for a juridical procedure in which the soul of the dead is somehow summoned to ­testify.33 Similarly, although the requirement of ten participants has significance in Jewish ­religious practice, constituting the necessary quorum for public prayer,34 contrary to the rabbi’s declaration in the story, the number ten does not signify the composition of a judicial tribunal.35 More disturbingly, the story betrays its fantastic nature in a number of literary components that appeal to, and rely upon, common assumptions and expressions of anti-Semitic prejudice. For example, in the context of the ­virulent and often violent anti-Semitism that permeated much of late nineteenthcentury Russian society,36 the fee of silver roubles that the father and son both in this Volume; Chaim Saiman, Legal Theology: The Turn to Conceptualism in Nineteenth Century Jewish Law 21 J. L. & Religion 39 (2005‑6). 31 See Encyclopedia Judaica, note 25, at 132-33. For discussions of Rabbi Joseph Baer (Dov) Soloveitchik’s life and thought, see, e.g., Lichtenstein, supra note 30, at 189-246; Rabbi Hershel Schachter, Divrei HaRav (2010); Rabbi Hershel Schachter, MiPninei HaRav (2001); Rabbi Hershel Schachter, Nefesh HaRav (1994). 32 See Hamelitz, note 6, at 831. 33 In fact, such a practice would seem to directly violate biblical prohibitions against “consulting” the dead. See Deuteronomy 18:11; Maimonides, Mishne Torah (Code of Law), Laws of Idolatry 11:13. 34 See Talmud Bavli, Megillah 23b; Maimonides, note 33, Laws of Prayer 8:4. 35 The Jewish legal system includes courts consisting of seventy judges, twenty-three judges, and three judges, but not a court consisting of ten judges. See Talmud Bavli, Sanhedrin 2a; Maimonides, note 33, Laws of Sanhedrin 1:3. 36 For classic studies of the history of Russian Jewish communities, including descriptions of late nineteenth-century Russian anti-Semitism, see I S. M. Dubnow in I Friedlaender, ed.,

67

68

Section Seven    Legal History

offer the peasant almost certainly evoked the New Testament’s depiction of Judas as betraying Jesus for thirty pieces of silver.37 Although the Russian Courier seems to enumerate a sum of twenty-five, rather than thirty, silver roubles, the allusion to Judas remains highly probable.38 Indeed, Dostoevsky’s The Brothers Karamazov, which began to appear in serial form in the Russian Herald the same year as the publication of the story in the Russian Courier,39 draws an explicit parallel to Judas through Ratikin’s betrayal of Alyosha, likewise in exchange for ­twenty-five roubles.40 Alternatively, a close reading of the account of the story in the Russian Courier suggests an ambiguity in the precise number of roubles offered to the peasant. The father first gives the peasant five roubles and then offers to pay twenty-five roubles, perhaps suggesting that these two payments will be added and thus the sum will indeed equal thirty.41 Additionally, although the story does not conform precisely to the literary genre characteristic of blood libel or ritual murder charges, central aspects of the narrative seem to borrow basic elements from such fabrications, which found considerable popularity in Russia in the late nineteenth century.42

37 38 39 40 41

42

History of the Jews in Russia and Poland (1916), 198-205; III S. M. Dubnow in I Friedlander, ed., History of the Jews in Russia and Poland (1920), 113-20; II Louis Greenberg in Mark Wischnitzer, ed., The Jews in Russia (1951), 19‑54. See Matthew 26‑27. For a discussion of the recurring anti-Semitic equation of Judas with Jews, see Marvin A. Perry & Frederick M. Schweitzer, Antisemitism: Myth and Hate from Antiquity to the Present (2002), at 37‑38. See Malcolm V. Jones, Editor’s Introduction to Fyodor Dostoevsky, The Brothers Karamazov (Pevear and Volokhonsky trans., 1992). See Dostoevsky, ibid., at 358. See also Diane Oenning Thompson, The Brothers Karamazov and the Poetics of Memory (1991), 113‑14. See Hamelitz, note 6, at 830. As yet another alternative, perhaps the story alludes to the biblical account of the sale of Joseph. See Genesis 37:1‑36. The enumeration of ten judges in the story may then evoke Joseph’s ten brothers, who first contemplated killing him and then sold him into slavery, while the sum of twenty-five silver roubles may echo the twenty pieces of silver exchanged in the sale of Joseph. See ibid. at 37:28. Such a possibility might account for the Russian Courier’s depiction of the father’s instruction to bring his outer clothing as a sign of his death, see Hamelitz, note 6, perhaps echoing the actions of Joseph’s bothers, who bring Joseph’s coat of colors to Jacob to demonstrate that Joseph has been killed. See Genesis 37:3‑34. For an analysis of these and other events in Joseph's life, see Samuel J. Levine, Was Yosef on the Spectrum? Understanding Joseph Through Torah, Midrash, and Classical Jewish Sources (Urim Publications 2018). See 4 Encyclopedia Judaica (1971), at 1128, 1130 (stating that “[i]n modern times Russia has been the principal perpetrator of the blood libel” and that “[w]ith the growth of an anti-Semitic movement in Russia in the 1870s, the blood libel became a regular motif in the anti-Jewish propaganda campaign conducted in the press and literature”). Indeed, in 1876, a number of editions of a pamphlet titled “Concerning the use of Christian blood by Jewish sects for religious purposes” were published in Russia, while in 1879, the same year the story

Lost in Translation    Chapter 19

These tales generally included the killing of a Christian child for Jewish religious ­purposes, often at the instruction and/or with the assistance of a rabbi, and sometimes through an unusual and supernatural process.43 In a somewhat parallel manner, the story in the Russian Courier includes the killing of a son—albeit Jewish—through a method prescribed by a rabbi, relying upon the staged supernatural appearance of the supposedly dead father. Moreover, the strange depiction of the tribunal proceedings, as representing a judgment “in accordance with the laws of [the] Torah,”44 may provide an expressly ritual quality to the events. Finally, the seemingly gratuitous reference in the father’s remarks to the peasant regarding “concealing [the father’s] blood”45 may be understood as an allusion to blood libels, which generally included attempts by the alleged perpetrators to hide the killing and the blood of the child. Indeed, in a number of ways the story evokes a work that has been described as “the most massive and systematic formulation of the blood libel,”46 Refutation of a Jewish Booklet, written in 1541 by Johann Maier, better known as Johann Eck.47 Eck formulated bizarre accounts of Jewish black magic, emphasizing the c­ entrality of blood—in particular, the blood of Christian children—in magic rituals.48 Moreover, Eck similarly included a contemporary comparison to Judas, explicitly writing that “the Jews now buy the blood of innocent children, just as their fathers had bought the innocent blood of Jesus . . . from Judas with thirty pennies.”49

was published in the Russian Courier, a case was tried in the district court accusing Jewish villagers of Katais (Georgia) of murdering a young Christian girl. See ibid.; I Dubnow, note 36, at 203‑204. Moreover, consistent with the publication of the story in the Russian Courier, in the same year another Russian newspaper, the Novoye Vremya, published an attack on a professor at a Christian seminary in St. Petersburg who had written a treatise refuting the ritual murder myth. See Dubnow, ibid., at 204‑205. For further descriptions of numerous accounts of the blood libel in Russia in modern times, see Encyclopedia Judaica, at 1129‑1131; Perry & Schweitzer, note 38, at 58-68. For other discussions of the blood libel, see II S. M. Dubnow, in I. Friedlander, ed., History of the Jews in Russia and Poland (1918), at 75, 99, 172‑180; Encyclopedia Judaica, at 1120‑1132; R. Po-chia Hsia, The Myth of Ritual Murder: Jews and Magic in Reformation Germany (1988); Perry & Schweitzer, note 38, at 46‑58; Alan Dundes, ed., The Blood Libel Legend: A Casebook in Anti-Semitic Folklore (1991). 43 See Hsia, note 42, at 5‑13. 44 Hamelitz, note 6, at 830. 45 Ibid. 46 Hsia, note 42, at 126. 47 Ibid. 48 Ibid., at 127. 49 Ibid. (quoting Johann Eck, Refutation of a Jewish Booklet (1541)).

69

70

Section Seven    Legal History

Not surprisingly, since its inception, historians and others who have analyzed the story in the Russian Courier have universally concluded that it is apocryphal. Referencing accounts of the story only months after its first appearance in the Russian Courier, the editors of Hamelitz declared their disbelief that such events had actually occurred, finding it more akin to the work of a theatrical playwright.50 Moreover, they reported that a trusted member of the Jewish c­ ommunity in BrestLitovsk informed them that he had never heard of such events and was certain that they were fabricated.51 Likewise, emphasizing the anti-Semitic tendencies of the Russian Courier and other Russian newspapers of the time, Rabbi Joseph Baer’s biographer, Chaim Karlinsky, categorically concludes that the story was false.52 Karlinsky speculates that the libel was spread by individuals who opposed the strong leadership and communal reforms that Rabbi Joseph Baer had imposed upon his arrival in Brest-Litovsk.53 Finally, Dr. Haym Soloveitchik, an eminent historian and a great-great grandson of Rabbi Joseph Baer, has declared the story “preposterous.”54 In addition to rejecting the possibility that Rabbi Joseph Baer could have engaged in the conduct attributed to him in the story, Dr. Soloveitchik finds it inconceivable that an event so dramatic as the arrest and ordered imprisonment of his i­llustrious ancestor by Russian officials would have escaped the notice of historians, including the members of his own family who have carefully and closely documented centuries of their family’s history.55

PART TWO | THE BRIDGE FROM RUSSIA TO THE UNITED STATES: AN 1882 ISSUE OF THE IRISH LAW TIMES Given the story’s origins in an 1879 issue of an obscure Russian newspaper, and considering the story’s patently sensational and anti-Semitic character, it seems 50 See Hamelitz, note 6, at 831. Indeed, a number of dramatic works, based on a 1952 novel by Pierre Boileau – see Pierre Boileau, Celle qui n’etait plus [The Woman Who Was No More] (1952) – have employed a similar plot device, involving a presumed murder victim who reappears, thereby causing the supposed murderer or another character to die from shock. See, e.g., Les Diaboliques (1955), Reflections of Murder (1974), Deathtrap (1982), House of Secrets (1993), Diabolique (1996) (movies); Deathtrap (1978) (play). See generally Ronald Schwartz, Noir, Now & Then: Film Noir Originals and Remakes (1944-1999) (2001), at 130-136. 51 See Hamelitz, note 6, at 831. 52 See Karlinsky, note 2, at 316‑317. 53 See ibid., at 318‑319. 54 See email from Dr. Haym Soloveitchik, Yeshiva University, to Samuel J. Levine, Associate Professor of Law, Pepperdine University School of Law, November 9, 2004 (on file with author). 55 Ibid.

Lost in Translation    Chapter 19

remarkable that the story later found its way into the 1933 first edition of Albert Harno’s American criminal law textbook.56 The textbook indicates57 that the story was reprinted from an 1882 issue of the Irish Law Times,58 a legal publication that remains in circulation. Possibly the first publication to present the story in English,59 the Irish Law Times offers an abbreviated version of the account in the Russian Courier. As noted above, the original includes extensive details about various characters, accentuating the negative portrayal of the rabbi and various members of the Jewish community allegedly involved. Despite the absence of many of these details, however, the version in the Irish Law Times remains disturbing on a number of grounds as well. For example, the Irish Law Times employs unmistakably anti-Semitic allusions and implications, albeit less blatant than those found in the Russian Courier. The story is introduced through condescending references to a “strange case” between “two Jews” that occurred at “Littowk, on the Russian frontier.”60 Published at a time when Jewish immigrants from Russia and Lithuania were arriving in Ireland in increasing number, and were confronted by burgeoning prejudices,61 these references situated the story in a setting that undoubtedly appealed to anti-Semitic sentiments and stereotypes. In addition, the allusion to Judas emerges even more explicitly in the Irish Law Times, as the payment offered by the son is depicted as twenty “pieces of silver,”62 thus directly echoing the book of Matthew.63 56 See Harno, note 2, at 207‑208 n2. 57 Ibid. 58 Irish Law Times, note 1, at 612. 59 It remains possible that the Irish Law Times relied upon an intermediate—though as-of-yet unidentified— publication of the story in English. 60 Irish Law Times, note 1, at 612. 61 See Louis Hyman, The Jews of Ireland: From Earliest Times to the Year 1910 (1972), at 160‑166; Dermot Keogh, Jews in Twentieth-Century Ireland: Refugees, Anti- Semitism, and the Holocaust (1998), at 19‑25. 62 Irish Law Times, note 1, at 612. 63 Matthew 26‑27. Unlike the Russian Courier, the Irish Law Times also includes the unusual quotation, “to facilitate the departure of the old man from this vale of tears,” to describe the son’s plan to have his father killed. Irish Law Times, note 1, at 612. The quotation apparently borrows from a poem by Shelley. See Percy Bysshe Shelley, Hymn to Intellectual Beauty (“Why dost thou pass away and leave our state,/ This dim vast vale of tears, vacant and desolate?”). The English phrase “vale of tears” seems to have originated in the mid-sixteenth century. See 12 Oxford English Dictionary 19 (1978). Notably, the Hebrew phrase “emek ha-bacha” (“valley of tears”) appears in two sixteenthcentury works, as part of Lecha Dodi, a prayer authored by Rabbi Shlomo Halevi Alkabetz of Safed, see 11 Encyclopedia Judaica (1972), at 4‑5, and as the title of a book by Rabbi Joseph

71

72

Section Seven    Legal History

To be sure, Jewish communities in Ireland did not face the kind of anti-­ Semitic persecution and outright physical violence that prevailed in nineteenthcentury Russia. In fact, the influx of Jewish immigrants to Ireland was undertaken largely in an attempt to seek refuge from Russian pogroms.64 Nevertheless, ­various forms of anti-Semitism had long existed in Great Britain,65 including the very first European case of ritual murder persecution through accusations surrounding the death of William of Norwich, an English boy, in 1148.66 Similar accusations multiplied throughout the Middle Ages in a number of European countries, including England.67 Even in the absence of a local Jewish community, which was expelled from England in 1290,68 anti-Semitism and ritual murder charges continued to find a place in British culture, as reflected in the writings of Chaucer69 and Shakespeare,70 among others.71 Although the personal views and intentions of these authors remain the subject of scholarly debate,72 there is no question that two of the most ha-Cohen of Italy. See Joseph ha-Cohen, Emek ha-Bacha; 10 Encyclopedia Judaica (1972), at 242. The homophonous Hebrew phrase “emek ha-bacha” dates back to biblical times, denoting the image of a “valley of thorns.” See Psalms 84:7. 64 See Keogh, note 61, at 6-19. Cf. Cormac O’Grada, Jewish Ireland in the Age of Joyce: A Socioeconomic History (2006), at 12‑14. 65 See Colin Holmes, “The Ritual Murder Accusation in Britain” in Dundes, note 42, at 99-134; Colin Holmes, Anti-Semitism in British Society: 1876‑1939 (1979). 66 See Holmes, note 65, at 101; Perry & Schweitzer, note 38, at 48-49. 67 See Encyclopedia Judaica, note 42, at 1121‑1124; Holmes, note 65, at 101-103; Hsia, note 42, at 2-3; Perry & Schweitzer, note 38, at 49-56. 68 See Solomon Grayzel, A History of the Jews (1984), at 317‑318. 69 The Prioress’s Tale was based on the accusations relating to the death of Little Saint Hugh of Lincoln. See Geoffrey Chaucer, Canterbury Tales. See also Holmes, note 67, at 101‑102. 70 See William Shakespeare, The Merchant of Venice. 71 See generally Montagu Frank Modder, The Jew in the Literature of England (1960); Esther L Panitz, The Alien in Their Midst: Images of Jews in English Literature (1981); Ritchie Robertson, “The Representation of Jews in British and German Literature: A Comparison” in Michael Brenner et al., eds., Two Nations: British and German Jews in Comparative Perspective (1991), at 411. 72 For discussions of Chaucer, see, e.g., Sheila Delany, ed., Chaucer and the Jews: Sources, Contexts, Meanings (2002); Lawrence Besserman, Ideology, Antisemitism, and Chaucer’s Prioress’s Tale, 36 Chaucer Review, 48 (2001); Michael Calabrese, Performing the Prioress: “Conscience” and Responsibility in Studies of Chaucer’s Prioress’s Tale, 44 Texas Studies in Literature and Language, 66 (2002); Denise L. Despres, Cultic Anti-Judaism and Chaucer’s Litel Clergeon, 91 Modern Philosophy 413 (1994); Louise O. Fradenburg, Criticism, Anti-Semitism, and the Prioress’s Tale, 1 Exemplaria 69‑115 (1989); Robert W. Frank, Miracles of the Virgin, Medieval Anti-Semitism, and the “Prioress’s Tale” in Larry D. Benson and Siegfried Wenzel, eds., The Wisdom of Poetry: Essays in Early English Literature in Honor of Morton W. Bloomfield (1982) 177‑188; Mary F. Godfrey, The Fifteenth-Century Prioress’s Tale and the Problem of Anti-Semitism in Thomas A. Prendergast and Barbara Kline, eds., Rewriting Chaucer: Culture, Authority, and the Idea of the

Lost in Translation    Chapter 19

important works of English literature include depictions of anti-Semitic stereotypes and ritual murder charges, which were undoubtedly familiar to the audiences that read, heard, and watched performances of these works. Moreover, British anti-Semitism73 and renewed charges of ritual murder74 continued in modern times as well. Likewise, starting in the 1880s, a number of areas in Ireland began to experience more common and extensive manifestations of anti-Semitism,75 later including ritual murder charges.76 Thus, presumably educated readers of the Irish

73 74 75 76

Authentic Text (1999) 93‑115; Panitz, note 71, at 23‑41; Richard J Schoeck, Chaucer’s Prioress: Mercy and Tender Heart in Richard Schoeck and Jerome Taylor, eds, Chaucer Criticism (1960) 245‑258; Emmy Stark Zitter, Anti-Semitism in Chaucer’s Prioress’s Tale 25 Chaucer Review 277 (1991). For discussions of Shakespeare, see, e.g., James Shapiro, Shakespeare and the Jews (1996); D. M. Cohen, The Jew and Shylock, 31 Shakespeare Quarterly 53 (1980); Warren D. Smith, Shakespeare’s Shylock, 15 Shakespeare Quarterly 193 (1964). See Holmes, note 65. Ibid., at 49‑62. See Keogh, note 61, at 19-60 (documenting manifestations of anti-Semitic incidents and attitudes in Ireland from 1884 through 1911). See also O’Grada, note 66, at 180‑181,191‑193; Ray Rivlin, Shalom Ireland: A Social History of Jews in Modern Ireland (2003), at 33‑34. See Holmes, note 65, at 107‑122. For example, ritual murder charges in Limerick in 1904 led to considerable persecution of the Jewish community. See Holmes, ibid., at 113‑114; Keogh, note 61, at 26-53. In 1916, The Catholic Bulletin and Book Review, which was published in Dublin, printed an article titled “Ritual Murder Among the Jews,” which begins with the question: “Does ritual murder exist among the Jews?” followed by the response: “This is one of those puzzling questions that is still awaiting a satisfactory answer.” Thomas H. Burbage, Ritual Murder Among the Jews (1916) The Catholic Bulletin and Book Review, 309. The article charged, For centuries past and at frequent intervals Christians through the world have been shocked and alarmed by the discovery of murders that clearly belong to a special class but that the opposition to a judicial trial on the part of Jews throughout the world, exercised by means of the press they control, and their great wealth, is usually of such a character as to prevent any chance of an impartial investigation.



To many in the Jewish community, Burbage’s article was significant, among other reasons, because it “came from the pen of a priest, . . . it was published by MH Gill, a reputable firm in Dublin, and [it] had been advertised by posters which carried the caption ‘Murder among the Jews.’” Holmes, note 65, at 109. Decades later, an Irish court held that an anti-Semitic landlord’s objection to an ­assignment of tenancy to a Jewish assignee was not unreasonable. See Ruth Cannon, The Bigoted Landlord: A Re-examination of Schlegel v Corcoran and Gross [1942] IR 19 (2005) 27 DULJ 249. Strikingly, the court relied in part on the reasoning that Anti-Semitism . . . far from being a peculiar crotchet, is notoriously shared by a number of other citizens. . . . [T]he antagonism between Christian and Jews has its roots in nearly 2,000 years of history and is too prevalent as a habit of mind to be dismissed off-hand, in a country where religion

73

74

Section Seven    Legal History

Law Times in 1882 would likely have recognized the anti-Semitic imagery and innuendo employed in the story.77 Moreover, in some ways the placement of the story in the Irish Law Times may prove even more unsettling than its publication in the Russian Courier. After all, it seems relatively unsurprising, albeit reprehensible, that a late n­ ineteenthcentury Russian political newspaper would include a blatantly anti-Semitic attack against a prominent rabbi from a city on the Russian-Lithuanian border. In contrast, the inclusion of such a canard in an Irish legal journal tends to indicate a gratuitous appeal to anti-Semitic prejudices. Indeed, the context in which the story is found, a section of the Irish Law Times entitled “Criminal Attempts,”78 adds to such an impression. The first three paragraphs of the section consist of citations to, and digests of, numerous cases in American and English law illustrating complex moral and legal questions revolving around the issue of attempts in criminal law.79 The section concludes with a puzzling paragraph that first describes the case of “the learned John Burke,” who was initially given a seven year sentence for pleading guilty to attempted robbery, then succeeded in having the sentence reduced to a year in prison because he had not admitted to committing the ­substantive crime.80 The paragraph continues with what appears to be a segue, but reads more like a non sequitur, stating that “it was not the first time for a judge to make a mistake in dealing with criminal attempts.”81 The sentence following this putative introduction immediately launches into the “Littowk” story.82 After recounting the story, the editors comment, “What was the ultimate result we know not; but, doubtless, the learned procurator quoted the case put by Sir James Stephen” involving “an impetuous heir rushing into the room of a man . . . and roaring in his ear, ‘Your wife is dead,’ intending to kill him, and thereby killing him.”83 The editors then add, “Why should not such an act ­ atters, as the eccentric e­ xtravagance of a bigot, without regard to the actual m ­conditions under which c­ onsent was withheld. Ibid., at 251 (quoting Schlegel [1942] IR 19, at 25). 77 In fact, Irish literature had reflected anti-Semitic attitudes since at least the early nineteenthcentury novels of Maria Edgeworth, leading to one scholar’s perhaps overstated observation that “Jews were evidently as unpopular in Ireland as in England.” Modder, note 71, at 130. 78 Irish Law Times, note 1, at 611. 79 Ibid., at 611‑612. 80 Ibid. 81 Ibid. 82 Ibid. 83 Ibid. (quoting James Fitzjames Stephen, A Digest of the Criminal Law (1878), at 158‑159 n4).

Lost in Translation    Chapter 19

amount to murder, queries Sir James? But, say we, had it failed, would it have amounted to an attempt?”84 Finally, the paragraph concludes cryptically, “We apprehend that, at most, it would have been but a semi-existent attempt; like the Kilmainham Treaty, ‘Exist it did not, tho’ within/A measurable distance/Of that vague line where things begin/To border on existence.’”85 The characterization of a “mistake” in John Burke’s case, presented at the start of the final paragraph, refers to the substantial difference between ­punishments meted out for attempts and those imposed for completed crimes, an issue that had been addressed in the previous paragraphs as well.86 However, there appears to be no connection between this issue and either the “Littowk” story or the case cited by Sir James Stephen, both of which involve not an attempt, but a completed homicide. The only possible connection, though considerably attenuated, between the “Littowk” story and the topic of attempts seems to be found in the editorial comment that follows these materials, which poses a hypothetical based on a ­further variation of the facts cited by Stephen. Ultimately, in light of the absence of any substantive value, or even relevance, of the “strange case . . . at Littowk” to the legal issue of criminal attempts, the decision by the editors of the Irish Law Times to ­publish an anti-Semitic fabrication, which originated in an obscure Russian ­newspaper, replete with anti-Semitic imagery and implications, may properly be characterized as grossly negligent at best, and perhaps as far more insidious and troubling.

PART THREE | THE FINAL LEG OF THE JOURNEY: CASES AND OTHER MATERIALS ON CRIMINAL LAW AND PROCEDURE, SELECTED AND ARRANGED BY ALBERT J. HARNO Fifty years after it was published in the Irish Law Times, the story crossed the Atlantic Ocean to the United States, appearing in the first edition of Albert J. Harno’s textbook on criminal law and procedure.87 The adoption of the story in Harno’s book proves disconcerting, in part because of Harno’s stature as a highly influential legal scholar and a towering figure in legal education in the first half of the twentieth century. At the time of the publication of the textbook, Harno was already several years into his lengthy tenure as Dean of the College 84 Ibid. 85 Ibid. The Kilmainham Treaty had been executed earlier that year between Charles Stewart Parnell and the English government. See Lawrence J. McCaffrey, Ireland: From Colony to Nation State (1979), at 104‑109. 86 Irish Law Times, note 1, at 611‑612. 87 See Harno, note 2, at 207‑208 n2.

75

76

Section Seven    Legal History

of Law at the University of Illinois, a position he held until his retirement from the University in 1957.88 Harno’s rise to prominence in the legal academy during this period included his election to a number of prestigious positions— among others, President of the Association of American Law Schools in 1932, National President of the Order of the Coif from 1934 to 1937, and Chairman of the Section of Legal Education and Admission to the Bar of the American Bar Association from 1942 to 1945.89 Harno’s inclusion of the story from the Irish Law Times becomes even more disturbing when considered in light of both the manner in which the story appeared and its repeated publication in several editions of the textbook. Chapter nine of Harno’s textbook,90 which addresses homicide, begins with brief excerpts from two nineteenth-century cases, from England91 and Canada,92 involving homicide charges for acts that did not include physical contact between

88 See Albert James Harno, 1889‑1966, Albert J. Harno Papers, 1923‑57, University of Illinois Archives. In addition, Harno had previously completed two years at the University of Kansas as a Professor of Law and two years at Washburn College as Dean and Professor of Law. He assumed the deanship at the University of Illinois in 1922, one year after his arrival at the school, and served concurrently as Provost of the University from 1931 to 1944. 89 Ibid. Indeed, Harno has been described as “a leader in almost all of the national legal organizations of his day.” James M. Concannon, “The Ideal Place . . . For the Establishment of a Great Law School”— The Early Years of Washburn University School of Law, 42 Washburn L. J. 803, at 848 (2004). See ibid., at 848 n191 (noting, in addition, Harno’s service as a member of the American Bar Association Board of Governors from 1950 to 1953, President of the National Conference of Commissioners on Uniform State Laws from 1947 to 1949, and President of the American Judicature Society from 1953 to 1956, and his selection as a member of the Council of the American Law Institute in 1947). Along with Harno’s professional achievements, his textbook appears to have gained considerable prominence as well. The book has been described as “widely used,” see ibid., at 848, and has been placed in the same category as the textbooks written by other “giants,” such as Gellhorn’s Cases and Other Materials on Administrative Tribunals and Prosser’s Cases and Materials on Torts. See Michael I Swygert, Valparaiso University School of Law, 1879‑2004: A Contextual History, 38 Val. U. L. Rev. 1, 832 (2004). Although the extent of the adoption of Harno’s textbook may be undetermined, the large number of law libraries that currently hold copies of the different editions of the book seems to indicate its significance. Specifically: fifty-four libraries hold the first edition of the book, published in 1933; eighty-five libraries hold the second edition, published in 1939; seventy-nine libraries hold the third e­ dition, published in 1950; and eighty-six libraries hold the fourth edition, published in 1957. I thank Don Buffaloe, Reference Services Librarian at Pepperdine University School of Law, for compiling this information. 90 Harno, note 2, at 201. 91 Ibid., at 201‑202 (quoting Rex v Hickman Oxford Assizes, 1831, 5 Car. & P. 151). 92 Ibid., at 202‑203 (quoting Regina v Dugal Court of Queen’s Bench, 1878, 4 Quebec L. R. 350).

Lost in Translation    Chapter 19

the defendant and the deceased.93 The chapter continues with a lengthy excerpt from a 1910 case decided by the Supreme Court of Idaho,94 framing the issue as “whether a death caused from fright, grief or terror, or other mental or nervous shock, can be made the basis for a criminal prosecution.”95 Critiquing the “old rule” that had precluded prosecution for homicide in such cases, the Idaho court followed the “modern trend,” refusing to conclude as a matter of law that homicide “could not be committed by fright, terror, or nervous shock.”96 Apparently in support of the Idaho court’s conclusion, Harno appended a footnote at the end of the excerpted case,97 summarizing a Canadian case from 1874,98 which he briefly describes as involving a defendant who committed an assault and battery against a woman who was holding an infant.99 Although the defendant did not touch the infant, the child was frightened and soon died, resulting in a homicide charge.100 The footnote continues with a citation to an 1880 New York case,101 absent any comment other than the introductory signal: “See also.”102 Finally, without the slightest transition or explanation, the footnote then launches into an extended and verbatim quotation of the story that appeared in the Irish Law Times, beginning, “In 1879 a strange case occurred at Littowk on the Russian frontier,” and concluding with the reference to Sir James Stephen, together with the Irish Law Times editors’ response.103 Harno’s decision to include, and to publish in this manner, the story from the Irish Law Times provokes puzzlement on a number of grounds. Stylistically, reprinting a lengthy block quotation, without introduction or editorial comment, from an Irish legal journal that had been published more than fifty years earlier, places considerable limitations on any value the story may have to the reader. Moreover, contextually, the story seems to lack significant substantive relevance to the legal issue it is ostensibly intended to illuminate. The summarized cases   93 Ibid., at 201‑203.   94 Ibid., at 203‑207 (quoting In Re Heigho, 18 Idaho 566, 110 P 1029 (1910)).   95 Ibid., at 204 (quoting Heigho 110 P at 1031).   96 Ibid., at 207 (quoting Heigho 110 P at 1032).   97 Ibid., at 207‑208 n2.   98 Ibid., at 207 n2 (citing Regina v Towers 12 Cox C C 530 (1874)).   99 Ibid. 100 Ibid. 101 Ibid. (citing Cox v People 80 NY 500 (1880)). The court held that if the defendant’s “violence so excited the terror of the deceased that she died from the fright, and she would not have died except for the assault, then the [defendant’s] act was in law the cause of her death.” Cox 80 NY, at 516. 102 Harno, note 2, at 207 n2. 103 Ibid., note 2, at 207‑208 n2. See text accompanying note 3.

77

78

Section Seven    Legal History

that open the chapter and the reported cases first cited in the footnote all present actual judicial rulings on homicide prosecutions brought against defendants who did not have, or cause, physical contact with the deceased. Although the “Littowk” story likewise involves an alleged homicide committed through the imposition of shock and fear rather than through physical contact, it remains nothing more than a mere, unfounded—and sensational—anecdote, with no legal analysis—let alone a judicial ruling—concerning any charges brought against the supposed ­perpetrators of the crime. Perhaps most troubling, because the story is quoted verbatim and without any editorial comment by Harno, it has the appearance of a wholly a­ ccurate and credible account of an actual, albeit “strange,”104 event. There is no ­suggestion that, before publishing the story, Harno attempted to ascertain its origins, to identify Rabbi “Joseph Beer,” or to identify the locale of “Littowk.” Indeed, there is no indication that Harno questioned, or found it necessary to try to confirm or corroborate in any way, the veracity of any element of this sensational tale, which had appeared in an Irish legal journal more than fifty years earlier, replete with anti-Semitic imagery and innuendo. As a result, u­ nbeknownst to generations of twentieth-century American law students and their professors, studying four editions of Harno’s textbook over a span of thirty-six years,105 a part of their curriculum included the presentation, as apparent fact, of a libelous fabrication rooted in the deep and dark anti-Semitism rampant in late nineteenth-century Russia.106

CONCLUSION The effort to investigate the origins and evolution of the “Littowk” story that appears in Harno’s textbook may serve a number of valuable functions. As a literary matter, exploring the versions published in the Russian Courier and the Irish 104 Harno, note 2, at 207 n2 (quoting Irish Law Times, note 1, at 612). 105 See supra note 2. The story was finally omitted, without editorial comment, from the “fifth edition” of Harno’s textbook—actually a reworking of the book after Harno’s death, by Professor Frank Remington—published in 1969. See Frank J Remington, Cases and Materials on Criminal Law and its Procedures: A Fifth Edition of Dean Albert J Harno’s Casebook on Criminal Law (1969). 106 Cf. Anthony R Chase, Race, Culture, and Contract Law: From the Cottonfield to the Courtroom, 28 Conn. L. Rev. 1, at 56 (1995) (stating that “[w]e expect [casebook] editors to select cases that accurately reproduce the significant and paradigm shifting cases in legal reasoning on a particular topic or principle of law” and that “[w]hat is important is the effect such choices have on the impressionable minds of the first-time casebook readers, particularly, the impact such cases may have on attitudes regarding racial attributes and cultural differences”).

Lost in Translation    Chapter 19

Law Times illuminates both the substance and the style of the story, providing a somewhat more complete and comprehensible narrative of the ­cryptic and decidedly unusual events depicted. More importantly, uncovering and ­exposing the anti-Semitic and apocryphal characteristics of each version of the story proves indispensable to the vital work of producing an accurate historical record. Given the air of credibility and respectability the story enjoyed, through its appearance for so many years in repeated editions of a major criminal law textbook by a towering figure in the American legal academy, and in light of its portrayal of a renowned scholar and leader of European Jewish communities, it would seem irresponsible to allow the story to remain unchallenged. Finally, a study of the story’s history, and of its inclusion in Harno’s textbook, may provide a timely lesson for contemporary researchers, authors, editors, and readers. It remains unclear to what extent—if any—Harno questioned, and sought to determine the validity of, this fantastic story, whose only source for him was apparently an article that had been published more than fifty years earlier in an Irish legal journal. Consequently, it remains troubling that Harno decided to reprint the story verbatim, replete with its sensational and anti-­Semitic elements, and absent any editorial note of caution or skepticism. Thus, in addition to its historical significance, careful reflection upon Harno’s publication of the “Littowk” story may serve as a cautionary tale, particularly in the current age of research and scholarship that increasingly relies on sources, such as foreign materials and internet websites, that are often not readily susceptible to authentication and verification.

79

CHAPTER 20

Louis Marshall, Julius Henry Cohen, Benjamin Cardozo, and the New York Emergency Rent Laws of 1920: A Case Study in the Role of Jewish Lawyers and Jewish Law in Early Twentieth-Century Public Interest Litigation INTRODUCTION

I

n 2006, Cardozo Law School hosted a groundbreaking conference on “Jews and the Legal Profession,” exploring the impact Jewish lawyers have had on the practice of law in the United States.1 Scholars from a wide range of disciplines addressed a variety of important and interrelated themes, including: sociological issues, such as the connection between the Jewish social and ­religious experience and areas of law commonly practiced among Jewish lawyers in the United States; historical studies of the role of Jewish lawyers in the   1 See The Yeshiva University Center for Jewish Law and Contemporary Civilization, https:// cardozo.yu.edu/programs-centers/yeshiva-university-center-jewish-law-and-contemporary-civilization/events-0 (the conference was cosponsored by the American Association of Jewish Lawyers and Jurists, Fordham Law School’s Institute on Religion, Law, & Lawyer’s Work, Harvard Law School’s Program on the Legal Profession, and New York Law School’s Center for Professional Values and Practice).

Louis Marshall, Julius Henry Cohen    Chapter 20

evolution of the American legal profession; and the function of Jewish law in the substantive development and conceptualization of American law.2  This chapter considers an example of the interplay of these themes through an examination of the litigation surrounding the New York Emergency Rent Laws of 1920. In particular, the chapter focuses upon a series of cases litigated by two of the most prominent Jewish lawyers in the United States in the first half of the twentieth century: Louis Marshall and Julius Henry Cohen. Typical of many leading Jewish lawyers at the time, in addition to their other accomplishments, Marshall and Cohen distinguished themselves in their ­commitment to public service. Moreover, much of Marshall’s most important work was dedicated to serving the needs of American Jewish individuals and communities, while Cohen showed a sustained interest in Jewish communal concerns, albeit to a considerably lesser degree than Marshall. In the context of the rent cases, though Marshall and Cohen found themselves on opposing sides, each of them often represented Jewish clients. Among other notable aspects of the Emergency Rent Laws litigation, the cases reached the New York Court of Appeals and the United States Supreme Court, which at that time included two of the most eminent jurists in the history of the United States, Judge Benjamin N. Cardozo and Justice Oliver Wendell Holmes, Jr., respectively.3 One element of the strategy Cohen employed in advocating before these courts adds yet another component to the significance of Jewish lawyers and Jewish law in the context of the Emergency Rent Laws cases: in both his briefs and his oral arguments, Cohen relied, in part, on materials from medieval Jewish legal history. In his memoirs, published nearly twenty-five years later, Cohen offers a candid and entertaining reflection on his possible motivations for including these materials, recalling a colorful—if historically questionable—anecdote suggesting that he hoped to influence Cardozo through the references to Jewish law.4  Part one of this chapter provides a brief background of the New York Emergency Rent Laws, tracing the enactment of the legislation as well as the course of the ensuing litigation. Many of the cases involved Jewish parties, who  2 See Conference Invitation, https://cardozo.yu.edu/sites/default/files/jews%20in%20the%20 legal%20profession%20invitation.pdf (invitation to the Jews and the Legal Profession Conference, October 22‑24, 2006).   3 See, e.g., 810 West End Ave. v. Stern, 130 N.E. 931 (N.Y. 1921); Block v. Hirsh, 256 U.S. 135 (1921).   4 See Julius Henry Cohen, They Builded Better Than They Knew (1946) (dedicated “To my friends—/Portraits within” (dedication page, unnumbered); the original title of the book was apparently: They Builded Better Than They Knew, Selective Portraits for an American Gallery 1895‑1945).

81

82

Section Seven    Legal History

were often represented by Jewish lawyers. Part two explores the roles of Marshall and Cohen in these cases, situating their contributions within the context of their broader efforts and shared commitments to furthering public and Jewish communal interests. Finally, part three of the chapter focuses on Cohen’s reliance on Jewish legal sources and other historical precedents in support of the constitutionality of the New York Emergency Rent Laws. In light of the limited relevance of Jewish law to the issues surrounding the Emergency Rent Laws, the chapter looks at alternative motivations for Cohen’s inclusion of these materials in his briefs and arguments. Specifically, Cohen’s memoirs recall the remark of one of the judges on the New York Court of Appeals suggesting that the reference to Jewish law was an effective method for influencing Cardozo.5 However, the chapter ­concludes that this story, even if accurate, was most likely not a reliable reflection of Cohen’s reasons for relying on Jewish law, and indeed, that Cohen may have recounted the colorful story primarily as means of entertainment. This conclusion is reached on the basis of a number of considerations, including an assessment of Cardozo’s attitude both toward the law and toward his Jewish heritage, as well as an examination of the interactions of various lawyers and judges involved in the New York Emergency Rent Laws cases. Ultimately, the chapter suggests, Cohen’s anecdote provides a valuable framework for reflecting upon the interests and interrelationships that might have influenced judicial decision making in the early twentieth century. In addition, in light of more recent controversies that have arisen regarding the religious beliefs and personal relationships of members of the Supreme Court, this exercise has abiding relevance, and potential application, in the early t­ wenty-first century as well.

PART ONE | BACKGROUND—EMERGENCY RENT LAWS A. The Legislation During World War I and in the years that followed, many large American cities experienced severe housing shortages, resulting from the combination of a ­precipitous growth in population and a drastic decrease in construction.6  5 See id.  6 See People ex rel. Durham Realty Corp. v. La Fetra, 230 N.Y. 429, 437‑38 (1921).

Louis Marshall, Julius Henry Cohen    Chapter 20

In New York City, landlords took advantage of the situation, demanding exorbitant rent increases under the threat of eviction.7 As the New York Court of Appeals later found, “dispossess[ion] proceedings, more than had ever been known before, were pending to the number of upwards of 100,000; each proceeding practically involved a family averaging four or five persons.”8 In response, in April 1920, the New York State Legislature passed a set of housing laws placing a variety of restrictions on landlords.9 Significantly, however, in practice the April Laws generally allowed landlords to increase rents up to twenty-five percent.10 Of more urgent concern, leases of unspecified duration were deemed to be set to expire on October 1, enabling landlords to serve eviction notices on tens of thousands of tenants, who would be required to leave their dwellings on September 30.11 In the face of the impending crisis, the legislature convened an ­extraordinary session and, on September 27, 1920, enacted the Emergency Rent Laws.12 Among other significant features, with limited exceptions, the September housing laws stayed dispossession proceedings until November 1, 1922, and required that rent increases comply with statutory and judicial determinations of reasonableness.13 Not surprisingly, the September laws engendered strong protests from landlords, leading to a series of cases litigated though the various levels of the New York State court system,14 reaching the New York Court of Appeals15 and, ultimately, the United States Supreme Court.16 A look at the identities and interactions of many of the parties, a number of the lawyers, and some of the

  7 See id. at 438.  8 Id.   9 April Housing Laws, N.Y. Sess. Laws 1920, chs. 131-38. See Joseph A. Spencer, New York City Tenant Organizations and the Post World-War I Housing Crisis, in The Tenant Movement in New York City, 1904-1984, at 72 (Ronald Lawson ed., 1986); Jared N. Day, Urban Castles: Tenement Housing and Landlord Activism in New York City, 1890-1943 134-36 (Kenneth T. Jackson ed., Columbia University Press 1999) (1963). 10 See Spencer, supra note 9, at 73; Day, supra note 9, at 139‑40. 11 See Spencer, supra note 9, at 73‑74. 12 September Housing Laws, N.Y. Sess. Laws 1920, chs. 942‑53. 13 See People ex rel. Durham Realty Corp. v. La Fetra, 230 N.Y. 429, 438 (1921); Spencer, supra note 9, at 74‑75. See also Guy McPherson, Note, It’s the End of the World as We Know It (and I Feel Fine): Rent Regulation in New York City and the Unanswered Questions of Market and Society, 72 Fordham L. Rev. 1125, 1131‑32 (2004); Note, Residential Rent Control in New York City, 3 Colum. J. L. & Soc. Probs. 30, 30‑32 (1967). 14 See infra part one, section B. 15 See Durham Realty Corp. v. La Fetra, 230 N.Y. 429 (1921). 16 See Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242 (1922); Marcus Brown Holding Co. v. Feldman, 256 U.S. 170 (1921).

83

84

Section Seven    Legal History

judges in these cases provides a window into important aspects of the attitudes and impact of Jewish lawyers in the United States in the early twentieth century.

B. The Cases Litigation over the Emergency Rent Laws commenced almost i­mmediately after they were enacted and proceeded expeditiously through both the New York State and the United States court systems.17 One of the earliest d­ ecisions on the Emergency Rent Laws was handed down in the New York State Supreme Court, Bronx County, on October 19, 1920.18 The names of the parties, Jacob Guttag and Hyman Shatzkin,19 as well as the lawyers, Bernard Deutsch and Julius Tobias,20 present an early indication of the involvement of Jewish i­ ndividuals in these cases. Similarly, a number of New York County cases decided shortly thereafter included Jewish parties, as signified by names such as: Rose Heyman,21 Mortimer Osterweis,22 Ellis Hyman,23 Abraham Gordon,24 Edgar A. Levy Leasing Company,25 Jerome Siegel,26 and Henry Stern.27 17 Edgar A. Levy Leasing Co., 258 U.S. 242; Marcus Brown Holding Co., 256 U.S. 170; Durham Realty Corp., 230 N.Y. 429. Likewise, the Emergency Rent Laws engendered almost immediate scholarly reaction. See Harold G. Aron, The New York Landlord and Tenant Laws of 1920, 6 Cornell L.Q. 1 (1920). See also George W. Wickersham, The Police Power and the New York Emergency Rent Laws, 69 U. Pa. L. Rev. 301 (1921). 18 Guttag v. Shatzkin, 113 Misc. 362, 185 N.Y.S. 71 (N.Y. Sup. Ct. 1920), rev’d, 194 A.D. 509 (N.Y. App. Div 1920), rev’d 230 N.Y. 647 (1921). 19 Guttag, 113 Misc. at 362. 20 Id. at 363. Similarly, Clara Wasserman, the plaintiff in a case decided in Kings County on October 16, 1920, was represented by Benjamin Ammerman. See People ex rel. Wasserman v. Fagan, 113 Misc. 255, 185 N.Y.S. 308 (N.Y. Sup. Ct. 1920). 21 See Heyman v. Osterweis, 113 Misc. 282 (N.Y. Sup. Ct. 1920). The opinion is dated October 1920. 22 See id. 23 See Hyman v. Gordon, 185 N.Y.S. 301 (Mun. Ct. 1920). The opinion is dated October 25, 1920. 24 See id. 25 See Edgar A. Levy Leasing Co. v. Siegel, 194 A.D. 482 (N.Y. App. Div. 1920). As noted in the appellate court opinion, the trial court judgment was entered on November 26, 1920. Id. at 483. 26 See id. at 482. 27 See 810 West End Ave. v. Stern, 186 N.Y.S. 56 (N.Y. App. Div. 1920). The appellate court opinion, decided December 24, 1920, does not cite a date for the trial court judgment. See also Versailles Holding Corp. v. Stein (N.Y. Sup. Ct. Nov. 26, 1920) (unpublished opinion, on file with author); Burke v. Hurlbut (N.Y. Sup. Ct. Dec. 17, 1920) (unpublished opinion, on file with author); Sperling v. Barton, 188 N.Y.S. 857 (N.Y. App. Term 1921). Likewise, Jewish parties were named in many of the reported cases litigated pursuant to the April Laws. See, e.g., Kuenzli v. Stone, 182 N.Y.S. 680 (N.Y. App. Div. 1920); Blek v. Davis, 183 N.Y.S. 737 (N.Y. App. Div. 1920); Horn v. Klugman, 183 N.Y.S. 150 (N.Y. Mun.

Louis Marshall, Julius Henry Cohen    Chapter 20

Notably, of the numerous lawyers who participated in the cases—many of whom were likewise Jewish—two lawyers stand out, both for their central roles in the rent cases and for their broader significance in Jewish and legal communities in the early twentieth century: Louis Marshall and Julius Henry Cohen. Cohen worked on a number of Emergency Rent Laws trial court cases decided in November28 and December, 1920,29 in New York State Supreme Court, New York Special Term, and he continued to litigate many of the cases through the final appeal.30 Marshall, who rarely served as a trial attorney,31 became involved at the appellate level. On December 24, 1920, the New York State Supreme Court, Appellate Division, First Department, issued several opinions in Emergency Rent Laws cases, all of which list Cohen as counsel arguing in support of the laws.32 In two of the cases, Edgar A. Levy Leasing Co. v. Siegel33 and 810 West End Ave. v. Stern,34 Cohen and Marshall are listed as lead counsel for the opposing sides. Less than one month later, on January 19, 1921, the New York Court of Appeals Ct. 1920), rev’d, 184 N.Y.S. 927 (N.Y. App. Div. 1920); Shanik v. Eckhardt, 183 N.Y.S. 155 (N.Y. App. Div. 1920); Paterno Investing Corp. v. Katz, 184 N.Y.S. 129 (N.Y. Sup. Ct. 1920); Seventy-Eighth St. & Broadway Co. v. Rosenbaum, 182 N.Y.S. 505 (N.Y. Mun. Ct. 1920). See also Spencer, supra note 9, at 70-71 (noting the prevalence of Jewish litigants, lawyers, and communal organizations in the controversy over the Emergency Rent Laws). 28 See, e.g., William Brandt & Co. v. Weil, 185 N.Y.S. 497 (N.Y. Sup. Ct. 1920). 29 See, e.g., People ex rel. Durham Realty Corp. v. La Fetra, 185 N.Y.S. 638 (N.Y. Sup. Ct. 1920); People ex. rel. Brixton Operating Corp. v. La Fetra, 185 N.Y.S. 632 (N.Y. Sup. Ct. 1920); Ullmann Realty Co. v. Tamur, 185 N.Y.S. 612 (N.Y. Sup. Ct. 1920). Cohen also participated in an Emergency Rent Laws case that came before a federal court, on the basis of diversity jurisdiction, and was decided in December of 1920. See Marcus Brown Holding Co. v. Feldman, 269 F. 306 (S.D.N.Y. 1920). 30 See, e.g., Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242 (1922). 31 See Oscar Handlin, Introduction, in I Louis Marshall: Champion of Liberty, Selected Papers and Addresses xvi (Charles Reznikoff ed., 1957). 32 See Edgar A. Levy Leasing Co. v. Siegel, 186 N.Y.S. 5 (N.Y. App. Div. 1920); 810 West End Ave., Inc. v. Stern, 186 N.Y.S. 56 (N.Y. App. Div. 1920); People ex rel. Durham Realty Corp. v. La Fetra, 186 N.Y.S.63 (N.Y. App. Div. 1920); People ex rel. Brixton Operating Corp. v. La Fetra, 186 N.Y.S. 58 (N.Y. App. Div. 1920); Guttag v. Shatzkin, 186 N.Y.S 47 (N.Y. App. Div. 1920), rev’d, 130 N.E. 929 (N.Y. 1921); Clemilt Realty Co. v. Wood, 186 N.Y.S. 415 (N.Y. App. Div. 1920); People ex rel. H.D.H. Realty Corp. v. Murphy, 186 N.Y.S. 38 (N.Y. App. Div. 1920); People ex rel. Ballin v. O’Connell, 186 N.Y.S. 46 (N.Y. App. Div. 1920). An additional Emergency Rent Laws case was decided in the New York State Supreme Court, Appellate Division, Second Department, on December 7, 1920. See People ex rel. Rayland Realty Co. v. Fagan, 194 A.D. 185 (N.Y. App. Div. 1920). Although Cohen is not listed as counsel on the case, William D. Guthrie, who worked with Cohen on many of these cases, is listed as having submitted an amicus brief. Id. at 186. 33 Edgar A. Levy, 186 N.Y.S. 5. 34 810 W. End Ave., 186 N.Y.S. 56.

85

86

Section Seven    Legal History

heard arguments on many of these cases,35 with Cohen and Marshall serving as central figures in the proceedings.36 The Court of Appeals decided these cases in several opinions handed down on March 8, 1921.37 Finally, less than one year later, on January 24 and 25, 1922, the cases of Levy Leasing38 and 810 West End Avenue39 were argued in front of the United States Supreme Court,40 with Marshall and Cohen again serving as lead counsel. On March 20, 1922, in a 6–3 decision, the Court ruled in Cohen’s favor, upholding the constitutionality of the Emergency Rent Laws.41

35 See, e.g., People ex rel. Durham Realty Corp. v. La Fetra, 230 N.Y. 429, 434 (1921), which also decided the appeal of People ex rel. Brixton Operating Corp. v. La Fetra, 186 N.Y.S 58; Edgar A. Levy Leasing Co. v. Siegel, 230 N.Y. 634 (1921); 810 West End Ave. v. Stern, 230 N.Y. 652 (1921); People ex rel. H.D.H. Realty Corp. v. Murphy, 230 N.Y. 654 (1921); People ex rel. Rayland Realty Co. v. Fagan, 230 N.Y. 653 (1921); People ex rel. Ballin v. O’Connell, 230 N.Y. 655 (1921); Clemilt Realty Co. v. Wood, 230 N.Y. 646 (1921); Guttag v. Shatzkin, 230 N.Y. 647 (1921). 36 Cohen is listed as counsel in People ex rel. Durham Realty Corp. v. La Fetra, 230 N.Y. 429, 434 (1921), the opinion of which served as the majority opinion for the other Emergency Rent Laws cases decided by the Court of Appeals as well. Cohen was also listed in the cases of: People ex rel. H.D.H. Realty Corp. v. Murphy, 230 N.Y. 654 (1921), People ex rel. Rayland Realty Co., Inc. v. Fagan, 230 N.Y. 653 (1921), and People ex rel. Ballin v. O’Connell, 230 N.Y. 655 (1921). Marshall is listed in Edgar A. Levy Leasing Co. v. Siegel, 230 N.Y. 634 (1921), and 810 West End Ave. v. Stern, 230 N.Y. 652 (1921). 37 The majority opinion for all of these cases was handed down in People ex rel. Durham Realty Corp. v. La Fetra, 130 N.E. 601 (N.Y. 1921). For the concurring opinion in these cases, see Guttag v. Shatzkin, 230 N.Y. 647, 648 (1921) (Crane, J., concurring in result). For the dissenting opinion in these cases, see Edgar A. Levy Leasing Co. v. Siegel, 120 N.E. 923, 924 (N.Y. 1921) (McLaughlin, J. dissenting). 38 Edgar A. Levy Leasing Co. v. Siegel, 120 N.E. 923 (N.Y. 1921). 39 810 West End Ave. v. Stern, 130 N.E. 931 (N.Y. 1921). 40 In 1921, three other cases involving emergency rent laws reached the Unites States Supreme Court. On April 18, 1921, in a 5-4 decision, the Court upheld a Washington, D.C., emergency rent law. See Block v. Hirsh, 256 U.S. 135 (1921). Justice Homes wrote the majority opinion, while Justice McKenna wrote a dissenting opinion, joined by Chief Justice Taft and Justices Van Devanter and McReynolds. On the same day, divided along the same lines, the Court upheld the New York Emergency Rent Laws, affirming the judgment of the United States District Court for the Southern District of New York. See Marcus Brown Holding Co. v. Feldman, 256 U.S. 170 (1921). In a preview to the Levy Leasing litigation, Cohen and Marshall filed opposing briefs in the case. See infra notes 85 and 134 and accompanying text. Finally, on October 10, 1921, deciding a case litigated by Marshall, the Court issued a Memorandum Decision dismissing an appeal of People ex rel. Brixton Operating Co. v. La Fetra, 257 U.S. 665 (1921). 41 See Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242 (1922). The majority opinion was written by Justice Clarke, with Justices McKenna, Van Devanter, and McReynolds dissenting without opinion.

Louis Marshall, Julius Henry Cohen    Chapter 20

PART TWO | THE LAWYERS: LOUIS MARSHALL AND JULIUS HENRY COHEN A. Louis Marshall Marshall’s life and work have been well documented through his own words in letters, papers, and addresses posthumously edited and collected in two large volumes.42 Tellingly, the subtitle of the collection ascribes to Marshall the appellation “Champion of Liberty,”43 drawn from a tribute Benjamin N. Cardozo offered on Marshall’s seventieth birthday.44 Succinctly summarizing Marshall’s career, Cardozo described him as “a great lawyer; a great champion of ordered liberty; a great leader of his people; a great lover of mankind.”45 Marshall’s reputation as a lawyer grew, in part, out of his work as a name partner in the prominent corporate law firm, Guggenheimer, Untermyer & Marshall. Complementing his corporate practice, Marshall served as a leading constitutional lawyer, earning Cardozo’s praise through his efforts to champion the liberties of numerous minority groups and communities, including: African-Americans, whose housing and voting rights he worked to protect in his capacity as a director of the National Association for the Advancement of Colored People; Native-Americans, whose property rights he defended in serving voluntarily as counsel for the Pueblo nations;46 Japanese-Americans, who were subjected to discriminatory property laws; and Catholics, whose religious freedoms were infringed upon by a law that was challenged in the ­landmark United States Supreme Court case of Pierce v. Society of Sisters.47 Indeed, Marshall gained such respect as a lawyer that he was considered in 1911 as a possible nominee to the United States Supreme Court.48 Moreover, as Cardozo further observed, as part of his commitment to ­“liberty” and “mankind,” Marshall distinguished himself as a “great leader of his 42 See 1 Louis Marshall, Louis Marshall: Champion of Liberty, Selected Papers and Addresses (Charles Reznikoff ed., 1957) [hereinafter, 1 Marshall: Papers and Addresses]; 2 Louis Marshall, Louis Marshall: Champion of Liberty, Selected Papers and Addresses (Charles Reznikoff ed., 1957) [hereinafter, 2 Marshall: Papers and Addresses]. 43 1 Marshall: Papers and Addresses, supra note 42. 44 See id. (introductory quotation, unnumbered). 45 Id. 46 See Handlin, supra note 31, at xxxix‑xl. 47 Id. 48 See id. at xvii.

87

88

Section Seven    Legal History

people,” the Jewish community.49 Marshall felt a deep and abiding connection to his Jewish heritage, nurtured during his upbringing in a home observant of Orthodox practice.50 On a communal level, Marshall was a central figure in various institutions and organizations, serving, for example, as president of Temple Emanu-El and chairman of the Board of Directors of the Jewish Theological Seminary.51 Most significantly, Marshall helped found the American Jewish Committee (AJC) and continued to guide it for many years while serving as its president.52 The broad and ambitious mission of the AJC, “to aid in securing the civil and religious rights of the Jews in all countries where such rights are denied or endangered,”53 reflected the scope of Marshall’s efforts and concern for Jewish individual and communal needs.

B. Julius Henry Cohen Though less renowned than Marshall in both legal and Jewish communities, Julius Henry Cohen played a substantial role in numerous matters of public interest in the first half of the twentieth century. Like Marshall, the most ­comprehensive source of information about Cohen’s life and work is found in his own words. Unlike Marshall, however, whose writings were collected and published by others after his death, Cohen reflected upon his own experiences in a candid, insightful, and highly entertaining memoir, framed largely through a portrayal of his i­nteractions with important public figures over the course of fifty years.54 Cohen demonstrated concern for the public interest through the variety of positions he held and efforts he undertook, including, among many others: assisting in the formation of the Port of New York Authority and serving as its general counsel for more than twenty years; serving as a founding member of the American Arbitration Association and helping to establish its policies and procedures; playing a central role in resolving the 1910 garment workers’ 49 See id. at xiii; see also id. (dedication page, unnumbered). 50 Id. 51 See Handlin, supra note 31, at xix; see also Jerold S. Auerbach, Rabbis and Lawyers: The Journey from Torah to Constitution 98‑100,109‑10 (1990). 52 See Handlin, supra note 31, at xxvi. One scholar describes Marshall as “the undisputed leader of Jewish communal affairs until his death in 1929,” Auerbach, supra note 51, at 94, and concludes that “hardly an issue of consequence in American Jewish life was resolved independently of his contribution.” Id. at 111. See also id. at 110‑11. 53 See Auerbach, supra note 51, at 110. 54 See Cohen, supra note 4. See Julius Henry Cohen, Rent Control After World War I—Recollections, 21 N.Y.U. L. Q. Rev. 267, 267 (1946) (unnumbered footnote).

Louis Marshall, Julius Henry Cohen    Chapter 20

strike in New York; and serving as Special Assistant United States Attorney and Special Deputy Attorney General in a number of cases of public importance.55  Cohen’s connection to his Jewish heritage was far less public than Marshall’s, and, based on his own reflections, Cohen’s attitude toward Jewish religious ­practice may best be characterized as somewhat ambivalent.56 Nevertheless, in much of his professional life, Cohen was closely associated with segments and prominent individual members of the Jewish community, both through his public interest work and as a result of the identity of many of his colleagues and clients.57 In some ways, Cohen’s legal career typified the experiences of many notable Jewish lawyers at the time, prompting a leading scholar to cite Cohen and Morris Hillquit as examples of early ­twentieth-century “Jewish lawyers who were deeply involved with new immigrant groups, ­unionism, the use of ­arbitration in industrial disputes, and public service as counsel to various administrative agencies.”58 55 See J.H. Cohen Dies; Ex-Counsel to Port Authority, N.Y. Herald Tribune, Oct. 7, 1950, at 12; Julius Cohen, 77, Lawyer 53 Years, N.Y. Times, Oct. 7, 1950, at 19; Necrological: Julius Henry Cohen, New York Law Journal, Oct. 18, 1950. See also Gerald Fetner, Public Power and Professional Responsibility: Julius Henry Cohen and The Origins of Public Authority, 21 Am. J. Legal Hist. 15 (1977). 56 See Samuel J. Levine, Rediscovering Julius Henry Cohen and the Origins of the Business/ Profession Dichotomy: A Study in the Discourse of Early Twentieth Century Legal Professionalism, 47 Am. J. Legal Hist. 1, 11‑12 n.52 (2005). For further discussions of Cohen’s work, see id., passim; Chapter 18 in this Volume; Symposium, The Law: Business or Profession? The Continuing Relevance of Julius Henry Cohen for the Practice of Law in the Twenty-First Century, 40 Fordham Urb. L.J. 1 (2012). 57 See Cohen, supra note 4, passim. 58 Andrew L Kaufman, Cardozo 99 (1998). Cf. Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America 218 (1976) (noting that “during the 1930’s . . . [m]inority-group lawyers, especially Jews, flocked into a field of practice where it was possible to merge liberal reform or radical hope with professional fulfillment”); Marc Galanter, A Vocation for Law? American Jewish Lawyers and Their Antecedents, 26 Fordham Urb. L.J. 1125, 1125 (1999) (observing that Jewish lawyers in the United States “have contributed disproportionately to many branches of the ‘public interest sector,’ with particular prominence in public service, public interest law firms and the defense of minorities and unpopular causes, to name a few”); Robert Gordon, The Independence of Lawyers, 68 B.U. L. Rev. 1, 33 (1988) (stating that “the ideal of independent lawyering has found some of its greatest exponents among Jewish lawyers (for example, Louis Brandeis, Louis Marshall, Felix Frankfurter, Jerome Frank), who, excluded from the inner circles of the WASP elite, had the vantage point of marginality to scold that elite for selling out its public service traditions to big business clients”); Samuel J. Levine & Russell G. Pearce, Rethinking the Legal Reform Agenda: Will Raising the Standards for Bar Admission Promote or Undermine Democracy, Human Rights, and Rule of Law?, 77 Fordham L. Rev. 1635, 1658-59 & nn.86-87 (2009); Russell G. Pearce, Jewish Lawyering in a Multicultural Society: A Midrash on Levinson, 14 Cardozo L. Rev. 1613, 1616‑23 (1993).

89

90

Section Seven    Legal History

C. Interactions Between Marshall and Cohen Thus, although they found themselves on opposing sides in the Emergency Rent Laws cases, Marshall and Cohen shared a number of common goals and principles, reflected in their similar perspectives on other legal issues. Indeed, Marshall and Cohen were two of the primary architects of the agreement that settled the garment workers’ strike. Not incidentally, as Cohen later observed, most of the employers and workers in the garment industry were members of a relatively closely-knit Jewish community.59 According to Cohen, it was out of familiarity with—and concern for—the Jewish community, that such ­prominent lawyers as Marshall, Louis D. Brandeis60 and others, many of whom held 59 See Cohen, supra note 4, at 183. Cohen quotes at length the view of one historian who observed: The fact that most employers and workers alike long belonged to the relatively compact Jewish community, where the sufferings of one group could not long escape the attention of the other, aided understanding. The more enlightened employers did not want the needle trades, the most distinctively Jewish industries in America, to remain at a sweatshop level. Prominent Jews had used their influence to bring peace to the industries on a basis fair to all. As a result the needle industries, while contributing some stirring chapters to the history of American industrial strife, have been especially noted for experiments in peaceful industrial relations. Id. (quoting Joel Seidman, The Needle Trades 246, 247 (1942)) (emphasis added by Cohen). Similar sentiments were expressed in the 1952 article, “The Jewish Labor Movement in the United States.” See Will Herberg, The Jewish Labor Movement in the United States, American Jewish Year Book 1952, Vol. 53, at 18-20, cited in 2 Marshall: Papers and Addresses, supra note 42, at 1128 n.*. The author of the article recounts the efforts of Brandeis, Marshall, and others, noting that Marshall and Jacob H. Schiff “felt that the good name of the Jewish community was being imperilled by the conflict, particularly since public opinion was overwhelmingly on the side of the workers. . . .” Id. Moreover, the author concludes that “[t]he sensitivity to public opinion, the strong tradition of arbitration, and the common ethnic, cultural, and religious background [ ] probably contributed very considerably to the achievement of the Protocol of Peace and to the development of industrial relations in the major Jewish unions for some time thereafter.” Id. 60 With respect to the contributions of Brandeis to the resolution of the dispute, it may be worthwhile to note Marshall’s remarks in a 1912 letter. 2 Marshall: Papers and Addresses, supra note 42, at 1127 (Letter from Louis Marshall to Miss Gertrude Barnum, Nov. 29, 1912). Following a disclaimer stating that “I am not induced to do so by personal vanity,” Marshall emphasizes the “possible historical importance” of his reflections. Id. Specifically, though Marshall acknowledges that “Mr. Louis D. Brandeis performed valiant service in the early stages of the general strike of the cloakmakers in July, 1910,” Marshall declares that “[Brandeis’s] efforts did not bring about the settlement of the strike . . . .” Id. Marshall adds that, “[a]s a matter of fact, the manufacturers and the workmen were unable to agree and drifted entirely apart, to the extent that conditions became well nigh perilous.” Id. According to Marshall, “[i]t was at that

Louis Marshall, Julius Henry Cohen    Chapter 20

opposing political views, devoted so much of their time and worked ­together,61 all in an effort to find a resolution to the matter. As Cohen put it, “They understood and knew the people in the industry. They had different views on economics and on politics but they had a common background.”62 Along with their common interests, Marshall and Cohen shared mutual respect. A few years after they worked together to resolve the garment industry dispute, Marshall wrote a gracious letter thanking Cohen for sending a copy of the “Protocols of Peace in the Dress and Waist Industry” and congratulating Cohen for “having accomplished the practical adoption of the now famous protocol of the cloak industry.”63 In turn, recalling in his memoirs the d­ ifficulty of finding an appropriate title for the agreement, Cohen credits Marshall with selecting the inherently “mysterious” term “Protocol.”64 Moreover, in a depiction that may tellingly reveal an element of Cohen’s perceptions of both Marshall and Jewish religious leaders, Cohen characterizes Marshall as thus “show[ing] his shrewdness, the shrewdness of an old rabbi.”65  Likewise, despite their disagreement on the merits of the Emergency Rent Laws, Cohen’s recollection of the dispute includes glowing words of praise for Marshall, whom he identifies as “very distinctly [the] leading lawyer” for the landlords in these cases.66 Cohen describes Marshall as “a great constitutional time that I was called in by the representatives of the contending parties, to act as ­mediator, as a result of conferences covering about two weeks, I personally prepared the protocol of peace, and brought about its adoptions by both parties.” Id. Nevertheless, Marshall insists that “[t]his is of course merely for your information, as I have no desire to minimize the ­importance of the contribution of Mr. Brandeis to the settlement of the strike.” Id. at 1128. 61 In Cohen’s view “[t]his explains why Max Meyer and Reuben Sadowsky could work with Morris Hillquit and Meyer London.” See Cohen, supra note 4, at 183. Cohen dedicated four chapters of his memoirs to his recollections of Meyer, Brandeis, Hillquit, and London, respectively. See id. at 179‑89; 190‑200; 201‑14; 215‑22. 62 Id. at 183. 63 2 Marshall: Papers and Addresses, supra note 42, at 1130 (letter from Louis Marshall to Julius Henry Cohen, Jan. 20, 1913). The letter concludes with Marshall’s acknowledgment that Cohen is “entirely right in [his] analysis of the situation.” Id. Specifically, reflecting their commonly shared—if broadly articulated—ideals, the last lines of the letter state: “Reason and justice must be regarded as equally important to labor and capital. It is the golden mean between oppression and anarchy.” Id. Likewise, a letter from Marshall to Meyer London in the midst of negotiations expressly credited the drafting of the protocols to the work of Marshall, London, and Cohen. See id. at 1128 n* (letter from Louis Marshall to Meyer London, Sept. 1, 1910). 64 Cohen, supra note 4, at 221. 65 Id. 66 Id. at 168. Cohen’s recollections of the litigation surrounding the Emergency Rent Laws were published separately in an issue of the New York University Law Quarterly Review shortly

91

92

Section Seven    Legal History

lawyer of [his] day”67 and “one of those extraordinary people who can give you the number of the volume, the page reference and even the year any case was decided.”68 Moreover, on a more personal level, Cohen admired Marshall as “a great character” who “came here from leadership at the Syracuse bar which he won by clear merit.”69  Notably, although Marshall and Cohen often shared common legal and social ideals,70 Cohen did not fault Marshall for taking the opposing position that the Emergency Rent Laws were unconstitutional. Cohen understood the perspectives and legal arguments offered in support of landlords, acknowledging that “[a]s a matter of fact, these laws did result in considerable hardship in some instances, especially in the cases of widows dependent upon fixed incomes coming from rentals.”71 In fact, Cohen estimated that, had a poll been conducted among leaders of the legal establishment, consisting of “lawyers on Pine, Wall, Broad Streets and lower Broadway, something like ninety-five percent would have been for ‘unconstitutionality’ of the Emergency Rent Laws.”72  In light of these impressions, Cohen presents a candid and insightful observation about William D. Guthrie’s participation in these cases—on behalf of tenants. In Cohen’s account, Guthrie agreed to join the litigation at the urging of Bernard Hershkopf, whose “fine social instinct put him in complete sympathy with the [Emergency Rent L]aw[s],” and with whom Guthrie worked on important constitutional cases.73 A leading member of the elite legal establishment, Guthrie had served for more than two decades as a name partner, and over a decade as senior partner, in the law firm that evolved into the Cravath Firm.74 Indeed, during the last years of his leadership, from 1901 to 1906, the firm was named Guthrie, Cravath & Henderson.75 Like Marshall, Guthrie argued many important cases before the United States Supreme Court, and at one point Guthrie was considered a possible candidate for the Court.76 prior to their publication as a chapter in his memoirs. See Cohen, supra note 4, at 162-75. Cohen, supra note 4, at 169. Id. at 169. Id. at 172. See id. at 183. Id. at 168. Id. at 170. Id. at 169. See 1 Robert T. Swaine, The Cravath Firm and Its Predecessors: 1819‑1947 vii, at 359‑62, 659‑65, 767‑82 (1948). 75 See id. at vii, 664-65. 76 See id. at 781; Andrew L. Kaufman, Cardozo’s Appointment to the Supreme Court, 1 Cardozo L. Rev. 23, 24 & n.9 (1979). Robert Gordon has identified Guthrie, Marshall, and a number of others as among “perhaps the most prominent” of “superelite” lawyers who entered 67 68 69 70 71 72 73 74

Louis Marshall, Julius Henry Cohen    Chapter 20

According to Cohen, given Guthrie’s stature and professional status, other lawyers were surprised by Guthrie’s support for the constitutionality of the Emergency Rent Laws. In Cohen’s colorful recounting, at a lunch meeting he had with Guthrie in the Downtown Club “after the public announcement” that Guthrie had joined him on the case, “friend after friend of [Guthrie’s] came up to him and intimated politely that he must be rapidly approaching senility.”77 By the same measure, though, Cohen realized the value of having a lawyer of Guthrie’s caliber and reputation as co-counsel on the cases. In light of the centrality of the constitutional questions raised by the Emergency Rent Laws, and the formidable opposition posed by Marshall, Cohen attached substantial ­importance to the fact that “Guthrie was known throughout the country as a great authority on constitutional law.”78  Perhaps more dramatically, Cohen understood the political significance of Guthrie’s willingness to represent tenants against the interests of the real estate industry. Employing characteristic candor, Cohen observed that Guthrie’s support “helped us a lot, because if Guthrie came with us, we could not be practice in New York City between 1860 and 1910 and who were also “active in reform politics or law reform.” Robert W. Gordon, “The Ideal and the Actual in the Law”: Fantasies and Practices of New York City Lawyers, 1870‑1910, in The New High Priests: Lawyers in Post-Civil War America 67 n.6 (Gerard W. Gawalt ed., 1984). 77 Cohen, supra note 4, at 169. 78 Id. at 169. Among other distinctions, Guthrie held positions as Storrs Lecturer at Yale University in 1907-8, and as Ruggles Professor of Constitutional Law at Columbia University from 1909 to 1922. See Swaine, supra note 74, at 362. He was also the author of William D. Guthrie, Lectures on the Fourteenth Article of Amendment to the Constitution of the United States (1898), which was published by Little, Brown & Co., and “received ­favorable reviews in the Harvard Law Review and in the Yale Law Journal.” Id. at 660 (citations omitted). Not surprisingly, Marshall and Guthrie often crossed paths in the course of their work. For example, in the landmark Unites States Supreme Court case, Pierce v. Society of Sisters, 268 U.S. 510 (1925), Guthrie and Hershkopf served as counsel for the Society of Sisters, see Brief on Behalf of Appellee, while Marshall filed an amicus brief on behalf of the American Jewish Committee in support of the appellees. See Brief for American Jewish Committee. It is worth noting Marshall’s letter to Guthrie, years later, chiding Guthrie for language he used that, in Marshall’s estimation, carried anti-Semitic intonations. See 1 Marshall: Papers and Addresses, supra note 42, at 277-80 (Letter from Louis Marshall to William D. Guthrie, Apr. 9, 1926). Although Marshall stated that “[i]t is needless for me to say that I know that you have no prejudices” and “[w]e have fought together on a number of occasions to combat prejudices of this character,” he nevertheless declared that “unconsciously, you have permitted yourself to use expressions which are unfortunate, and coming from such as you are apt to contribute to a perverted notion in public mind.” Id. Cf. Auerbach, supra note 51, at 121-22. See also 1 Marshall: Papers and Addresses supra note 42, at 277 n.** (quoting Guthrie’s earlier letter to Marshall that had commended Marshall for voicing a similar protest to an address by Elihu Root: “You have admirably and most eloquently resented an unwarranted attack upon thousands of educated and patriotic Americans”).

93

94

Section Seven    Legal History

called a bunch of radicals.”79 Though Cohen did not elaborate on this reference to radicals, the self-mocking tone—including the italicized emphasis—unmistakably points to the composition of the lawyers and activists who supported the Emergency Rent Laws. In addition to the legal arguments leveled against their constitutionality, the Emergency Rent Laws faced a number of challenges in the public arena as well, perhaps most prominently as a result of the combination of the Red Scare and the visibility of Socialist tenant groups.80 In particular, a number of Jewish union groups, social organizations, and l­awyers were closely associated with the efforts of the tenants, often serving in leadership roles, prompting a rising incidence of anti-Semitism.81 Thus, Cohen recognized, Guthrie’s decision to part ways in this matter with the overwhelming majority of the legal and political elite—allying himself instead with groups and lawyers viewed by many as radicals—helped lend an air of credibility and a prospect of hope to the struggles of a largely unpopular cause.

PART THREE | COHEN’S ARGUMENT FROM JEWISH LAW A. The Supreme Court Brief As lead counsel in Emergency Rent Laws cases before both the New York Court of Appeals82 and the United States Supreme Court,83 Cohen and Guthrie were joined on their briefs by Guthrie’s colleague, Bernard Hershkopf, and by Elmer G. Sammis. In the 117-page brief they submitted to the United States Supreme Court in Edgar A. Levy Leasing Co. v. Siegel,84 they presented a number of ­arguments in support of the constitutionality of the Emergency Rent Laws, relying primarily upon Supreme Court precedent,85 the police power of the 79 Cohen, supra note 4, at 169 (emphasis in original). 80 See Spencer, supra note 9, at 51‑93. 81 See id. at 71. The anti-Semitism was exacerbated by the fact that many of the landlords were Jewish as well. See id. at 70‑71. See also supra, notes 19-27 and accompanying text. 82 See People ex rel. Durham Realty Corp. v. La Fetra, 230 N.Y. 429, 434 (1921). 83 See Brief on Behalf of the Attorney-General and the Joint Legislative Committee on Housing, Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242, 243 (1922). 84 See id. 85 See id. at 10-34. Specifically, they urged the Court to adopt as controlling precedent the rulings decided on April 18, 1921, in Block v. Hirsh, 256 U.S. 135 (1921), and Marcus Brown Holding Co. v. Feldman, 256 U.S. 170 (1921), both of which upheld emergency rent laws. Indeed, as they noted in the brief, in Marcus Brown Holding, the Court decided many of the

Louis Marshall, Julius Henry Cohen    Chapter 20

state,86 and an examination of the emergency conditions that prompted the enactment of the laws.87 The final argument in the brief, authored by Cohen, documented responses to emergency housing shortages in other countries and referenced both modern and historical remedies, including a relatively esoteric development in Jewish law in sixteenth-century Italy.88 As Cohen later noted, he cited the example from Jewish law not only in the brief, but also in his oral arguments, in both the New York Court of Appeals and the United States Supreme Court.89 Cohen’s reference to Jewish law in the Emergency Rent Laws litigation may prove to be of considerable historical and sociological interest. Given the central role of Jewish lawyers and parties in these cases, it seems somewhat fitting that Cohen cited Jewish legal precedent. Perhaps more significantly, Cohen’s later recollections suggest the strategic value of relying on Jewish law, as well as Irish law, before the New York Court of Appeals in this case.90 To the extent that Cohen’s recollections were both earnest and accurate, they may shed light on some of the strategic calculations lawyers took into account in appearing before early twentieth-century judges. Cohen’s historical argument in the Supreme Court brief is premised on the observation that “[e]mergencies involving the occupancy of land have arisen and been dealt with in the past, first by communal customs and then by legislation which converted the customs and legally unenforceable obligations into positive law.”91 In particular, “[h]istory has thus again and again evolved as the fair and proper remedy in such cases (1) the restriction of the right to evict, or the recognition of the tenant’s right of renewal, and (2) the fixing of same issues regarding the constitutionality of New York’s Emergency Rent Laws. See Brief, supra note 83, at 17. Strikingly, Cohen had filed a brief, by leave of the Court, in Marcus Brown Company, along with the other lawyers who joined him in arguing Levy Leasing. See Brief on Behalf of the Attorney-General and the Joint Legislative Committee on Housing of the State of New York. Likewise, Marshall, who was lead counsel opposing Cohen in Levy Leasing, had filed an opposing amicus brief in Marcus Brown Holding, on behalf of Edgar A. Levy Leasing Company and 810 West End Avenue Incorporated. See Points for Edgar A. Levy Leasing Co. Inc. and 810 West End Avenue Inc. as Amici Curiae on Constitutionality of Chapters 136, 944 and 946 of the New York Laws of 1920. 86 See Brief, supra note 83, at 34‑54. 87 See id. at 54‑92. 88 See id. at 104‑06. 89 See Cohen, supra note 4, at 170‑72. 90 See id. 91 Brief, supra note 83, at 104.

95

96

Section Seven    Legal History

r­ easonable rentals by disinterested authority.”92 As historical evidence in support of these propositions, the brief offers a short paragraph documenting equitable protection of tenants’ rights in the Roman Empire, followed by more extensive discussions of Jewish law and Irish law.93  Cohen introduces the section on Jewish law by asserting that “[i]t is a curious fact that the Jews of the Middle Ages lived through a crisis in many respects similar to that before the court, and dealt with it in a manner analogous to the legislation in suit.”94 Specifically, “[c]onfined to ghettoes and forbidden to own land, they were obliged to rent both dwellings and business places in the limited areas in which they were permitted to stay and do business.”95 Consequently, “[i]t often happened that as soon as the landlord discovered that the tenant was able to make a living in the place where he was settled or was successful in his business, the landlord would raise the rent in the dwelling place or street to a large amount.”96 Finally, “when the tenant was unwilling to pay the rent which the landlord demanded, the landlord would find another Jew to whom he would rent the place.”97 In short, “the first Jew lost his living to the second,”98 resulting in both “rent profiteering” and “ruinous competition for premises among Jews.”99  As Cohen’s brief details, to remedy these conditions, rabbinic authorities in the Jewish ghetto enacted a form of rent regulation. As Cohen describes it: [T]he rabbis deduced from the Talmud the law of Hazakah, which gave the tenant in possession the right to continue, even without a lease, as against another Jew seeking to outbid him, and instituted a regulation excommunicating any Jew who offered an unreasonable rent in order to secure a dwelling place or store over the head of a Jew already in occupancy.100

Cohen documents this legal analysis in a footnote, citing a number of s­ cholarly works on Jewish law, including encyclopedic treatises written in Hebrew101   92 Id.   93 Id. at 104‑14.   94 Id. at 104.   95 Id.   96 Brief, supra note 83, at 104.   97 Id. at 104‑05.   98 Id. at 105 (internal quotation omitted).   99 Id. 100 Id. 101 Brief, supra note 83, at 105 n.* (citing Eisenstein, Ozar Haddinim—A Digest of Jewish Law 129-30 (1917); IV Eisenstein, O[]zar Yisrael 265 (1910)). Both of these works were compiled by Judah David Eisenstein, though as published, the title of the former differed

Louis Marshall, Julius Henry Cohen    Chapter 20

and an article published in The Menorah Journal, an American journal on Jewish law.102 The footnote quotes verbatim an English translation of one such rent regulation, enacted on June 21, 1554, by delegates of the Jewish congregations of Rome, Ferrara, Mantua, Romagna, Bologna, Reggie, Modena, and Venice.103  Cohen completes the discussion with a quotation from Jewish Life in the Middle Ages, by Israel Abrahams: The Jus Casaca gave the Jewish tenant of a Christian’s house in the ghetto a right in that house which no other Jew could usurp . . . . Clement VIII from Cohen’s citation. The transliterated title page of the 1927 edition reads: “Ozar Dinim u-Minhagim: A Digest of Jewish Laws and Customs, compiled by J. D. Eisenstein.” Likewise, the 1917 edition was published with the lengthier title. 102 See Brief, supra note 83, at 105 (citing Nathan Isaacs, Jewish Law in the Modern World, The Menorah Journal, Vol. VI, No. 5, at 258 (1920)). Cohen identifies Isaacs as Professor of Law at the University of Pittsburgh, former Professor of Law and Assistant Dean at the University of Cincinnati Law School, and the 1919-1920 Thayer Teaching Fellow at Harvard Law School. Id. Isaacs later returned to Harvard, and in 1924 was named Professor of Business Law at the Graduate School of Business Administration. He also lectured at Columbia University, the Army Industrial College, the University of Rochester, and Yale Law School. In addition, Isaacs was active in Jewish organizations, and among his extensive scholarly endeavors, he edited the National Law Library along with Roscoe Pound. See Dr. Nathan Isaacs of Harvard Dead, N.Y. Times, Dec. 19, 1941, at 25; see also Editor’s Introduction to Nathan Isaacs, Study as a Mode of Worship, Commentary, Vol. I, No. 8, at 77 ( June 1946); Yonasan David & Bruria David, Biography of Rabbi Yitzchok Hutner, in Pachad Yitchak, Sefer HaZikaron 35‑36 ( Joseph Buksbaum ed., 1983) (referencing Nathan Isaacs); Samuel Flaks, Law, Religion, and Pluralism: The Thought and Experiences of Nathan Isaacs (1886‑1941), 29 Touro L. Rev. 307 (2013). 103 See Brief, supra note 83: (v) Whereas there are many who infringe on the tekanah of Rabbenu Gershom, which forbids any Jew from ousting another Jew from a house rented from a Christian landlord, and whereas such offenders claim that when the landlord sells his house the Jewish tenant thereby loses his chazaka (i.e., his rights of preferential tenancy), we therefore decree that though the Christian owner sell his house, the right of the Jewish tenant to retain possession is unchanged, and any Jew who ousts him is disobeying the tekanah of R. Gershom and also this tekanah, now newly enacted. Id. at 105 n.*. The quotation is taken from Jewish Life in the Middle Ages, by Israel Abrahams, which was published in several editions in the late nineteenth and early twentieth centuries, by The Macmillan Company and The Jewish Publication Society of America. The brief does not reference a page number for this quotation. In addition, the brief does not indicate which edition of Abrahams’ book Cohen consulted. See infra note 104. In editions published in 1896, 1897, 1911, 1917, and 1920, the quotation is found on pages 70‑71. See Israel Abrahams, Jewish Life in the Middle Ages 70‑71 (1896).

97

98

Section Seven    Legal History l­egalized this Jewish arrangement by practically making evictions impossible so long as the rent (also fixed by him) was duly paid . . . . Similar laws of Chazaka were applicable to Jewish landowners; Duran, for instance, reports a takanah [i.e., a regulation] which rendered it unlawful for a Jew to evict a fellow Israelite by raising the rent or by any other device whatsoever.104

On a substantive level, Cohen’s reliance on sources of Jewish law appears misplaced. After all, notwithstanding some degree of factual similarity, the internal regulations in the Jewish ghetto in sixteenth-century Italy seem largely irrelevant to the Emergency Rent Laws in early twentieth-century New York. Presumably, Cohen did not expect the New York Court of Appeals or the United States Supreme Court to rely upon Jewish legal principles as grounds for upholding the constitutionality of the Emergency Rent Laws. Not surprisingly, in response to Cohen’s historical arguments, Marshall and his co-counsel, Lewis M. Isaacs, emphasized a number of factual and analytical differences between the Jewish legal precedents and the New York Emergency Rent Laws. Indeed, Marshall replies harshly in his Supreme Court brief, in a section titled “The Supposed Precedents in European Countries.”105 Marshall begins with the declaration that “[o]ur opponents have referred to alleged responsa [that rabbis] rendered in mediaeval times, in their capacity as arbitrators.”106 After dismissing the relevance of Cohen’s other historical references, Marshall asserts categorically, “[n]or are responsa rendered in the exercise of an ecclesiastical as distinguished from a judicial function by rabbis, who were intent upon the avoidance of conflict among members of the ­synagogue, of the slightest moment.”107 Finally, Marshall adds, “[t]he very fact that the Jews, in the days when these arbitraments took place, were not permitted to own real 104 See Brief, supra note 83, at 105‑06 (ellipsis and brackets in original) (quoting Abrahams, supra note 103). Cohen references page 69 of Abrahams’ book. In the 1896, 1897, 1911, 1917, and 1920 editions of the book, the quotation is found on pages 71 and 72. For further discussions of these laws, sometimes transliterated as jus gazaga, see, e.g., 2 Menachem Elon, Jewish Law: History, Sources, Principles 782‑86, 811‑13 (Bernard Auerbach & Melvin J. Sykes, trans. 1994); Louis Finkelstein, Jewish Self-Government in the Middle Ages 20-35, 111‑47, 171, 181 (1964); Attilio Milano, The Private Life of a Family of Jewish Bankers at Rome in the Sixteenth Century, 30 Jewish Q. Rev. 149 (1939); Israel Schepansky, Takkanot Rabbenu Gershom Me’or ha-Golah, 22 Ha-Darom 103 (1966); The Jewish Encyclopedia, Vol. 7, at 395 (1925); Meir Tamari, With All Your Possessions: Jewish Ethics and Economic Life, 111‑12 (1987). 105 See Points For Plaintiff-in-Error, Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242 (1922), at 108. 106 Id. 107 Id.

Louis Marshall, Julius Henry Cohen    Chapter 20

property of itself indicates how far afield these alleged precedents are apt to lead one.”108 To be sure, some of Marshall’s conclusions are open to question, and may prove less than fully accurate. For example, Marshall claimed that in enacting medieval decrees, rabbis exercised an “ecclesiastical” rather than “­judicial” function.109 However, while Marshall correctly alluded to the important distinction in Jewish law between various functions and roles of rabbinic authorities,110 the enactment of communal decrees falls under the legislative function exercised by rabbinic authorities within the Jewish legal system.111 In fact, not unlike the Emergency Rent Laws, the rabbinic decrees referenced by Cohen, though perhaps serving an “ecclesiastical” purpose of avoiding conflict, constitute a form of communal legislation, with binding legal force.112 Nevertheless, despite ­perhaps succumbing to a degree of overstatement, Marshall convincingly demonstrated basic substantive differences between the Jewish legal principles cited by Cohen and the issues in the Emergency Rent Laws cases.113 In contrast to the relatively cursory and arguably inapposite ­comparisons to Jewish law, Cohen dedicated several pages of his brief to a more thorough survey of Irish, English, and Scottish rent laws.114 Spanning the early ­eighteenth century through the early twentieth century, these legal systems implemented various rights of renewal to protect tenants from unfair treatment by landlords.115 As Cohen notes in the brief, eight months earlier, in Block v. Hirsh, the United States Supreme Court had upheld a similar ­emergency rent law in the District of Columbia, in part on the basis of historical precedent 108 Id. 109 Id. 110 See Chapters 3 and 4 in Volume 1. 111 See Chapter 4 in Volume 1. 112 See id. 113 Notably, years earlier, Marshall had relied heavily on Jewish law in an argument before the New York Court of Appeals in the case of Riker v. Leo, 133 N.Y. 519 (1892). In fact, Marshall presented a veritable disquisition on the principles of charity in Jewish tradition, through repeated and extensive quotations from the Torah, the Talmud, and the work of Maimonides. See 2 Marshall: Papers and Addresses, supra note 42, at 913‑23 (excerpting Marshall’s argument on behalf of the North American Relief Society). In Riker, however, the Jewish law of charity seemed particularly relevant, as the issue in the case revolved around a Jewish philanthropist’s bequest to a Jewish charitable organization. See id. In contrast, although many of the cases relating to the New York Emergency Rent Laws—including the cases that Cohen and Marshall litigated—involved Jewish parties, there existed no substantive nexus between the New York laws and the Jewish laws Cohen cited. 114 See Points for Plaintiff-in-Error, supra note 105, at 106‑14. 115 See id.

99

100

Section Seven    Legal History

in English law.116 Writing for the majority in Block, Justice Oliver Wendell Holmes, Jr., stated that “[t]he preference given to the tenant in possession is an almost necessary incident of the policy and is traditional in English law. If the tenant remained subject to the landlord’s power to evict, the attempt to limit the ­landlord’s demands would fail.”117 Thus, Cohen understandably offered similar historical examples from English law in support of the New York Emergency Rent Laws.118 However, such an explanation does not account for Cohen’s inclusion of Jewish law in the brief, in the absence of any substantive relevance to the case.

B. Judge Benjamin N. Cardozo and Jewish Law Instead, perhaps an alternative—if not more plausible—explanation for Cohen’s reliance on Jewish law and, to some degree, his reliance on Irish law, can be found in Cohen’s later depictions of the events surrounding the oral arguments in these cases. In his memoirs, published in 1946, Cohen recalls that he raised the historical analogues during the two most important oral arguments he presented in the course of the Emergency Rent Laws litigation, before the New York Court of Appeals and before the United States Supreme Court.119 116 See Brief, supra note 83, at 114 (citing Block v. Hirsh, 256 U.S. 135 (1921)). 117 See Block, 256 U.S. at 157‑58. 118 Nevertheless, in responding to Cohen’s historical arguments, Marshall discounted the relevance of various European legal systems as well. For example, he wrote that: Our opponents have indulged at some length in citations from historians, decisions and statutes dealing with conditions in European countries, as e.g. in Ireland and Scotland . . . . These passages from the history of other countries, whose organic law differs fundamentally from ours have no application here, where legislation is necessarily governed by our written Constitutions. See Points For Plaintiff-in-Error, supra note 105, at 108. In addition, Marshall borrowed at length from a New York Court of Appeals decision distinguishing between American law and English law. In part, he quoted: [W]e are unlike any of the countries whose industrial laws are referred to as models for our guidance. Practically all of these countries are so-called constitutional monarchies in which, as in England, there is no written Constitution and the Parliament or lawmaking power is supreme. In our country the Federal and State Constitutions are the charters which demark the extent and limitations of legislative power . . . . Id. at 109 (quoting Ives v. South Buffalo Ry. Co., 201 N.Y. 271, 287 (1911)). 119 See Cohen, supra note 4, at 170‑72.

Louis Marshall, Julius Henry Cohen    Chapter 20

In Cohen’s account, a day or two after his argument in the New York Court of Appeals, Judge Frederick E. Crane, an Associate Judge of the Court of Appeals, remarked to Judge Luke Stapleton: “They are a clever bunch, Guthrie and Cohen—[they] cite Irish precedents and they get [ Judge John W.] Hogan; they cite Jewish precedents and get [ Judge Benjamin N.] Cardozo—and so they bag two of the judges before they even begin their argument.”120  On one level, Judge Crane’s reported remark appears symptomatic of political realities that dominated New York in the early twentieth century.121 Among other factors, the religion and ethnicity of candidates played a primary role in the selection of judges for the Court of Appeals.122 Specifically, the extent that Cardozo’s Jewish heritage and Hogan’s Irish heritage factored into their successful candidacies,123 it might be suggested that they accordingly 120 Id. at 170. 121 Parenthetically, it may be noted that these kinds of political considerations continue to exert a degree of influence into the twenty-first century as well. 122 See, e.g., John T. Noonan, Jr., Persons and Masks of the Law: Cardozo, Holmes, Jefferson, and Wythe as Makers of the Masks 132 (1976) (the New York Court of Appeals that, decided the 1928 case of Palsgraf v. Long Island Railroad Company, 248 N.Y. 339 (1928), “had been composed with that attention to religious affiliation (Protestant, Jewish, Catholic) and regional origin (upstate, metropolis) which often has exhausted political wisdom in New York”). Indeed, in one account, Cardozo was considered for appointment to the Court of Appeals in 1914 only after a number of Catholics had declined Governor Martin Glynn’s nomination, including William Guthrie, Frederic Coudert, and William Kelley. See Kaufman, supra note 58, at 615 n.57. Kelley declined specifically “when he learned that he was being offered the position because he was a Catholic.” Id. Although Kaufman has questioned the historical precision of some details of this account, see id., the story accurately reflects historical dynamics of appointment to the Court of Appeals in the early twentieth century, including the relevance of the appointee’s religious affiliation. 123 Cardozo did, in fact, receive some—though not universal—support in his New York judicial campaigns from Jewish communal leaders and organizations. See Kaufman, supra note 58, at 117-29. Perhaps of greater relevance in the context of Cohen’s reference to Jewish law, by nearly all accounts Cardozo ascribed great value to Jewish religion and tradition. See, e.g., Alan M. Stroock, Recollections of Four Cardozo Law Clerks, 1 Cardozo L. Rev. 20 (1979) (recalling author’s clerkship for Cardozo during the 1934 and 1935 Terms of the United States Supreme Court): Justice Cardozo’s attitude toward his Judaism is difficult to define. . . . [H]e was proud of his ancestry. But I do not remember his ever going to a Synagogue or his observing any of the religious holidays at home. He was a good friend of Rabbi Stephen Wise and other religious leaders, but he never took an active part in any Jewish organization or Jewish cause such as Zionism On the other hand, he preserved in his subconscious memory his recollections of the Jewish ceremonies of his youth Moreover, I believe that he thought that his philosophy of life and law was basically Jewish in all its elements. . . .

Id. at 22. See also sources cited infra note 138.

101

102

Section Seven    Legal History

would have responded to arguments that resonated with their religious and ethnic ­backgrounds. Upon further analysis, though, it remains highly questionable that Cohen actually believed his reference to Jewish law could have influenced Cardozo’s decision in the case. In fact, at various points, Cohen’s memoirs—often r­ ecalling events that, like this one, had occurred decades earlier—suggest a penchant for colorful and largely impressionistic storytelling, at the possible expense of accuracy or earnestness. Likewise, Cohen’s reference to the purported conversation about employing Jewish law as a method of winning over Cardozo may prove to be more entertaining than enlightening. Indeed, several aspects of Cohen’s depictions of events surrounding the Emergency Rent Laws litigation include inaccuracies that raise serious questions about the reliability of his recollections. For example, according to Cohen, the conversation about the supposed effect of Jewish law on Cardozo took place between Judge Crane and “Judge Luke Stapleton.”124 However, Stapleton, who served as a New York State Supreme Court Justice at both the trial and appellate levels, resigned from the bench at the end of 1917,125 more than three years before Cohen and Guthrie argued the Emergency Rent Laws case in the New York Court of Appeals.126  Of course, Cohen could have correctly recalled that Stapleton was no longer a judge in 1921, but nevertheless decided to use the title as a measure of respect for Stapleton. Alternatively, Cohen might have correctly recalled that the conversation transpired between Crane and Stapleton, despite erroneously believing that Stapleton had still been serving as a judge at the time. In any event, Cohen’s error casts further doubt upon an already dubious story, regarding an event that had occurred a quarter century prior to the publication of his m ­ emoirs. Similar questions arise over Cohen’s recounting of the courts’ decisions in the New York Emergency Rent Laws cases. In his recollection of the cases in which he cited Jewish law, Cohen states that Judge Pound and Justice Holmes wrote the prevailing opinions in the New York Court of Appeals and the United States Supreme Court, respectively.127 In fact, though, while Judge Pound did write the majority opinion for the New York Court of Appeals in the

124 Cohen, supra note 4, at 170. 125 See Stapleton Will Retire, N.Y. Times, Dec. 15, 1917, at 14. 126 September Housing Laws, N.Y. Sess. Laws 1920, chs. 942‑53. 127 See Cohen, supra note 4, at 170.

Louis Marshall, Julius Henry Cohen    Chapter 20

Emergency Rent Laws cases,128 Justice Clarke wrote the majority opinion for the United States Supreme Court in Edgar A. Levy Leasing Co. v. Siegel.129  Cohen’s error might be explained as nothing more than a matter of confusing Levy Leasing, which the United States Supreme Court decided on March 20, 1922,130 with two other rent laws cases the Court had decided on April 18, 1921, Block v. Hirsh131and Marcus Brown Holding Co. v. Feldman.132 Justice Holmes had, indeed, written the majority opinions in both of the earlier cases.133 In addition, Cohen and Marshall had both filed briefs in Marcus Brown, which involved the New York Emergency Rent Laws, and they had included similar arguments relating to the relevance of Jewish law.134  Yet, even this somewhat understandable source of Cohen’s confusion would not explain the further error in his references to the supposed opinion of the Supreme Court in the case he litigated against Marshall over the New York Emergency Rent Laws. When Cohen quotes the majority opinion of Justice Holmes, the quotations are not from the opinion in Marcus Brown, but from the opinion in Block v. Hirsh.135 Although argued and decided together with Marcus Brown, Block involved a District of Columbia rent law and therefore was not in any way litigated or argued by Cohen or Marshall.136 Again, these lapses may not conclusively render unreliable Cohen’s account of the conversation between Crane and Stapleton, but they present additional grounds for healthy skepticism. Perhaps more to the point, it simply seems incredible that a judge of Cardozo’s stature and integrity would have arrived at a decision on legislation as important as the Emergency Rent Laws based on a regard for a minor reference to Jewish law, rather than through thoughtful analysis of the vital concerns of American law at issue in the case. While Realists might ponder the possible influence of Cardozo’s Jewish background on his jurisprudence, Cardozo was 128 See People ex. rel. Durham Realty Corp. v. La Fetra, 230 N.Y. 429 (1921). 129 See Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242 (1922). 130 See id. 131 Block v. Hirsh, 256 U.S. 135 (1921). 132 Marcus Brown Holding Co. v. Feldman, 256 U.S. 170 (1921). 133 See id.; see also Block, 256 U.S. at 135. 134 See Brief on Behalf of the Attorney-General and the Joint Legislative Committee on Housing of the State of New York, at 68-69; Points for Edgar A. Levy Leasing Co. Inc. and 810 West End Avenue Inc. as Amici Curiae on Constitutionality of Chapters 136, 944 and 946 of the New York Laws of 1920, at 63-64. 135 See Cohen, supra note 4, at 172, 353 n.9-10 (citing Block, 256 U.S. at 135). See also Block, 256 U.S. at 157-58. 136 See Block, 256 U.S. at 135.

103

104

Section Seven    Legal History

an ­outspoken critic of such a theory of the judicial function, self-consciously engaging in faithful adherence to principled consideration of law and public policy.137 Furthermore, notwithstanding the importance of Cardozo’s Jewish heritage to both his personal and professional conduct and ideals,138 it remains particularly unlikely that he would have relied on the appeal of Jewish law to reach a decision in the case. After all, a number of years later, Cardozo specifically criticized Magistrate Louis Brodsky for issuing an opinion that, Cardozo concluded, had been influenced by Brodsky’s concern for the Jewish community.139 In Professor Andrew Kaufman’s characterization, Cardozo believed that “Brodsky had no b­ usiness letting his own personal views as a Jew affect his judicial judgment.”140 Of course, there is no indication that Cardozo’s judgment in the Emergency Rent Laws cases was based on considerations other than the merits of the case. If anything, though, to the extent that outside factors could have exerted some 137 See John C.P. Goldberg, Book Review, The Life of the Law, 51 Stanford L. Rev. 1419 (1999) (reviewing Kaufman, supra note 58). See also Kaufman, supra, at 458-61 (describing differences and disputes between Cardozo’s articulation of his judicial philosophy and Jerome Frank’s Realist approach). 138 Cardozo’s relationship to his Jewish heritage has been explored extensively in numerous works. See, e.g., Paul Bricker, Justice Benjamin N. Cardozo: A Fresh Look at a Great Judge, 11 Ohio N.U. L. Rev. 1, 30-31 (1984); Kaufman, supra note 58, passim; George S. Hellman, Benjamin N. Cardozo: American Judge 163‑78 (1940); Richard Polenberg, The World of Benjamin Cardozo: Personal Values and the Judicial Process 13-18, 174‑85, 238‑40 (1997); Stroock, supra note 123. For other works on Cardozo, see, e.g., Stanley Charles Brubaker, Benjamin Nathan Cardozo: An Intellectual Biography (1979) (unpublished Ph.D. dissertation, University of Virginia) (on file with author); Joseph P. Pollard, Mr. Justice Cardozo: A Liberal Mind in Action (1935); Richard A. Posner, Cardozo: A Study in Reputation (1990); Conference, Benjamin N. Cardozo: Judge, Justice, Scholar, 34 Touro L. Rev. 1 (2018). 139 Kaufman, supra note 58, at 487‑88. 140 Id. at 488. As recounted in Kaufman’s biography of Cardozo, the episode, which occurred in 1935, involved Brodsky’s dismissal of charges against a group of demonstrators who boarded a German liner and tore down a Nazi flag. See id. at 487. Brodsky wrote “an inflammatory opinion in which he set forth what might have been in the minds of the defendants in seeking to tear down the Nazi flag,” suggesting that “they might have viewed the flag as emblematic of all the acts, which he listed, of the Nazi regime’s destroying human freedom.” Id. at 488. In response to a letter he received in support of Brodsky’s opinion, Cardozo referred sharply to Brodsky’s “shameful utterance,” adding that “[i]t would have been bad enough if [Brodsky] had been a Gentile; but for a Jew it was unforgivable[,]” because “[n]ow our traducers will say that these are the standards of the race.” Id. (quoting Letter from Benjamin N. Cardozo to Aline Goldstone, Sept. 14, 1935). Thus, as Kaufman concludes, “Cardozo viewed the matter all the more seriously because Brodsky was a Jew whose performance cast Jews, particularly Jewish judges, in a bad light.” Id.

Louis Marshall, Julius Henry Cohen    Chapter 20

degree of influence on Cardozo’s decision, his close personal and professional relationship with Louis Marshall, Cohen’s adversary in the litigation, would presumably have had more impact than Cohen’s references to Jewish law.141 After all, Marshall had served for many years as a mentor to Cardozo, working with him on a number of cases and causes, beginning in 1899 when Cardozo was twenty-nine years old.142 Moreover, Marshall’s continuing support had proved instrumental at important stages of Cardozo’s career. For example, Marshall had secured publication for Cardozo’s first book, published in 1903,143 and he had played a ­central role in Cardozo’s successful 1913 campaign for the trial division of the New York Supreme Court.144 Finally—and perhaps not incidental to Cohen’s remark about Cardozo’s purported interest in Jewish law— Marshall’s relationship with Cardozo often reflected a common regard for their shared Jewish heritage,145 presumably outweighing any perceived advantage Cohen might have gained from a citation to medieval Jewish legal sources. Likewise, Cohen’s co-counsel in the Emergency Rent Laws cases, William D. Guthrie, engaged in a variety of professional activities that would seem more significant—and potentially more influential in the perspective of judges on the New York Court of Appeals—than would Cohen’s brief references to Jewish legal history. Like Marshall, Guthrie reportedly played an important role in Cardozo’s professional advancement, providing crucial support for his election to the Court of Appeals.146 Moreover, Guthrie’s interactions with two 141 See supra text accompanying notes 43‑45. 142 See Kaufman, supra note 58, at 79, 110. 143 The title of the book was The Jurisdiction of the Court of Appeals of the State of New York. See id. at 89. According to Kaufman, Marshall not only wrote letters of introduction and praise to A. Bleecker Banks, an Albany law book publisher, but also served as “negotiator and middleman between Cardozo and Banks[,]” such that “[a]ll matters, including suggestions for changes and even transmission of proofs, went through Marshall’s hands.” Id. at 89. 144 See id. at 117‑26. Marshall wrote “lengthy letters” that were published in a number of Jewish newspapers, describing Cardozo’s “extraordinary capacity,” “preeminent ability,” and ­“sterling character,” and insisting that “because of Cardozo’s qualifications, if elected, he would shed luster upon the Jewish name.” Id. at 122 (quoting Letter from Louis Marshall to Editor of the Jewish Morning Journal, Oct. 27, 1913). Marshall sent the same letter to the editors of the Jewish Daily News and the Warheit. Id. at 612 n.26. As yet a further indication of Cardozo’s close relationship with Marshall and appreciation for his support, Cardozo later adopted Marshall’s recommendation to hire Abraham Paley of Marshall’s office as “attendant and confidential stenographer.” Id. at 126. 145 See id. at 110, 171. 146 At least one biographer of Cardozo has cited a letter sent by Guthrie in support of Cardozo’s candidacy to the Court of Appeals. See Brubaker, supra note 138, at 106 & n.29 (citing letter

105

106

Section Seven    Legal History

other judges on the court, just months after their decision in the Emergency Rent Laws case, suggests close professional—if not personal—relationships. For example, amid considerable controversy, Guthrie delivered a powerful speech at the 1921 Republican State Convention in support of the nomination of Judge William S. Andrews to remain on the court.147 In addition, as chairman of the executive committee of the 1921 Judicial Constitutional Convention, Guthrie worked closely with Judge Cuthbert W. Pound, who served as chairman of the convention.148 Furthermore, to the extent that, according to Cohen, Jewish law and Irish law impacted the decisions of Judges Cardozo and Hogan, respectively, Guthrie might have hoped to gain the favor of the Catholic judges on the court as a result of his close connections with the Catholic Church.149 Finally, other elements of Cohen’s account cast even further doubt on either the seriousness, or the historical accuracy, of his reflections regarding the strategy of including references to Jewish law for the purpose of influencing from William D. Guthrie to Judge Abram Elkus, Nov. 17, 1925). See also Hellman, supra note 138, at 111. Although Kaufman expressed skepticism regarding the accuracy of some of these accounts, see Kaufman, supra note 58, at 26 n.15, he cites the support of leading members of the New York bar, including Guthrie, for Cardozo’s appointment as Chief Judge of the Court of Appeals. See Kaufman, supra note 58, at 179. 147 See William H. Manz, The Palsgraf Case: Courts, Law, and Society in 1920s New York 85‑86 (2005). Guthrie declared that: I can conceive of no more destructive assault upon our rights and liberties or of a more fatal blow at the high traditions of the courts of justice of our State, than to have the Republican Party deny a nomination to an able, upright and fearless judge as a punishment for the conscientious and courageous performance of his plain duty to decide according to his conscience. Id. at 86 (quoting Nominate Andrews; Urge Tariff to Aid Foodstuff Exports, N.Y. Times, Sept. 24, 1921, at 1-2). 148 See Francis Bergan, The History of the New York Court of Appeals, 1847-1932 263-70 (1985). 149 As John W. Davis said of Guthrie in a memorial address:

Second to no other enthusiasm, surely, was his deep devotion to the religion he professed. He was a devoted son of the Catholic Church, scrupulous in conforming to her requirements and faithful to the obligations of his membership. But his religion went far deeper than mere outward observance. It filled his soul and colored all his life.

Swaine, supra note 74, at 782. Among other activities connected with the Catholic Church, in 1926, Guthrie “wrote a voluminous opinion for Patrick Cardinal Hayes, attacking the Mexican constitutional provisions affecting the Catholic Church as violations of international law and of the fundamental principles of liberty and justice.” Id. at 780. See also id. at 362 (describing honors Guthrie received from the Catholic Church).

Louis Marshall, Julius Henry Cohen    Chapter 20

Cardozo’s decision in the Emergency Rent Laws case. For example, just over a month after arguing the Emergency Rent Laws case before the New York Court of Appeals,150 Cohen submitted his United States Supreme Court brief in the case of Marcus Brown Holding Co. v. Feldman.151 Although Marcus Brown involved the New York Emergency Rent Laws, because the case originated and was litigated exclusively in federal court, it did not come before Cardozo and the New York Court of Appeals. Nevertheless, Cohen included in his brief a similar discussion of Jewish law, apparently aiming to demonstrate historical precedent, rather than for the purpose of swaying a particular justice with an interest in Jewish legal principles.152  As it turns out, one member of the United States Supreme Court, Justice Louis D. Brandeis, would have been a more likely target than Cardozo for Cohen’s citations to Jewish law. Although the precise nature of Brandeis’s relationship to his Jewish heritage has remained a matter of ongoing discussion and debate,153 unlike Cardozo, Brandeis had dedicated substantial efforts to a variety of Jewish communal causes and concerns.154 Perhaps most relevant to Cohen’s brief, Brandeis had been a leading supporter of the Intercollegiate Menorah Association, which published The Menorah Journal,155 and Brandeis 150 See Edgar A. Levy Leasing Co. v. Siegel, 230 N.Y. 634 (1921) (argued Jan. 19, 1921). 151 See Brief on Behalf of the Attorney-General and the Joint Legislative Committee on Housing of the State of New York, Marcus Brown Holding Co., Inc. v. Feldman, 256 U.S. 170 (1921). The brief is stamped as filed with the Supreme Court on Feb. 28, 1921. See id. (on file with author). 152 See id. at 68‑69. 153 See, e.g., Auerbach, supra note 51, at 123‑49; Robert A. Burt, Two Jewish Justices: Outcasts in the Promised Land (1988), passim; Galanter, supra note 58, at 1131-36; Eben Moglen, Jewishness and the American Constitutional Tradition: The Cases of Brandeis and Frankfurter, 89 Colum. L Rev. 959 (1989) (reviewing Burt, supra), passim; Russell G. Pearce, Adam B. Winer & Emily Jenab, A Challenge to Bleached Out Professional Identity: How Jewish Was Justice Louis D. Brandeis?, 33 Touro L. Rev. 335 (2017), passim; Philippa Strum, Louis D. Brandeis, Justice for the People 173‑80, 224‑90 (1984). 154 See, e.g., Strum, supra note 153. 155 See Editors’ Note, Letters of Louis D Brandeis, Vol. III (1913‑1915): Progressive and Zionist (Melvin I. Urofsky & David W. Levy eds., 1973): Founded by Henry Hurwitz . . . , the Menorah movement began at Harvard in 1906 and spread to other American and Canadian universities. In 1913 the Intercollegiate Menorah Association was founded and in 1915 the group began publishing the Menorah Journal under Hurwitz’s editorship. The Association, dedicated to fostering Jewish culture, disbanded in 1961 at Hurwitz’s death.

Id. at 193 n.3.

107

108

Section Seven    Legal History

had contributed a letter of tribute to the inaugural issue of the journal.156 Therefore, had Cohen actually thought that his references to Jewish law affected judicial decision-making in the Emergency Rent Laws cases, he might have been expected to highlight his citation to a 1920 article in The Menorah Journal by Nathan Isaacs157—a citation that would quite possibly have made an impression on Brandeis. Nevertheless, although Cohen includes in his memoirs a detailed description of the reactions of various Supreme Court Justices to the historical points he raised at oral argument,158 and although elsewhere in 156 The letter appeared at 1 The Menorah Journal 4, Jan. 1915. Letters of Louis D Brandeis, Vol. III, supra note 155: The Formation at Harvard University on October 25, 1906, of the first Menorah Society is a landmark in the Jewish Renaissance . . . . America’s fundamental law seeks to make real the brotherhood of man. That brotherhood became the Jews’ fundamental law more than twenty-five hundred years ago. America’s twentieth century demand is for social justice. That has been the Jews’ striving [for] ages-long. Their religion and their afflictions have prepared them for effective democracy. . . . Furthermore, the widespread study of Jewish law developed the intellect and made them less subject to preconceptions and more open to reason. America requires in her sons and daughters these qualities and attainments, which are our natural heritage. Patriotism to America, as well as loyalty to our past, imposes upon us the obligation of claiming this heritage of the Jewish spirit and of carrying forward noble ideals and traditions through lives and deeds worthy of our ancestors. To this end each new generation should be trained in the knowledge and appreciation of their own great past; and the opportunity should be afforded to the further development of Jewish character and culture. The Menorah Societies and their Journal deserve most generous support in their efforts to perform this noble task. Id. at 398‑99 (Letter from Louis D. Brandeis to Editor, Menorah Journal, January, 1915). See also id. at 505 (Letter from Louis D. Brandeis to Henry Hurwitz, Apr. 7, 1915) (stating that “I am much gratified at receiving the pledge from the various members [of the Menorah Society] who met on April 4, 1915 at 600 Madison Avenue, and who have agreed to volunteer their services to the Zionist cause . . . .”); id. at 638 (Letter from Louis D. Brandeis to Benjamin F. Levy, Nov. 17, 1915) (referring to “[t]he editorial in the Boston Herald, of which a part is quoted in the October number of the Menorah Journal on page 236”). 157 See Brief, supra note 83, at 105 n* (citing Nathan Isaacs, Jewish Law in the Modern World, The Menorah Journal, Vol. VI, No. 5, at 258 (1920)). 158 See Cohen, supra note 4, at 171‑72. Though presumably vulnerable to similar questions regarding accuracy and reliability, Cohen’s recollections of the oral argument provide an entertaining and potentially valuable perspective on the justices, and thus may merit being quoted extensively. Cohen begins with an account of Justice Joseph McKenna’s reaction to the citations to English, Irish, and Jewish legal history:

Louis Marshall, Julius Henry Cohen    Chapter 20

the memoir he dedicates an entire chapter to a portrayal of Brandeis,159 Cohen does not mention Brandeis in the context of the Emergency Rent Laws case.160 Justice McKenna, who was seated on the right of Chief Justice [William Howard] Taft, and on my left, was quite impatient with my historical ­presentation. He turned to me and said testily, “I don’t think this is a matter of legislative wisdom or experience at all. It is just a matter of power.” Id. at 171. Cohen then describes his own response: I assured him, as Guthrie had demonstrated, that the power was there. The real question was whether it was exercised capriciously or arbitrarily and the Court could not say that is was a capricious or arbitrary action of the legislature, unless on the basis of past experience and wisdom, it could find no basis whatever to support it. Accordingly, if we were able to show that at critical points in history, parliaments had resorted to this very method for avoiding riot and disorder, then our point was made. The Supreme Court could not, if it would, strike down the act. Id. Next, Cohen recalls a challenge from Justice Oliver Wendell Holmes, Jr.: “At this point, Holmes, on the Chief Justice’s left (whom we naturally expected to be going our way) said, “Mr. Cohen, I am inclined to agree with my brother McKenna. I don’t think it is our function to review the wisdom and experience of the legislature.” Id. Cohen replied at length: Review not in the sense of substituting your judgment for that of the legislature, but in the sense of reviewing the record to see if there is any basis for the exercise of the legislative power. You review in the same way as you examine the record in a negligence case, to see if there is any evidence at all upon which the verdict of the jury can be supported, and if you find that there is such evidence, you do not set the verdict aside, you let it stand. This is not substituting the courts’ judgment for the jury’s, it is reviewing solely for the purpose of determining whether there is any evidence at all in the case to support the verdict of the jury. Id. Following this explanation, Cohen recalls, “I thought the old skeptic leaned back satisfied.” Id. Finally, Cohen offers a colorful depiction of Chief Justice Taft: Then forward advanced the Chief Justice himself. Now what was he going to do “put me on the spot?” And these are the sententious words with came from the lips of this fun-loving Chief Justice: “My brothers seem to be agreed about that, Mr. Cohen, but you may proceed with your argument upon the assumption that a little wisdom and experience will not hurt this court.” Id. at 171‑72. 159 See id. at 190‑200. 160 Notably, Brandeis also had professional or personal relationships with the three principal lawyers who litigated the Emergency Rent Laws cases before the Supreme Court: Cohen,

109

110

Section Seven    Legal History

CONCLUSION It should not be surprising that, following his colorful report of Judge Crane’s remark regarding the strategic value of citing Jewish law to win over Cardozo, Cohen counters with a more plausible reason for including historical references in his brief: his primary litigation strategy in the case was to “get the judges away from the prevailing lawyers’ bias against the laws and bring into play the forces of history.”161 Likewise, rather than embracing the notion that he t­ argeted Cardozo through the reference to Jewish law, Cohen instead recalls, more credibly, that “[w]e felt sure of liberal judges like Holmes of the United States Supreme Court, Cardozo and Pound of the New York Court of Appeals.”162 Indeed, their expectations proved accurate, as Cohen and Guthrie prevailed both in the New York Court of Appeals, with Judge Pound writing the majority opinion, which Judge Cardozo joined,163 and in the United States Supreme Court, with Justice Holmes joining Justice Clarke’s majority opinion.164  Ultimately, Cohen’s participation in, and compelling reflections upon, the Emergency Rent Laws litigation provide a valuable window into the role of Jewish lawyers in the United States in the early twentieth century. Moreover, among other lessons, Cohen’s citation to Jewish legal history in his briefs and oral arguments before the New York Court of Appeals and the United States Supreme Court, in front of such eminent jurists as Judge Marshall, and Guthrie. Though Brandeis’s connection to Cohen was limited largely to their efforts at settling the garment workers’ strike, Brandeis and Marshall worked on a number of common matters relating to Jewish communal concerns. Nevertheless, “[t]he relations between Marshall and [Brandeis] were always formal and courteous but also strained and somewhat uneasy although both men were interested in many of the same projects and programs.” Editors’ Note, Letters of Louis D. Brandeis 294 n.1 (Melvin I. Urofsky & David W. Levy eds., 1972). For expressions of this strain, as portrayed in Brandeis’s letters to a third party, see Letters of Louis D. Brandeis, Vol. IV (1916-1921) 354 (Melvin I. Urofsky & David W. Levy eds., 1975) (Letter from Louis D. Brandeis to Julian William Mack, August 26, 1918); id. at 507 (Letter from Louis D. Brandeis to Julian William Mack, Nov. 18, 1920). See also supra note 60. Brandeis’s references to Guthrie in his letters evince a more positive tone. See Letters of Louis D. Brandeis, Vol. V (1921-41): Elder Statesman 93 (Melvin I. Urofsky & David W. Levy eds., 1978) (Letter from Louis D. Brandeis to Felix Frankfurter, May 13, 1923); id. at 109 (Letter from Louis D. Brandeis to Felix Frankfurter, Jan. 6, 1924). 161 Cohen, supra note 4, at 170. 162 Id. 163 See People ex. Rel. Durham Realty Corp. v. La Fetra, 130 N.E. 601 (N.Y. 1921). 164 See Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242 (1922).

Louis Marshall, Julius Henry Cohen    Chapter 20

Benjamin N. Cardozo and Justice Oliver Wendell Holmes, Jr., indicates that Jewish law had achieved a degree of respect and legitimacy within American legal discourse. Finally, though it remains unlikely that Cohen’s references to Jewish law, as such, had—or were intended to have—an effect on Cardozo’s ­decision in the Emergency Rent Laws case, Cohen’s anecdote opens the door for ­consideration of the interests and interrelationships that might have impacted ­judicial decision making in the early twentieth century. In light of more recent ­controversies that have arisen regarding the religious beliefs165 and personal relationships166 of members of the Supreme Court, this study has abiding relevance and potential application in the twenty-first century as well.

165 See, e.g., Gregory A. Kalscheur, Catholics in Public Life: Judges, Legislators, and Voters, 46 J. Cath. Legal Stud. 211 (2007); John T. Noonan, Jr., The Religion of the Justice: Does it Affect Constitutional Decision Making?, 42 Tulsa L. Rev. 761 (2007); William H. Pryor, Jr., The Religious Faith and Judicial Duty of an American Catholic Judge, 24 Yale L. & Pol’y Rev. 347 (2006); Thomas L. Shaffer, Roman Catholic Lawyers in the United States of America, 21 J.L. & Religion 305 (2005-6); Symposium, Catholicism and the Court: The Relevance of Faith Traditions to Jurisprudence, 4 U. St. Thomas L.J. (2006). 166 See, e.g., Cheney v. U.S. Dist. Ct. for the D.C., 541 U.S. 913 (2004) (Scalia, J.); Debra Lyn Bassett, Recusal and the Supreme Court, 56 Hastings L.J. 657 (2005); Ross E. Davies, The Reluctant Recusants, 10 Green Bag 2d 79 (2006).

111

CHAPTER 21

Jewish Law from out of the Depths: Tragic Choices in the Holocaust INTRODUCTION

T

his chapter explores the phenomenon of fidelity to Jewish law and morality amidst the horrors of the Holocaust. History records some of the remarkable efforts of Jewish communities and individuals who, in the face of unimaginable conditions, in ghettos and concentration camps, continued to turn to the teachings of Jewish law and ethics for lessons and guidance. The questions and answers that were presented—a portion of which have survived in written form—span all areas of life: from ritual and holiday observance, to commercial law, to domestic relations, to—literally—daily questions of life and death. The title and substance of this chapter draw on the published responsa of Rabbi Ephraim Oshry: Sh’eilos U’Teshuvos MiMa’makim (“Questions and Responses from Out of the Depths”).1 Rabbi Oshry lived through the Nazi invasion and occupation of Lithuania, which included: the unspeakable violence and brutality perpetrated by the Nazis on the Jewish community during the invasion of Kovno in June 1941; the continuing murder, over the next month, of thousands of Jewish residents of Kovno—men, women, and children—who were seized and taken to the nearby “Seventh Fort”; the brutal transfer of the remaining Jewish community, completed in August 1941, to ghettos in Slobodka, a suburb of Kovno; the years of persecution, deprivation, and despair in the Kovno ghetto, which included deportations of thousands of Jews to concentration camps; and finally, in July 1944, as the Russian army was   1 The responsa were published originally in Hebrew, as a five-volume series, and later in English, in abridged form. See Ephraim Oshry, Responsa From the Holocaust xii (Yehoshua Leiman trans., 1983). In addition, Rabbi Oshry’s responsa are cited extensively in another English book dedicated to questions of Jewish law during the Holocaust. See generally Irving J. Rosenbaum, The Holocaust and Halakhah (1976).

Jewish Law from out of the Depths    Chapter 21

approaching, the liquidation of the ghetto, during which the Nazis sent thousands to concentration camps in Germany, and murdered and cremated many others within the ghetto.2  Rabbi Oshry witnessed and survived all of these events, including the ­liquidation of the ghetto, which he escaped by hiding in a bunker. Following the liberation of Lithuania by the Russian army in August 1944, Rabbi Oshry helped lead the efforts, in the aftermath of the death and destruction, to tend to the spiritual and physical needs of the survivors. Through all of these years, Rabbi Oshry served as a religious authority and spiritual guide for those who would approach him with the most pressing questions on the application of Jewish law. Following the Holocaust, Rabbi Oshry published five scholarly volumes collecting his responsa, addressing nearly every aspect of Jewish communal, personal, and religious life.3  This chapter focuses on two of Rabbi Oshry’s responsa, which may be representative of the issues he faced over the years. The two responsa differ considerably in subject matter: one explores the scope and possible limits of the responsibility to take action to save a life; the other discusses the ritual of drinking four cups of wine at the Passover Seder. Yet both responsa provide documentary insight into the attitudes of those who, when confronted with the most difficult challenges, held firmly to their religious and ethical principles.

PART ONE | ENDANGERING ONE’S LIFE TO RESCUE ANOTHER The first responsum relates directly to the title of this chapter: “tragic choices.” Throughout the years of the Holocaust, Jewish communities and individuals were constantly confronted with the most urgent matters of life and death. The Nazis’ systematic methods of demonization, deportation, and extermination gave rise to countless tragic choices and decisions, trying both the endurance and the sense of morality of those who struggled simply to survive. Notably, in addition to the challenges of self-survival, important questions arose for those who were engaged in efforts to save the lives of others. In fact, these questions sometimes asked not whether there is a religious obligation to try to rescue those in peril, but rather, the extent to which individuals are ­permitted to put themselves in danger when engaged in efforts to save others. Of course, these questions begin from the premise that, as a threshold matter, Jewish law mandates the affirmative obligation to take action to ­preserve   2 See Oshry, supra note 1, at xv‑xxvii.   3 See id. at xii‑xv.

113

114

Section Seven    Legal History

life. In the American legal system, absent exceptional circumstances, the criminal law generally does not impose a duty to undertake any efforts to save someone whose life is in peril. In a somewhat extreme hypothetical that is often posed to first-year criminal law students, a bystander who watches a person drowning, and does not lift a finger to help, does not face criminal penalty. While courts sometimes express moral outrage in such cases,4 few jurisdictions impose even a civil duty to exert even minimal effort to save someone’s life. Jewish law operates under different premise. The Torah states in Leviticus, “Do not stand idly by the blood of your neighbor,”5 which is understood as imposing an obligation to act, and not to remain passive, when the life of another is in danger.6 In fact, Jewish law places such a high premium on the value of life that, with very few exceptions, the other laws of the Torah are suspended, to the extent necessary, to save a life. For example, if fasting on Yom Kippur would endanger a person’s life, that person would be not merely p­ ermitted, but obligated, to eat on Yom Kippur.7 At the same time, as a corollary to recognizing a duty to take action to save a life, Jewish law has to define the scope and possible limitations on the duty. Indeed, one of the justifications offered for the American rule, which does not require such action, points to the difficulty in line-drawing necessary to determine to whom the duty would apply, and under what circumstances.8

  4 See, e.g., People v. Beardsley, 113 N.W. 1128, 1131 (Mich. 1907). [I]t is undoubtedly the moral duty of every person to extend to others assistance when in danger, . . . and, if such efforts should be omitted by any one when they could be made without imperiling his own life, he would by his conduct draw upon himself the just censure and reproach of good men; but this is the only punishment to which he would be subjected by society. Id. (quoting United States v. Knowles, 26 F. Cas. 800 (N.D. Cal. 1864)). Leviticus 19:16. See Talmud Bavli, Sanhedrin 73a. See, e.g., Chapter 15 in Volume 1 (citing Talmud Bavli, Yoma 85a-b; Maimonides, Mishne Torah, Laws of Sabbath 2; 2 Aryeh Kaplan, The Handbook of Jewish Thought 38‑49 (Abraham Sutton ed., 1992); Hershel Schachter, B’Ikvei Hatzoan 14‑18 (1997); Joseph B. Soloveitchik, Halakhic Man 34-35 (Lawrence Kaplan trans., 1983)); see also Samuel J. Levine, Taking Ethical Discretion Seriously: Ethical Deliberation as Ethical Obligation, 37 Ind. L. Rev. 21, 57 n.151 (2003) (“[N]early every obligation in Jewish law is suspended to save a life.”); Yitzchak Zeev ha-Levi Soloveitchik, Chidushei Maran Ri’z ha-Levi 12‑13 (1998); Asher Weiss, Minchas Asher, Shemos 402-7 (2017).   8 See Joshua Dressler, Some Brief Thoughts (Mostly Negative) About “Bad Samaritan” Laws, 40 Santa Clara L. Rev. 971, 986‑87 (2000).   5   6   7

Jewish Law from out of the Depths    Chapter 21

These questions, which raise challenging theoretical and p­ hilosophical issues, took on a vital and practical urgency during the Holocaust, when attempts to rescue others often put the life of the rescuer in possible—if not certain—danger. Rabbi Oshry confronted this issue in the early stages of the Nazi occupation of Kovno, in June of 1941.9 Rabbi Oshry describes the dire circumstances under which, on a daily basis, the Nazis—with the assistance of local Lithuanians—seized a number of Jews who were taken to the “Seventh Fort,” where their fate was to be determined and many were murdered.10 During this time, Rabbi Avraham Grodzinsky, the dean of the yeshiva of Slobodka, asked Rabbi Oshry to seek the assistance of Rabbi Dovid Itzkowitz. Rabbi Itzkowitz, a leader in the rabbinic organization Agudas ha-Rabbanim, had contacts from before the war among the Lithuanian authorities, who were now working with the Nazis in seizing and deporting Jews from Kovno. Perhaps Rabbi Itzkowitz should approach these authorities, with a request to free some of those who had been seized. Such action, it was suggested, would appear to be incumbent upon Rabbi Itzkowitz, mandated by the command not to stand idly by. Rabbi Oshry recognized, however, that the situation they faced was different from a typical situation in which the Torah instructs a bystander to take action to save the life of a person who is in peril. In this case, were Rabbi Itzkowitz to approach the Lithuanian authorities in an effort to save those who had been captured, he might be placing himself in a similar danger; rather than acceding to his request, the Lithuanian authorities might instead decide to ­capture him as well. Perhaps Rabbi Itzkowitz would not be required—or even permitted—to endanger his own life in an effort to save others. In considering this issue, Rabbi Oshry looked to the Talmudic discussion of a case in which Jewish law does not require—or permit—violation of a law of the Torah to save a life: when a person can save a life only through taking another innocent life. For example, the Talmud cites the scenario in which, at the threat of death, an individual is ordered to kill a third party. The Talmud concludes that, although ordinarily a person would be expected to ­violate nearly any of the laws of the Torah, as necessary, to save a life—­including one’s own life—this rule does not extend to the commission of a homicide.   9 This section is based on Volume II, pages 7-15, of the five-volume series of Rabbi Oshry’s responsa, published in Hebrew in 1963. For English summaries of this responsum, see Oshry, supra note 1, at 1-2, and Rosenbaum, supra note 1, at 17-21. 10 Rabbi Oshry’s description of the role of the Lithuanian authorities and the local population is particularly telling and troubling. The same individuals who had lived for years alongside their Jewish neighbors, apparently on good terms, were now willingly assisting the Nazis in the brutal persecution and extermination of the Jews of Kovno. See Oshry, supra note 1, at xv‑xvii.

115

116

Section Seven    Legal History

In support of this conclusion, the Talmud poses a rhetorical and metaphorical question: “Who can say that your blood is ‘redder’ than that of the third party? Perhaps the blood of the third party is redder than yours.”11 In short, Jewish law does not allow a person to value his or her own life over the life of another. Based on the Talmudic logic, Rabbi Oshry argued that the duty, under Jewish law, to take action to save the life of another does not apply when the rescuer would be required to undertake a life-threatening risk. Inverting the Talmud’s rhetorical question, Rabbi Oshry asks, in turn, “Who is to say that a third party’s blood is redder than yours?” He reasoned that just as a person may not value his or her own life over that of another, a person may not value the life of another over one’s own. Under this analysis, the Torah’s command—“do not stand idly by”—applies only when it is possible to intervene without risking one’s own life. Thus, there should be no obligation for a person to enter into a life-threatening situation to save the life of another. Accordingly, Rabbi Oshry ruled, Rabbi Itzkowitz should not be required to request the release of those captured by the Lithuanian authorities, if doing so would thereby place his own life in danger. In fact, taking this logic one step further, Rabbi Oshry raised the possibility that perhaps Rabbi Itzkowitz should be not only exempt, but prohibited from approaching the authorities in an attempt to gain the release of others. After all, if he may not value the life of another over his own, it would seem that he may not place his own life in jeopardy while trying to save the lives of those who have been captured. Yet, Rabbi Oshry was reluctant to take his ruling this far. Based on various sources of Jewish law, he suggested that while a person need not—arguably should not—enter into a situation of “certain danger” to save the life of another, perhaps a person is obligated to enter into a situation of “possible danger” to rescue someone who is in “certain danger.” In such a case, the Torah’s command not to “stand idly by” remains in force. Under this analysis, to the extent that the risk facing Rabbi Itzkowitz represented a possible danger rather than certain danger, he would, indeed, be obligated to approach the Lithuanian authorities in an effort to save those who had already been ­captured—whose lives were in certain danger. Based on a comprehensive survey of leading Jewish legal authorities, from medieval through modern times, Rabbi Oshry concluded that under the prevailing view, Jewish law does not require a person to risk even possible danger to save 11 See Talmud Bavli, Sanhedrin 74a. See also Asher Weiss, Minchas Asher, Bereishis 257‑60 (2017).

Jewish Law from out of the Depths    Chapter 21

the life of another. In such a scenario, the decision to refrain from action would not constitute “standing idly by.” At the same time, Rabbi Oshry cited the position among some legal authorities that, although there is no obligation to do so, it is deemed admirable to risk possible danger in an effort to save a life. Therefore, Rabbi Oshry ruled that Rabbi Itzkowitz was not obligated to approach the Lithuanian authorities, because such a response would entail the possibility that Rabbi Itzkowitz himself would be captured, and thus had the potential of endangering his own life. However, in light of the view that would commend such conduct, Rabbi Oshry also held that, should Rabbi Itzkowitz be moved to act at his own risk, it would not be proper to deter him from this heroic effort. In Rabbi Oshry’s perspective, in addition to the possibility of saving the lives of others, such courage embodied a powerful rebuke to the evil and inhumanity perpetrated by the Nazis. Ultimately, as Rabbi Oshry later recorded, Rabbi Itzkowitz bravely approached the Lithuanian authorities and, through his efforts, succeeded in gaining the freedom of a number of those who had been captured, while he was not harmed in the process. Tragically, however, Rabbi Oshry concludes his responsum with the report that Rabbi Itzkowitz was later a victim of Nazi extermination in a concentration camp. This responsum is striking in a number of ways. First, the situation that was presented to Rabbi Oshry exemplifies tragic choices that confronted Jewish communities and individuals throughout the Holocaust. Second, in turn, the resolve of those who were confronted with these choices, remaining faithful to Jewish religious and ethical principles, exemplifies the insistence to maintain a moral compass amidst the most immoral conditions. Finally, the decision by Rabbi Oshry to allow, and by Rabbi Itzkowitz to undertake, a potentially perilous mission in an effort to save others, represents a victory of hope and righteousness against a world of evil and despair. Indeed, many of Rabbi Oshry’s responsa reflect tragic choices that Jewish communities and individuals faced amidst the depths of the Holocaust. At the same time, by virtue of having the strength to even ask these questions, and to struggle to articulate moral and ethical responses, Rabbi Oshry and the Jewish community living in the Kovno ghetto repeatedly found a ray of hope from within the constant and overwhelming despair. There can be few choices more tragic than deciding when, and whether, to try to save a life, and few responses offering more hope than Rabbi Itzkowitz’s decision to risk his own life to successfully save others.

117

118

Section Seven    Legal History

PART TWO | DRINKING THE FOUR CUPS OF WINE AT THE PASSOVER SEDER In fact, when thinking about a title for this chapter, as an alternative to “Tragic Choices in the Holocaust,” I considered, instead, the title “Despair and Hope in the Holocaust.” Along those lines, the next part of the chapter briefly explores another of Rabbi Oshry’s responsa, one that likewise involves a difficult ­decision—though perhaps not a “tragic choice”—as well as an underlying message of hope, addressing one of the ongoing challenges to the observance of religious rituals in the Kovno ghetto.12  Rabbi Oshry prefaces this responsum with a powerful description of the sense of determination among those in the Kovno ghetto to observe and ­preserve their spiritual life, as a form of resistance against the aims and actions of the Nazis. Indeed, as Rabbi Oshry poignantly reports, the Jews in the ghetto viewed the Nazis’ attempts to undermine their spirit and morale as a means toward the Nazis’ larger intention of rendering them more vulnerable to ­physical destruction and extermination. Thus, he recounts, the Jewish community in the ghetto felt a shared sense of responsibility to strengthen their spirit and their spiritual lives, to maintain their morale and their moral integrity, in part as a way of ­protecting their physical integrity as well. Against this backdrop, Rabbi Oshry presents the dilemma of those who wished to conduct a Passover Seder, including one of the central rituals of the night: drinking four cups of wine, corresponding to the four different phrases the Torah cites in God’s promise to free the nation from slavery in Egypt: “I will bring you out”; “I will save you”; “I will redeem you”; “I will take you.”13  Not surprisingly, it was impossible for the Jews in the ghetto to possess any wine, and so the question posed to Rabbi Oshry was whether another ­beverage could be substituted and used for the four cups, in fulfillment of the ritual obligation. In fact, as Rabbi Oshry notes, the deprivation in the ghetto was such that it was nearly impossible to possess any beverage that could even be contemplated as an acceptable substitute for wine at the Seder, with the possible exception of tea sweetened with saccharin—which, he points out, was itself available only to relatively few individuals. Under these circumstances, the precise question for Rabbi Oshry was rather narrow in scope: whether it is 12 This section is based on Volume III, pages 51‑55, of the Hebrew version of Rabbi Oshry’s responsa. For English summaries of this responsum, see Oshry, supra note 1, at 67‑68, and Rosenbaum, supra note 1, at 103‑05. 13 Exodus 6:6‑7.

Jewish Law from out of the Depths    Chapter 21

a­ cceptable to substitute tea with saccharin, in place of wine, to fulfill the obligation to drink four cups at the Passover Seder. Rabbi Oshry introduced his analysis with a broader consideration of the importance of drinking four cups at the Passover Seder. Citing various Talmudic and post-Talmudic sources, Rabbi Oshry explained that, because the ritual serves to symbolize and publicize the miraculous nature of the events of the Exodus from Egypt, even a person who is destitute is required to make extraordinary efforts to obtain four cups of wine. Yet, as Rabbi Oshry laments, even the most extraordinary efforts would not have enabled the Jewish ­community in the ghetto to possess wine for the Seder. Instead, they were faced with the far more desperate challenge of determining whether, at best, they should drink four cups of tea as an alternative. Thus, to answer the question posed to him, Rabbi Oshry looked to the area of Jewish law that classifies what kinds of beverages are suitable for ritual use when wine is unavailable. As a general rule, beverages that fall under the category of chamar medina—beverages that attain a certain degree of status in a given society—may be used for rituals such as the havdala service, conducted on Saturday night to mark the conclusion of the Sabbath. A number of Jewish legal authorities approved of beverages such as kvass or borscht, or a beverage known as mehd, which was made from honey, as suitable for havdala; likewise, these beverages would apparently be considered appropriate for the Seder. Yet, even these rulings did not resolve the issue for those in the Kovno ghetto, who did not have access to any of these beverages. Instead, returning directly to the question of the status of tea for use in religious rituals, Rabbi Oshry cited a dispute among legal authorities as to whether sweetened tea is acceptable for the havdala service at the end of the Sabbath. As Rabbi Oshry explained, those authorities who allowed tea for havdala ­premised their decision on the categorization of tea as chamar medina. Moreover, Rabbi Oshry noted, the standards for determining which beverages qualify for the Passover Seder are generally less stringent than those for the havdala ritual. Therefore, relying on the authorities who approved of sweetened tea for havdala, Rabbi Oshry concluded that drinking four cups of tea may likewise be substituted for drinking wine at the Seder. Rabbi Oshry closes this responsum with yet another message of hope. Recounting the reaction to his ruling among his students, Rabbi Oshry describes their efforts to spread a f­eeling of hope amidst the darkest hours of despair, taking upon themselves the task of distributing sweetened tea throughout the ghetto for use at the Passover Seder. Rabbi Oshry notes that this sense of hope was particularly powerful in the context of the ritual of drinking the

119

120

Section Seven    Legal History

four cups at the Seder, which symbolizes and embodies the feeling of freedom and redemption that is experienced on the Seder night. Likewise, Rabbi Oshry declared, this ritual should serve as a means for lifting the spirits and bringing joy to the hearts of those who dwell in the darkness and death of the ghetto, in the hope that they too will soon experience freedom and redemption from those who seek their destruction.

CONCLUSION Taken together, these two responsa, perhaps representative of hundreds written by Rabbi Oshry, paint a powerful picture of a side of the Holocaust familiar to many of us: the constant fear and deprivation, the relentless death and destruction, perpetrated by the Nazis and those who were all too willing to assist them. Rabbi Oshry witnessed unspeakable acts of inhumanity, and he felt a strong sense of responsibility to provide a testimonial record of what he had endured. Indeed, in his introduction to the abridged form of his responsa, published in English in 1983, Rabbi Oshry expressed his outraged incredulity at the existence of Holocaust denial, and he emphasized the need to help preserve the historical record. As he put it, “I want my fellow Jews, and the rest of the world, to know, and never to forget, the bestiality unleashed by Hitler and his cohorts upon mankind . . . .”14  At the same time, Rabbi Oshry’s responsa reveal a side of the Holocaust that perhaps is not as well known: an unwillingness, on the part of Jewish ­victims of the Holocaust, to succumb to the evils that were being perpetrated; a determination to respond forcefully to the most horrific forms of immorality, by reaffirming their own commitment to Jewish law and ethics; and an abiding affirmation of hope amidst the height of despair. It may thus be fitting to close with Rabbi Oshry’s own reflections. In the introduction to his responsa: “In a more positive vein, . . . [t]he inquiries on Jewish law and practice to which I had to respond were neither ­academic questions posed by scholars, nor scenarios proposed . . . [in] theoretical games of ‘What if . . .?’ They were made by ordinary Jews who . . . tenaciously upheld their obligation under the Divine Covenant: to observe to the best of their ability, even in the ghetto, the commandments of God’s Torah . . . .”15 14 Oshry, supra note 1, at xiii. 15 Id.

CHAPTER 22

Untold Stories of Goldman v. Weinberger: Religious Freedom Confronts Military Uniformity INTRODUCTION

O

n March 25, 1986, the United States Supreme Court handed down a 5-4 decision holding that Air Force regulations prohibiting Simcha Goldman from wearing a yarmulke while in uniform did not violate Goldman’s First Amendment right to the free exercise of religion.1 The Court’s majority opinion, which accepted the government’s assertion that allowing Goldman to wear a yarmulke would unduly upset important military interests, drew unusually harsh responses from both dissenting justices and legal scholars. For example, in a stinging dissenting opinion, Justice William Brennan characterized the majority’s position as no less than an “eva[sion of] its responsibility”2 and an ­“abdicat[ion of] its role as principal expositor of the Constitution and protector of individual liberties in favor of credulous deference to unsupported assertions of military necessity.”3  Scholarly reaction likewise offered little sympathy for the majority’s approach. Kent Greenawalt, one of the leading church-state theorists in the country, described the majority opinion as “both surprising and wholly unsatisfying from an intellectual point of view.”4 Writing in the Foreword to the Harvard Law Review, Frank Michelman referred to the Goldman decision as        

1 2 3 4

Goldman v. Weinberger, 475 U.S. 503 (1986). Id. at 515 (Brennan, J., dissenting). Id. at 514 (Brennan, J., dissenting). Kent Greenawalt, Religion and the Rehnquist Court, 99 Nw. U. L. Rev. 145, 148 (2004).

122

Section Seven    Legal History

an illustration of “the d­ iscriminatory potential of determinedly abstract law,”5 comparable to the Court’s infamous holding in Plessy v. Ferguson,6 which relied upon “sedulous abstraction from concrete experience” to conclude that ­“separate” could have seemed “equal.”7  On the basis of interviews, unpublished documents, and press reports, this chapter suggests that, upon closer examination, perhaps what stands out most about the events surrounding the Goldman decision is the untold story of the process, which differs in significant respects from the official version of both the facts of the case and the ensuing litigation. The official narrative c­ haracterizes the case as presenting a legal dispute between a Jewish airman who wants to wear his yarmulke during work and a commanding officer demanding strict adherence to military uniform protocol. However, as this chapter relates, the unofficial narrative demonstrates how much of the process was the result of more subtle factors that played a central role at each stage of the case, including personal animosity between parties and personal attitudes of judges, which seemed to drive the legal proceedings.

PART ONE | THE FACTS A. The Official Story As noted in the court opinions, for many years prior to the litigation, Goldman served in the military in a variety of capacities, wearing his yarmulke while in ­uniform, without incident.8 As an ordained rabbi who observed Orthodox Jewish religious practice, Goldman thereby complied with the religious ­obligation to keep his head covered at all times.9 Goldman’s military career began with service as a chaplain in the United States Navy from 1970 to 1972.10 In 1977, after completing a Ph.D. in clinical psychology through a military scholarship program, Goldman joined the United States Air Force as a captain, serving as a clinical psychologist at the Mental Health Clinic of the March Air Force Base Regional   5 Frank I. Michelman, The Supreme Court, 1985 Term—Foreword: Traces of Self-Government, 100 Harv. L. Rev. 4, 31 (1986).   6 163 U.S. 537 (1896).   7 Michelman, supra note 5, at 31.  8 Goldman v. Sec’y of Def., 734 F.2d 1531, 1532-33 (D.C. Cir. 1984).   9 Id. at 1532. 10 Id.

Untold Stories of Goldman v. Weinberger   Chapter 22

Hospital in Riverside, California.11 Throughout several years of service, Goldman covered his head with his service cap when outdoors and continued to wear his yarmulke indoors, without raising any concerns.12 In fact, Goldman received consistently outstanding evaluations from his superiors, including the category: “Professional qualities (Attitude, dress, cooperation, bearing).”13  However, on May 8, 1981, Goldman was called before Colonel Joseph Gregory, the hospital commander at the installation, who informed Goldman that wearing a yarmulke while on duty violated Air Force rules regulating ­headgear.14 Colonel Gregory ordered Goldman not to wear his yarmulke outside the hospital, and he later amended the order to prohibit Goldman from ­wearing his yarmulke inside the hospital as well.15 Colonel Gregory’s orders were prompted by a complaint filed by a military lawyer who had cross-­examined Goldman in a court-martial proceeding in which Goldman wore his yarmulke.16 When Goldman refused to comply with the orders, he received a letter of ­reprimand and was informed that he could face a court-martial.17 In addition, Colonel Gregory, who had previously recommended approval of Goldman’s application for extension of active service, instead submitted a negative recommendation.18 Goldman filed suit on the grounds that the orders violated his First Amendment rights to free exercise of religion.19

B. Goldman’s Story 1. Goldman’s Prior Military Service Although the Court of Appeals and the Supreme Court acknowledged that Goldman had worn his yarmulke for many years of service, without incident,20 the opinions did not tell the entire story. For example, during Goldman’s years as a chaplain in the navy, he was stationed at the Marine Corps Recruit Depot,

11 Id. at 1532‑33. 12 Id. at 1533. 13 Id. 14 Id. 15 Id. 16 See Goldman v. Weinberger, 475 U.S. 503, 505 (1986). 17 Id. 18 Id. 19 Id. at 506. 20 See id. at 505; Goldman v. Sec’y of Def., 734 F.2d 1531, 1532‑33 (D.C. Cir. 1984).

123

124

Section Seven    Legal History

Parris Island, South Carolina.21 The senior chaplain informed Goldman that Goldman’s commander had called and asked, “Who is the hippie walking around my command with the beanie on his head?” The chaplain explained that Goldman was a “Jewish rabbi” and that the head covering was “his way of telling God that he’s on duty.” The commander was satisfied with this explanation, responding, “Okay, just make sure he keeps his brass polished!”22  In fact, Goldman remained with the Marines for two years, and in this most disciplined of military environments, he never experienced any other expressions of concern about his yarmulke.23 In addition, during these years Goldman was photographed, in uniform and wearing his yarmulke, while standing alongside the Secretary of the Defense, Melvin Laird. Goldman, Secretary Laird, and two other individuals pictured with them, including the major general commanding the base, are all smiling broadly at the ­photographer or at one another.24 Thus, Goldman did not hesitate to wear his yarmulke in uniform when he reported for duty with the Air Force in 1977, and for more than three years at March Air Force Base, Goldman continued to serve with distinction, without receiving any negative attention because of his yarmulke.25  Given that for so many years, neither the Marine Corps commanders on Parris Island, nor the Secretary of Defense, nor the commanders at March Air Force Base considered Goldman’s yarmulke to be a threat to discipline or ­uniformity, it seems surprising that in 1981, the hospital commander suddenly raised such voluble concerns about Goldman’s wearing a yarmulke. Likewise, it seems difficult to understand why the United States government considered the matter so important that it litigated the case all the way to the United States Supreme Court. As in countless historical events, the answers to these basic questions may be found in the mundane, personal—and sometimes petty—decisions and responses of certain individuals who played crucial roles in the story.

2. The Origins of the Dispute As the Supreme Court’s majority opinion noted in passing, the dispute over Goldman’s yarmulke began in April 1981, after Goldman wore his yarmulke 21 Author’s Interview with Simcha Goldman, Los Angeles, California, May 4, 2008 [hereinafter Goldman Interview]. 22 Id. 23 Id. 24 Id. (photograph on file with author). 25 Id.

Untold Stories of Goldman v. Weinberger   Chapter 22

while testifying as a defense witness at a court-martial.26 In a concurring opinion, Justice Stevens suggested that the timing of the complaint against Goldman gave the Court “reason to believe that the policy of strict e­ nforcement against Captain Goldman had a retaliatory motive.”27 Again, however, although the justices briefly identified an important piece of the puzzle that gave rise to the Goldman case, the Court did not describe the whole story connecting Goldman’s testimony to the subsequent complaint about his yarmulke. This piece of the story actually began at a previous court-martial, in ­1980—a year before the proceeding referenced by the Supreme Court. At the earlier court-martial, Goldman testified as a defense witness, providing a psychological evaluation of the defendant.28 Goldman was cross-examined by the military prosecutor, Captain Bouchard,29 who asked whether Goldman had conducted psychological testing on the defendant.30 When Goldman responded that he had used the Minnesota Multiphase Personality Inventory (MMPI), Bouchard asked questions that were critical of the MMPI.31 Throughout his testimony, Goldman was dressed in his uniform and wore his yarmulke, without eliciting any protests or objections from Bouchard, the judges, or any of the other officers present at the hearing.32  One year later, Goldman again testified as a defense witness, this time in the court-martial referenced by the Supreme Court.33 Once again, Goldman wore both his uniform and his yarmulke, and he was questioned by the same prosecutor.34 In this case, Goldman testified that he had not found it necessary to conduct psychological testing.35 Bouchard then asked a question critical of Goldman’s decision not to use the MMPI, upsetting Goldman, who recalled that in the earlier proceeding, Bouchard had devalued the MMPI.36 From Goldman’s perspective, Bouchard was employing an intellectually dishonest strategy, adopting contradictory views of the MMPI, each time in an effort to raise 26 See Goldman v. Weinberger, 475 U.S. 503, 505 (1986). 27 Id. at 511 (Stevens, J., concurring). 28 Goldman Interview, supra note 21. 29 Id. 30 Id. 31 Id. 32 Id. 33 See supra notes 21‑22 and accompanying text. 34 Goldman Interview, supra note 21. 35 Id. 36 Id.

125

126

Section Seven    Legal History

doubts about Goldman’s methods and credibility.37 Goldman responded with a vague answer, prompting a further exchange in which Goldman commented on the irrelevance of the question, thereby causing Bouchard both frustration and embarrassment.38 It was only after this second encounter that Bouchard filed a complaint, objecting to Goldman’s wearing a yarmulke while in uniform.39  Notably, other Air Force lawyers had different perspectives regarding Goldman’s decision to wear his yarmulke while in uniform. For example, Captain James S. Cohen, the defense attorney who called Goldman as a mitigation witness in the 1981 court-martial, was not concerned by the fact that Goldman would testify while wearing a yarmulke.40 Cohen considered the yarmulke unobtrusive and, accordingly, he did not raise it as an issue in his conversations with Goldman.41 In fact, although Cohen was not involved in the subsequent proceedings against Goldman, had he been asked to do so, he later stated, he would have been willing to defend Goldman in the case.42  After the 1981 court-martial, Major Ronald J. Rakowsky, the senior law ­officer at the base, was consulted about whether it had been permissible for Goldman to wear his yarmulke in court.43 Rakowsky concluded, on the basis of his extensive knowledge, experience, and research on the subject, that the ­regulations did not provide an exception for wearing a yarmulke while in uniform.44 However, Rakowsky also recognized the important free exercise implications, and he understood that Goldman was asserting strong and sincere religious beliefs.45 In Rakowsky’s view, as he explained to Colonel Charles McDonald, the Wing Commander, the conflicting constitutional interests of military authority and religious liberty represented an instance of “an irresistible force versus an immovable object.”46 In light of the constitutional ­significance of the issue, Rakowsky strongly recommended that Goldman be issued a Letter of Reprimand, so that any ensuing litigation would be handled as a civil matter 37 Id. 38 Id. 39 Id. 40 Author’s Telephone Interview with James S. Cohen, Los Angeles, California to Santa Fe, New Mexico, May 27, 2010. 41 Id. 42 Id. 43 Author’s Telephone Interview with Ronald J. Rakowsky, Los Angeles, California to Greenwood Village, Colorado, May 26, 2010. 44 Id. 45 Id. 46 Id.

Untold Stories of Goldman v. Weinberger   Chapter 22

in United States District Court, rather than treated as a criminal matter subject to military justice.47 McDonald accepted his recommendation, and the case proceeded in federal court.48

3. Other Aspects of the Air Force’s Conduct Likewise, the official version of Goldman’s story, as depicted in the court ­opinions, does not include the dubious process some of the Air Force officers undertook to ascertain the significance of the yarmulke to Goldman’s religious faith. Colonel Gregory asked the base chaplain, a colonel who was not Jewish, to make an inquiry as to whether wearing a yarmulke constituted a religious obligation.49 Despite knowing that Goldman was a rabbi and had served as a navy chaplain, the base chaplain decided to contact the New York-based Jewish Welfare Board, an organization that acted as the ecclesiastical ­liaison for the military regarding matters of Jewish faith.50 However, rather than speaking with a rabbi at the Jewish Welfare Board, the base chaplain spoke with Dr. Diana Coran, who, he claimed, informed him that wearing a yarmulke was not a ­religious obligation.51 Disturbingly, in the process of consulting with Dr. Coran, the commanders not only deferred to the purported position of an individual who was not a rabbi, but they either misunderstood or intentionally misstated Dr. Coran’s response.52 As Dr. Coran later explained to Goldman, she had actually told the base chaplain that there is a Jewish religious obligation to cover one’s head at all times, but that the form of head covering need not be a yarmulke; for example, the obligation can be fulfilled by wearing a cap.53 Of course, because Goldman could not wear his military cap while indoors, he could satisfy his religious obligation only by wearing an item that was not part of his uniform, such as a yarmulke. Thus, the commanders relied on their own distorted interpretation of a statement, obtained from an individual who was not a rabbi, as a basis for denying Goldman, who is a rabbi, the right to exercise his religious obligation.54  47 Id. 48 Id. 49 Goldman Interview, supra note 21. 50 Id. 51 Id. 52 Id. 53 Id. 54 Id. Beyond the disconcerting process employed by these officials, the Air Force’s underlying assumption, that it had the authority to second-guess a religious adherent’s portrayal of religious obligations, contradicts a fundamental tenet of free exercise law. See Thomas v.

127

128

Section Seven    Legal History

Though also absent from the courts’ version of the story, other events illustrate the continuous insensitivity Goldman faced from his superiors. For example, amidst the controversy over his yarmulke, Goldman was c­ onducting a therapy session with eight or ten patients when he was interrupted by a knock on the door.55 Upon answering, Goldman was told that the base commander wanted to see him in connection with the yarmulke.56 Goldman sent back a message asking if the commander could wait one hour for the session to end, but the commander insisted that Goldman suspend the session and report immediately to receive an order to remove his yarmulke.57  After receiving the order to remove his yarmulke, Goldman requested an urgent meeting with the Vice Wing Commander, who served on the base as Inspector General and ombud.58 However, the Inspector General refused to speak with him, responding that Goldman was out of uniform because he was wearing a yarmulke.59 Of course, this charge, which originated with the military prosecutor and the base commander, was the matter Goldman wished to discuss. As an a­ lternative, Goldman suggested they meet outdoors where he could Review Bd. Ind. Employment Sec. Div., 450 U.S. 707 (1981); Richard W. Garnett, Assimilation, Toleration, and the State’s Interest in the Development of Religious Doctrine, 51 UCLA L. Rev. 1645 (2004); Jared A. Goldstein, Is There a “Religious Question” Doctrine? Judicial Authority to Examine Religious Practices and Beliefs, 54 Cath. U. L. Rev. 497, 497 (2005); Kent Greenawalt, Hands Off! Civil Court Involvement in Conflicts over Religious Property, 98 Colum. L. Rev. 1843, 1844 (1998); Samuel J. Levine, A Critique of Hobby Lobby and the Supreme Court’s HandsOff Approach to Religion, 91 Notre Dame L. Rev. Online (2015); Samuel J. Levine, HosannaTabor and Supreme Court Precedent: An Analysis of the Ministerial Exception in the Context of the Supreme Court’s Hands-Off Approach to Religious Doctrine, 106 Nw. U. L. Rev. Colloquy 120 (2011); Samuel J. Levine, Recent Applications of the Supreme Court’s Hands-Off Approach to Religious Doctrine: From Hosanna-Tabor and Holt to Hobby Lobby and Zubik, in Law, Religion, and Health in the United States 75 (Holly Fernandez Lynch, I. Glenn Cohen, & Elizabeth Sepper, eds., Cambridge University Press) (2017); Samuel J. Levine, Rethinking the Supreme Court’s Hands-Off Approach to Questions of Religious Practice and Belief, 25 Fordham Urb. L.J. 85 (1997); Samuel J. Levine, The Supreme Court’s Hands-Off Approach to Religious Doctrine: An Introduction, 84 Notre Dame L. Rev. 793 (2009); Christopher C. Lund, Rethinking the “Religious Question” Doctrine, 41 Pepp. L. Rev. 1013 (2014); Symposium, The Supreme Court’s Hands-Off Approach to Religious Doctrine, 84 Notre Dame L. Rev. 793 (2009). Nevertheless, throughout the litigation process, the government would repeatedly challenge the validity of Goldman’s claim that his religious faith required him to cover his head at all times. See infra text accompanying notes 67-68, 80-83, 133-150. 55 Goldman Interview, supra note 21. 56 Id. 57 Id. 58 Id. 59 Id.

Untold Stories of Goldman v. Weinberger   Chapter 22

cover his head with his military cap.60 The Inspector General refused, thus leaving Goldman with no option but to seek the courts’ protection.61 Accordingly, Goldman filed a motion for a Temporary Restraining Order [TRO] to enjoin the Air Force from enforcing the order that he remove his yarmulke while in uniform.62

PART TWO | THE LITIGATION Throughout the litigation, Goldman was represented by a team of passionate lawyers led by Nathan Lewin, a prominent advocate of religious rights who took on the case pro bono.63 The official story of the litigation, captured in the case law, provides a notable and often compelling study of varying judicial responses to the free exercise arguments that were asserted by Lewin and other ­lawyers on behalf of a member of a religious minority serving in the military.64 Yet again, however, the official story does not convey the extent to which the fate of Goldman’s claims turned on personal attitudes, often influenced by non-legal considerations— and some of which directly contradicted important principles in free exercise law.

A. The Official Story 1. The District Court On July 2, 1981, Goldman’s motion for a TRO came before Judge Aubrey Robinson, Jr., in the United States District Court for the District of Columbia.65 Following a hearing, Judge Robinson granted Goldman’s motion, and on July 10, he granted Goldman’s subsequent motion for a Preliminary Injunction enjoining the Air Force from prohibiting Goldman to wear a yarmulke while in uniform.66 In his opinion, Judge Robinson declared unequivocally that “[c]onsistent with the requirements of Orthodox Jewish practice, [Goldman] wears a skull cap, or 60 Id. 61 Id. 62 See Goldman v. Sec’y of Def., 734 F.2d 1531, 1533 (D.C. Cir. 1984). 63 See http://lewinlewin.com/Attorneys.html 64 See Goldman v. Weinberger, 475 U.S. 503 (1986); Goldman v. Sec’y of Def., 739 F.2d 657, 658 (D.C. Cir. 1984); Goldman v. Sec’y of Def., 734 F.2d 1531 (D.C. Cir. 1984); Goldman v. Sec’y of Def., 1982 WL 311 (D.D.C. Apr. 26, 1982); Goldman v. Sec’y of Def., 530 F. Supp. 12 (D.D.C. 1981). 65 See Goldman v. Sec’y of Def., 530 F. Supp. 12 (D.D.C. 1981). 66 Id. at 17.

129

130

Section Seven    Legal History

yarmulke, at all times.”67 Accordingly, he forcefully explained, “[t]here can be no doubt [Goldman’s] insistence on wearing a yarmulke is motivated by his religious convictions, and is therefore entitled to First Amendment protections.”68 To be sure, Judge Robinson acknowledged that courts should show a measure of deference to the military’s authority to impose uniformity.69 Moreover, the opinion quoted extensive sections of an affidavit submitted by Major General Herbert L. Emanuel, “impl[ying] that permitting [Goldman] to wear his yarmulke will crush the spirit of uniformity, which in turn will weaken the will and fighting ability of the Air Force.”70 Nevertheless, Judge Robinson ruled in Goldman’s favor, deeming the Air Force’s allegations “unlikely” and emphasizing that “deference” to the military “cannot and does not permit a court to abdicate its constitutional responsibilities” to protect free exercise rights.71  The court then conducted a trial on the merits of the case, and on April 26, 1982, Judge Robinson issued a decision.72 Again, he stated in no uncertain terms that “[t]he wearing of a yarmulke by a Jewish male is a practice which falls within the ambit of the free exercise clause of the First Amendment to the United States Constitution.”73 The Air Force’s position, set forth at trial by Major General William P. Usher, was that “discipline, esprit de corps, motivation, teamwork and image would be injured by allowing a religious exception for the wearing of yarmulkes.”74 However, as Judge Robinson observed, these conclusions were not the result of empirical or psychological studies. Instead, he found, they were based on “the personal beliefs and assumptions of Air Force officials” and were therefore “inadequate to withstand constitutional scrutiny.”75 Thus, Judge Robinson permanently enjoined the Air Force from enforcing the order banning Goldman from wearing a yarmulke while in uniform.76

2. The Court of Appeals The government appealed Judge Robinson’s ruling, and on March 22, 1983, the case was argued in front of the United States Court of Appeals for the District 67 Id. at 13. 68 Id. at 16. 69 Id. at 15‑16. 70 Id. at 16. 71 Id. at 14, 16. 72 See Goldman v. Sec’y of Def., 1982 WL 311 (D.D.C. Apr. 26, 1982). 73 Id. at 3. 74 Id. at 4. 75 Id. 76 Id.

Untold Stories of Goldman v. Weinberger   Chapter 22

of Columbia Circuit.77 The three-judge panel that heard the case consisted of two eminent D.C. Circuit Judges, Abner Mikva and Harry Edwards, as well as Judge Luther Swygert, a Senior Judge on the Seventh Circuit Court of Appeals, sitting by designation.78 More than one year later, on March 8, 1984, the court issued a unanimous decision, in an opinion written by Judge Swygert.79 The court’s opinion both reversed Judge Robinson’s decision and, in some ways, inverted Judge Robinson’s conclusions. Like Judge Robinson, the appellate court rejected the Air Force’s assertion that “no free exercise interest is at stake.”80 The Air Force’s claim was premised on the assumption that “Jewish law does not require the covering of the head during work,” purportedly corroborated by “Goldman’s own admission that some Orthodox Jews do not feel obliged to cover their heads at all times.”81 As the appeals court explained, this line of reasoning ran afoul of the Supreme Court’s rule that “practices based on religious conviction, even if not universally followed, are protected by the free exercise clause.”82 In short, the court held, “[i]t is undisputable that covering his head is a protected part of Goldman’s exercise of his religion.”83  In addition, the appeals court rejected as “unpersuasive” one of the Air Force’s ostensible justifications for its inflexible ban on all religious headgear. At trial, General Usher had testified that “an unauthorized hat worn on a flight line might fly into a jet engine and cause it to malfunction and explode.”84 The court responded plainly, “We have no doubt that more narrowly drawn regulations, accommodating religious practices to a greater degree, would satisfy such safety concerns.”85 As to any danger allegedly posed by Goldman’s yarmulke, the court offered the understated conclusion that “there is no indication that safety within the Mental Health Clinic was threatened.”86 The court likewise characterized as “weak” the Air Force’s argument that “it cannot reasonably distinguish among various religious practices” and therefore “must either allow or disallow all requested exceptions.”87  77 See Goldman v. Sec’y of Def., 734 F.2d 1531 (D.C. Cir. 1984). 78 See id. 79 See id. 80 Id. at 1537. 81 Id. 82 Id. (citing Thomas v. Review Bd. Ind. Employment Sec. Div., 450 U.S. 707 (1981)). 83 Id. 84 Id. at 1539. 85 Id. 86 Id. 87 Id.

131

132

Section Seven    Legal History

Nevertheless, the Court of Appeals held that “the peculiar nature of the Air Force’s interest in uniformity renders the strict enforcement of its regulation permissible.”88 The court accepted the Air Force’s argument that any exceptions for religious practice would “incur[ ] resentment from those who are compelled to adhere to the rules strictly . . ., thereby undermining the goals of teamwork, motivation, discipline, and the like . . . .”89 In short, as the court noted, the Air Force “conclude[d] that strict enforcement of its regulations [was] necessary for its military purposes.”90 Unlike Judge Robinson, who insisted that courts have the obligation to consider the plausibility of the military’s claim, the Court of Appeals declared nearly categorically that “the Air Force’s judgment on this issue is entitled to deference because it is within its expertise and outside ours.”91  In response to the Court of Appeals’ decision, Goldman filed a motion for rehearing en banc.92 Although the court denied the motion,93 three d­ istinguished judges voted in favor of a rehearing, future Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia, and Kenneth Starr, future Solicitor General and later Dean of Pepperdine Law School.94 Judge Starr filed a powerfully argued and eloquently written dissenting opinion,95 recounting the years of Goldman’s distinguished service, during which he “followed uneventfully the dictates of his conscience by wearing the traditional yarmulke, a symbol of his faith whose roots are as deep and venerable as Western civilization itself.”96 While ­acknowledging the military’s interest in uniformity, Judge Starr emphasized the significance of the yarmulke as “a symbol of a great faith from which Western morality and the Judeo-Christian tradition have arisen.”97 In light of the military’s insistence on adherence to an “admittedly arbitrary rule,” Judge Starr found the Air Force’s treatment of Goldman “patently unconscionable.”98 Thus, he concluded forcefully, the court’s holding in the case “does considerable violence to the bulwark of freedoms guaranteed by the Free Exercise Clause.”99  88 Id. at 1540. 89 Id. 90 Id. 91 Id. 92 See Goldman v. Sec’y of Def., 739 F.2d 657 (D.C. Cir. 1984). 93 See id. 94 See id. at 658 (Starr, J., dissenting); id. at 660 (Ginsburg, J., dissenting). 95 See id. at 658 (Starr, J., dissenting). 96 Id. 97 Id. 98 Id. at 659 (emphasis in original). 99 Id. at 658.

Untold Stories of Goldman v. Weinberger   Chapter 22

Separately, Judge Ginsburg, joined by Judge Scalia, filed a brief d­ issenting opinion, likewise emphasizing Goldman’s years of honorable service and referring to the military’s position as “[a]t the least, . . . ‘callous indifference’” and “counter to ‘the best of our traditions’ to ‘accommodate . . . the public service to the[ ] spiritual needs [of our people].’”100 Thus, she reasoned, the court “should measure the command suddenly and lately championed by the ­military against the restraint imposed even on an armed forces commander by the Free Exercise Clause of the First Amendment.”101

3. The Supreme Court Finally, Goldman appealed the case to the United States Supreme Court, which heard oral argument on January 14, 1986.102 On March 25, 1986, the Court handed down a split decision, which included a majority opinion representing the view of five justices, a concurring opinion of three of those justices, and three separate dissenting opinions issued among the remaining four justices.103 Justice Rehnquist, who would soon be elevated to Chief Justice, wrote a relatively brief majority opinion, emphasizing that “[o]ur review of military ­regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society.”104 In response to Goldman’s assertion that a religious apparel exception would actually increase morale rather than undermine discipline, the Court deferred to the “considered professional judgment” of “the ­appropriate ­military officials” regarding the “desirability of dress regulations in the military.”105 Although the Court conceded that not allowing such exceptions would likely render military life more “objectionable” to some religious ­adherents, the Court ruled that the First Amendment did not require these accommodations.106  Justice Stevens’ concurring opinion, joined by Justices White and Powell, acknowledged that Goldman “present[ed] an especially attractive case for an exception from the uniform regulations.”107 Citing Judge Starr’s opinion, Justice 100 Id. at 660 (Ginsburg, J., dissenting) (citing Zorach v. Clauson, 343 U.S. 306 (1952)) (alterations in original); cf. Braunfeld v. Braun, 366 U.S. 599, 616 (1961) (Stewart, J., dissenting). 101 Id. at 660 (Ginsburg, J., dissenting). 102 See Goldman v. Weinberger, 475 U.S. 503 (1986). 103 See id; id. at 510 (Stevens, J., concurring); id. at 513 (Brennan, J., dissenting); id. at 524 (Blackmun, J., dissenting); id. at 528 (O’Connor, J. dissenting). 104 Id. at 507. 105 Id. at 508‑09. 106 Id. at 509. 107 Id. at 510 (Stevens, J., concurring).

133

134

Section Seven    Legal History

Stevens added that the yarmulke “may evoke the deepest respect and admiration—the symbol of a distinguished tradition and an eloquent rebuke to the ugliness of anti-Semitism.”108 Nevertheless, Justice Stevens supported the Air Force policy as a method of enforcing uniform treatment of all ­religions.109  Justice Brennan, joined by Justice Marshall, filed a sharply worded and ­vigorously reasoned dissenting opinion, nearly twice the length of the Court’s majority opinion and underlined with a deep sense of empathy for the predicament in which the military had placed Goldman.110 The opening lines of Justice Brennan’s opinion frame the issue from Goldman’s perspective,111 describing him as “invok[ing] this Court’s protection of his First Amendment right to fulfill one of the traditional religious obligations of a male Orthodox Jew—to cover his head before an omnipresent God.”112 In Justice Brennan’s view, the Court “abdicate[d] its role as principal expositor of the Constitution and protector of individual liberties in favor of a credulous deference to unsupported assertions of military necessity.”113 Indeed, he accused the majority of “overlook[ing] the sincere and serious nature of [Goldman’s] constitutional claim” and “attempt[ing], unsuccessfully, to minimize the burden that was placed on Dr. Goldman’s rights.”114 Noting the majority’s characterization of the Air Force regulation as merely “objectionable” to Goldman, Justice Brennan emphasized that, in fact, Goldman “was asked to violate the tenets of his faith virtually every minute of every workday.”115  As to the substance of the majority’s analysis, Justice Brennan was no less critical, stating that the Court “evade[d] its responsibility by eliminating, in all but name only, judicial review of military regulations that interfere with the fundamental constitutional rights of service personnel.”116 In other words, the 108 Id. (Stevens, J., concurring). 109 Id. (Stevens, J., concurring). 110 See id. at 513 (Brennan, J., dissenting). 111 See Samuel J. Levine, A Look at the Establishment Clause Through the Prism of Religious Perspectives: Religious Majorities, Religious Minorities, and Nonbelievers, 87 Chi.-Kent L. Rev. 775 (2012); Thomas L. Berg, Minority Religions and the Religion Clauses, 82 Wash. U. L.Q. 919 (2004); Stephen M. Feldman, Religious Minorities and the First Amendment: The History, the Doctrine, and the Future, 6 U. Pa. J. Const. L. 222 (2003); Samuel J. Levine, Toward A Religious Minority Voice: A Look at Free Exercise Law Through a Religious Minority Perspective, 5 Wm. & Mary Bill Rts. J. 153 (1996). 112 Goldman, 475 U.S. at 513 (1986) (Brennan, J., dissenting). 113 Id. at 514 (Brennan, J., dissenting). 114 Id. (Brennan, J., dissenting). 115 Id. (Brennan, J., dissenting). 116 Id. at 515 (Brennan, J., dissenting).

Untold Stories of Goldman v. Weinberger   Chapter 22

Court “eschew[ed] its constitutionally mandated role.”117 Given the ­majority’s line of reasoning, Justice Brennan inferred, “[i]f a branch of the military declares one of its rules sufficiently important to outweigh a service person’s constitutional rights, it seems that the Court will accept that conclusion, no matter how absurd or unsupported it may be.”118  Addressing the military’s claims directly, Justice Brennan barely contained his incredulity, facetiously restating the logic of the military’s argument: [D]iscipline is jeopardized whenever exceptions to military regulations are granted. Service personnel must be trained to obey even the most arbitrary command reflexively. Non-Jewish personnel will perceive the wearing of a yarmulke by an Orthodox Jew as an unauthorized departure from the rules and will begin to question the principle of unswerving obedience. Thus shall our fighting forces slip down the treacherous slope toward unkempt appearance, anarchy, and, ultimately, defeat at the hands of our enemies.119

In short, Justice Brennan found that the Air Force’s contention “surpasse[d] belief.”120 Justice Brennan closed his opinion with an eloquent testament to the vital need for the Court to ensure that the military protect the rights of religious minorities: The military, with its strong ethic of conformity and unquestioning obedience, may be particularly impervious to minority needs and values. A critical function of the Religion Clauses of the First Amendment is to protect the rights of members of minority religions against quiet erosion by majoritarian social institutions that dismiss minority beliefs and practices as unimportant, because unfamiliar. It is the constitutional role of this Court to ensure that this purpose of the First Amendment be realized. The Court and the military services have presented patriotic Orthodox Jews with a painful dilemma—the choice between fulfilling a religious obligation and serving their country. Should the draft be reinstated, compulsion will replace choice. Although the pain the services inflict on Orthodox Jewish servicemen is clearly the result of insensitivity rather than design, it 117 118 119 120

Id. (Brennan, J., dissenting). Id. (Brennan, J., dissenting). Id. at 516‑17 (Brennan, J., dissenting). Id. at 517 (Brennan, J., dissenting).

135

136

Section Seven    Legal History is unworthy of our military because it is unnecessary. The Court and the military have refused these servicemen their constitutional rights.121

B. The Unofficial Story 1. Perspectives of Judge Robinson and Judge Starr In addition to Judge Robinson’s written opinion, which plainly rejected the military’s arguments, the press reports of the courtroom proceedings dramatically illustrate the extent to which Judge Robinson disapproved of the Air Force’s claims.122 In a sharply worded exchange with Royce C. Lamberth— then Assistant United States Attorney and later Chief Judge of the Court of Appeals for the District of Columbia—Judge Robinson pointedly asked, “Is March Air Force Base going to blow up because this man continues to wear his yarmulke?”123 Lamberth could only reply, “Obviously, the base isn’t going to blow up, your honor.”124 Judge Robinson continued, “And there aren’t going to be any riots, are there?”125 When Lamberth again responded, “No, your honor,” Judge Robinson retorted, “Not unless the commanding officer starts them.”126  Similarly, Judge Starr’s dissenting opinion takes on even greater significance when viewed in broader context. Although Judge Starr had been on the 121 Id. at 524 (Brennan, J., dissenting). Justice Blackmun’s dissent struck a similar note: If the Free Exercise Clause of the First Amendment means anything, it must mean that an individual’s desire to follow his or her faith is not simply another personal preference, to be accommodated by government when convenience allows. Nor may free exercise rights be compromised simply because the military says they must be. The Air Force has failed to produce even a minimally credible explanation for its refusal to allow Goldman to keep his head covered indoors. I agree with the Court that deference is due the considered judgment of military professionals that, as a general matter, standardized dress serves to promote discipline and esprit de corps. But Goldman’s modest supplement to the Air Force uniform clearly poses by itself no threat to the Nation’s military readiness. Id. at 525 (Blackmun, J., dissenting). 122 See AP Report, July 11, 1981 (on file with author). 123 Id. 124 Id. 125 Id. 126 Id.

Untold Stories of Goldman v. Weinberger   Chapter 22

Court of Appeals for less than one year when Goldman filed his motion for rehearing, he forcefully disagreed with the view of eight of his ten colleagues on the court.127 Moreover, unlike Judges Ginsburg and Scalia, who issued a brief dissenting ­opinion calling on the court to take a closer look at the case,128 Judge Starr wrote a stirring and powerful critique of the decision rendered just months earlier by two of his most distinguished colleagues, Judges Mikva and Edwards.129 Indeed, responding to the tone and language employed by Judge Starr, one Justice Department official dismissed his opinion as an “emotional rant.”130 In contrast, Starr later described the opinion as an expression of his strongly held position that the Free Exercise Clause requires the government to accommodate religion.131 In addition, he viewed his willingness to disagree with his colleagues on the court as reflecting his understanding of the judge’s duty to exercise i­ ndependent judgment on cases and controversies.132

2. The Government’s Strategy Throughout the litigation, the government repeatedly questioned whether Goldman’s wearing a yarmulke qualified as constitutionally protected ­religious exercise. In a pre-trial deposition, an opposing lawyer asked Goldman about the fact that Nathan Lewin, who was representing Goldman in the case, observed Jewish religious practice but was not wearing a yarmulke.133 Goldman responded that some devout Orthodox Jewish individuals do not wear yarmulkes when engaged in their professional work.134 The question aimed to imply that if another Orthodox Jewish individual did not wear a yarmulke at all times, then Goldman could not have a religious obligation to wear a yarmulke while in uniform. However, as the Court of Appeals later emphasized, Supreme Court ­doctrine accepts the religious understanding and practices asserted by the plaintiff, not those adopted by other members of the plaintiff ’s religious community.135 Nevertheless, the Court of Appeals ruled in favor of the Air Force, surprising even the Justice Department’s lawyer, who had wondered aloud whether 127 See Goldman v. Sec’y of Def., 739 F.2d 657, 658 (D.C. Cir. 1984) (Starr, J., dissenting). 128 See id. at 660 (Ginsburg, J., dissenting). 129 See Goldman v. Sec’y of Def., 734 F.2d 1531 (D.C. Cir. 1984). 130 Author’s Interview with Kenneth Starr, Dean, Pepperdine Law School, Malibu, California, June 13, 2008 [hereinafter Starr Interview]. 131 Id. 132 Id. 133 Goldman Interview, supra note 21. 134 Id. 135 Goldman v. Sec’y of Def., 734 F.2d 1531, 1537 n.8 (D.C. Cir. 1984). See supra note 57.

137

138

Section Seven    Legal History

it was worthwhile to argue the military’s appeal before a panel that consisted of such liberal judges as Abner Mikva and Harry Edwards.136 Indeed, Judge Mikva later remarked to Judge Starr that the judicial views expressed in the Goldman case demonstrate that judges should not be pigeonholed.137 Years later, Lewin asked Mikva about the basis for the court’s unexpected decision.138 Mikva recalled that because he was Jewish, following oral argument the other two judges asked for his estimation of the religious significance of wearing a yarmulke.139 Mikva responded that the yarmulke was “not that important,” thus contributing to an attitude among the panel that minimized the value of Goldman’s religious claim.140  When the case reached the Supreme Court, the government continued to maintain the position that Goldman was not engaging in a religious ­practice required under Jewish law. In its brief to the Supreme Court, the government referred to wearing a yarmulke as “a custom followed by some, but not all, devout Orthodox Jewish males . . . .”141 In a footnote, the government further asserted that “[a]lthough [Goldman’s] brief suggests that the wearing of a yarmulke is required by Jewish law . . . authorities introduced in the district court clearly demonstrate otherwise.”142 It seems odd for the government to make such a strong statement regarding a matter of complex religious interpretation, directly contradicting the religious opinion offered by Goldman, who is a rabbi. Moreover, the government’s argument again betrayed a disregard for a basic element of free exercise jurisprudence, which requires that the court accept a plaintiff ’s understanding of religious practice.143 The government’s line of reasoning proved to be of considerable concern for at least one of the justices. At the very start of her oral argument before the Supreme Court, Kathryn Oberly, the Assistant Solicitor General, was interrupted with the direct question, “Are you still adhering to footnote four?”144 Oberly responded, “As to whether the yarmulke is required? Yes, it’s our 136 Author’s Telephone Interview with Nathan Lewin, Partner, Lewin & Lewin, LLP, Los Angeles, California to Washington, D.C., Sept. 23, 2008 [hereinafter Lewin Interview]. 137 Starr Interview, supra note 130. 138 Lewin Interview, supra note 136. 139 Id. 140 Id. 141 Brief for Respondents at 12, Goldman v. Weinberger, 475 U.S. 503 (1986) (No. 84‑1097). 142 Id. at 6 & n.4. 143 See supra note 54. 144 Transcript of Oral Argument at 24-25, Goldman v. Weinberger, 475 U.S. 503 (1986) (No. 84‑1097).

Untold Stories of Goldman v. Weinberger   Chapter 22

position . . . that although it is a strong, well-established practice and ­tradition of devout Orthodox Jewish males to wear a yarmulke, it is not a requirement of Jewish law.”145 Although Oberly also acknowledged that Goldman’s “interpretation of what he should do as a devout Orthodox Jew is wear a yarmulke, and we are willing to accept that as a sincere religious belief on his part,” she nevertheless insisted that “it’s not at all irrelevant for the Court to take cognizance of the fact that . . . it’s not required by the laws of his religion and . . . Jewish rabbinical authorities agree with that.”146  The Supreme Court’s majority opinion does not reference this exchange; indeed, the opinion is noticeably silent regarding the religious significance of the yarmulke. Instead, as Justice Brennan observed, the majority characterized the military’s prohibition on wearing a yarmulke as merely “objectionable” for Goldman.147 In contrast, Justice Brennan’s dissenting opinion opened with an unequivocal reference to Goldman’s “First Amendment right to fulfill one of the traditional religious obligations of a male Orthodox Jew—to cover his head before an omnipresent God.”148 In fact, Justice Brennan accused the majority of “attempt[ing], unsuccessfully, to minimize the burden that was placed on Dr. Goldman’s rights.”149 As Justice Brennan explained, the Air Force’s policy “sets up an almost absolute bar to the fulfillment of a religious duty[,]” requiring that Goldman “violate the tenets of his faith virtually every minute of every workday.”150

CONCLUSION: LOOKING BACK AT THE CASE—QUESTIONS THAT REMAIN In retrospect, it remains somewhat difficult to understand the attitudes motivating the military, the government lawyers, and the courts that ruled against Goldman. As it turned out, the legal effect of the Supreme Court’s decision in the Goldman case was short lived, as soon thereafter, Congress enacted legislation accommodating unobtrusive religious apparel in the military.151 

145 146 147 148 149 150 151

Id. at 25. Id. at 26. Goldman v. Weinberger, 475 U.S. 503, 514 (1986) (Brennan, J., dissenting). Id. at 513 (Brennan, J., dissenting). Id. at 514 (Brennan, J., dissenting). Id. (Brennan, J., dissenting). See 10 U.S.C.§ 774. See generally Dwight Sullivan, The Congressional Response to Goldman v. Weinberger, 121 Mil. L. Rev. 125 (1988).

139

140

Section Seven    Legal History

From the outset of the case, the dispute surprised Goldman, who had worn his yarmulke through years of distinguished military service without incident. Likewise, when the base commander supported the prosecutor’s complaint and ordered Goldman not to wear his yarmulke while in uniform, Lewin thought the order represented an outlandish policy issued by a single commander, and he approached the general counsel at the Pentagon to try to settle the matter.152 To Lewin’s surprise, however, the Department of Defense did not agree with his assessment, and instead decided to litigate the case.153 When Judge Robinson ruled in favor of Goldman, expressing similar outrage toward the base commander, Lewin expected the government to concede, and he was further surprised when the government appealed the decision.154  Goldman remains both puzzled and upset by the military’s focus on his minor and seemingly inconsequential departure from uniform, given the prominent and sometimes routine acceptance of more significant violations of standards governing military uniforms and procedure.155 In one particularly egregious example, just months after Goldman was ordered not to wear his yarmulke while in uniform—ostensibly because it detracted from the sense of discipline and uniformity in the Air Force—the entire front page of The Beacon, the unofficial newspaper at March Air Force base, was dedicated to a story headlined: “BUSY BREWER team smashes on-time record.”156 The story boasted of the success of B-52 Bomber aircrews from March, who flew NATO exercises from a base in the United Kingdom under conditions that “closely simulated a war-time deployed detachment.”157 Among other details of the mission, the article recounted that “[t]he crew chiefs were led by MSgt. Walter Monk, who’s [sic] lucky green and white garter adorned his left arm for every launch.”158  To this day, Goldman continues to ask the obvious questions: Why was the Air Force so opposed to his wearing a yarmulke?159 Why was the government so focused on Goldman’s case, to the extent that it litigated the matter all the way to the United States Supreme Court?160 Finally, how could the Air 152 Lewin Interview, supra note 136. 153 Id. 154 Id. 155 Goldman Interview, supra note 21. 156 See Busy Brewer: Team Smashes On-Time Record, The Beacon, Oct. 16, 1981, at 1 (on file with author). 157 Id. at 6. 158 Id. 159 Goldman Interview, supra note 21. 160 Id.

Untold Stories of Goldman v. Weinberger   Chapter 22

Force justify permitting the crew chief of a major NATO exercise, flying B-52 bombers over Europe, to wear a flamboyant green and white garter as a sign of luck, while refusing to allow Goldman to wear a yarmulke, an expression of religious modesty and commitment, while serving as clinical psychologist at a military hospital in California?161 These questions seem to defy simple answers, and instead warrant careful and ongoing reflection, not only because of their historical significance, but also because of the lessons they may provide for current and continuing issues of religious accommodation in the military.162

161 Id. One additional event connected with Goldman’s case raises further questions of its own. Congressman Stephen Solarz, who was the driving force behind legislation responding to the Supreme Court’s decision, see Sullivan, supra note 151, at 135‑36, later recalled the remark made by one of the generals the Pentagon sent to address the bill. According to the general, “the Pentagon attached more importance to the defeat of the legislation” authorizing religious apparel “than to approval of the MX missile,” a crucial military defense system. Author’s Telephone Interview with Stephen Solarz, Los Angeles, California to McLean, Virginia, June 4, 2009. 162 See, e.g., Brief of Dr. S. Simcha Goldman as Amicus Curiae in Support of Petitioner, Sterling v. United States, 137 S. Ct. 2212 (2017).

141

CHAPTER 23

Richard Posner Meets Reb Chaim of Brisk: A Comparative Study in the Founding of Legal Intellectual Movements INTRODUCTION

O

f the various movements that have surfaced in American legal theory in recent decades, law and economics has emerged as perhaps the most influential, leading some to characterize it as the dominant contemporary mode of analysis among American legal scholars.1 This chapter considers law and economics in the context of a comparative discussion of another prominent legal intellectual movement, the Brisker method of Talmudic analysis, which originated in Eastern Europe in the late nineteenth century.  

  1 See, e.g., Richard A. Posner, Economic Analysis of Law xix (2003) (declaring that law and economics is the “foremost interdisciplinary field of legal studies”). See also Anthony T. Kronman, The Second Driker Forum for Excellence in the Law, 42 Wayne L. Rev. 115, 160 (1995) (referring to law and economics as “an enormous enlivening force in American legal thought” that “continues and remains the single most influential jurisprudential school in the country”). The degree and nature of success achieved by law and economics compare favorably with those achieved by other intellectual movements, such as critical legal studies, see infra notes 88-100 and accompanying text, and law and literature. See Kenji Yoshino, The City and the Poet, 114 Yale L.J. 1835, 1836 & n.6 (2005) (observing that “[a]lthough law and literature is a contemporary of law and economics, and arguably a response to it, scholarship in law and literature lags far behind that in law and economics” and that “‘law and economics’ has been cited six to eight times as often as ‘law and literature’ in recent law review articles”).

Richard Posner Meets Reb Chaim of Brisk    Chapter 23

The Brisker method2 takes its name from the city of Brisk,3 home to the movement’s founder, Rabbi Chaim Soloveitchik. In his innovative lectures and posthumously published writings,4 “Reb Chaim” developed a highly original model that quickly emerged as the predominant form of academic study of Jewish law.5 The method’s primary features include an emphasis on precise definition and classification of legal concepts, often formulated through the framework of underlying dichotomies. As a result, some contemporary scholars have characterized the method as “scientific,”6 “conceptual,”7 and “analytic.”8  Although the field of law and economics does not lend itself either to neat demarcations of a time and place of origin, or to the identification of a single founder, for the purposes of this chapter it may be fitting to a­ ssociate the movement with the theories of the “Chicago school” and to focus on the approach and contributions of its leading academic proponent, Richard Posner.9 Economics is, as defined by Posner, “the science of rational choice in   2 The term “Brisker method” is a translation of “der Brisker derech.” An alternate phrase, “der Litvishe derech,” references more broadly the Lithuanian origins of the method. See Chaim Leib Balgley, Remembering Reb Chaim Brisker, in The Torah Personality 31 (Nisson Wolpin ed., 1980).   3 “Brisk” is an English version of “Bresc,” the name commonly used by the Jewish community to refer to the city of Brest-Litovsk. See 4 Encyclopedia Judaica 1359-63 (1971).   4 Reb Chaim lived from 1853 to 1918. His essays on Maimonides’ Mishne Torah were published in 1936, and many of his novellae on Talmudic tractates have since been published as well. See 15 Encyclopedia Judaica 130 (1971).   5 It should be noted that although Reb Chaim’s method may accurately be deemed the dominant contemporary mode of Talmudic analysis, its primacy has largely been limited to Talmudic academies tracing their origins to Lithuanian Jewish communities. In other academies, including those associated with Sephardic and Chassidic communities, alternative methods of analysis continue to prevail. See 1 Rabbi Aharon Lichtenstein, Leaves of Faith: The World of Jewish Learning 40-41 (2003). Moreover, while clearly influenced by Reb Chaim’s method, other scholars have taken the conceptual approach in different directions. See id. at 41, 55. Cf. Norman Solomon, The Analytic Movement: Hayyim Soloveitchik and His Circle 47‑82 (1993).   6 See, e.g., Moshe Lichtenstein, “What” Hath Brisk Wrought: The Brisker Derekh Revisited, 9 The Torah u-Madda J. 1, 3‑4 (2000); Rabbi Joseph B. Soloveitchik, Halakhic Man (Lawrence Kaplan trans., 1983) (originally published in Hebrew as Ish ha-Halakhah, in 1 Talpiot 3‑4 (1944)).   7 See, e.g., Yitzchak Adler, Lomdus: A Substructural Analysis vi-ix (1989); Lichtenstein, supra note 5, at 34-35; Chaim Saiman, Legal Theology: The Turn to Conceptualism in Nineteenth Century Jewish Law, 21 J. L. & Religion 39, 70‑72 (2005‑2006).   8 See, e.g., Solomon, supra note 5, at 49.   9 Posner was recognized at the 1991 inaugural meeting of the American Law and Economics Association as one of the four founders of the law and economics movement. See Nicholas Mercuro & Steven G. Medema, Economics and the Law: From Posner to Post-Modernism 193 n.1 (1997); Francesco Parisi, Palgrave on Law and Economics: A Review Essay, 20 Int’l Rev. L. & Econ. 395, 397-98 (2000). For an overview of the Chicago school and its place in the intellectual history of law and economics, see Mercuro & Medema, supra, at 51‑83.

143

144

Section Seven    Legal History

the world—our world—in which resources are limited in relation to human wants.”10 Thus, he explains, “[t]he task of economics . . . is to explore the implications of assuming that [a person] is a rational maximizer of [one’s] ends in life, [one’s] satisfactions . . . [one’s] ‘self-interest.’”11 Accordingly, economic analysis of law provides a conceptual framework for the application of the p­ rinciples of economics in the context of legal issues. This chapter aims to explore some of the common elements of law and economics and the Brisker method that have contributed to their success as intellectual movements.12 Toward that end, the chapter examines some of the essential characteristics of these movements, finding a number of similarities among them.13 Specifically, part one presents and analyzes representative examples of the conceptual approach underlying each of the methods. 10 Posner, supra note 1, at 3. 11 Id. 12 Although numerous factors contribute to the success of a movement, this study is limited to a consideration of some of the central intellectual elements, and the corresponding appeal, of law and economics and the Brisker method. Somewhat similar to the goals of a leading book on the intellectual history of law and economics, this study aims primarily to “describe the central ideas that each school of thought is attempting to convey” rather than “to critique the schools of thought or the ideas contained therein.” See Mercuro & Medema, supra note 9, at 3‑4. Like the authors of the book, I am “well aware of the pitfalls that are to be encountered in trying to describe the essential elements of a particular school of thought when there are continuing . . . disputes within [the] schools.” See Mercuro & Medema, supra note 9, at 4. Nevertheless, again like the authors, I suggest that “the benefits of analyzing the schools of thought as presented here exceed the costs” of these limitations. See Mercuro & Medema, supra note 9, at 4. Notably, a number of scholars have considered the contention that aspects of economic analysis resemble religious concepts. See, e.g., Robert H. Nelson, Economics as Religion: From Samuelson to Chicago and Beyond (2001); Symposium, Understanding Economics Through Theology: Reflections on Robert Nelson’s Economics as Religion, 56 Case W. Res. L. Rev. 547 (2006); Anita Bernstein, Whatever Happened to Law and Economics?, 64 Md. L. Rev. 303 (2005). 13 The aims of this chapter, focusing on conceptual comparisons between law and economics and the Brisker method, differ from an area of scholarship that considers and critiques the substantive claims of law and economics through a perspective of religious traditions. An example of the latter form of scholarship, comprising the program of the Section on Jewish Law at the 2005 Annual Meeting of the Association of American Law Schools in San Francisco, was entitled “Economic Analysis of Jewish Law” and consisted of presentations by leading and emerging scholars of law and economics, including Dean Saul Levmore of the University of Chicago Law School and Professors Daniel Klerman, Keith Sharfman, and Shayna Sigman. See also Aaron Levine, Economic Public Policy and Jewish Law (1993). For considerations of law and economics in Catholic perspectives, compare, e.g., Stephen M. Bainbridge, Law and Economics: An Apologia, in Christian Perspectives on Legal Thought 208 (Michael W. McConnell et al. eds., 2001), with Mark A. Sargent, Utility, the Good and Civic Happiness: A Catholic Critique of Law and Economics, 44 J. Cath. Legal Stud. 35 (2005).

Richard Posner Meets Reb Chaim of Brisk    Chapter 23

Drawing on these and other examples, part two observes that both methods rely on intellectual antecedents, coupled with an emphasis on developing systematic conceptual frameworks that are broadly applicable within the legal systems they analyze. Building on these observations, part three suggests that as a result of these characteristics, the two methods have gained a somewhat similar place of prominence within their respective legal systems, while at the same time facing similar criticisms. Finally, the chapter concludes with a cautious evaluation of the future prospects of law and economics and the Brisker method.

PART ONE | REPRESENTATIVE EXAMPLES OF THE METHODS A. The Brisker Method To facilitate an examination of the Brisker method, it may be helpful to consider an application of the method to a particular issue in Jewish law. Among the obligations connected with the holiday of Passover, the Torah commands each individual to offer a Passover sacrifice during the afternoon of the fourteenth day of the first month of the year, the eve of the first night of Passover,14 and to eat from the sacrifice that night, the fifteenth of the month.15 By definition, these obligations are incumbent only upon those who are legally adults, having reached the age of obligation. In practice, each individual who brought a Passover sacrifice generally represented others as well, at times including not only adults, who thereby fulfilled their obligation to bring the sacrifice, but also minors, who were not obligated. All those who were ­represented in bringing the sacrifice during the day would participate in eating from the sacrifice that night.16  When an individual is obligated to offer the Passover sacrifice but is p­ recluded from doing so due to any number of circumstances, the Torah requires that the individual bring the sacrifice on the fourteenth day of the next month, a date thus termed Pesach sheni, the “second Passover.”17 The Talmud inquires whether a minor who reaches the age of obligation during the month between Passover and Pesach sheni should likewise be required to offer the Passover s­ acrifice on Pesach 14 See, e.g., Exodus 12:6. 15 See, e.g., Exodus 12:18. In Jewish law, the calendar date begins at night. 16 See Rambam (Maimonides), Mishne Torah (Code of Law), Laws of the Passover Sacrifice 2:1‑3. 17 See Numbers 9:9‑14.

145

146

Section Seven    Legal History

sheni of that year.18 In his landmark ­codification of Jewish law, the medieval legal authority Rambam (Maimonides)19 adopts the position, among competing views in the Talmud, that in such a case the individual is obligated to offer the Passover sacrifice on Pesach sheni.20 Nevertheless, Rambam concludes that if, when still a minor on Passover, the individual was counted among those represented through the Passover sacrifice brought by another, the individual is not required, after reaching adulthood, to bring a Passover sacrifice on Pesach sheni.21 At first glance, Rambam’s rulings appear problematic; after all, if a minor is not obligated—and therefore, by definition, unable to fulfill any obligation—to offer the Passover sacrifice, it would seem to follow that being included in bringing a sacrifice should not relieve the minor of an obligation that later arises.22  Moreover, as Reb Chaim notes, Rambam’s ruling seems to contradict the Talmud’s discussion regarding an individual who lacks the requisite mental capacity and, therefore, is exempt from positive commandments.23 According to the Talmud, if the individual performs the physical actions required as part of a commandment, such as eating matzo on the first night of Passover, this action does not qualify to fulfill the commandment. Therefore, according to the Talmud, if the individual then gains the requisite mental capacity in the course of the night, thereby becoming obligated to perform commandments, the individual is obligated to eat the matzo while possessing the requisite mental capacity.24 The Talmud’s conclusion seems to imply that if a minor is counted among those represented through the Passover sacrifice brought by another, even though adults who are similarly included in the same sacrifice thereby fulfill their obligation, the minor, who is not yet obligated, should not qualify as having fulfilled any obligation. Accordingly, if such an individual reaches the age of obligation prior to Pesach sheni, the individual should be obligated to bring a Passover sacrifice on Pesach sheni. A number of scholars have attempted to resolve the apparent problems posed by Rambam’s rulings. For example, Rabbi Joseph Karo, a leading s­ ixteenth-century legal authority, cites the suggestion that because a minor is authorized to be counted among those represented in a Passover sacrifice for the purpose of 18 19 20 21 22 23 24

See Talmud Bavli, Pesachim 93a. “Rambam” is the acronym for Rabbi Moses ben (son of) Maimon—Maimonides. See Rambam, supra note 16, at 5:7. See id. See Rabbi Joseph Karo, Kesef Mishna (commenting on Rambam, supra note 19). See Soloveitchik, supra note 6, at 67 (quoting Talmud Bavli, Rosh ha-Shana 28a). See id. See also Rambam, supra note 16, Laws of Chametz and Matzo 6:3.

Richard Posner Meets Reb Chaim of Brisk    Chapter 23

being permitted to eat of the Passover sacrifice, the minor is likewise more generally relieved of any further obligation with respect to bringing the Passover sacrifice.25  Reb Chaim offers an alternative resolution.26 Unlike Rabbi Karo’s approach, which is premised upon a technical legal rule unique to the Passover sacrifice, Reb Chaim’s approach operates within a broader analytical framework, applicable to a wide range of issues in Jewish law. Reb Chaim distinguishes between the essential nature of the commandment to offer the Passover sacrifice and that of the commandment to eat matzo. He explains that the commandment to eat matzo operates ­essentially in relation to the gavra, the person who is obligated to perform the act of eating the matzo.27 Therefore, an individual who is not obligated, but performs, the physical act of eating matzo on the first night of Passover has not fulfilled the commandment; thus, if in the course of the night, the individual then becomes obligated to eat matzo, the act of eating the matzo must be repeated to fulfill the commandment.28  In contrast, Reb Chaim posits that the commandment to offer the Passover sacrifice operates essentially in relation to the cheftza, the object through which the commandment is performed—specifically, the animal that is brought as a sacrifice.29 Although this obligation is, of course, directed at the person commanded to offer the sacrifice, conceptually, the mechanics of the commandment operate primarily through the requirement that the sacrifice be brought. Consequently, once the sacrifice is properly offered, the ­commandment has been satisfied by the individual who has brought the sacrifice, as well as all those on whose behalf it has been brought.30 Likewise, Reb Chaim suggests, a properly offered Passover sacrifice serves to satisfy the obligations of all those on whose behalf it is brought, including a minor, who is thereby relieved of any further obligation in connection with the 25 See Karo, supra note 22. 26 See Soloveitchik, supra note 6, at 67‑68. 27 Although Reb Chaim does not expressly use the term gavra in this discussion, in the context of his methodology, gavra is universally the conceptual counterpart to the term cheftza. 28 See Soloveitchik, supra note 6, at 67‑68. 29 See id. 30 The gavra/cheftza distinction may bear more than a passing conceptual resemblance to the distinction between in personam jurisdiction and in rem jurisdiction. In either case, the individual is subject to the jurisdiction of the court; however, the mechanics of the court’s exercise of jurisdiction may operate directly in relation to the individual or, alternatively, primarily in relation to the individual’s property and, as a consequence, in relation to the individual. See Solomon, supra note 5, at 123.

147

148

Section Seven    Legal History

sacrifice.31 Therefore, as Rambam concludes, if the individual reaches the age of obligation prior to Pesach sheni, there is no requirement to repeat the act of bringing the Passover sacrifice.32  The application of the cheftza/gavra dichotomy to identify, and d­ istinguish, the essential qualities of the commandments to bring the Passover sacrifice and to eat matzo, respectively, illustrates some of the elements of the Brisker method that have led to its characterization as “conceptual” or “analytic.”33 Rather than focusing upon the technical aspects of each particular legal rule, and restricting the examination to a discrete Talmudic passage, the Brisker method constructs conceptual frameworks through which a broad range of legal principles can be analyzed and understood, in a generally applicable and systematic manner.34 Reb Chaim’s resolution of the narrow issue— Rambam’s treatment of these two commandments—is not limited to an explanation of specific aspects of one or both of these areas of law. Instead, Reb Chaim’s approach is premised upon a conceptual analysis that similarly serves as a means of explaining the nature of a number of other commandments, through their classification within the cheftza/gavra dichotomy.35

B. Law and Economics The methodology employed in law and economics has been described and applied in painstaking detail, producing a vast and growing body of legal scholarship widely accessible to American legal scholars.36 Thus, a brief example may suffice for the purposes of illustrating the application of the method to conceptualize an issue in the American legal system. In his groundbreaking text on the economic analysis of law, Richard Posner engages in an extensive discussion of one of the basic components of the common law, the area of tort law. Posner first addresses the topic of ­accidents, 31 32 33 34 35

See Soloveitchik, supra note 6, at 67‑68. See id. See supra notes 6‑7 and accompanying text. See discussion infra notes 59-62 and accompanying text. See Solomon, supra note 5, at 123‑26; Shlomo Yosef Zevin, Ishim V’shitot 49-57 (3d ed. 1966). For additional discussions of the Brisker approach to the cheftza/gavra dichotomy in the context of the Passover sacrifice, see Hershel Schachter, MiPninei HaRav 96 (2001); Shlomo Yosef Zevin, Hamoadim B’Halacha 225‑26 (1955). Cf. Asher Weiss, Minchas Asher, Shemos 367-75 (2017). 36 See Posner, supra note 1, at xx and n.3 (citing Bryant G. Garth, Strategic Research in Law and Society, 18 Fla. St. U. L. Rev. 57, 59 (1990); William M. Landes & Richard A. Posner, The Influence of Economics on Law: A Quantitative Study, 36 J.L. & Econ. 385 (1993)).

Richard Posner Meets Reb Chaim of Brisk    Chapter 23

or unintentional torts, citing Judge Learned Hand’s formula for assessing negligence. Under the Hand Formula, a defendant is negligent if and only if B < PL, where B represents the “cost of precaution” to prevent the accident, P represents the probability of the accident’s occurrence, and L represents the magnitude of the potential loss.37 Through this formula, Posner notes, the potential injurer will be required to act to prevent the accident only to the extent that such prevention will result in a net social gain.38 Thus, according to Posner, the Hand Formula reflects the incorporation of the economic principle of efficiency to define the contours of the law of negligence. Through further and more complex application of the Hand Formula, Posner offers an economic analysis of a wide range of issues related to negligence.39  Turning to the topic of intentional torts, Posner suggests that, analytically, the distinction between intentional and unintentional torts may prove both vague and, at times, inaccurate.40 Posner recounts an early nineteenthcentury English case41 in which a defendant kept a valuable tulip garden about a mile from his house. After finding that a wall around the garden had failed to prevent tulips from being stolen, the defendant set up a spring gun to protect the garden. One day, a neighbor’s peahen escaped and entered the garden, ­followed by the pursuing plaintiff, who tripped the spring gun and was injured. The court held that because the defendant failed to post warnings of the spring gun, and because the injury occurred in the daytime, the defendant was liable for the injury.42  Posner considers the case through the lens of economic analysis, framing the issue as “the proper accommodation of two legitimate activities,” the ­defendant’s growing tulips and the plaintiff ’s keeping animals.43 Under the circumstances, Posner notes, the spring gun may have served as the most cost-effective means for the defendant to protect the tulips.44 At the same time, however, because spring guns deter not only thieves but innocent trespassers as well—such as owners who are attempting to recover straying animals—they will cause an increase in the cost involved in keeping animals; as a result of the presence of the spring gun, animal owners will either face greater expenses, 37 38 39 40 41 42 43 44

See id. at 168 (citing United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947)). See id. See id. at 167‑204. See id. at 204. Bird v. Holbrook (1828) 4 Bing 628, 130 Eng. Rep. 911 (C.P.). See Posner, supra note 1, at 204‑05. See id. at 205. See id.

149

150

Section Seven    Legal History

necessary to prevent animals from straying, or incur greater losses, through the decreased ability to follow and recover animals straying onto the defendant’s property.45  In Posner’s analysis, the court’s decision “implied an ingenious accommodation.”46 Specifically, if owners who set up spring guns are required to post notices, the absence of such notices signals to animal owners the absence of spring guns; accordingly, if there are no signs posted, animal owners will not be deterred from following and recovering their straying animals.47 To the extent that such notices will not be effective at night, it is less likely that an animal will be left unsecured at night and, if the animal strays, much less likely that its owner will follow after it.48 On the basis of this analysis, Posner concludes that, although the defendant intentionally set up the spring gun, the case is more accurately understood through principles applicable to negligence cases.49  Thus, Posner presents an alternative analytical framework, distinguishing torts involving “a conflict between legitimate (productive) activities” from those such as fraud, involving “a coerced transfer of wealth to the defendant in a setting of low transaction costs.”50 The latter category represents conduct that “is inefficient because it violates the principle that when market transaction costs are low, people should be required to use the market if they can and to desist from the conduct if they can’t.”51  Posner’s application of an economic framework for the analysis of the court’s decision in an early nineteenth-century English case illustrates some of the significant characteristics of law and economics. Although the court’s ­decision appeared to rest on a notion of fairness, faulting the owner of the tulips for failing to post signs warning of the spring gun, the implications of its ruling seemed limited to the relatively particular—and somewhat unusual—facts of the case, superficially involving an apparently intentional tort committed against a trespasser. Posner, however, seeks to uncover the underlying logic supporting the court’s ruling, placing it within the broader conceptual framework of law and economics. Reconceptualized as posing an economic problem of balancing competing claims to legitimate activities, the case presents the 45 Id. 46 See id. 47 See id. 48 See id. 49 See id. 50 Id. 51 Id.

Richard Posner Meets Reb Chaim of Brisk    Chapter 23

court with the opportunity to resolve the dispute—“ingenious[ly],” according to Posner52—on the basis of a methodology generally applied to negligence cases. Thus, in Posner’s economic framework, the case takes on a wider significance, somewhat removed from its specific facts. Understood in this light, the case serves to demonstrate the broad applicability and consistency of economic analysis, through which the underlying conceptual nature of the case is identified as more similar to negligence than to intentional torts.

PART TWO | BUILDING ON INTELLECTUAL ANTECEDENTS TO DEVELOP A SYSTEMATIC THEORY OF BROAD APPLICABILITY A. The Brisker Method To be sure, notwithstanding the originality of his approach, Reb Chaim was far from the first to utilize conceptual frameworks as a method for ­understanding the Jewish legal system. For example, the cheftza/gavra dichotomy finds an antecedent in the ancient Talmudic discussion of the commandment to place fringes on the corners of a four-cornered garment.53 In Talmudic terminology, certain aspects of the commandment depend upon its characterization as essentially operating either through the obligation incumbent upon the gavra, the individual, to perform the commandment, or alternatively, through the manne, the object through which the commandment is performed—here, the garment, which must have fringes placed on it.54 Likewise, the Talmud utilizes a parallel dichotomy to explain the conceptual distinction between two different types of oaths, a neder and a shevua. Through a neder, the cheftza—the object identified in the oath—becomes prohibited to an individual, while through a shevua, the individual undertakes an obligation or prohibition v­is-à-vis an object.55 Indeed, from the text of the Talmud through the works of medieval and modern commentators, conceptualization, dichotomization, and classification have played an important role in the analysis of Jewish law.56 

52 53 54 55

Posner, supra note 1, at 205. See Numbers 15:38. See Talmud Bavli, Menachoth 41a, 42b. See Talmud Bavli, Nedarim 2b. See also Joseph B. Soloveitchik, Yemei Zicharon 21‑23 (1996); Avnei Nezer, Orach Chaim 37. 56 See Solomon, supra note 5, at 123-26.

151

152

Section Seven    Legal History

At the same time, notwithstanding the historical antecedents to Reb Chaim’s approach, the Brisker method stands out in the extent to which it offers a systematic and broadly applicable framework for the conceptual analysis of Jewish law.57 Indeed, Reb Chaim’s work, recorded both in his carefully written essays, structured according to corresponding sections of Rambam’s Code of Law,58 and in his lectures, transcribed by his students and organized ­according to the order of the Talmud,59 encompasses topics representative of nearly the entire range of Jewish law, including, among others: martyrdom, prayer, ritual objects, the Sabbath and various holidays, marriage and divorce, dietary laws, agricultural laws, the Temple and sacrifices, ritual purity, ­contracts, torts, ­property, criminal law, commercial law, procedure, and estate law, in addition to several subtopics and related areas. Moreover, a number of areas of law that proved most prominent in Reb Chaim’s methodology had previously seemed least susceptible to conceptual analysis, appearing instead to revolve largely around technical and particular details. One of Reb Chaim’s most influential intellectual heirs—and his 57 See Lichtenstein, supra note 5, at 40: The conceptual approach is no recent innovation. Its primary features are clearly present in [the Talmud], recurrently manifest in [medieval legal sources], and amply exemplified by many [modern legal commentators] who were precursors to the Brisker tradition, with which the approach is now most familiarly associated. Much of this is only perceived in retrospect, however, and unquestionably Reb [Chaim], for whom this approach was not merely one of the many arrows in his quiver, but the central mode of learning, gave conceptualism great impetus toward preeminence. In this respect he certainly effected a major sea change—particularly noteworthy when his achievement is contrasted with the overall direction of most of his immediate forerunners and contemporaries. . . . In this undertaking, he surely had ample precedent and built upon predecessors. Just as surely, he was strikingly original.

See also Lichtenstein, supra note 6, at 16 n.9: Though [medieval commentators] . . . occasionally offer conceptual analysis similar to the Brisker method, they do it not systematically but intuitively. The change brought about by [Reb Chaim], which justifies the claim that he created a new method, is precisely the fact that conceptualizations and ­analysis of the phenomenon were transformed into a system. . . . [T]he significance of Brisk is not in the fact that an approach never before attempted was introduced into the world of learning, but that a system has been created.

58 See Soloveitchik, supra note 6, passim. 59 Rabbi Chaim Soloveitchik, Chidushe ha-Grach al ha-Shas. See also Rabbi Chaim Soloveitchik, Shiurei Rabbenu Chaim ha-Levi, published in 1998 from Reb Chaim’s notes.

Richard Posner Meets Reb Chaim of Brisk    Chapter 23

grandson—Rabbi Joseph Dov Soloveitchik wrote eloquently of the striking innovations brought about through the application of Reb Chaim’s method— manifested in “matters of abstract thought and orderly concepts, which combine [to produce] a unified, consistent theory”—within the realm of dietary laws.60 Specifically, “[t]he spoons and pots, the onions and radishes, have ­disappeared from the [laws] of meat and milk; boiling water that has fallen into wine, a mouse that has fallen into oil—all have disappeared from the [laws] of mixtures; blood and fat, salt and spit have disappeared from the laws of salting.”61 In short, the laws “have been moved from the kitchen and into another sphere . . . which is entirely concerned with conceptual structures.”62 The effectiveness of Reb Chaim’s method, providing a conceptual framework for the systematic analysis of such a wide array of legal materials, evokes similarities to “scientific” methods that present organizing principles to explain various empirical and observational data.63 Indeed, the scientific and conceptual characteristics of the Brisker method may account, in part, for the rapid and widespread prominence it gained in ­academies of Jewish law. In the words of a leading contemporary proponent of Reb Chaim’s method, “for sheer beauty and excitement, tedious plodding through . . . laborious, relatively mechanical, and often technical” legal material “cannot hold a candle to Reb [Chaim’s] soaring imagination and piercing insights.”64 Others have suggested that, in addition, the scientific approach had particular appeal in the context of the modern intellectual milieu of late nineteenth-century Europe.65  60 Lichtenstein, supra note 5, at 44 (quoting and translating Rabbi Joseph B. Soloveitchik, Divrei Hagut ve-Ha’aracha 80 (1981)). 61 Id. at 44‑45 (quoting and translating Soloveitchik, supra note 59, at 80). 62 Id. at 45 (quoting and translating Soloveitchik, supra note 59, at 80). 63 See infra notes 107‑09 and accompanying text. 64 Lichtenstein, supra note 5, at 43, 50‑52 (describing both: a “subjective element” to the attractive nature of the Brisker method, expressed in “the excitement and the sparkle of conceptual analysis” and “the precision and sweep manifested in the best of Brisk [that] simply does not characterize grappling and groping within the confines of a pragmatic mode”; and an “objective factor” premised on the view that “Torah that is perceived as grounded upon rational principles and marked by consistency and coherence, that is developed and perceived as an organic unity, is nobler than one that is a potpourri of practical directives” and that “[t]here is power, majesty, and grandeur in Torah, conceptually formulated, that a patchwork of minutiae, largely molded by ad hoc pragmatic considerations, simply cannot match”). 65 Lawrence Kaplan, Rabbi Joseph B. Soloveitchik’s Philosophy of Halakha, 7 Jewish Law Annual 139, 190 (1988). According to Lawrence Kaplan, although there is a “good deal of truth” to the suggestion that the emphasis on a scientific model of legal analysis may have been in part an apologetic response to modernity,

153

154

Section Seven    Legal History

In fact, the systematic quality of the Reb Chaim’s approach offered a powerful alternative to one of the methods of Talmudic study to which it responded, the pilpul mode of analysis. Taking its name from the Hebrew word for pepper, a paradigm of sharp food, pilpul placed an emphasis on applying sharply calculated arguments to investigate the complexity of Talmudic logic. Although on one level, pilpul follows—and extends—a traditional method of rigorous reasoning, prominent in Jewish law at least since the times of the Talmud,66 the movement began to encounter critics who characterized it, in the words of one historian, as “the twisting of plain truth resulting out of the hairsplitting efforts of the most sharp-witted.”67 In contrast to pilpul’s clever—if, at times, somewhat convoluted—deconstruction of Talmudic passages and modes of argumentation, Reb Chaim’s approach provided a methodology for a more structured understanding of Jewish law, as a system of orderly logic, comprising clearly articulated, albeit complex and rigorously applied, conceptual frameworks.

B. Law and Economics Likewise, despite the significance of law and economics as a late twentiethcentury movement, Posner readily acknowledges earlier expressions of the ­economic analysis of law. Indeed, the Hand Formula, which serves as a basis for the economic analysis of negligence, was articulated in a 1947 case.68 Moreover, although Posner characterizes the Hand Formula as “relatively new,” he finds antecedents in earlier cases, suggesting that “the method it capsulizes has been [t]here is a deeper reason behind the general appeal of the scientific model . . . and . . . this deeper reason is the essential reason. For the system of science provides [ Jewish law] with a model of a system that has a strictly objective and autonomous character but at the same time allows for, indeed is the result of, profound and powerful human creativity. And the traditional [theorist of Jewish law] seeks to maintain the strict objectivity and autonomy of [ Jewish law] . . . but together with that, sees [ Jewish law] as an unfolding conceptual system that allows for, nay demands, ongoing human creativity. 66 See Rabbi Moshe Avigdor Amiel, 1 Ha-Middot L’Cheker ha-Halacha 1‑26 (1939). 67 Mordechai Breuer, Pilpul, in 13 Encyclopedia Judaica 524, 524‑27. See also Lichtenstein, supra note 5, at 42 (describing “dexterous pyrotechnics” and “ingeniously convoluted” reasoning); id. at 50 (describing “far-fetched and fantastic” and “diversionary and trivial” reasoning). See generally Mordechai Breuer, Aliyat ha-Pilpul V’ha-chilukim B’Yeshivot Ashkenaz, in Sefer ha-Zicharon l’Morenu Yechiel Yaakov Weinberg 241‑255 (1969) (describing the initial success of, and subsequent opposition to, the evolving pilpul method.). 68 See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).

Richard Posner Meets Reb Chaim of Brisk    Chapter 23

used to determine negligence ever since negligence was first adopted as the standard to govern accident cases.”69  Thus, Posner understands an 1856 English case,70 emphasizing that an injury was “of unprecedented severity,” as finding that “the probability of the loss had been low,” thereby leading to the court’s conclusion that, in Posner’s terms, “[t]he damage was not so great as to make the expected cost of the accident greater than the cost of prevention.”71 Similarly, in Posner’s reading of a 1919 New York Court of Appeals case,72 Judge Benjamin Cardozo’s opinion employs “terms suggestive of economic insight,”73 including the declaration that “[c]hance of harm”—low P—“though remote, may betoken negligence, if needless”—very low B.74 In addition, Posner further acknowledges that even before 1960, which he marks as the start of the “new” law and economics,75 there were a number of important “precursors” to contemporary economic analysis of law, applied to fields such as antitrust and “other regulation of explicit economic markets,”76 as well as criminal law and tort law, among other areas.77 Thus, in a manner similar to the Brisker method, relying on previous applications of economic analysis to a variety of legal issues, Posner and other ­scholars have aimed to produce a systematic framework for the economic analysis of nearly every area of American law.78 As Posner describes it, “the hallmark of the ‘new’ law and economics—the law and economics that has emerged since 1960—is the application of economics of the legal system across the board.”79 Specifically, Posner enumerates the application of economics:

69 70 71 72 73 74 75 76 77 78 79

Posner, supra note 1, at 169. Blyth v. Birmingham Water Works (1856) 11 Exch. Div. 781, 156 Eng. Rep. 1047. Posner, supra note 1, at 169. Adams v. Bullock, 227 N.Y. 208, 125 N.E. 93 (1919) (Cardozo, J.). Posner, supra note 1, at 170. Id. at 170 (quoting Adams, 227 N.Y. at 208, and drawing parallels to P and B). Id. at 23 (citing Guido Calabresi, Some Thoughts on Risk Distributions and the Law of Torts, 70 Yale L.J. 499 (1961); Ronald H. Coase, The Problem of Social Cost, 3 J. Law & Econ. 1 (1960)). See id. at 23 (referencing the work of Henry Simons in tax law, Henry Manne in corporate law, Arnold Plant in patent law, Robert Hale in contract law, and Ronald Coase and others in public utility and common carrier regulation). See id. at 23-24 n.2 (referencing the works of Beccaria and Bentham in criminal law, and citing a number of articles identifying precursors to law and economics in other areas). See Posner, supra note 1, at xix (declaring that the breadth of the book’s coverage includes “almost the whole legal system”) (emphasis in original). Id. at 23.

155

156

Section Seven    Legal History to common law fields such as torts, contracts, restitution, and property; to the theory and practice of punishment; to civil, criminal, and administrative procedure; to the theory of legislation and regulation; to law enforcement and judicial administration; and even to constitutional law, primitive law, admiralty law, family law, and jurisprudence.80

Indeed, just as a survey of Reb Chaim’s work illustrates the wide-ranging applicability of the Brisker method throughout the Jewish legal system, the table of contents of Posner’s text bespeaks the ambitious goal of demonstrating the effectiveness of law and economics as a viable theory for understanding almost any issue within the American legal system.81 Moreover, parallel to Rabbi Joseph Soloveitchik’s observation regarding the Brisker method,82 Posner notes the degree to which economic analysis has been utilized to understand areas of nonmarket behavior that might seem least related to economics. In fact, the structure and substance of Posner’s text aims, in part, to focus on these areas of law, highlighting the broad applicability of law and ­economics. According to Posner, one of the significant features of his book is the “emphasis placed upon the legal regulation of nonmarket behavior—not only familiar examples such as crimes and accidents and lawsuits, but also less familiar (to economists) examples such as drug addiction, thefts of art, sexual acts, surrogate motherhood, rescues at sea, flag desecration, public international law, ­presidential pardons, democratic theory, and religious observances.”83 Therefore, as Posner poignantly explains in the preface to his text, “[t]his approach enables 80 Id. 81 See id. at ix‑xviii. Indeed, even the more abbreviated “Summary of Contents” delineates applications to: “the common law,” including “property, contract rights and remedies, family law and sex law, tort law, criminal law, the common law, legal history and jurisprudence”; “public regulation of the market,” including “the theory of monopoly, the antitrust laws, the regulation of the employment relation, public utility and common carrier regulation, the choice between regulation and common law”; “the law of business organizations and financial markets,” including “corporations, secured and unsecured financing, bankruptcy, financial markets”; “law and the distribution of income and wealth,” including “income inequalities, distributive justice, and poverty, taxation, the transmission of wealth at death”; “the legal process,” including “the market, the adversary system, and the legislative process as methods of resource allocation, the process of legal rulemaking, civil and criminal procedure, evidence, law enforcement and the administrative process”; and “the Constitution and the federal system,” including “the nature and functions of the Constitution, economic due process, the economics of federalism, racial discrimination, the protection of free markets in ideas and religion, searches, seizures, and interrogations.” Id. at vii‑viii. 82 See supra notes 59‑60 and accompanying text. 83 Id. at xix.

Richard Posner Meets Reb Chaim of Brisk    Chapter 23

the law to be seen, grasped, and studied as a system—a system that economic analysis can illuminate, reveal as coherent and in places improve.”84  Again echoing the Brisker method,85 the scientific and systematic ­characteristics of law and economics may thus have contributed substantially to its striking and somewhat singular success as an intellectual movement in contemporary American legal theory. Posner cites with approval the observation that “[l]aw and economics represents the one example of a social science that has successfully found a place at the core of the legal arguments made in courts, administrative agencies, and other legal settings.”86 Moreover, the science of economics may have particular appeal because of what Posner describes as “the unity, simplicity, and power, but also the subtlety, of economic principles.”87  Accordingly, in yet another parallel to the emergence of the Brisker method,88 the prominence of law and economics may be attributed, in part, to its ability to provide a systematic alternative to other intellectual movements.89 In a stinging 1974 review of the first edition of Posner’s book, Arthur Leff noted the appeal of law and economics as a response to the Realists.90 According to Leff, one of the central features of legal realism was its view of the law in terms of “existential ­reality” rather than “systematic consistency,” a view that was not only “liberating” but also “ultimately terrifying” in the context of “a universe normatively empty and empirically overflowing.”91 Leff thus posited that “the move to economic analysis in law schools seems an attempt to get over, to at least get by, the complexity thrust upon us by the Realists.”92 Thirty years later, Leff’s begrudging description of law and economics as an effective response to legal realism continues to ring true.93  84 Id. 85 See supra notes 63 and accompanying text. 86 Posner, supra note 1, at xx n.3 (quoting Bryant G. Garth, Strategic Research in Law and Society, 18 Fla. St. U. L. Rev. 57, 59 (1990)). Cf. Morton J. Horwitz, Law and Economics: Science or Politics?, 8 Hofstra L. Rev. 905, 912 (1980) (arguing that “[t]he economic analysis of law, I believe, could maintain its prestige only so long as it wrapped itself in the cloak of science”). 87 Posner, supra note 1, at xix. 88 See supra notes 66-67 and accompanying text. 89 Although of course, the relative success of these and other movements is intertwined with political, philosophical, and other forces, the focus of this study remains the intellectual elements and appeal of the movements. See discussion supra note 11. 90 Arthur Allen Leff, Economic Analysis of Law: Some Realism About Nominalism, 60 Va. L. Rev. 451, 459 (1974). 91 Id. at 454, 455. 92 Id. at 459. 93 See also Horwitz, supra note 86, at 905 (“Law-and-economics emerges to fill the intellectual vacuum left by Legal Realism”); Mark Kelman, A Guide to Critical Legal Studies 125 (1987) (describing law and economics as “an attempt to respond to an ongoing internal

157

158

Section Seven    Legal History

Indeed, the pattern detected by Leff and others seems to have been repeated more recently through the evolution of legal realism into critical legal studies. Though notoriously difficult to define,94 by most accounts critical legal studies is broadly premised, in part, on uncovering the inherent contradictions in liberal legal thought.95 The focus within critical legal studies on demonstrating the indeterminacy of the law through the deconstruction of the forms of legal reasoning, reminiscent of the pilpul method of Talmudic analysis,96 led to the arguably fatal critique of critical legal studies as overly nihilistic in its view of the law.97 As one proponent of critical legal studies sarcastically put it, in light of this perceived nihilism, the failure of the movement to answer the subsequent question “[w]hat would you put in its place” effectively “killed” critical legal studies.98 Notwithstanding the merits of the argument that this is the “wrong question” and therefore could not have “killed” critical legal studies,99 the perception of ­failure remains, stemming from an inability to offer a systematic account of the law. Consequently, upon the perceived death of the purportedly nihilistic critical legal

94

95 96 97 98 99

legal academic crisis, the difficulty of justifying the separation of law and politics that has beset post-Realist legal academics who have been taught that legal rules are nothing but policy-­oriented decisions”); Mercuro & Medema, supra note 9, at 12‑13 (stating that “it was the Legal Realists who created an environment that was more receptive to the introduction of economics into the law school curriculum” and referring to law and economics as “an attempt . . . to fill the void left by Legal Realism”). Cf. Pierre Schlag, Law and Phrenology, 110 Harv. L. Rev. 877, 918 (1997) (observing that “[t]he breakdown of Langdell’s vision of law as science throughout the twentieth century has occasioned many attempts to find or reconstruct the intelligent knowledge of the law” and characterizing Posner’s efforts as an example of “the manifestations of a professional desire to reinstitute the discipline of law as a science”). See, e.g., Mark Tushnet, Critical Legal Studies: A Political History, 100 Yale L.J. 1515, 1516 (1991) (stating that “as I read articles by and about critical legal studies, I not infrequently find myself puzzled” when authors “describe what they believe critical legal studies to be, and yet the descriptions do not resonate strongly with what I think about the law” and that “I find these authors taking as central to their understanding of [critical legal studies] propositions that I find extremely problematic, or dismissing as unimportant propositions that I find central.”). See generally Kelman, supra note 93. See supra notes 66‑67 and accompanying text. See, e.g., Paul D. Carrington, Of Law and the River, 34 J. Legal Educ. 222, 227 (1984). See also Richard Michael Fischl, The Question that Killed Critical Legal Studies, 17 Law & Soc. Inquiry 779, 781‑82 (1992) (quoting and citing sources). See Fischl, supra note 97, at 780. See id. See also Pierre Schlag, Normativity and the Politics of Form, 139 U. Pa. L. Rev. 801, 802 (1991) (“What should be done? How should we live? What should the law be? These are the momentous questions. These are the hard questions.”); Pierre Schlag, Normative and Nowhere to Go, 43 Stan L. Rev. 167, 177 (1990).

Richard Posner Meets Reb Chaim of Brisk    Chapter 23

studies movement, law and economics was able to claim victory through its contrasting reliance on a structured and systematic approach to the legal system.100

PART THREE | CRITICISMS AND RESPONSES A. The Brisker Method Not surprisingly, in addition to—and likely, at least in part as a result of—its rapid and considerable success in attracting adherents, Reb Chaim’s method attracted criticism as well. An examination of some of the criticisms, together with responses that have been offered, may serve to illuminate further the nature of Reb Chaim’s method. Indeed, to some extent, the criticisms themselves prove less a challenge to the method than an occasion for elucidation and articulation of its salient features. Much of the criticism—some of which surfaced during Reb Chaim’s lifetime—was broadly premised on the contention that Reb Chaim’s theories seemed inconsistent with the approaches and concerns traditionally applied in the study of Jewish law. On a basic level, there was apparently some resistance to the degree of innovation inherent in Reb Chaim’s creative methodology.101 100 See Daria Roithmayr, A Dangerous Supplement, 55 J. Legal Educ. 80, 84 (2005) (stating that “[t]he ‘science’ of economics promises to make legal reasoning even more objective than it ostensibly was” and that “[u]nder law and economics, the scientific domain of legal ­reasoning has been recaptured as the domain of objective economic reasoning . . . while the domain of politics has now been separated out as the subjective”). Notably, however, despite the apparent competition between critical legal studies and law and economics, the two movements share a number of insights and emphases. See, e.g., Kelman, supra note 93, at 114-85; Mercuro & Medema, supra note 9, at 157-70. Indeed, despite any claim of victory over critical legal studies on the part of law and economics, and despite clear substantive differences in the movements, the economic analysis of law has arguably borrowed and benefited from methodologies developed in part by critical legal studies, such as an emphasis on interdisciplinary and empirical research. Similarly, to some degree, the conceptual frameworks that Reb Chaim introduced resemble the rigorous distinctions that form the basis of the pilpul method. Indeed, it need not prove surprising to find similarities among distinct intellectual movements analyzing the same substantive material. Nevertheless, a close look at the apparent similarities among pilpul and Reb Chaim’s approach serves to highlight the significant differences between the two methods. See Solomon, supra note 8, at 117-20. 101 See Lichtenstein, supra note 5, at 41-42 (quoting and translating Reb Henoch Agus, Sefer Marcheshet (1931)) (describing “the well-known [development] that, in our time the ways of study in the learning of our sacred Torah have changed considerably” and contrasting “these

159

160

Section Seven    Legal History

More substantively, critics claimed that Reb Chaim’s conceptualizations of the law were at times insufficiently or inconclusively based in the legal sources analyzed and explicated.102 Relatedly, it has been argued that Reb Chaim’s focus on conceptualization relies upon broadly structured theories that detract from concrete analysis of the law and detailed disquisition of the Talmudic text.103  Responses to these arguments vary, but most seem to share the common thesis that the criticisms are based upon a misunderstanding of the underlying goals and claims of the Brisker method. In spite of the innovative nature of the methodology he developed, Reb Chaim insisted that his aim was not to initiate new ideas, but rather to obtain a clearly defined understanding of the Jewish legal tradition that preceded him.104 Thus, although Reb Chaim’s methodology often employed conceptual frameworks that had not been expressly articulated in earlier sources, the subject of analysis remained the Talmudic discussions, as understood through the works of earlier commentators and legal authorities— which are newly come from near, bringing with them the style of their learning” against his own experience, in which “all my life, I grew up among scholars of the old [school]” and “the well-maintained, well-trodden paths of our teachers, early and later”). Others were harsher in their criticisms, referring to the Brisker method as “chemistry” and decrying the notion of new “methods” of study. See Marc B. Shapiro, The Brisker Method Reconsidered: Review Essay, 31 Tradition 78, 79-80 (1997) (reviewing Solomon, supra note 8). 102 See Lawrence Kaplan, The Hazon Ish: Haredi Critic of Traditional Orthodoxy, in The Uses of Tradition 145, 154-55 ( Jack Wertheimer ed., 1992) (observing that, in the important glosses of the Hazon Ish on Reb Chaim’s writings, “[a]bove all, he consistently and firmly opposes what he views as attempts on the part of Reb [Chaim] to read certain concepts and ideas into the Rambam or the [Talmud] which are not stated clearly therein”). See Kaplan at 155 n.32 (citing sources). See also Lichtenstein, supra note 5, at 78 (acknowledging that “[i]t may indeed perhaps be doubtful whether in codifying his positions regarding [particular legal issues], [Rambam] personally sought to communicate everything Reb [Chaim] expounded by way of explication”). 103 Lichtenstein, supra note 5, at 45 (noting Rabbi Joseph B. Soloveitchik’s conceptualization of the physical elements of dietary laws, but acknowledging that some “deplore” this approach, because “[t]hey need to hear dishes rattling and utensils clattering in order to feel connected with” the world, or, “impelled by a holistic perception of metaphysical and spiritual reality, [they] view analysis with a jaundiced eye”). Cf. Lichtenstein, supra note 6, at 2 (“[T]he Brisker approach shifted the learner’s interest from the talmudic discussion itself . . . to the practical implications thereof . . . .”). 104 Reb Chaim is quoted stating that “our role is not to create [new ideas], for this was the task of the early commentators on the Talmud. Our duty is merely to understand the words of the early commentators.” Shapiro, supra note 101, at 80. Likewise, Shapiro notes that in their introduction to Reb Chaim’s work on Rambam’s Code of Law, Reb Chaim’s sons emphasize that his method was “in accordance with the approach taught to us by our teachers, the [early commentators], of blessed memory.” Id. at 81 (quoting and translating Introduction to Soloveitchik, supra note 4). See also Solomon, supra note 8, at 91-92.

Richard Posner Meets Reb Chaim of Brisk    Chapter 23

most prominently, Rambam.105 Likewise, as one scholar has put it, the notion that the Brisker method requires less attention to detail applies only to “details that are neither here nor there with respect to [conceptual] principles.”106 In contrast, “even technical details receive major attention” in the Brisker method when “related to conceptual issues [ ] through which . . . the issues can be refracted.”107  Indeed, as some have suggested, the goals and approach of the Brisker method may be best understood through analogy to the scientific method.108 105 See Lichtenstein, supra note 5, at 34-35 (asserting that “it would, of course, be naive to assume that the whole of [Reb Chaim’s work on Rambam’s Code of Law] was composed purely in order to defend [Rambam]. Unquestionably, many of the seminal ideas had been developed independently, as part of the process of understanding the [Talmud], and here found application.”). See also id. at 78‑79 (finding that “[t]he potential for the whole of [Reb Chaim’s work on Rambam’s Code] is surely latent within the raw material of the [Code]— within its individual components and the sum total of their interrelation—although it may have taken a genius of Reb [Chaim’s] stature to extract and elucidate its content.”). Cf. Shapiro, supra note 101, at 81 (stating that “the Brisker method assumes that if the [earlier commentators] had seen the way their positions were explained and presented, they would agree” with Reb Chaim’s derivations and analytical structure). 106 Lichtenstein, supra note 5, at 38. See Lichtenstein, supra note 6, at 16 n.9, observing that the Brisker method restricts the treatment of the [Talmudic section] solely to the conceptual issue, to the exclusion of other queries [such as] [i]ssues relating to the dialogue’s . . . cogency, or to textual or practical problems, . . . insofar as they are deemed essentially technical issues that have nothing to contribute to the essence of the [topic]. See also Rabbi Hershel Schachter, Nefesh ha-Rav 12‑19 (1994). 107 Lichtenstein, supra note 5, at 38. 108 The most explicit and most sustained comparisons between the Brisker method and the scientific method were offered by Reb Chaim’s grandson, Rabbi Joseph B. Soloveitchik. For example, Rabbi Soloveitchik describes the “approach . . . of mathematics and the mathematical, natural sciences” as “construct[ing] an ideal, ordered and fixed world . . . fashion[ing] an a priori, ideal creation,” which is “superimpose[d] . . . upon the realm of concrete empirical reality . . . .” Soloveitchik supra note 6, at 18-19. Similarly, he writes, “[t]he essence of [ Jewish law], which was received from God, consists in creating an ideal world and cognizing the relationship between the ideal world and our concrete environment in all its visible manifestations and underlying structures.” Id. at 19-20. See also Joseph B. Soloveitchik, Mah Dodech Midod, in Joseph B. Soloveitchik, Besod Hayachid V’hayachad 231 (1970) [hereinafter Soloveitchik, Mah Dodech Midod] (referring to Reb Chaim’s “mathematical thinking” and stating that Reb Chaim “provided for [ Jewish law] specific methodological tools, created a complex of [ Jewish legal] categories and an order of a priori premises through a process of pure postulatization” (translated in Kaplan, supra note 102, at 165). For a thoughtful and extensive consideration of Rabbi Joseph Soloveitchik’s approach, as it appears in many of his written works, see id., passim. According to Kaplan:

161

162

Section Seven    Legal History

For both the scientist and those applying the Brisker method of Talmudic Rabbi [ Joseph] Soloveitchik is not concerned with a philosophy of the Talmud but with the philosophy of [ Jewish law]. He is not interested so much in the Talmud as a particular ancient text that needs to be interpreted . . . but with the Talmud as a corpus of law, as part of a larger, ongoing [ Jewish legal] tradition. And as a jurist, his task, as he sees it, is analogous to that of the scientist: to create an abstract, self-contained, coherent system that will illuminate and order the multifarious and recalcitrant data that demand illumination and ordering. In a word, the task of both [theorist of Jewish law] and scientist is to create an ordered world that will satisfy their intellectual and aesthetic needs for comprehension and coherence. Id. at 173. Kaplan concludes that: Even if the scientific model is not the best model for understanding the nature of [ Jewish law], even if the [analogy of] scientist-world [to Jewish legal theorists-Jewish law] is not free of serious problems, even if one argues that the objectivity and autonomy of science are of a different order than the objectivity and autonomy of [ Jewish law], nevertheless, Rabbi Soloveitchik, in focusing upon and fusing together these two different sides of [ Jewish law], objectivity and autonomy with creativity and freedom, has touched the very heart of the [ Jewish legal theorist’s] complex, dialectical relationship with [ Jewish law]: strict obedience, nay subservience, to the objective inner logic of [ Jewish law], combined with a sense of unbound intellectual freedom and profound creative power. Id. at 192. A more recent comparison between the Brisker method and the scientific method identifies an analogue to Reb Chaim’s innovations in “the scientific revolution of the early seventeenth century.” Lichtenstein, supra note 6, at 3. In both cases, a shift was effected from the “why” to the “what,” and from the final cause to the efficient cause. No longer is it the task . . . to ascertain why a certain [principle in Jewish law] is as it is, any more than it is the role of the scientist to determine why nature behaves as it does. Rather, in both cases, the goal of the analysis of the concrete phenomenon at hand is to understand what it is and how it works.

Id. at 3. Moreover, as in the scientific world, the transition from “why” to “what” achieved breakthrough results for talmudic learning; focusing upon the “what” enabled the establishment of a disciplined method, subject to verification and criticism. . . . With the introduction of the Brisker approach, practical implications . . . become the standard by which opinions . . . could be examined, for positions were now held accountable for their [legal] manifestations in actual practice. . . .



Id. at 4.

Richard Posner Meets Reb Chaim of Brisk    Chapter 23

analysis, although “there are key contraindicating findings that may mandate discarding a much-cherished theory[,] . . . there are also peripheral minutiae for the sake of which a deeply held conviction will not be abandoned, in the hope that the difficulty will be resolved by someone, somewhere, subsequently.”109 Ultimately, like the scientific method, the Brisker method is concerned with the “what” rather than the “why,”110 thus focusing on conceptual definition and classification, aiming to ascertain a systematic understanding of how the law functions.

B. Law and Economics In perhaps the most striking parallel to the Brisker method, law and economics has faced a number of criticisms similar to those leveled against Reb Chaim’s approach, broadly premised on the claim that the economic analysis of law proves inconsistent with the methods and substance of the legal principles it is designed to analyze. Some opposition to the innovative qualities of law and economics seems based in a broader rejection of the possibility of formulating a theory that adequately explains the nature of law.111 On a more substantive Cf. Lichtenstein, supra note 5, at 34 (stating that “[a]s a scientist may be inspired by conflicting empirical evidence to suggest a novel theory that will take all the disparate phenomena into account, so the [theorist of Jewish law] will expound a distinction that will allow for harmonious coherence”). 109 Lichtenstein, supra note 5, at 38‑39. 110 See Lichtenstein, supra note 6, passim. Cf. Lichtenstein, supra note 5, at 56 (writing that the conceptual approach “relates to the content of Torah, its ‘what’ and juridic ‘why,’ but not to a spiritual and philosophic ‘why’”); id. at 194 (writing that Rabbi Joseph Soloveitchik “sought, in the spirit of a much-cherished analogy to modern science, to focus upon the ‘what’ rather than the ‘why’”). 111 See, e.g., Grant Gilmore, The Ages of American Law 99-100 (1977): For two hundred years we have been in thrall to the eighteenth-century hypothesis that there are in social behavior and in societal development, patterns which recur in the same way that they appear to recur in the physical universe. . . . [T]he hypothesis is itself in error. [Humans’] fate will forever elude the attempts of [their] intellect to understand it. The accidental variables which hedge us about effectively screen the future from our view. The quest for the laws which will explain the riddle of human behavior leads us not toward truth but toward the illusion of certainty, which is our curse. So far as we have been able to learn, there are no recurrent patterns in the course of human events; it is not possible to make scientific statements about history, sociology, economics—or law.

Id. at 99-100 (quoted in Arthur Allen Leff, Law and, 87 Yale L.J. 989, 1010 (1978)).

163

164

Section Seven    Legal History

level, others have found economic analysis of law incompatible with the general absence of economic rhetoric and references in the legal materials that law and economics purports to explain.112 Finally, a related criticism faults law and economics for its reliance on a core set of economic principles, resulting in ­disregard for, or insufficient attention to, other issues of complexity necessary for effective analysis of the law.113  In evaluating these arguments, Posner acknowledges, to some degree, the underlying concerns they identify, though he finds the criticisms ultimately based in “prevalent misconceptions” of law and economics.114 Therefore, Posner’s response to the critics focuses on “clarifying the nature and aims of the economic approach.”115 Specifically, Posner depicts law and economics as a vehicle for the scientific analysis of the law; therefore, its goals, methods, and properties parallel those of other scientific theories. Posner ambitiously, expressly, and extensively described this approach as the primary motivation behind the founding of the Journal of Legal Studies: The aim of the Journal is to encourage the application of scientific methods to the study of the legal system. As biology is to living organisms, astronomy to the stars, or economics to the price system so should legal studies be to the legal system: an endeavor to make precise, objective, and systematic observations of how the legal system operates in fact and to discover and explain the recurrent patterns in the observations—the “laws” of the system.116  112 See Richard A. Posner, Some Uses and Abuses of Economics in Law, 46 U. Chi. L. Rev. 281, 292 (1979) (acknowledging “the prevalence of noneconomic rhetoric in judicial decisions”). 113 See Edward J. Bloustein, Privacy Is Dear At Any Price: A Response to Professor Posner’s Economic Theory, 12 Ga. L. Rev. 429 (1978): The persuasiveness of Professor Posner’s article on the economic theory of privacy hinges on his apparent success in transforming, in classical rationalistic fashion, a complex and disorderly jumble of legal rules into a simple and unified scheme of explanation. Unfortunately, in at least one important sense, Posner’s theory is simplistic, not simple, because it accomplishes its objective by avoiding, rather than confronting, complexity. He seduces by reduction, rather than convincing by explanation.

Id. See also Leff, supra note 111, passim (characterizing law and economics as avoiding complexity). 114 Posner, supra note 112, at 306. 115 Posner, supra note 1, at 25. 116 Richard A. Posner, Volume One of the Journal of Legal Studies—An Afterword, 1 J. Legal Stud. 437, 437 (1972).

Richard Posner Meets Reb Chaim of Brisk    Chapter 23

Consistent with this approach, Posner has openly acknowledged that “few judicial opinions contain explicit references to economic concepts.”117 Likewise, he does not dispute the claim that “the assumptions of economic theory are one-dimensional and pallid when viewed as descriptions of human behavior—especially the behavior of such unconventional economic ‘actors’ as the judge, the litigant, the parent, the rapist, and others” in the law.118 In Posner’s view, ­however, these observations, though descriptively accurate, do not undermine the ­validity of the scientific nature of economic analysis of law. Instead, he insists, when presented as criticisms, these claims “bring[ ] out the fundamental difference between the legal and the economic culture or, more broadly, between the humanistic and the scientific approach.”119 Indeed, he argues, resistance to law and economics reflects either an orientation among legal scholars against “finding a simple, theoretical structure” to uncover “an inner, and simple, economic logic” in the law,120 or a general “dismiss[al of] the whole of social science.”121 In response, Posner explains that “[t]he goal of science, including economic science, is to explain complex and seemingly unrelated phenomena by reference to a theoretical model or construct, and the power of a scientific explanation can be expressed as the ratio of the different phenomena explained to the number of assumptions in the theory.”122 Moreover, “[a] simple theory tends to yield more, and more definite, hypotheses than a complex one . . .; if these hypotheses survive their confrontation with the test data, the power of the theory to organize diverse phenomena is confirmed.”123 Therefore, “[a]bstraction is . . . the essence of scientific theory, and a successful theory is bound to ignore a good deal of the apparent differences between phenomena.”124  Drawing a comparison to the natural sciences, Posner notes that “Newton’s law of falling bodies is unrealistic in its basic assumption that bodies fall in a vacuum, but it is still a useful theory because it predicts with reasonable accuracy the behavior of a wide variety of falling bodies in the real world.”125 117 Posner, supra note 1, at 25. 118 Id. at 17. 119 Posner, supra note 112, at 301. Cf. James Boyd White, Economics and Law: Two Cultures in Tension, 54 Tenn. L. Rev. 161 (1986). 120 Posner, supra note 112, at 302. 121 Id. at 288. 122 Id. at 301. 123 Id. 124 Id. 125 Posner, supra note 1, at 17.

165

166

Section Seven    Legal History

“Similarly,” he suggests, “an economic theory of law will not capture the full complexity, richness, and confusion of the phenomena—criminal or judicial or marital or whatever—it seeks to illuminate.”126 In fact, according to Posner, any “lack of realism in the sense of descriptive completeness, far from i­nvalidating the theory, is a precondition of theory. A theory that sought faithfully to reproduce the complexity of the empirical world in its assumptions would not be a theory—an explanation—but a description.”127  Finally, Posner likewise argues that the “prevalence of noneconomic rhetoric in judicial decisions”128 does not undermine the theoretical validity and value of law and economics. He points out that “the major economizing doctrines of the common law preceded the development of an explicit economic theory of law that might have made the specialized rhetoric of ­economics available for use in judicial decisions.”129 After all, he continues, “[j]ust as people were maximizing utility before the terms were invented by ­economists, judges may have been maximizing efficiency before the language of economics gained currency in judicial opinions.”130 In addition, he argues, “often the true grounds of legal decisions are concealed rather than illuminated by the characteristic rhetoric of opinions,” and he posits that “legal education consists primarily of learning to dig beneath the rhetorical surface to find those grounds, many of which may turn out to have an economic character.”131 126 Id. 127 Id. 128 Posner, supra note 112, at 292. 129 Id. 130 Id. 131 Posner, supra note 1, at 25. To some degree, less technical characterizations of law and economics likewise find echoes in descriptions of the Brisker method. For example, in the course of criticizing Posner’s text on economic analysis of law, Arthur Leff draws an intriguing analogy to the picaresque novel, such as Tom Jones, Huckleberry Finn, or Don Quixote. In the novel, the eponymous hero sets out into a world of complexity and brings to bear on successive segments of it the power of his own particular personal vision. The world presents itself as a series of problems; to each problem that vision acts as a form of solution; and the problem having been dispatched, our hero passes on to the next adventure.

Leff, supra note 111, at 451. Similarly, Leff asserts, “Posner’s hero is eponymous[ ]” in the character of “Economic Analysis,” who “ride[s] out into the world of law, encountering one after another almost all of the ambiguous villains of legal thought . . . . In each case Economic [Analysis] . . . brings to bear his single-minded self, and the Evil Ones . . . dissolve, one after another.” Id. at 452. As Leff acknowledges, “[t]o hold the mind-set constant while the world is played in manageable chunks before its searching single light is a powerful analytic idea . . . .” Id.

Richard Posner Meets Reb Chaim of Brisk    Chapter 23

CONCLUSION As Rabbi Aharon Lichtenstein noted, together with “the triumphal ascendancy of the conceptual approach,” the Brisker method has, inevitably, undergone changes.132 In part as a result of the method’s success, and arguable ­dominance, “[t]he spirit of independence that guided [Reb Chaim’s] bold originality has gradually become more muted.”133 Likewise, the widespread influence of Reb Chaim’s ideas has been coupled with the parallel development of a wider variety of methods that share the conceptual approach.134 As for the future, despite expressing a “reluctan[ce] to predict,” Rabbi Lichtenstein offered “some qualified remarks.”135 Specifically, he anticipated the continuation of recent trends, such as a modification of the Brisker method into “more blended models,” including “greater awareness of factual points[,] recourse Rabbi Joseph Soloveitchik used somewhat analogous imagery in a more positive ­description of the Brisker method: [A] person . . . awakes in the middle of the night and cannot figure out just where he is . . . . The whole picture of his room and its furniture is distorted and unreal. Suddenly he finds the lamp switch, flicks it on and a clear light shines on his s­ urroundings. Everything is in order and he recovers his sense of place, his orientation. He can’t understand himself, why wasn’t he able to picture his room and its furniture, why did he have such a confused image? Wasn’t everything so simple and clear? Soloveitchik, Mah Dodech Midod, supra note 108, at 231 (quoted and translated in Kaplan, supra note 102, at 164-65). In a similar vein, it is said that Reb Chaim’s father, an eminent scholar of Jewish law, contrasted his own, more traditional approach, which resolved legal questions by acknowledging the difficulty posed by the question and providing suitable answers, with his son’s innovative methodology, which responded to legal questions by demonstrating that the question did not really pose any difficulty because it was premised on a fundamental misunderstanding of the legal system. See Schachter, supra note 106, at 18-19 n.23. In yet another description that evokes Leff ’s imagery, Rabbi Soloveitchik writes dramatically of his childhood perceptions of the heroic manner in which his father, teaching an advanced class in Jewish law, employed the Brisker method to “defend” Rambam against the “attacks” of intellectual opponents and “enemies.” Rabbi Joseph B. Soloveitchik, U’Bikashtem mi-Sham, in Ish ha-Halakhah: Galui v’Nistar 230-31 (1979). 132 Lichtenstein, supra note 5, at 53‑54. 133 Id. at 54. 134 See id. at 54‑55. 135 Rabbi Lichtenstein specifies that he offers these thoughts, in response to a request, for the benefit of “educational planning.” Lichtenstein, supra note 5, at 55. He also emphasizes that he is conscious of the possibility that “the wish, to some extent, may be father to some thoughts,” though he adds that he “trust[s] that [his] own admitted inclinations will not distort [his] perceptions.” Id.

167

168

Section Seven    Legal History

to a wider arc of sources[,] . . . and thematic expansion,” perhaps incorporating a consideration of “a spiritual and philosophic ‘why.’”136 Moreover, he suggested, as a result of the Brisker method’s becoming “conventional, and in some cases even cliché-ridden, the danger of lapsing into . . . ‘stock responses’ looms large; and these factors may erode the preeminence of the approach.”137 Nevertheless, Rabbi Lichtenstein concluded that “[t]here may be complements, but for the time being, no substitute” for the conceptual approach as “the optimal mode of” the study of Jewish law.138  Any effort to assess the future of law and economics may seem even more perilous; nevertheless, a brief discussion may prove valuable, if only as an illustration of yet one more apparent parallel to the Brisker method. In the 2003 edition of his text, Posner boldly declares that, defying repeated predictions of its demise or reduced significance,139 the economic analysis of law “has now outlasted legal realism, legal process, and every other one of the twentieth century’s new fields of legal scholarship, except those too recent to have yet reached their peak. And it shows no signs of abating.”140  To be sure, over the years since the appearance of the first edition of Posner’s text, in addition to the evolution of Posner’s approach, the field of law 136 Id. at 56. 137 Lichtenstein, supra note 5, at 56. Indeed, an additional criticism of the Brisker method finds fault with the seemingly universal application of dichotomous analysis to resolve nearly every legal problem, even when such an approach appears overly formalistic or even, arguably, somewhat illogical. See Lichtenstein, supra note 6, at 6‑9 & n.17; id. at n.11 (stating that “[t]he more popular and widespread the conceptual approach became, the greater such a danger became”). Similar criticisms have been leveled against law and economics since at least as early as the appearance of the first edition of Posner’s text. See, e.g., Leff, supra note 111, at 452 (writing of Posner’s “tunnel vision” and the “limitations” that “arise from the single-approach strategy itself ” as well as “from the particular mode of apprehension chosen [by Posner] to be single-minded with”); id., passim. 138 Lichtenstein, supra note 5, at 57. 139 See, e.g., Gregory Scott Crespi, The Mid-Life Crisis of the Law and Economics Movement: Confronting the Problems of Nonfalsifiability and Normative Bias, 67 Notre Dame L. Rev. 231 (1991); Owen M. Fiss, The Law Regained, 74 Cornell L. Rev. 245 (1989); Horwitz, supra note 86, at 912; Leonard R. Jaffee, The Troubles with Law and Economics, 20 Hofstra L. Rev. 777, 779 (1992). 140 Posner, supra note 1, at 28. See also id. at xx n.3 (referring to “the continued growth of economic analysis of law”) (citing William M. Landes & Richard A. Posner, The Influence of Economics on Law: A Quantitative Study, 36 J. L. & Econ. 385 (1993)); id. at xx n.3 (noting “[t]he number of changes (especially additions) in this sixth edition [that] attest to the growth in the scholarly literature in just the last five years”). See also Mercuro & Medema, supra note 9, at 172 (stating that “[t]here are a great many factors which suggest that any predictions of the demise of Law and Economics are extremely premature”).

Richard Posner Meets Reb Chaim of Brisk    Chapter 23

and economics has undergone changes, modification, and a diversification of goals and methodologies,141 leading some to question its continued vitality as a unified movement.142 Indeed, looking to the future, Posner entertains the ­possibility that, “[l]ike some of the other fields, [law and economics] may some day become so woven into the fabric of the law that it ceases to be visible as a distinct field.”143 Ultimately, however, similar to Rabbi Lichtenstein’s assessment of the Brisker method, Posner confidently concludes that “for now, [the economic analysis of law] is well worth studying as a fruitful, interesting, and influential body of insight and analytic techniques.”144

141 See, e.g., Symposium on Post-Chicago Law and Economics, 65 Chi.-Kent L. Rev. 3 (1989); Robert C. Ellickson, Bringing Culture and Human Frailty to Rational Actors: A Critique of Classical Law and Economics, 65 Chi.-Kent L. Rev. 23 (1989); Robert C. Ellickson, Law and Economics Discovers Social Norms, 27 J. Legal Stud. 537 (1998); Christine Jolls, Cass R. Sunstein & Richard Thaler, A Behavioral Approach to Law and Economics, 50 Stan. L. Rev. 1471 (1998); Owen D. Jones, Time-Shifted Rationality and the Law of Law’s Leverage: Behavioral Economics Meets Behavioral Biology, 95 Nw. U. L. Rev. 1141 (2001); Thomas S. Ulen, A Nobel Prize in Legal Science: Theory, Empirical Work, and the Scientific Method in the Study of Law, 2002 U. Ill. L. Rev. 875. See generally Anita Bernstein, Whatever Happened to Law and Economics?, 64 Md. L. Rev. 303 (2005); Mercuro & Medema, supra note 8, passim. 142 See Bernstein, supra note 141, at 322. 143 Posner, supra note 1, at 28. Cf. Mercuro & Medema, supra note 9, at 172 (arguing that “[i]f Law and Economics seems less threatening now, it may be due to the fact that a number of its basic insights have become more or less a part of orthodox legal thinking” and that Law and Economics “is now an entrenched part of the legal landscape”). See also Samuel J. Levine, RLT: A Preliminary Examination of Religious Legal Theory As A Movement, 85 St. John’s L. Rev. 579 (2011) 144 Posner, supra note 1, at 28.

169

Section Eight Law and Public Policy CHAPTER 24

Reflections on Responsibilities in the Public Square Through a Perspective of Jewish Tradition: A Brief Biblical Survey INTRODUCTION

I

n recent decades, there has developed in the United States a substantial and growing interest in the role of religion in the public square.1 Among American

  1 See generally Robert Audi & Nicholas Wolterstorff, Religion in the Public Square: The Place of Religious Convictions in Political Debate (1997) ( “This book present[s] reasoned statements of the two most important contemporary views of religion and politics—the liberal position that calls for their separation and the theologically oriented position that takes religious considerations to be not only appropriate in political debates and decisions but indispensable to the vitality of pluralistic democracy.”); Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (1993) (“[This book] will present the case for taking religion seriously as an aspect of the lives and personas of the tens of millions of Americans who insist that religion is for them of first importance.”); Kent Greenawalt, Private Consciences and Public Reasons (1995) (“The topic of this book is one major subject of conflict in this general debate [over the increasingly weak sense of belonging to one’s community]. Should officials, and even ordinary citizens, restrain themselves from relying in public politics on some grounds that appropriately influence them in their private lives and within their nonpublic associations?”); Kent Greenawalt,

172

Section Eight    Law and Public Policy

legal scholars, discussions and debates have revolved around the relevance and Religious Convictions and Political Choice (1988) (“This book concentrates on one facet of the uneasy and complicated relationships between religion and government in the United States, the connection between people’s religious convictions and their political choices.”); Richard John Neuhaus, The Naked Public Square: Religion and Democracy in America (1984) (“The intent [of this book] is to set out an analysis and argument that, if convincing, might significantly change our understanding of America and of religion’s role in our public life.”); Nomos XXX: Religion, Morality, and the Law (J. Roland Pennock & John W. Chapman eds., 1988) (a collection of essays addressing, inter alia, whether “[i]n this increasingly secularized world it might seem to be religion that is least vital to the support of the state. But this immediately raises the question of the relation between religion and morality.”); Michael J. Perry, Love and Power: The Role of Religion and Morality in American Politics (1991) (“[This book] is about the proper relation of a person’s moral beliefs to her political choices and, especially, to her public deliberation about and her justification of political choices.”); Michael J. Perry, Morality, Politics, and Law (1988) (“[The] fundamental subject [of this book] is the proper relation of moral beliefs— including moral beliefs religious in character—to politics and law, especially constitutional law, in a morally pluralistic society.”); Michael J. Perry, Religion in Politics (1997) (“In this book, I address a fundamental question about religion in politics: What role may religious arguments play, if any, either in public debate about what political choices to make or as a basis of political choice.”); Robert Audi, Religious Values, Political Action, and Civic Discourse, 75 Ind. L.J. 273 (2000) (“[The purpose of this article] is to address some questions about the appropriate content for public discourse in a way that contributes toward a civic harmony in which all elements, particularly religious citizens, can play a maximally constructive role in securing the vitality of a free democracy.”); Institute of Bill of Rights Law Symposium: Religion in the Public Square, 42 Wm. & Mary L. Rev. 647 (2001) (“This Symposium was organized for the purpose of exploring some of the thorny issues of the religion-in-public-life debate. The articles published here do an excellent job of leading us through some of the most critical issues in the debate over religion in the public square.”); Michael J. Perry, Liberal Democracy and Religious Morality, 48 DePaul L. Rev. 1 (1998) (“The general question [this article addresses] is this: In a liberal democracy, like the United States, what role is it proper for religion to play in politics? More specifically, what role is it proper for religious arguments about the morality of human conduct to play in politics?”); Symposium, Religion and the Judicial Process: Legal, Ethical, and Empirical Dimensions, 81 Marq. L. Rev. 177 (1998) (“[T]he issue of this Symposium is more direct [than the general question of what effect the separation between the sacred and the secular has on the everyday life of the average citizen]: What role, if any, should religious persuasions have in a secular court? It is our hope that these pages might identify for the reader some contexts in which religion and the court intersect and potentially conflict.”); Symposium, Religiously Based Morality: Its Proper Place in American Law and Public Policy?, 36 Wake Forest L. Rev. 217 (2001) (collecting articles on the role of religion in American law and public policy including two from a series by Michael J. Perry addressing “the important issue of ‘religion in politics”’); Frederick Schauer, May Officials Think Religiously?, 27 Wm. & Mary L. Rev. 1075 (1986) (addressing “the effect of a publicly acknowledged norm of official behavior that gives approval to reliance on religion with respect to at least some governmental decisions”); Suzanna Sherry, Religion and the Public Square: Making Democracy Safe for Religious Minorities, 47 DePaul L. Rev. 499 (1998) (“This article focuses on one particular aspect of this growing debate over the appropriate role of religion in our society. What, in our society, constitutes a legitimate reason for government action and public policy?”); Symposium on Law and Morality, 1 Notre Dame J.L. Ethics & Pub. Pol’y 1 (1984) (“[A]n issue devoted to law and

Reflections on Responsibilities    Chapter 24

proper function of religion in shaping law and public policy. At the same time, morality was chosen as a suitably general subject which might serve to introduce our efforts to readers who share our interest in an ethical examination of public policy.”); Symposium on Religion in the Public Square, 17 Notre Dame J.L. Ethics & Pub. Pol’y 307 (2003) (“The papers in this symposium inquire whether there is an appropriate place for religious discourse in the American public square.”); Ruti Teitel, A Critique of Religion as Politics in the Public Sphere, 78 Cornell L. Rev. 747 (1993) (addressing “the movement towards a greater intermingling of politics and religion [and its] call for engagement of religion in politics and rais[ing] the profound consequences of this trend”); Symposium, The Role of Religion in Public Debate in a Liberal Society, 30 San Diego L. Rev. 849 (1993) (“All of the articles in this Symposium deal with the question to what extent liberalism as a political philosophy is consistent with citizens’ and officials’ reliance on religious-based arguments in fashioning coercive public policy .”). In addition, there has emerged among many lawyers and scholars an increasingly significant focus on the relevance of religion to the practice of law. See generally Colloquium, Can the Ordinary Practice of Law be a Religious Calling?, 32 Pepp. L. Rev. 373 (2005) (addressing “whether religious faith, particularly the faith of Christians and Jews, can be a source of meaning for the practice of law”); Rose Kent, What’s Faith Got to Do With It?, Fordham Law. Summer 2001, at 10 (describing Fordham University School of Law’s Institute on Religion, Law & Lawyer’s Work); Howard Lesnick, Riding the Second Wave of the So-Called Religious Lawyering Movement, 75 St. John’s L. Rev. 283 (2001) ( “question[ing] whether the professional norm should make space for the resolution of the conflict between faith and profession in favor of the lawyer’s call of faith”); Russell G. Pearce & Amelia J. Uelmen, Religious Lawyering in a Liberal Democracy: A Challenge and an Invitation, 55 Case W. Res. L. Rev. 127 (2004) (“show[ing] how religious lawyering brings a positive contribution to advance the administration of justice without undermining the basic values of liberal democracy”); Symposium, Rediscovering the Role of Religion in the Lives of Lawyers and Those They Represent, 26 Fordham Urb. L.J. 821 (1999) (discussing “law and religion [as] partners in creating and preserving a just and principled society, and provid[ing] an opportunity for spiritual renewal and the preservation of those important moral values without which no set of fair laws can exist and no lawyer can properly serve those in need”); Symposium, 27 Tex. Tech L. Rev. 911 (1996) (discussing “how religious beliefs oblige [one] to practice the profession of law, perhaps, though not necessarily, in a manner differently from someone else who might not share their beliefs”); Symposium on Law & Politics as Vocation, 20 Notre Dame J.L. Ethics & Pub. Pol’y 1 (2006) (“explor[ing] the reintroduction of the divine call as a motivation into the profession of law”); Symposium on Lawyering and Personal Values, 38 Cath. Law. 145 (1998) (addressing “the important role that religious and other ethical values can play in the lives of lawyers”); Symposium, The Relevance of Religion to a Lawyer’s Work: An Interfaith Conference, 66 Fordham L. Rev. 1075 (1998) (“offer[ing] a comprehensive series of articles and essays exploring the implications of religion for lawyering with regard to both broad theoretical issues and specific ethical questions”); Robert K. Vischer, Heretics in the Temple of Law: The Promise and Peril of the Religious Lawyering Movement, 19 J.L. & Religion 427 (2004) (addressing “whether and to what degree an individual lawyer should allow her faith to influence her practice of law”); Gerry Whyte, Integrating Professional Practice and Religious Faith: The Religious Lawyering Movement, 55 Doctrine & Life 18 (2005) (discussing the fact that “[t]he increasing secularization of society may also challenge the reliance by individual lawyers on their religious beliefs in their day-to-day professional activities”).

173

174

Section Eight    Law and Public Policy

religious communities have engaged in discussions of their own responsibilities to contribute to and i­nfluence the moral, ethical, and legal standards of American society. For Jewish communities living in the United States, these questions present an application of issues the Jewish people have confronted throughout their history. To the extent that American political and social structures differ significantly from those experienced by Jewish communities in the past, the questions may need to be considered within the context of newly developed conceptual frameworks.2 Nevertheless, as this chapter aims to demonstrate, the broader questions regarding the responsibilities of the Jewish people toward the public square, including obligations to influence law and public policy, represent concerns that date back to the very origins of the Jewish nation, and continue throughout the Bible. Toward that end, this chapter provides a brief survey of several important stages in the biblical history of the Jewish nation. It begins with the figure of Abraham, founder and father of the nation, then turns to the events s­ urrounding   2 A number of compilations have addressed these questions, from a variety of perspectives. See generally Jewish Polity and American Civil Society (Alan Mittleman, Jonathan D. Sarna & Robert Licht eds., 2002) (“The focus of this volume is on how the Jewish polity functions in the midst of civil society, relating to both other mediating groups and to government as such.”); Jews and the American Public Square (Alan Mittleman, Robert Licht & Jonathan D. Sarna eds., 2002) (compiling “analyses of historic Jewish activity in the public square, approaches to constitutional law, studies of modern Jewish political culture and action, explorations of issues in Jewish organizational life, and constructive models for how to think about Judaism and public affairs”); Religion As a Public Good (Alan Mittleman ed., 2003) (providing “a serious yet accessible consideration of how Jews and Judaism, religion in America, and the American public square interact”); see also Jonathan Sacks, The Persistence of Faith: Religion, Morality & Society in a Secular Age (1991) (discussing the prediction that “in losing our religious traditions we [have] eroded that environment within which alone a cohesive intellectual, social, political and moral life is possible”); Jonathan Sacks, To Heal a Fractured World: The Ethics of Responsibility (2005) [hereinafter Sacks, To Heal a Fractured World] (“[O]ne of Judaism’s most distinctive and challenging ideas is its ethics of responsibility, the idea that God invites us to become, in the rabbinic phrase, his ‘partners in the work of creation.’ That is the theme of this book.”); Tikkun Olam: Social Responsibility in Jewish Thought and Law (David Shatz, Chaim I. Waxman & Nathan J. Diament eds., 1997) (collecting essays that “should stimulate a dialogue within the Orthodox community over the power of Judaism to transform a morally tenuous world”); Samuel J. Levine, Law, Ethics, and Religion in the Public Square: Principles of Restraint and Withdrawal, 83 Marq. L. Rev. 773 (2000) (“explor[ing], from both an ethical and jurisprudential perspective, the question of how an individual might balance an interest in identifying and articulating the proper role of religion in the public square against the individual’s own religious beliefs and commitments”); Marc D. Stern, The Attorney as Advocate and Adherent: Conflicting Obligations of Zealousness, 27 Tex. Tech L. Rev. 1363 (1996) (addressing the impact of one’s religion on lawyering).

Reflections on Responsibilities    Chapter 24

the nation’s slavery in, and exodus from, Egypt, continues with the revelation at Sinai and the subsequent establishment of a sovereign and independent ­government in the Land of Israel, and concludes with a look at the nation in exile in the book of Esther. This chapter suggests that in each of these settings, though in different ways, Jewish leaders and communities acknowledged and successfully confronted the challenges of maintaining their own unique identity while concomitantly engaging and involving themselves in the broader public square.

PART ONE | ABRAHAM: STRANGER AND RESIDENT In analyzing the responsibility to engage in the public square through a perspective of Jewish tradition, it may be appropriate to begin with a d­ iscussion of the figure of Abraham. The centrality of Abraham to this analysis stems not only from the historical fact that his life marks the birth of the nation. More ­significantly, and more substantively, through his actions and his beliefs, Abraham earned and attained the status of father3 of the people that would soon become the Nation of Israel (named after his grandson),4 and would later be called the Jewish nation (named after his great-grandson).5 As the founder of a new nation, Abraham both set an example for, and left an indelible imprint on, future generations that would follow in his path.6  Descriptions of Abraham, found in the biblical text and exegetical sources, portray a complex picture of an individual who possesses a number of different—if not seemingly contradictory—qualities. In some ways, Abraham stands out as a counter-cultural visionary, rejecting and setting himself apart from the idolatrous, polytheistic, and immoral society that surrounds him. As Rabbi Adin Steinsaltz has noted, Abraham maintains his convictions in the face of societal values imposed by great cities and civilizations, comprising “the height of an ancient culture” and “representing the most advanced ideas and the most refined concepts in science, art, and philosophy.”7 While still Abram, he ­follows God’s   3   4   5   6

See Genesis 17:1‑8. See id. 32:28. See id. 29:35. See 2 Eliyahu Dessler, Michtav M’Eliyahu 160‑201 (Aryeh Carmell & Chaim Friedlander eds., 1963) ; see also 1 Ramban (Nachmanides), Commentary on the Torah 168‑69 (Charles B. Chavel trans., 1973) (explicating Genesis 12:6).   7 Adin Steinsaltz, Biblical Images 16‑17 (Yehuda Hanegbi & Yehudit Keshet, trans., 1994). Rabbi Joseph Soloveitchik has analyzed the moral defects characterizing the dominant societies that preceded Abraham. See 2 Abraham R. Besdin, Man of Faith in the Modern World: Reflections of the Rav 77‑79 (1989) (adapted from lectures of Rabbi Joseph B. Soloveitchik);

175

176

Section Eight    Law and Public Policy

command to break away from his homeland, his birthplace, and his father’s house, and sets out on a journey to start a new life and a new nation in the Holy Land.8 Indeed, subsequent to his journey, the Torah refers to Abraham as Avram ha-Ivri,9 a term that literally reflects either his lineage from Eber or his geographical origins from the “other side of the river.”10 However, the term has also been ­interpreted homiletically—and profoundly—as an indication that, on a spiritual and moral plane, Abraham was on the “other side” from the rest of the world.11  Notwithstanding his independent and invidualistic qualities, Abraham is never portrayed as introverted or withdrawn from the society in which he lives. Instead, pursuing justice and fighting for just causes,12 Abraham tends to both the physical and spiritual well-being of all those he encounters.13 Literally see also Genesis 6:5‑7:24 (describing the generation of the flood); Genesis 11:1‑9 (describing the generation of the Tower of Babel). The generation of the flood emphasized the pleasure principle, the exhilaration of the senses, as the primary goal of life . . . reaching out without restraint or discipline. It regard[ed] ethics as irrelevant and all ­barriers or authority as repressive . . . . The fleeting sensation of the moment is primary; future consequences are dismissed . . . . Such a value system invites moral decay. Besdin, supra 77‑78. The generation of the Tower of Babel emphasized “[n]ot pleasure but power, to control nature through technology, to enthrone [the human] as the master of the universe and to dispose of God’s sovereignty . . . and worship—these defined their primary motivations.” Id. at 78. Moreover, “[t]heirs was an organized society . . . repressively c­ onformative” where “[t] echnology was prized over human life.” Id. In short, “[s]ociety and ideology were primary; individuals were expendable[,]” producing “a tightly controlled society with religion suppressed and human life devalued.” Id. at 78‑79. In contrast, Abraham offered a new vision of [human] purpose and destiny. Not wallowing in pleasure or the arrogance of power, but clinging to God . . . . As [God] is holy, so should we be, even if it . . . circumscribes one’s range of permissible behavior. Pleasure and power are [human]-centered and do not respond to a higher authority; [holiness] is God-centered and it acknowledges Divine rulership.   8   9 10

Id. at 79. See Genesis 12:1. See id. 14:13. See Aryeh Kaplan, The Living Torah 28-29, 40 (1981) (commenting on Genesis 10:21; 14:13). 11 See, e.g., 1 The Pentateuch: Translated and Explained by Samson Raphael Hirsch 255‑56 (Isaac Levy trans., 2d ed. 1976) (commenting on Genesis 14:13). 12 See, e.g., Genesis 14:1‑24, 18:1‑33, 21:22‑34. 13 See Chapter 25 in this Volume.

Reflections on Responsibilities    Chapter 24

an iconoclast, Abraham shatters idols proudly and publicly, in an effort to demonstrate the folly and hollowness of their deification.14 He constantly engages in debates and disputations about the true nature of God, teaching and leading others to follow in his path.15 Interpreting the Torah’s reference to the “people” or “souls” that Abraham and Sarah “‘made’ in Haran,”16 the Midrash explains that through their conduct and their teachings, Abraham and Sarah brought people to faith in God, thereby “making” or “shaping” their souls.17 Maimonides describes Abraham traveling from city to city and from nation to nation on his journey to the Holy Land, continuously spreading the word of God’s existence.18 In the process, Abraham constantly attracted followers who turned to worship God, ultimately numbering in the tens of thousands.19 In rejecting and distinguishing himself from the mores and beliefs of the ­dominant social structure, Abraham was determined not to isolate himself from his surroundings, but rather to offer a vital and viable alternative, to influence public opinion, and to work for change in a positive direction.  Rabbi Joseph Soloveitchik has aptly identified and expounded upon a phrase in the Torah that concisely captures the dual nature of Abraham’s relationship with society. As an introduction to his negotiations with the ­children of Heth to purchase a burial place for Sarah, Abraham declares, “I am a stranger and a resident among you.”20 As Rabbi Soloveitchik asks, “Are not these two terms mutually exclusive? One is either a stranger, an alien, or one is a resident, a citizen. How could Abraham claim both identities for himself?”21  Rabbi Soloveitchik explains that Abraham was indeed “a resident, like other inhabitants of Canaan, sharing with them a concern for the welfare of society, digging wells, and contributing to the progress of the country in loyalty to its government and institutions.”22 Spiritually, however, “Abraham regarded himself as a stranger. His identification and solidarity with his fellow citizens in the secular realm did not imply his readiness to relinquish any aspects of his religious uniqueness. His was a different faith and he was governed by See Maimonides, Mishne Torah, Laws of Idolatry 1:3. See id. Genesis 12:5. See Rashi (explicating Genesis 12:5). See Maimonides, supra note 14, 1:3. See id. Genesis 23:4. Abraham R. Besdin, Reflections of the Rav: Lessons in Jewish Thought 169 (1981) (adapted from Lectures by Rabbi Joseph B. Soloveitchik). 22 Id.; see also Besdin, supra note 7, at 74‑75. 14 15 16 17 18 19 20 21

177

178

Section Eight    Law and Public Policy

perceptions, truths, and observances which set him apart from the larger faith ­community.”23 At the same time, on a spiritual level as well, Abraham cared for and contributed to the spiritual welfare of society as well, spreading a message of monotheism and ethical behavior.24 Thus, Abraham successfully advanced from his status as a stranger and an outsider to become a leader and an influential public figure.

PART TWO | EGYPT: SLAVERY AND EXODUS The lessons Abraham imparted regarding the role of the Jewish people in society were practiced and implemented on a communal level during the ­generations of slavery in Egypt. Like Abraham, the Israelites found themselves a small minority amidst an empire whose societal values and beliefs were antithetical to their own religious faith and morality.25 Indeed, the nation was later expressly commanded not to imitate the practices of the Egyptians, but instead to follow the laws of God.26 As slaves, however, the Israelites were subjected to ­persistent and demoralizing persecution and demonization, leaving them vulnerable to the attractive advances and apparent sophistication of the imperial power that ruled over them.27 They faced the challenge of what Rabbi Soloveitchik called “[t]he allure of Egypt, the most cultured and technologically developed society of that day.”28 In response to the challenge, learning from the example set by Abraham, the Israelites similarly observed crucial modes of separation between themselves and the dominant culture. Tradition interprets the biblical verse ­referring to their growth into a “great nation”29 as an indication that they remained a separate nation in the land of Egypt, maintaining their distinct names, religion, and language, rather than adopting those of the Egyptians.30 Likewise, because of their belief in God, the nation’s midwives refused the

23 Besdin, supra note 21, at 169. 24 See supra notes 12-19 and accompanying text. 25 See, e.g., Exodus 1:15-21; see also Aryeh Kaplan, The Handbook of Jewish Thought 50-51, 51 n.95 (1979). 26 Leviticus 18:1-5. 27 Besdin, supra note 21, at 145; see also Exodus 1:11-14. 28 Besdin, supra note 7, at 145. 29 Deuteronomy 26:5. 30 Besdin, supra note 7, at 147, 149 n.2. Cf. Kaplan, supra note 25, at 51 n.95 (citing sources stating that the Israelites “did not change their names or language, and avoided sexual immorality and slander”).

Reflections on Responsibilities    Chapter 24

Pharaoh’s command to kill their male babies.31 In perhaps the boldest and most meaningful act of defiance, the nation obeyed God’s command to take for the original Passover offering a sheep or a lamb, an Egyptian deity,32 and to spread its blood on the doorposts and the lintels of their houses.33  Unlike Abraham, who successfully influenced the public square, the Israelite slaves failed to exert a positive change on the conduct or attitudes of their Egyptian oppressors. If anything, their open fidelity to God and resistance to Egyptian demands and expectations met with increasingly entrenched b­ rutality—from Pharaoh’s decision to order his own subjects to kill the male children34 to his stubborn and repeated refusal to free the Israelites from bondage, even in the face of the plagues.35 Nevertheless, as the Torah emphasizes, the miracles ­manifested in the plagues, the splitting of the Sea, and the revelation at Sinai provided overwhelmingly powerful and public expressions of God’s dominion over the world and its history.36 As a result, the events connected with the exodus ultimately had a profound effect on numerous societies, resulting in an acknowledgment of God’s existence and actions well beyond the Nation of Israel,37 reaching not only Egypt38 but also other nations, both near and far.39

PART THREE | A LIGHT UNTO THE NATIONS After receiving the Torah, entering and conquering the Land of Israel, and establishing a system of government, the Nation of Israel emerged at a new stage of its development, characterized by a new function and focus. Having achieved political and spiritual independence, the nation no longer faced the challenge of navigating its role while in the position of a minority, subject to the hostile society that dominated it. Instead, the Israelites were faced with the new challenge—and corresponding opportunity—of building their own society, faithful to their own values and beliefs. Rather than resisting the public square, or working to influence it while maintaining a separate identity, the nation 31 32 33 34 35 36 37 38

See Exodus 1:15‑21. See 2 Ramban, supra note 6, at 118-19 (explicating Exodus 12:3). See Exodus 12:1‑30. See id. 1:22. See id. 7:14-11:10. See Deuteronomy 4:32-34. See, e.g., Exodus 10:1-2. See, e.g., id. 7:5; see also 2 Ramban, supra note 6, at 78-80 (explicating Exodus 7:3); Exodus 10:1-2. 39 See, e.g., Exodus 9:16, 15:14-15, 18:1.

179

180

Section Eight    Law and Public Policy

began to produce its own authentic public square, in which law and public policy would operate directly and primarily in accordance with the teachings of God, embodied in the Torah and the Jewish legal system. Jewish law and tradition address both the public and private arenas, prescribing rules and responsibilities for both the individual and society as a whole.40 Thus just as Jewish law and ethics apply to all areas of individual activity,41 Jewish law and values regulate public law and policy as well. In fact, the biblical system of government consists of a judiciary that adjudicates both public and private matters according to the laws of the Torah,42 a king who must consciously and constantly acknowledge limitations on his power as prescribed by the laws of the Torah,43 and prophets and high priests who help shape public perceptions and policy through messages from God.44 40 See, e.g., Joseph B. Soloveitchik, Halakhic Man 93-94 (Lawrence Kaplan trans., The Jewish Publication Society of America 1983) (1944) (explaining that Jewish thought “does not differentiate between the [person] who stands in [the] house of worship, engaged in ritual activities, and the mortal who must wage the arduous battle of life,” instead “declar[ing] that [a person] stands before God not only in the synagogue but also in the public domain, in [one’s] house, while on a journey, while lying down and rising up” and that “[t]he marketplace, the street, the factory, the house, the meeting place, the banquet hall, all constitute the backdrop for the religious life”). 41 See Kaplan, supra note 25, at 78 (stating that the commandments “penetrate every nook and cranny of a person’s existence, hallowing even the lowliest acts and elevating them to a service to God[,] sanctify every facet of life, and constantly remind one of [one’s] responsibility toward God”); see also Samuel J. Levine, The Broad Life of the Jewish Lawyer: Integrating Spirituality, Scholarship and Profession, 27 Tex. Tech L. Rev. 1199, 1199 (1996) (“The religious individual faces the constant challenge of reconciling religious ideals with the mundane realities of everyday life. Indeed, it is through the performance of ordinary daily activities that a person can truly observe such religious duties as serving G-d and loving one’s neighbor.”); Chapter 12 in Volume 1. 42 See Exodus 18:13‑26; Deuteronomy 17:8-14; Talmud Bavli, Sanhedrin 32a; Kaplan, supra note 25, at 213‑30. 43 See Deuteronomy 17:14-20; Maimonides, Mishne Torah, Laws of Kings; 1 Rabbi Tzvi Hirsch Chajes, Collected Works 43‑49. 44 See, e.g., Exodus 28:30; Deuteronomy 18:15-19; Chajes, supra note 43, at 3-43; Kaplan, supra note 25, at 83-120, 151-76. For a discussion of the various institutional functions in the Jewish legal and political structure, see Rabbenu Nissim Gerondi (Ran), Derashot 189‑211 (Leon A. Feldman ed., 1973). For comparisons of the role of biblical prophets to the role of American judges and lawyers, see Chapter 13 in Volume 1. (“[I]t is not uncommon for American lawyers working for social justice to see themselves as following in the powerful teachings, if not the religious traditions, of the biblical prophets.”) See generally Jerold S. Auerbach, Rabbis and Lawyers: The Journey from Torah to Constitution (1990) (claiming that the American Jewish acculturation has been so successful in the context of the practice of law because the “biblical origins of the American rule of law” allow American Jewish lawyers to “link Jewish history to American destiny”); Ronald R. Garet, Judges as Prophets: A Coverian Interpretation, 72 S. Cal.

Reflections on Responsibilities    Chapter 24

In short, Jewish law envisions a society in which religion plays an integral, central, and authoritative role in public discourse and decision-making. Nevertheless, notwithstanding their position as an independent nation in their own land, the Israelites still remained but a small minority relative to a world that continued to espouse and practice beliefs largely antithetical to their own. As such, the nation’s communal function would, to some extent, parallel that of its forefather, Abraham. Specifically, in addition to resisting the lure of other cultures and societies, through adherence to the laws and ethical behavior mandated by the Torah the nation would exert a positive influence on the larger public square beyond its own borders. Indeed, Moses instructs the Israelites to keep and safeguard God’s law, for “it is your wisdom and understanding in the eyes of the nations, who will hear all of these rules and will say ‘This great nation is surely a wise and understanding people.’”45 Accordingly, through faithful observance of God’s commands, the Nation of Israel fulfills its mandate to serve as a “light unto the nations” of the world.46 Although the precise nature of this mandate lends itself to differing ­interpretations, by all accounts it constitutes a significant component in an analysis of the responsibility of the Jewish people to contribute in a positive manner to society at large. Notably, Jewish thought does not require that an individual be part of the Jewish nation as a prerequisite for righteousness.47 In addition to the Jewish legal L. Rev. 385 (1999) (discussing the following question: “But once judges remember prophets not just incidentally but as a labor in the very calling to be a judge, can this memory’s ­implications for identity and action be confined to such a program?”); Thomas L. Shaffer, The Biblical Prophets as Lawyers for the Poor, 31 Fordham Urb. L. J. 15 (2003) (“Prophets, and particularly prophets-as-lawyers, redefine power relationships. Redefining power relationships is a form or pastoral service to the believers who labor in our economic system.”); Thomas L. Shaffer, Lawyers and the Biblical Prophets, 17 Notre Dame J.L. Ethics & Pub. Pol’y 521 (2003) (discussing “part of a broader exploration of the suggestion that the biblical prophets—Moses, Isaiah, Jeremiah, Amos, Nathan, and the others—are sources of ethical reflection and moral example for modern American lawyers”); Thomas L. Shaffer, Lawyers as Prophets, 15 St. Thomas L. Rev. 469 (2003) (“argu[ing] that the Hebrew prophets, these biblical prophets, are sources of legal ethics and of jurisprudence for Jews and Christians [and] suggest[ing] that the biblical prophets were lawyers more than anything else”). 45 Deuteronomy 4:6; see also J. David Bleich, Tikkun Olam: Jewish Obligations to Non-Jewish Society, in Tikkun Olam, supra note 2, at 61, 76 n.25 (providing another interpretation of the quoted passage). 46 See, e.g., Isaiah 42:6, 49:6; see also id. 60:3. 47 See Maimonides, Mishne Torah, Laws of Repentance 3:5; Maimonides, supra note 43, 8:11. Indeed, Jewish tradition has discouraged active proselytizing, while imposing strict guidelines and safeguards to insure the sincerity of those who intend to accept the Jewish religion. For a brief historical survey, see Gerald J. Blidstein, Tikkun Olam, in Tikkun Olam, supra note 2, at 17, 34‑39.

181

182

Section Eight    Law and Public Policy

system, which binds only the Jewish nation, there exists within Jewish theology a Noachide legal system, applicable to all of humanity, which sets the parameters for the considerably more limited obligations incumbent upon the other nations of the world.48 Thus, to the extent that the biblical admonition mandates that the Nation of Israel serve as a light unto the nations by ­influencing others to draw closer to God, the scope of such influence is contained within the contours of the Noachide laws.49  48 For discussions of the Noachide laws in classical works of Jewish law, see Talmud Bavli, Sanhedrin 56a-59b; Maimonides, supra note 43, chs. 9‑10; Chajes, supra note 43, at 58‑63; Yitzchak Hutner, Pachad Yitzchak, Shavuoth 31-34 (1999). Several contemporary law professors have discussed the Noachide laws. See, e.g., J. David Bleich, Contemporary Halakhic Problems 341‑67 (1983) (“Since the purported teachings of Judaism have been introduced into [the debate over capital punishment] it is certainly proper that the provisions of Jewish law bearing upon the matter be examined and analyzed with care.”); Bleich, supra note 45 (“Any examination of the obligations of Jewry with regard to tikkun haolam in the sense of perfection of society must perforce proceed from an understanding of the nature of that tikkun . . . begin[ning] with a thorough awareness of the ramifications and applications of the Seven Commandments of the Sons of Noah.”); Michael J. Broyde, The Obligation of Jews to Seek Observance of Noachide Laws by Gentiles: A Theoretical Review, in Tikkun Olam, supra note 2, at 103‑44 (“This paper will address the scope of halakhah’s mandate upon Jews to enforce the seven Noachide commandments, as well as any other rules Jewish law mandates that gentiles should keep.”); Arnold N. Enker, Aspects of Interaction between the Torah Law, the King’s Law, and the Noahide Law in Jewish Criminal Law, 12 Cardozo L. Rev. 1137 (1991) (“The principle thrust of this Comment is to suggest that these differences between the [two distinct and separate systems of criminal law recognized by Jewish Law] are more apparent than real, because the usual description of the Jewish criminal law system . . . is incomplete.”); Nahum Rakover, Jewish Law and the Noahide Obligation to Preserve Social Order, 12 Cardozo L. Rev. 1073 (1991) (“The establishment of a judicial system is recognized by Jewish law as a fundamental obligation whose incumbency upon all of mankind predates the revelation of biblical legislation to the Jewish people.”); Suzanne Last Stone, Sinaitic and Noahide Law: Legal Pluralism in Jewish Law, 12 Cardozo L. Rev. 1157 (1991) (“Rabbinic traditions on the Noahide commandment of dinin, the focus of this article, provide a rich starting place for exploring [the presence of two disparate legal systems within the large system of Jewish law.]”). See also Chapter 7 in Volume 1 (“Although the overwhelming majority of material comprising the corpus of Jewish law addresses the legal obligations of the Jewish nation, the substance of the Noachide laws has occupied a prominent position in Jewish legal discussion from ancient times through the present.”). 49 See generally Bleich, supra note 45 (“Less obvious but, nevertheless, as will be shown, widely accepted among rabbinic scholars, is the recognition that the Nation of Israel is charged with facilitating the perfection of mankind as a whole.”); Broyde, supra note 48 (“This article started by reviewing the halakhic obligation of gentiles to obey the Noahide commandments and concludes that notwithstanding a minority opinion to the contrary, halakhah accepts that gentiles are obligated to keep the Noahide laws, and they are responsible for even unintentional violations.”); see also Kaplan, supra note 25, at 55.

Reflections on Responsibilities    Chapter 24

In practice, the appropriate method for the Jewish nation to fulfill this role may be understood in several possible ways. For example, perhaps the Nation of Israel should lead by example, through the ideals of its own behavior, thereby bringing others to recognize and appreciate the moral rectitude and importance of God’s commands. As a result, other nations will be motivated to ­undertake their own efforts to ascertain and adhere to the Noachide laws God has commanded them.50 Alternatively, the Jewish nation may be obligated to take a more active and direct approach, educating other nations about the substance of the Noachide laws and encouraging their observance.51  The imperative to serve as a light unto the nations is further illustrated through Rabbi Soloveitchik’s identification of the “universal emphasis”52 that complements “separatism” in Jewish thought.53 In an analysis of “Jewish universalism,”54 Rabbi Soloveitchik examines the biblical character of Jonah, a prophet God entrusts with the unusual mission of addressing the foreign and pagan nation of Assyria.55 In the face of obstacles and extreme hardship, Jonah perseveres to carry forth God’s message, successfully calling upon the people of Nineveh to repent and return to God.56 As Rabbi Soloveitchik observes, the book of Jonah occupies a central place in the Yom Kippur liturgy, read aloud following nearly an entire night and day of prayer, reflection, and repentance, and shortly before the ­figurative ­“closing of ‘the heavenly gates.’”57 Yet, the reading of the book of Jonah on Yom Kippur seems somewhat anomalous; unlike the overarching theme of the Yom Kippur liturgy, which focuses on the Jewish nation’s expressions of repentance and petitions for its own forgiveness, the book of Jonah relates the historical account of the repentance and atonement of another nation.58 Moreover, Rabbi Soloveitchik notes the juxtaposition of the reading of the book of Jonah on Yom Kippur with the biblical reading that immediately precedes it, ­recounting the

50 See Bleich, supra note 45, at 88‑89; Broyde, supra note 48, at 121‑22; Kaplan, supra note 25, at 55 n.125. 51 See Bleich, supra note 45, at 77; Broyde, supra note 48, at 107; Kaplan, supra note 25, at 55 n.125. 52 Besdin, supra note 7, at 143. 53 Id. at 144. 54 Id. 55 Id. at 144‑46; see also Jonah, passim. 56 See Jonah 3:3-5. 57 Besdin, supra note 7, at 143‑44. 58 See id.; Jonah 3:1‑10.

183

184

Section Eight    Law and Public Policy

Torah’s admonition to the Israelites not to follow in the morally corrupt ways of the peoples of Egypt and Canaan.59 Rabbi Soloveitchik suggests that “[t]he Torah reading is a forceful ­declaration of Jewish separatism” from the corrupt influence of others, “even as the book of Jonah is a counterbalance of Jewish universalism. Lest we ­misconstrue our separateness and distinctiveness as a license for callous indifference to other peoples, the [reading of Jonah] enlarges our scope of compassion and understanding.”60 In short, “as Yom Kippur draws to a close, we remind o­ urselves that there is a wider world sorely in need of atonement.”61  Finally, still another approach to the function of the Jewish people as a “light unto the nations”62 looks beyond past and present times, understanding the nation’s role from a perspective of Jewish eschatology. A biblical reference to the Messianic era states, “I, God, will hasten it in its due time.”63 Analyzing this verse, the Talmud notes the apparent inconsistency between a hastened redemption and one that arrives in its proper time.64 The Talmud explains that the verse alludes to alternative possibilities: if the Nation of Israel so merits, the Messianic era will arrive at an accelerated pace; otherwise, the Messiah will arrive later, at a designated time.65  Thus, Jewish tradition posits that through fidelity to God and ­observance of God’s commands, the Jewish people have the capacity to bring about the ultimate redemption of the world.66 Likewise, Kabbalistic thought has ­emphasized the notion of tikkun olam, teaching that we live in a “broken” world that awaits being “repaired” and perfected through human action.67 Although details of both the figure of the Messiah and the precise nature of the Messianic 59 60 61 62 63 64 65 66

Besdin, supra note 7, at 144‑45; see also Leviticus 18:1‑6. Besdin, supra note 7, at 144. Id. at 146. See, e.g., Isaiah 42:6, 49:6; see also Isaiah 60:3. Id. 60:22. See Talmud Bavli, Sanhedrin, 98a. See id. See 2 Aryeh Kaplan, The Handbook of Jewish Thought 360 & n.2 (Abraham Sutton ed., 1992). To paraphrase the title of Robert Cover’s essay on the sixteenth-century renewal of traditional rabbinic ordination in Safed, Jewish tradition envisions bringing the Messiah through observance of the law. See Robert M. Cover, Bringing the Messiah Through the Law: A Case Study, in Nomos XXX: Religion, Morality, and the Law, supra note 1, at 201, 201‑10; see also Robert M. Cover, The Folktales of Justice: Tales of Jurisdiction, 14 Cap. U. L. Rev. 179, 190‑97 (1985). 67 See generally Adin Steinsaltz, In the Beginning: Discourses on Hasidic Thought 5-16 (Yehuda Hanegbi ed. & trans., 1992); see also Blidstein, supra note 47, at 26 n.10; Broyde, supra note 48, at 141‑42 n.165; Aryeh Kaplan, The Light Beyond: Adventures in Hasidic Thought 73 & n.64 (1981); Sacks, To Heal a Fractured World, supra note 2, at 78.

Reflections on Responsibilities    Chapter 24

era remain elusive,68 a primary function of the Messiah entails leading the Jewish people back to God.69 In turn, Israel will serve as a light unto other nations of the world, who will likewise embrace God and God’s teachings.70 In the words of Rabbi Soloveitchik, “[t]he fullest realization of Jewish history will be achieved in Messianic days. The Jewish vision of the Messianic era includes tranquility and fulfillment for all [of humanity].”71

PART FOUR | THE BOOK OF ESTHER: THE NATION IN EXILE Despite the abiding ideal of political independence and autonomy, the Jewish people have lived the majority of their existence in exile, often under the rule of hostile—if not downright oppressive—powers. Thus, it may be fitting to conclude this biblical survey with a consideration of one of the final books of the Hebrew Scriptures, the book of Esther, which recounts the origins of the Purim holiday. The narrative of the book of Esther transpires entirely outside the Land of Israel, describing the nation’s struggle to persevere in exile ­following the catastrophic destruction of Solomon’s Temple in Jerusalem.72 In some ways, the unfolding of events in the Purim story foreshadows the Jewish ­people’s repeated experience in subsequent generations of exile.73  The central conflict of the story revolves around the tension between the heroes, Mordechai and Esther, who represent the Jewish nation, and the v­ illainous Haman, an Amalekite, who represents Israel’s seemingly i­mplacable e­ nemies. Mordechai is situated in the capital city of Shushan, aware of and involved in important public and political matters that surround and impact the Jewish 68 See Maimonides, supra note 43, 12:2. 69 See id. 12:5; Kaplan, supra note 66, at 377. 70 See Maimonides, supra note 43, 12:5; Kaplan, supra note 25, at 55 n.123; Kaplan, supra note 66, at 374‑76. 71 Besdin, supra note 7, at 73‑74. 72 See Esther, passim. 73 See Besdin, supra note 21, at 178-86. Indeed, in describing the establishment of the holiday of Purim, the book of Esther instructs that “these days should be remembered and kept through every generation, every family, every province and every city; and these days of Purim should not fail from among the Jews, nor the remembrance of them perish from their descendants.” Esther 9:28. In addition to the imperative to observe the rituals connected with the Purim holiday, as Rabbi Soloveitchik has noted, “[a]pparently it is important for Jews of all generations to derive crucial lessons from the [book of Esther].” Besdin, supra note 21, at 178. While Rabbi Soloveitchik focuses on the “lessons in Jewish survival” that stem from the book’s reflection of the “basic vulnerability” of the Jewish people, id., on a broader level the book provides lessons for various aspects of the Jewish people’s experiences in exile.

185

186

Section Eight    Law and Public Policy

people.74 He keeps careful watch over Esther and remains her close ­confidante and advisor, first as she is taken by King Achashverosh and later when she is inducted as the new queen.75 While stationed at the king’s gate, Mordechai overhears a plot to kill the king, which he promptly relates to Esther.76 Esther, in turn, informs Achashverosh, crediting Mordechai with having uncovered the plan.77  At the same time, together with his participation in public affairs, Mordechai maintains a steadfast and outspoken fidelity to his Jewish identity and principles. Haman, as chief counselor to the king, commands the obedience and obeisance of the king’s servants, who bow before him in an idolatrous manner.78 Mordechai, however, refuses to bow before Haman because, as he explains to Haman’s bewildered minions, he is Jewish.79 An enraged Haman decides that, rather than attempting to punish Mordechai alone for this perceived effrontery, he will annihilate all of the Jewish people because they are “the people of Mordechai.”80 In successfully persuading the king to grant him royal authority to carry out his scheme, Haman pejoratively depicts the d­ istinctiveness of the Jewish nation: “There is one nation that is scattered and dispersed amidst the peoples in all of the provinces of your kingdom. Their laws are different from those of all other nations, and they do not observe the laws of the king. Therefore, it is not fitting for the king to tolerate them.”81  The remainder of the book of Esther unfolds with a dizzying ­confluence of unexpected events and seemingly remarkable coincidences, resulting in an undeniably miraculous turnabout of fortunes.82 The story culminates in Haman’s demise and the Jewish nation’s survival, setting the stage for the nation’s return to the Land of Israel and the building of the Second Temple in Jerusalem. Throughout the events, Mordechai and Esther perform great acts 74 75 76 77 78 79 80 81 82

See Esther 2:21‑23. See id. 2:7‑20. See id. 2:21‑22. See id. 2:22. See id. 3:1-2; see also Talmud Bavli, Megillah 19a. See Esther 3:2‑4. See id. 3:5‑6. See id. 3:8. See Besdin, supra note 21, at 44‑45; Dessler, supra note 6, at 126‑30.

Reflections on Responsibilities    Chapter 24

of courage.83 Indeed, their continued involvement in the public square carries risks to both their physical84 and spiritual well-being.85 Significantly, while engaging in political initiatives and activities, Mordechai and Esther recognize the primacy of the nation’s public demonstrations of petition and repentance, through which they merit God’s protection.86 In fact, although—strikingly—the name of God does not appear in the entire book of Esther, the sequence of events bears the unmistakable imprint of Divine Providence.87 Thus, although the Purim story teaches many lessons, one of the most powerful may be a poignant reminder that, notwithstanding the Jewish nation’s responsibility to engage in and influence public policy and the public square, ultimately, it is the seemingly hidden ways of God that guide the course of history, and that bring about the success and salvation of the Jewish people through even the darkest exiles.88

CONCLUSION As this brief survey of biblical episodes and characters illustrates, from its very inception, the Jewish nation has worked to fulfill its responsibility to society and the public square. Concomitantly, however, the nation has recognized its obligation to maintain its own unique identity, separate from, and not ­infrequently in tension with, dominant societal values and expectations. Even amid hostility and persecution, the nation has remained faithful to its own principles and beliefs, at times exerting a powerful and positive influence on public policies and attitudes. Indeed, Jewish tradition posits that one of the purposes of the dispersion of the Jewish people in exile is to provide a means for spreading God’s message throughout the nations of the world.89  83 84 85 86 87 88

See, e.g., Esther 4:11‑16. See, e.g., id. See Talmud Bavli, Megillah 15a, 16b; Gedalya Schorr, Ohr Gedalyahu 149 (1997). See Esther 4:3, 16. See Dessler, supra note 6, at 126‑30; Schorr, supra note 85, at 86‑96. See 1 Ramban, supra note 6, at 215‑16 (explicating Genesis 17:1); id. at 556-59 (explicating Genesis 46:15); 2 Ramban, supra note 6, at 174‑75 (explicating Exodus 13:16); 3 Ramban, supra note 6, at 460‑61 (1974) (explicating Leviticus 26:11). 89 Kaplan, supra note 25, at 56.

187

188

Section Eight    Law and Public Policy

For Jewish communities in the United States, these biblical teachings c­ ontinue to offer important lessons. Contemporary American law and s­ ociety ­provide a degree of freedom and personal autonomy likely unprecedented among the long exiles of the Jewish nation, spanning countless ­generations and geographical locations. On one level, increased freedom brings increased opportunities for positive engagement in and influence on public policy. Nevertheless, increased involvement in the political arena also carries the potential for increased challenges to maintaining the Jewish people’s distinct spiritual and ethical integrity. Thus, as Mordechai and Esther exemplified, following in the path set down by Abraham and others before them, participation in the public square, however necessary and noble, must always be coupled with careful and abiding adherence to Jewish law, morality, virtues, and values.

CHAPTER 25

Looking Beyond the Mercy/Justice Dichotomy: Reflections on the Complementary Roles of Mercy and Justice in Jewish Law and Tradition INTRODUCTION

I

n one of his earliest encyclicals, Dives in Misericordia, Pope John Paul II explored the concepts of mercy and kindness, with a focus on notions of divine love and compassion.1 Although, the encyclical relies ­primarily upon Christian sources and theology, the Pope dedicated a section of the work to a discussion of the importance of mercy in the Hebrew Scriptures.2   1 See John Paul II, Encyclical Letter Dives in Misericordia, passim (1980) [hereinafter Dives in Misericordia]. The Pope further developed these themes in later years, including two important addresses in January of 2002. See John Paul II, Message for the Celebration of the World Day of Peace 2002, No Peace Without Justice, No Justice Without Forgiveness ( Jan. 1, 2002), available at http://w2.vatican.va/content/john-paul-ii/en/messages/peace/documents/hf_jp-ii_mes_20011211_xxxv-world-day-for-peace.html; John Paul II, Address to the Representatives of the World Religions on the Day of Prayer for Peace in the World ( Jan. 24, 2002), available at http://w2.vatican.va/content/john-paul-ii/en/speeches/2002/january/documents/hf_jp-ii_spe_20020124_discorso-assisi.html  2 See Dives in Misericordia, supra note 1, at Paragraph 4 (quoting 2 Chronicles 30:9; Esther 4:17; Exodus 3:7; 4:22; 34:6; Hosea 2:3, 21-25; 11:7‑9; 14:5; 15; Isaiah 1:18; 45:21; 49:15; 51:4‑16; 54:6‑8, 10; 56:1; 63:9; 63:16; Jeremiah 31:3, 20; Job, passim; Judges 3:7‑9; 1 Kings 8:22‑53; Micah 7:18‑20; Nehemiah 9; Numbers 14:18; Psalms 40:11; 86; 98:2; 103; 145; 2 Samuel 11; 12; 24:10). Referring to several of the Pope’s encyclicals, Eugene Fisher suggested that the Pope “attempted over the years to integrate into his overall teachings the

190

Section Eight    Law and Public Policy

In this section, the Pope addressed the complex issue of the relationship between mercy and justice—attributes, both divine and human, that often seem in tension, if not in direct conflict with each other.3 Indeed, the Pope first observes that in Scriptures, “mercy is in a certain sense contrasted with God’s justice, and in many cases is shown to be not only more powerful than . . . justice but also more profound.”4 Upon further reflection, however, v­ iewing mercy and justice in relation to the attribute of love, the Pope suggests that “[l]ove, so to speak, conditions justice and, in the final analysis, justice serves love.”5 In addition, he writes, “[t]he primacy and superiority of love vis-à-vis justice . . . are revealed precisely through mercy.”6 Therefore, reformulating his depiction of the relationship between mercy and justice, the Pope concludes that ultimately, “[m] ercy differs from justice, but is not in opposition to it.”7 Building upon these observations, and drawing extensively on the work of Rabbi Joseph Soloveitchik and other scholars of Jewish law and philosophy, this chapter—written in connection with a conference on the jurisprudential legacy of John Paul II— briefly considers the complementary roles of justice and mercy in Jewish tradition. Toward that end, the chapter places these concepts in broader perspective, viewing mercy as representative of attributes such as kindness, compassion, love, and peacefulness, while understanding justice in terms of more exacting principles, such as strict adherence to truth and objective logic. The chapter begins with a look at the figure of Abraham, the father and founder of the Jewish nation, who embodied the characteristic of kindness, but exercised it within the context of the pursuit of justice. The chapter then ­examines insights he [ ] derived from his contacts with Jewish leaders and his continuing meditation upon the meaning of Jewish tradition for Catholic thought.” Eugene J. Fisher, A Commentary on the Texts, in Pope John Paul II, Spiritual Pilgrimage: Texts on Jews and Judaism, 1979‑1995 xxxix (Eugene J. Fisher & Leon Klenicki eds., 1995).   3 See, e.g., Stephen P. Garvey, Is It Wrong to Commute Death Row? Retribution, Atonement, and Mercy, 82 N.C. L. Rev. 1319, 1321‑22 (2004). Garvey describes the view that mercy should be understood as “the partial or complete remission of deserved punishment,” id. at 1321, and therefore posits that retributive justice and mercy “necessarily conflict . . . because justice means giving an offender the punishment . . . deserve[d],” id. at 1321 n.17. Cf. Robert Weisberg, Apology, Legislation, and Mercy, 82 N.C. L. Rev. 1415, 1415 (2004) (observing “widely disparate views of legal scholars on the relationship between mercy and justice—i.e., whether mercy is consistent with, entailed by, or actually subversive of justice”); see also infra note 62 and accompanying text.  4 See Dives in Misericordia, supra note 1, Paragraph 4.  5 Id.  6 Id.  7 Id.

Looking Beyond the Mercy/Justice Dichotomy    Chapter 25

the role and character of Jewish communal leaders, who sometimes must resort to elements of strict justice, but at other times may also require the capacity to temper justice with mercy. Finally, the chapter turns to the juridical setting, ­considering the possibility that within Jewish law and tradition, an ideal form of justice might incorporate a meaningful and appropriate measure of mercy.8

PART ONE | ABRAHAM: MERCY AND JUSTICE IN THE FOUNDING OF THE NATION The biblical figure Abraham occupies a unique position in the book of Genesis and, more generally, in Jewish thought, serving as father and founder in the establishment of the new nation that will play a central role throughout the Bible. In fact, Abraham’s imprint and influence on the defining c­ haracteristics of the nation prove so profound as to render anachronistic references to Abraham as part of the “Nation of Israel” or the “Jewish Nation”—appellations that derive from the names of Abraham’s grandson and great-grandson, r­ espectively. Similarly, because Abraham’s relationship with God predated, by hundreds of years, the giving of the Torah at Mount Sinai, Abraham’s service to God was p­ rimarily based not in observance of specific laws and rituals, but rather in broader principles of imitatio Dei—following in God’s ways.9  Indeed, the Talmud10 understands the imperative of imitatio Dei in the context of the biblical description of God as “rachum v’chanun”11—­ exercising mercy and kindness.12 Likewise, Jewish tradition identifies these qualities as typifying Abraham’s character.13 Moreover, through a close   8 For a helpful discussion of approaches in American legal scholarship aimed at reconciling the apparent conflict between justice and mercy, see Garvey, supra note 3, at 1321‑22 n.17 (2004).   9 See Yitzchak Hutner, Pachad Yitzchak: Shavuoth 59-60, 100 (1999). For a discussion of the imperative of imitatio Dei in Jewish thought, see Chapter 17 in this Volume. For discussions of the status of the commandments prior to the revelation at Sinai, see Judah Rosanes, Parashat Derakhim; 1 Nachmanides, Commentary on the Torah 149-51 (Chaim Chavel ed., 1960) (commenting on Genesis 26:3); Asher Weiss, Minchas Asher, Bereishis 280‑85 (2017). 10 See Talmud Bavli, Shabbath 133b. 11 Exodus 34:6. 12 See Joseph B. Soloveitchik, Out of the Whirlwind: Essays on Mourning, Suffering, and the Human Condition 207-9 (David Shatz et al. eds., 2003) (stating that “the categorical norm within our ethical system, imitatio Dei, is correlated with the ideal of [c]hesed,” as “God’s act of creation manifested the attribute of [c]hesed,” and explaining that, although chesed is often translated as “loving kindness,” it more accurately denotes “[s]elf-transcendence and the surge toward the other”). 13 See, e.g., 2 Eliyahu Dessler, Michtav M’Eliyahu 178-79 (Aryeh Carmell & Chaim Friedlander eds., 1963); 1 Chaim Yaakov Goldvicht, Asufath Ma’arachoth 129-54; Hutner, supra note 9,

191

192

Section Eight    Law and Public Policy

analysis of Abraham’s behavior, Jewish ethical literature has emphasized that Abraham’s caring and compassion went beyond the noble conduct of responding when the needs of others were brought to his attention.14 Instead, Abraham initiated the pursuit of opportunities to perform acts of kindness, actively seeking out and finding situations in which he could assist those in need.15  One of the most powerful manifestations of Abraham’s profound desire to help others is illustrated in the hospitality he shows the three “men” or angels who appear at his door,16 an episode that Jewish tradition understands as paradigmatic of Abraham’s kindness.17 Elaborating on the biblical text, the Midrash paints the picture of an old man, recovering from surgery, sitting at the opening of his tent in the heat of the day with the hope that he will observe passersby. When he sees three apparent idolaters, he interrupts an encounter with God,18 hurries to greet his prospective guests, ushers them into the tent, prepares with great alacrity an elaborate meal to fit their tastes, and stands at their service while they eat, offering both spiritual and physical sustenance.19 In short, rather than waiting for others to approach him, Abraham eagerly sacrifices his own comfort, literally running from his tent and attending to the needs of complete strangers. Perhaps more strikingly, Abraham’s expressions of mercy extend to those who seem least deserving of such kindness. Immediately following the visit of the three angels, God informs Abraham of the impending destruction of Sodom and Gomorrah, a punishment warranted by the cruelty and selfishness that epitomize these cities.20 Abraham responds in petition and prayer, ­pleading with God to allow the cities to survive if there live within them righteous

14 15 16 17 18

19 20

at 59-60, 100; Adin Steinsaltz, In the Beginning: Discourses on Chasidic Thought 123‑29 [hereinafter Steinsaltz, In the Beginning] (Yehuda Hanegbi ed. and trans., 1992). See Dessler, supra note 13, at 178‑79. See id. Genesis 18:2. See Dessler, supra note 13, at 178 (citing sources). Indeed, the Talmud derives from Abraham’s conduct the principle that hospitality to guests is “greater” than accepting God’s presence. See Talmud Bavli, Shabbath 127a. For an analysis of this principle, see Rabbi Naftali Tzvi Berlin, Ha'amek Davar, Deuteronomy 10:12; Dessler, supra note 13, at 180; Hershel Schachter, MiPninei HaRav 271 (2001). For a discussion of the importance of hospitality in Jewish thought, see Rabbenu Bachya ben Asher, Kad Ha-kemach, in Kisvei Rabbenu Bachya 35‑40 (Chaim Dov Chavel ed., 1995). For a discussion of the significance of Abraham’s standing at the service of the guests, see Rabbi Chaim Yaakov Goldvicht, Arba’a Ma’amrim B’Aggada 21‑31 (1984). See Genesis 18:20.

Looking Beyond the Mercy/Justice Dichotomy    Chapter 25

individuals who can lead the people to repent.21 Abraham’s plea for mercy, in behalf of those whose conduct stands diametrically opposed to his own values, captures the essential kindness that he embodies.22  In fact, Jewish tradition portrays Abraham’s behavior vis-à-vis Sodom and Gomorrah in stark contrast to Noah’s attitude toward the people in his generation, who are killed in the Flood as punishment for their sinful ­behavior.23 Notwithstanding the Torah’s description of Noah’s righteousness, through which he merits survival from the Flood,24 there remains a degree of ­ambivalence toward Noah’s character, both in the biblical text and among its expositors.25 Notably, unlike Abraham’s impassioned attempts to elicit God’s mercy for the wrongdoers of Sodom and Gomorrah, Noah appears to accept without protest God’s decree that his entire generation will be sentenced to death. On a certain level, Noah’s response to God’s decree seems understandable, if not, to some extent, correct. After all, the Torah repeatedly describes, in unusually strong terms, the moral and spiritual depths to which Earth’s inhabitants had fallen, prompting God’s judgment that they were utterly corrupt and thus deserving of destruction.26 As God’s decision was both inherently fair and fully warranted, Noah’s sense of justice may have precluded him from lodging objections to an appropriate punishment.27 In Abraham’s perspective, however, despite the manifest justice of God’s decree, perhaps a deeper form of justice is realized when tempered by a suitable measure of mercy.28 Therefore, when Abraham encounters the prospect of a just, but harsh, punishment for the cities of Sodom and Gomorrah, he suggests that justice will be better served if the members of the cities are spared on account of true and sincere efforts to repent for their wrongdoing.29  Although Abraham’s pleas ultimately prove unsuccessful, apparently because he has overestimated the possibility of repentance among the people 21 See id. at 18:23‑33. 22 Dessler, supra note 13, at 181‑82; see also Berlin, supra note 18, Introduction to Commentary on Genesis. 23 See, e.g., Dessler, supra note 13, at 181-82; Schachter, supra note 18, at 168‑69. 24 See, e.g., Genesis 6:8‑9. 25 See, e.g., Samuel J. Levine, Rediscovering Julius Henry Cohen and the Origins of the Business/ Profession Dichotomy: A Study in the Discourse of Early Twentieth Century Legal Professionalism, 47 Am. J. Legal Hist. 1, 33, 34 n.176 (2005) (describing, and applying in a contemporary context, ambivalence in Jewish tradition toward Noah’s character). 26 See Genesis 6:5‑12. 27 See Dessler, supra note 13, at 181‑82. 28 See id. Notably, in his pleas for mercy in behalf of the cities of Sodom and Gomorrah, Abraham expressly appeals to and invokes God’s judgment and justice. See Genesis 18:25. 29 See Dessler, supra note 13, at 181‑82.

193

194

Section Eight    Law and Public Policy

of Sodom and Gomorrah, his approach reflects the complementary p­ rinciples of divine justice and mercy in Jewish thought. Indeed, repentance and atonement, which serve as powerful manifestations of mercy, play a crucial role in Jewish law and philosophy, informing justice rather than opposing it.30

PART TWO | MERCY AND JUSTICE IN COMMUNAL LEADERSHIP While Abraham epitomized mercy and kindness, the leaders who have followed him have been characterized by a variety of qualities, often differing significantly from one another. In fact, Jewish interpretive tradition provides a complex understanding of the character of the three founders of the nation, Abraham, Isaac, and Jacob, each representing and establishing an essential—and complementary—aspect of national identity and consciousness.31 To oversimplify—perhaps inevitably—it appears that, in carrying forward Abraham’s widespread legacy, his son Isaac exercises a more introverted approach, lending a seemingly crucial element of strength and stability to Abraham’s revolutionary movement.32 In turn, Isaac’s son Jacob serves yet a 30 See Chapter 26 in this Volume. For applications of these concepts to the American legal system, see, e.g., Stephanos Bibas & Richard A. Bierschbach, Integrating Remorse and Apology into Criminal Procedure, 114 Yale L.J. 85, 87-90 (2004); Stephen P. Garvey, Punishment as Atonement, 46 UCLA L. Rev. 1801, 1804 (1999); Erik Luna, The Utah Restorative Justice Conference, 2003 Utah L. Rev. 1, 3-4 (2003); Michael A. Simons, Born Again on Death Row: Retribution, Remorse, and Religion, 43 Cath. Law. 311, 330-31 (2004); Michael A. Simons, Retribution for Rats: Cooperation, Punishment, and Atonement, 56 Vand. L. Rev. 1, 33-36 (2003); Symposium, The Role of Forgiveness in the Law, 27 Fordham Urb. L.J. 1347, 1356, 1369 (2000). One of the most dramatic example of divine mercy, forgiveness for the sin of the Golden Calf, serves as a model for the operation of atonement. See Exodus 32:30-34:10. According to Jewish tradition, God granted forgiveness on the tenth day of the seventh month, a date that would thus function for future generations as Yom Kippur, the Day of Atonement. See Abraham R. Besdin, Reflections of the Rav: Lessons in Jewish Thought, adapted from Lectures by Rabbi Joseph B. Soloveitchik 51-52 (1981). In depicting God’s response to the nation’s sincere repentance, the verses describe God as rachum v’chanun, exercising mercy and kindness. Exodus 34:6. Fittingly, these are likewise the very qualities of imitatio Dei through which Abraham established the nation, based on the practice of mercy and kindness toward others. See supra notes 10-13 and accompanying text. 31 See Dessler, supra note 13, at 160‑65. 32 See id. at 204‑10; Goldvicht, supra note 13, at 155‑64; Soloveitchik, supra note 12, at 213‑14; Steinsaltz, In the Beginning supra note 13, at 130‑32; Adin Steinsaltz, Biblical Images 35 (Yehuda Hanegbi & Yehudit Keshet eds. and trans., 1984) [hereinafter Steinsaltz, Biblical Images] (“Isaac is the symbol not of the power that breaks through limitations and creates, but of the power that conserves and maintains things in their place” and that Isaac “showed a marked inclination toward stability.”).

Looking Beyond the Mercy/Justice Dichotomy    Chapter 25

third foundational role, synthesizing the outgoing kindness of his grandfather with the inward focus of his father, thereby laying the groundwork for both continuity and expansion.33  As Abraham’s descendants grew into a nation of millions, their ­leaders likewise began to evolve, producing models of leadership beyond the paradigms represented by the founders. Throughout much of Jewish history, the nation has been served by what Rabbi Joseph Soloveitchik described as a form of “dual leadership.”34 Rabbi Soloveitchik delineated a typology of ­leadership corresponding to the mercy/justice dichotomy—or, to use his terminology, the “chesed-emet dialectic.”35 One type of leader emphasizes the quality of emet, truth, thus “demand[ing] unbending justice.”36 Such a leader engages in “criticizing, exhorting, holding people accountable for transgressions and failures,”37 because strict justice requires that “[o]ne must be rewarded according to one’s merits.”38 The second type of leader “is primarily guided by chesed, ­limitless compassion and overflowing kindness.”39 This kind of leader personifies “unqualified love,” a love “gratuitous as well as boundless.”40  In Rabbi Soloveitchik’s framework, these competing models of l­ eadership differ in both style and substance. For example, the leader whose focus is truth and justice “rebukes the sinner in harsh language,” “loudly scorns iniquity,” and “fights for truth through exhortation and instruction,” presenting ­sermons “often harsh, saturated with prophetic indignation.”41 In contrast, the leader whose emphasis is mercy and kindness “sheds a tear of sympathy for the sinner,” “speaks softly,” and “reproach[es] the sinner the way a loving mother reproaches a mischievous child,” offering sermons that are “subdued, saturated with prophetic love.”42  33 See Dessler, supra note 13, at 211‑16; Goldvicht, supra note 13, at 165‑89; Steinsaltz, Biblical Images, supra note 32, at 37 (stating that Jacob “was a synthesis, an integration of both Abraham and Isaac” and that he was thus “the keeper of tradition who was also an innovator”). 34 Besdin, supra note 30, at 160. 35 Joseph B. Soloveitchik, Divrei Hagut ve-Ha’aracha 205 (1981). Robert Weisberg has referred to this tension as the “justice-mercy conundrum.” Weisberg, supra note 3, at 1416; see also infra note 62. 36 Besdin, supra note 30, at 165. 37 Id. 38 Id. 39 Id. at 166. 40 Id. 41 Id. 42 Id.

195

196

Section Eight    Law and Public Policy

Through further analysis, however, Rabbi Soloveitchik concludes that in practice, neither model of leadership succeeds in isolation or in its purely idealized form. In particular, he explains, a leader who acts entirely out of love and mercy will arguably “betray truth, . . . encourage mediocrity, and . . . allow the inauthentic to distort the teachings of God.”43 Conversely, “to be absolutely truthful is to love only some people and to alienate many who are genuine in their hearts and who are earnestly searching.”44  In Jewish thought, the conundrum presented by these concerns proves so formidable as to compel the acknowledgment that complete “reconciliation of the attribute of strict justice and the attribute of compassion is achieved only in God.”45 Humans, nevertheless, may—and must—resort to “a relative solution to this dilemma, depending upon [the] temperament and outlook” of the ­particular leader, tending toward either mercy or justice.46 Thus, in response to the ­inevitable challenge, “both [kinds of leader] have discovered a formula to harmonize chesed and emet,” although “one emphasizes emet and the other chesed.”47 In short, “[t]hey both love and are committed to the truth, yet they act differently.”48  Significantly, according to Rabbi Soloveitchik, the two approaches ­ideally complement one another, through a form of combined leadership that incorporates both “teaching . . . by instruction” and “warm and friendly guidance.”49 Tracing the course of Jewish history, Rabbi Soloveitchik identifies repeated instances of dual-natured leadership, beginning with the very first leaders of the independent nation, Moses and Aaron.50 To be sure, “[b]oth of them enlightened minds, molded characters, and propagated the word of God. Both led their communities along righteous paths and made sacrifices for their welfare.”51 At the same time, however, “their methods, their approaches, the media they employed were different.”52 Specifically, Rabbi Soloveitchik cites Talmudic depictions contrasting Moses’ insistence on strict justice and 43 Id. 44 Id. 45 Id. at 166‑67. 46 Id. at 166. 47 Id. at 167. 48 Id. 49 Id. 50 Id. at 160, 167; see also Schachter, supra note 18, at 262‑65. 51 Besdin, supra note 30, at 161. 52 Id.

Looking Beyond the Mercy/Justice Dichotomy    Chapter 25

truth with Aaron’s tendency toward kindness and peace.53 Thus, “[i]n terms of ultimate objectives, they were very close to each other, but their emphases varied.”54 Notably, rather than favoring a particular leader or method of ­leadership, Midrashic teachings acknowledge the necessity and importance of both Moses and Aaron, each playing a vital role in the life of the nation.55  Likewise, turning to an analysis of modern times, Rabbi Soloveitchik finds a parallel dialectic in the different rabbinic models of the Lithuanian Rav and the Eastern European Chassidic Rebbe. The former emphasizes emet, ­primarily “engag[ing] the intellect, analyzing, classifying, clarifying, and transmitting the details of [ Jewish law] with precision,”56 while the latter relies upon chesed, focusing on “the invisible, intangible soul of the Torah, . . . communicat[ing] with the heart” and teaching “to feel, not only to understand.”57 Nevertheless, Rabbi Soloveitchik observes, “[n]owadays, . . . the contemporary [Rav] has absorbed many qualities of the Rebbe, not only teaching but coming close to [the] people,”58 while the Rebbe “now also emphasizes scholarship and the teaching role.”59 Thus, “[t]he classic differences are still there, but the lines of ­demarcation are at times blurred.”60 Ultimately, he concludes, “Jewish ­leadership is most effective when it combines the mind and heart in the w ­ orship 61 of God.” 53 Id. at 167; see also Steinsaltz, Biblical Images, supra note 32, at 73‑78. 54 Besdin, supra note 30, at 161. 55 See id. at 168 n.13. For a discussion of the different roles of Moses and Aaron, see Rabbenu Nisim Gerondi, Derashot 35-43 (Leon A. Feldman ed., 1973). 56 Besdin, supra note 30, at 161. 57 Id. at 162-63. For a helpful introduction to this aspect of Chassidic thought, see Aryeh Kaplan, The Light Beyond: Adventures in Hassidic Thought 1-25 (1981). To illustrate this approach, both Rabbi Soloveitchik and Rabbi Kaplan quote a famous Chassidic tale: A teamster in Berdichov was saying his morning prayers, and at the same time, was greasing the wheels of his wagon. He was indeed an interesting sight, praying with his grease-covered hands, and townspeople snickered, “Look at this ignoramus. He doesn’t know better than to grease his wagon wheels while he is praying.” The great [Chassidic Rebbe] Levi Yitzchok then came along and said, “Master of the universe, look at Your servant, the teamster. Even while he is greasing his wagon wheels he is still praising Your great and holy Name.” Id. at 5; see also Besdin, supra note 30, at 166. 58 Besdin, supra note 30, at 168. 59 Id. 60 Id. 61 Id.

197

198

Section Eight    Law and Public Policy

PART THREE | MERCY AND JUSTICE IN THE JURIDICAL CONTEXT In addition to the vital role mercy has played in the founding of the Jewish nation and in the conduct of its leadership, the centrality of mercy in Jewish thought manifests itself, perhaps most strikingly, in the juridical context. At first glance, principles of mercy appear inconsistent with, if not antithetical to, the discipline of legal decision-making. After all, unlike the communal leader who prudently exercises mercy, when appropriate, to balance and temper the demands of justice, the very basis of judicial responsibility requires the administration of justice, seemingly without resort to notions of mercy.62 Indeed, the Talmudic discussion of peshara, a form of settlement through arbitration, reflects the inherent tension between exercising mercy and meting 62 As Professor Weisberg puts it, the concept of a “jurisprudence of mercy” proves “paradoxical.” Weisberg, supra note 3, at 1415. Specifically, he explains that “mercy has a jurisprudence only if it fits within some theory of law or is rooted in some internal legal principle.” Id. At the same time, however, “the most fundamental question raised by any act of pardon or commutation is precisely whether mercy is part of, or at least consistent with, justice.” Id. In short, “[i]s mercy an act outside justice, in a separate realm[,] or is it an act of injustice?” Id. (italics in original). An extensive body of literature has emerged among American legal scholars addressing the apparent tension between, and possible compatibility of, justice and mercy. For a discussion of the application of mercy to criminal justice, often focusing on capital punishment, see, e.g., Chapter 6 in Volume 1; A Colloquium on the Jurisprudence of Mercy: Capital Punishment and Clemency, 82 N.C. L. Rev. 1279 (2004); Clemency and Pardons Symposium, 27 U. Rich. L. Rev. 177 (1993); Symposium, Forgiveness & The Law: Executive Clemency and the American System of Justice, 31 Cap. U. L. Rev. 139 (2003); Symposium, The Law and Politics of the Death Penalty: Abolition, Moratorium, or Reform?, 81 Or. L. Rev. 1 (2002); Anthony V. Alfieri, Mercy Lawyers, 82 N.C. L. Rev. 1297, 1297 (2004); Stephen P. Garvey, “As the Gentle Rain from Heaven”: Mercy in Capital Sentencing, 81 Cornell L. Rev. 989, 989-92 (1996); Garvey, supra note 3, at 1323-24 n.19 (citing sources); Samuel J. Levine, Portraits of Criminals on Bruce Springsteen’s Nebraska: The Enigmatic Criminal, the Sympathetic Criminal, and the Criminal as Brother, 14 Widener L.J. 767, 774-76, 783 (2005); Daniel Markel, Against Mercy, 88 Minn. L. Rev. 1421, 1421-23 (2004); sources cited supra note 30. Likewise, a number of law review articles have discussed the application of mercy to criminal justice within the Jewish legal system, particularly in the context of capital punishment. See, e.g., Chapters 5 and 6 in Volume 1; Chapter 26 in this Volume; Suzanne Last Stone, Justice, Mercy, and Gender in Rabbinic Thought, 8 Cardozo Stud. L. & Literature 139, 139 (1996); Irene Merker Rosenberg & Yale L. Rosenberg, Guilt: Henry Friendly Meets the MaHaRaL of Prague, 90 Mich. L. Rev. 604, 614-18 (1991); Irene Merker Rosenberg & Yale L. Rosenberg, In the Beginning: The Talmudic Rule Against Self-Incrimination, 63 N.Y.U. L. Rev. 955, 956 (1988); Irene Merker Rosenberg & Yale L. Rosenberg, Lone Star Liberal Musings on “Eye for Eye” and the Death Penalty, 1998 Utah L. Rev. 505, 508, 510, 515 (1998) (stating that under Jewish law, capital punishment is very difficult to impose); Irene Merker Rosenberg & Yale L. Rosenberg, Of God’s Mercy and the Four Biblical Methods of Capital Punishment: Stoning, Burning, Beheading, and Strangulation, 78 Tul. L. Rev. 1169, 1170, 1174-75 (2004).

Looking Beyond the Mercy/Justice Dichotomy    Chapter 25

out justice.63 According to one view in the Talmud, peshara is prohibited, as it works a distortion of God’s law.64 Although advocates of this position recognize the value of mercy and peace in interpersonal relations,65 they insist on a legal system that operates strictly on the basis of principles of law. Nevertheless, the prevailing view in the Talmud understands mercy as informing justice rather than opposing it.66 Under this view, peshara becomes not merely permissible, but meritorious, preferable to the dictates of a stricter form of justice.67  Similar to his analysis of the roles of different types of communal leaders,68 Rabbi Soloveitchik articulates the complementary, rather than contradictory, functions of mercy and justice in the Jewish legal system. Again delineating a dialectic more than a dichotomy, Rabbi Soloveitchik first poignantly portrays the setting of a strictly legal proceeding as pit[ting] one party against the other. The [judge] analyzes the relevant facts of the case and applies the appropriate legal sanctions as prescribed by [ ] the codes. The law is administered with cold impartiality and its decisions are dictated by objective data. One party emerges the victor, [its] case vindicated. The plea of the other is denied. Discord and resentment persist even as the court docket is cleared and the case is closed. The legal issue has been resolved, but human bitterness continues to fester.69 

63 See Talmud Bavli, Sanhedrin 6b. 64 See id. 65 Some commentators on the Talmud explain that under this view, because Moses served as a judge, he applied strict rules of law, while Aaron, who did not function in a judicial capacity, resolved disputes through the exercise of more peaceful settlements. Tosafot, Commentary on Talmud Bavli, Sanhedrin 6b; see also supra part two (distinguishing between the roles of Moses and Aaron). 66 See Talmud Bavli, Sanhedrin 6b. 67 See id.; Maimonides, Mishne Torah (Code of Law), Laws of Sanhedrin 22:4. The attitudes underlying the Talmudic debate are echoed in contemporary American legal discourse relating to civil settlement and alternative dispute resolution. Compare, e.g., Owen M. Fiss, Against Settlement, 93 Yale L.J. 1073, 1073, 1075 (1984) (providing a view that “settlement is a capitulation to the conditions of mass society and should be neither encouraged or praised”) with David Luban, Settlements and the Erosion of the Public Realm, 83 Geo. L.J. 2619, 2619-20 (1995); Andrew W. McThenia & Thomas L. Shaffer, For Reconciliation, 94 Yale L.J. 1660, 1665-67 (1985); Carrie Menkel-Meadow, Practicing “In the Interests of Justice” in the Twenty-First Century: Pursuing Peace as Justice, 70 Fordham L. Rev. 1761, 176263 (2002); Jeffrey R. Seul, Settling Significant Cases, 79 Wash. L. Rev. 881, 886-87 (2004) (believing negotiation to be a “credible alternative to litigation”). 68 See supra part two. 69 Besdin, supra note 30, at 53-54.

199

200

Section Eight    Law and Public Policy

In contrast, Rabbi Soloveitchik suggests, in the exercise of peshara, social harmony is the main concern of the [judge]. The fine points of the law and the determination of precise facts are of secondary importance. The goal is not to be juridically astute but to be socially healing. The psychology of the contenders, their socio-economic status and values, as well as the general temper of society, are the primary ingredients employed in the peshara process. These considerations are evaluated within the broad [legal] parameters of the [codes], and the final resolution of the conflict is a delicate and sensitive blending of both objective legal norms and subjective humanistic goals. For this reason, peshara is the preferred alternative.70 

Significantly, Rabbi Soloveitchik emphasizes that the administration of peshara serves as part of the legal system rather than independent of it; peshara “does not contradict the law but is its preferred and finest fulfillment.”71 Therefore, he notes, “[n]umerous . . . strictures establish the legal structure wherein peshara operates.”72 For example, a judge presides over the proceedings, the parties effect a formal legal agreement “obligat[ing them] to abide by the outcome and establish[ing] the status of the presiding court,” and, like other legal proceedings, peshara takes place only during d­ aylight.73  Moreover, Rabbi Soloveitchik observes, the Talmud cites two biblical verses in support of the institution of peshara, each of which illuminates the place of peshara within the legal system. The first verse, from the book of Zechariah, quotes God’s command to “execute the judgment of truth and peace in your gates.”74 Based on this verse, the Talmud derives an apparently paradoxical obligation: to exercise a form of justice that incorporates both truth and peace. Yet, the Talmud notes, it would seem that “where there is strict justice there is no peace, and where there is peace, there is not strict justice.”75 As Rabbi Soloveitchik elaborates, “[w]here there is strict adherence to [justice], there is justice but no [peace], because one of the parties is humiliated and antagonized. The immediate issue is resolved but the conflict persists, with ensuing social 70 71 72 73

Id. at 54. Id. Cf. Asher Weiss, Minchas Asher, Devarim 76‑78 (2017). Besdin, supra note 30, at 54. Id. See generally Rav Moshe Taragin, The Role of Peshara Within the Halakhic Judicial System, http://jlaw.com/Articles/roleof.html. 74 Zechariah 8:16. 75 Talmud Bavli, Sanhedrin 6b.

Looking Beyond the Mercy/Justice Dichotomy    Chapter 25

discord.”76 Resolving this apparent contradiction, the Talmud concludes that the legal procedure of peshara provides a form of justice that synthesizes truth with peace.77 In Rabbi Soloveitchik’s view, the Talmud’s resolution offers a valuable insight into the roles of both justice and the judge in the Jewish legal system: [T]he Torah . . . wants the [judge] to be not only a magistrate but a teacher and a healer . . . seek[ing] to persuade both parties to retreat from their presumed points of advantage, and [ ] preach[ing] to them about the corrosive personal and social effects of sustained rancor. [The judge’s] responsibility is primarily to enlighten, rather than to render decisions on points of law.78 

Thus, Rabbi Soloveitchik explains, the Talmud understands the biblical verse as “project[ing] the social welfare of society and the happiness of individuals as primary ideals, as being truly a higher form of justice. Peshara is socially and morally preferred, even if the strict [justice] is neutralized. In its highest sense, justice obtains when people are reconciled.”79  The second biblical verse quoted in the Talmud, from the book of Samuel, reports that King David “executed justice and righteousness toward his ­people.”80 The Talmud is initially troubled by a seemingly inherent tension between the virtues depicted, stating that “where there is strict justice there is no righteousness, and where there is righteousness there is no justice.”81 76 Besdin, supra note 30, at 55. 77 See Talmud Bavli, Sanhedrin 6b. 78 Besdin, supra note 30, at 55‑56; see also Aviam Soifer, Covered Bridges, 17 Yale J.L. & Human. 55, 78 n.109 (2005); Aviam Soifer, Law and the Company We Keep 167‑75 (1995); see generally Robert A. Baruch Bush, Mediation and ADR: Insights from the Jewish Tradition, 28 Fordham Urb. L.J. 1007 (2001). 79 Besdin, supra note 30, at 56. 80 2 Samuel 8:15. 81 Talmud Bavli, Sanhedrin 6b. This analysis relies on a translation of the term “tzedaka” in the biblical verse as “righteousness.” An alternate translation of “tzedaka” as “charity” yields a somewhat different analysis, as the Talmud’s question is then triggered by the verse’s praise for the seemingly incompatible virtues of justice and charity. In turn, the Talmud’s resolution then offers peshara as a means of accomplishing both justice and charity. Notably, the word “tzedaka” is rooted in the word “tzedek,” often translated as “justice.” Accordingly, although the obligation in Jewish law to help those in need is often translated as “charity,” a more meaningful—and perhaps more accurate—translation might prefer the connotation of “tzedaka” as “social justice.” Indeed, the existence of formal—and legally enforceable— obligations to assist those in need reflects the place of “tzedaka” within the system of justice. See Joseph B. Soloveitchik, Yemei Zicharon 43‑45 (1996) (citing Talmud

201

202

Section Eight    Law and Public Policy

According to Rabbi Soloveitchik, the Talmud premises its question on the understanding that “when two litigants present opposing claims, only one can be right.”82 If so, “[s]trict logic demands the application of [strict justice] whereby the claim of the righteous party will be vindicated while the other party will be discredited.”83  Again, however, the Talmud reconciles the apparent conflict, identifying peshara as a means of providing justice along with righteousness.84 Expanding on the Talmud’s response, Rabbi Soloveitchik suggests that Jewish law “believes that absolute right and wrong can be realized only in heaven. In dealing with imperfect [humans], we posit that no [one] is totally wrong or right and that, in the case of the litigants, both are partially right and wrong.”85 In fact, “each [litigant] has some responsibility for the situation and is partially guilty of the misunderstanding, for misleading innuendos, and for contributing indirectly to a climate in society which places others at a disadvantage.”86 Thus, the Talmud acknowledges the limitations of strict justice, which “take[s] account [only] of obvious surface conditions[,] fail[ing] to perceive subtleties underneath, which dilute our certainty about the right and wrong of the litigants.”87 In short, “[s]trict justice deals with plain facts and salient ­reality; real ­responsibility, however, goes much deeper and is obscured from the ­scrutiny Bavli, Bava Bathra 8b; Maimonides, Guide For the Perplexed 3:53); see also Meir Tamari, With All Your Possessions: Jewish Ethics and Economic Life 248‑62 (1987). Cf. Yosef Dov Ber Soloveitchik, Beis Halevi (explicating Exodus 25:11). Thus, tzedaka may serve as an illustration of the emphasis on obligation as a fundamental component of the Jewish legal system. See, e.g., Sol Roth, Halakha and Politics: The Jewish Idea of the State 97 (1988); Chapter 14 in Volume 1 (citing Robert M. Cover, Obligation: A Jewish Jurisprudence of the Social Order, 5 J.L. & Religion 65, 65 (1987); Moshe Silberg, Law and Morals in Jewish Jurisprudence, 75 Harv. L. Rev. 306, 313-14 (1961)); Steven F. Friedell, Aaron Kirschenbaum on Equity in Jewish Law, 1993 BYU L. Rev. 909, 913 (1993) (book review). See also Chapter 9 in Volume 1. For applications of a similar approach to areas of the American legal system, see, e.g., Chapter 16 in Volume 1; Charles L. Black, Jr., Further Reflections on the Constitutional Justice of Livelihood, 86 Colum. L. Rev. 1103, 1112 (1986); Susan P. Koniak, The Law Between the Bar and the State, 70 N.C. L. Rev. 1389, 1395 (1991-1992); Samuel J. Levine, Taking Ethical Discretion Seriously: Ethical Deliberation as Ethical Obligation, 37 Ind. L. Rev. 21, 43 (2003). 82 Besdin, supra note 30, at 56. 83 Id. 84 See Talmud Bavli, Sanhedrin 6b. 85 Besdin, supra note 30, at 56; see also Joseph Blau, Rav Chesed v’Emet, in Y’Kara D’Chaim: A Memorial Volume in Honor of Rabbi Chaim Yaakov Goldwicht 83-84 (Daniel Feldman et al. eds., 1996). 86 Besdin, supra note 30, at 57. 87 Id.

Looking Beyond the Mercy/Justice Dichotomy    Chapter 25

of the court. Metaphysically, no one is entirely absolved in situations of conflict.”88 Ultimately, then, righteousness “is truly realized only through peshara, which declares the parties both ­winners and losers . . . . The principle of [righteousness] demands that [justice] reflect the existential condition of [humans’] inevitable imperfection.”89

CONCLUSION In a chapter dedicated to both the jurisprudential legacy of Pope John Paul II and an examination of the place of justice, mercy, and reconciliation in Jewish thought, it may be fitting to close on a note of appreciation for the Pope’s historic efforts at reconciliation in Catholic-Jewish relations. Indeed, countless voices, in Jewish communities worldwide, have expressed their admiration for the Pope’s words and deeds vis-à-vis the Jewish religion, Jewish history, and the State of Israel.90  88 Id. 89 Id. 90 See, e.g., Rabbi Yitchok Adlerstein, A Pope Like no Other, Jewish World Review, Apr. 2, 2005; Rita Ciolli, Pope John Paul II: Reaching out to Jews, Newsday, Apr. 6, 2005, at A37 (quoting positive reflections of Stephen Savitsky, president of the Union of Orthodox Jewish Congregations of America, and Professor Jacob Neusner); Rabbi Abraham Cooper & Rabbi Yitzchok Adlerstein, Canonization Gives Inspiration to All, USA Today, Apr. 27, 2014; Glenn Frankel, Pope Reconciled with Many but Made Special Efforts with Jews, Wash. Post, Apr. 8, 2005, at A17 (quoting Rabbi Elio Toaff, former Chief Rabbi of Rome, who recalled the Pope’s 1986 visit to the Great Synagogue in Rome, and noting that Rabbi Toaff was one of only two living people mentioned in the Pope’s will); Herb Keinon, Israel Mourns Pontiff Who Remade Catholic-Jewish Ties, Jerusalem Post, Apr. 3, 2005, at 9 (quoting the statement of Israel’s Foreign Minister Silvan Shalom that “Israel[,] the Jewish people[,] and the entire world today lost a great champion of reconciliation and brotherhood between the faiths[,]” and that “[t]he State of Israel joins all those who mourn his loss”); Lisa Palmieri-Billig, Jewish Delegation Helps Celebrate “Life of Man Who Touched Millions,” Jerusalem Post, Apr. 10, 2005, at 6 (quoting Haifa Chief Rabbi Shear Yashuv Cohen stating that the Pope was “the first to say that our Biblical Covenant was eternally valid and not outdated or replaced by the New Covenant of the Christians—‘because Our Lord does not take back His promises.’ He went to the synagogue[,] came to Israel[, and] asked for forgiveness”); id. (quoting Rabbi Israel Singer of the World Jewish Congress, stating that “[t]hrough the remarkable will and acts of this [P]ope [,] relations between Catholics and Jews have improved more in the last 20 years than between Jews and the rest of the world” and that the Pope “made it possible for Orthodox Jews to participate in the [CatholicJewish] dialogue by not ignoring their [religious] requirements”); id. (quoting Rabbi David Rosen of the American Jewish Congress, speaking of the Pope’s “remarkably positive attitude towards Jews and Judaism[,]” his visit to Israel, and that the Pope “enshrined the positive new theology concerning the Jewish people and Judaism into the very fabric

203

204

Section Eight    Law and Public Policy

Through these efforts, the Pope exhibited a profound interest in the pursuit of justice and truth, together with an abiding fidelity to mercy, love, and compassion. As this chapter aims to demonstrate, the significance of these qualities manifests itself not only in areas of personal conduct and communal leadership, but also in the proper and righteous administration and application of legal principles and policies. Thus, viewed in the perspective of this chapter, Pope John Paul II’s attitudes and actions toward Jewish communities and concerns established an important element of his jurisprudential legacy, one that deserves to be recognized, honored, and emulated by those who follow.

of the Catholic Church”); Douglas Turner, Jews Mourning Loss of Revolutionary Pope, Buff. News, Apr. 11, 2005, at A6 (quoting Abraham H. Foxman, national director of the ­Anti-Defamation League, stating that the Pope “repaired the history of pain, anguish[,] and contempt of 2,000 years”).

CHAPTER 26

Teshuva: A Look at Repentance, Forgiveness, and Atonement in Jewish Law and Philosophy and American Legal Thought INTRODUCTION

I

n his contribution to an important UCLA Law Review symposium,1 Professor Stephen Garvey introduced and developed the possibility of viewing ­“punishment as atonement.”2 Garvey describes an “ideal community” in which punishment serves as “a form of secular penance aimed at the ­expiation of the wrongdoer’s guilt and his reconciliation with the victim and the community.”3 Recognizing that the concept of atonement “sounds religious,” Garvey insists, and sets out to demonstrate, that “atonement makes perfectly good sense ­independent of religion.”4 Nevertheless, Garvey acknowledges that “religion is one place where you’ll find atonement’s roots” and identifies St. Anselm’s eleventh-century work as an early example of a theological ­discussion of atonement.5 In further discussion of “theological atonement,”   1 See Symposium, The Future of Punishment, 46 UCLA L. Rev. 1719 (1999).   2 See Stephen P. Garvey, Punishment as Atonement, 46 UCLA L. Rev. 1801 (1999).   3 See id. at 1802. A similar approach has been proposed by a federal judge who “hypothesize[s] that in certain cases it would be beneficial to society if . . . we were to permit certain of them who are sincerely sorry to repent, atone for their crimes, and to seek, with the potential for earning, an official forgiveness - a ‘fresh start.”’ Richard Lowell Nygaard, On the Role of Forgiveness in Criminal Sentencing, 27 Seton Hall L. Rev. 980, 983 (1997).   4 Garvey, supra note 2, at 1803.   5 Id. at 1802-3 (citing St. Anselm, Cur Deus Homo, in Saint Anselm: Basic Writings 171 (S.N. Deane trans., 2d ed. 1962)).

206

Section Eight    Law and Public Policy

Garvey cites not only Christian sources but also, briefly, Jewish sources, which he traces to the biblical book of Leviticus.6  Garvey posits that his analysis of theological atonement “shed[s] some light on the problem of punishment in our secular world.”7 According to Garvey, parallel to theological accounts of atonement, which “depend critically on treating God as the object of the sinner’s identification,” a secular account of atonement “take[s] the object of identification not to be God, but one’s community and its members.”8 Thus, Garvey relies on sources based in various forms of moral philosophy, both theological and secular, to develop an extensive description of the “process of atonement.”9  The aim of this chapter is to carry forward Professor Garvey’s project through a more detailed exploration of the concept of teshuva10 in Jewish law   6 See id. at 1807‑8 (citing Leviticus 16:1‑34).   7 Id. at 1810.  8 Id.   9 See id. at 1813‑29. 10 Though often translated as “repentance,” see, e.g., Pinchas H. Peli, Soloveitchik on Repentance (1984) (translating the Hebrew title “Al Ha-teshuva”), the Hebrew term teshuva is a derivation of the Hebrew root for returning, highlighting the purpose and dynamics of teshuva. Teshuva affords humans a process through which they are able to renounce and repair the improper actions that have led them astray, returing to God and to their own true selves by following the path that God has set down. Cf. Garvey, supra note 2, at 1816 (writing that an apology “distances and disassociates the true self from the guilt-tainted self ”); Maimonides, Mishne Torah (Code of Law), Laws of Teshuva 2:4 (documenting the practice of changing one’s name after undergoing the process of teshuva, to demonstrate that “I am someone else, not the person who committed the wrongful act”). Indeed, a number of foundational biblical verses describing the imperative for atonement speak of “returning” to God. See, e.g., Deuteronomy 4:30, 30:2, 30:10; Hosea 14:2. As Rabbi Joseph Soloveitchik explained, although a human cannot actually harm God, the commission of awrongdoing creates a distance between a person and God. See Peli, supra, at 85 (citing Maimonides, supra, Laws of Teshuva 7:7 (quoting Isaiah 59:2)). Maimonides movingly describes the transformative power of teshuva, through which the person who “yesterday was distant from God . . . today clings to God.” See Maimonides, supra, Laws of Teshuva 7:7. It is through teshuva, then, that the individual can both “return” to God and “return” to the self who does not carry the burden of sin. Cf. Adin Steinsaltz, Teshuvah 3 (Michael Swirsky ed. & trans., 1996): Broadly defined, teshuva is more than just repentance from sin; it is a spiritual reawakening, a desire to strengthen the connection between oneself and the sacred. . . . [A]t the root of the notion of teshuva lies the concept of return (shivah)—return, not only to the past . . . but to the Divine source of all being.

Teshuva: A Look at Repentance    Chapter 26

and philosophy.11 Jewish theology considers it apparent that human beings are, by their very nature, fallible and incapable of avoiding all sin,12 and thus, through the possibility—indeed the obligation13—of teshuva, God provides humans a means of achieving atonement for wrongdoings.14 Though the verses

Id. See also Nygaard, supra note 3, at 985 n.17 (stating that “metanoia,” though “[u]suallytranslated as ‘repentance,’ . . . actually means something richer [,] closer to ‘whole change’ or ‘new state’ of mind, indicating a wholly new direction”). It should be noted that the word teshuva, transliterated from the Hebrew, appears in English works in a variety of other forms as well, including teshuvah, t’shuvah and t’shuva. In the interest of consistency, I have altered the spelling in some quotations to conform with a uniform transliteration of teshuva. In the interest of faithfulness to the original works, however, I have not altered the spellings of the titles of the works cited. In addition, although the overall process of teshuva involves repentance and remorse, as well as a more complete achievement of forgiveness and atonement, in the interest of consistency in terminology, I have equated the more limited concept of charata—or remorse— with Garvey’s use of the term “repentance”—compare Maimonides, supra, Laws of Teshuva 2:2, with Garvey, supra note 2, at 1814—while teshuva is used here to refer to the broader process of atonement. 11 See Steinsaltz, supra note 10, at 3 (“Teshuva occupies a central place in Judaism . . . . ”). See also generally 2 Aryeh Kaplan, The Handbook of Jewish Thought ch. 15 (Abraham Sutton ed., 1992). 12 See 1 Kings 8:46; Ecclesiastes 7:20; Psalms 103:3. For a discussion of moral vulnerability and susceptibility to temptation of evil as part of the human condition, see Abraham R. Besdin, Reflections of the Rav: Lessons In Jewish Thought 44-50 (1979) (adapted from lectures of Rabbi Joseph B. Soloveitchik). Cf. Garvey supra note 2, at 1811 (quoting P.S. Greenspan, Practical Guilt: Moral Dilemmas, Emotions, and Social Norms 133 (1995)) (describing a “morality built on a view of human nature as imperfect but improvable”). 13 For discussions of whether teshuva is considered a biblical commandment, and its precise mode of performance, see Kaplan, supra note 11, at 205 n.5; Peli, supra note 10, at 67-76; Asher Weiss, Minchas Asher, Devarim 368-76 (2017). Even if teshuva is not technically counted among the 613 commandments enumerated in the Torah, it is clearly an obligation incumbent upon an individual who sins. See Peli, supra. For a discussion of the concept of unenumerated biblical obligations, see Chapter 9 in Volume 1. 14 See, e.g., Deuteronomy 30:2-3; Isaiah 1:18; 43:25, 44:22. See also Steinsaltz, supra note 10, at 3-4 (“All forms of teshuva, however diverse and complex have a common core: the belief that human beings have it in their power to effect inward change.”). The opportunity for teshuva is often portrayed in Jewish thought as a manifestation of Divine beneficence that allows those who have violated God’s laws to return to the proper path and atone for wrongdoing. See, e.g., Bachya Ibn Paquda, Duties of the Heart, Introduction to Section 7; Rabbenu Yonah Gerondi, Sha’arei Teshuva 1:1; Rabbenu Nissim Gerondi (Ran), Derashot Haran 98-99, 107 (Leon A. Feldman ed., 1973); Steinsaltz, supra: According to the Talmudic sages, this possibility of altering reality after the fact, which is one of the mysteries of all being, was created before the world itself.

207

208

Section Eight    Law and Public Policy

in Leviticus cited by Garvey represent an early—and foundational—depiction of atonement in Jewish law, more broadly, teshuva has continuously occupied a central place in Jewish thought, from the Bible and the Talmud to the legal and philosophical writings of medieval and modern scholars.15 These sources portray a complex process—strikingly similar to the process Garvey describes— consisting of s­everal steps required of the penitent individual. Accordingly, teshuva stands as an illuminating conceptual analogue to Garvey’s vision of secular atonement.16  Before the laws of nature came into existence . . . a principle even more fundamental and more exalted was proclaimed: that change—teshuva—is possible. Id. at 4. 15 For discussions in English of the history, sources, development, and methodology of the Jewish legal system, see Irving A. Breitowitz, Between Civil Law and Religious Law: The Plight of the Agunah in American Society 307-13 (1993); Menachem Elon, Jewish Law: History, Sources, Principles 228-39, 281-399 (Bernard Auerbach & Melvin J. Sykes trans., 1994); Menachem Elon, The Legal System of Jewish Law, 17 N.Y.U. J. Int’l L. & Pol. 221 (1985); David M. Feldman, Birth Control in Jewish Law: Marital Relations, Contraception and Abortion 3-18 (1968); Aaron Kirschenbaum, Equity in Jewish Law: Halakhic Perspectives in Law: Formalism and Flexibility in Jewish Civil Law 289-304 (1991); Chapters 3 and 4 in Volume 1. 16 A substantial body of literature has developed debating the efficacy of relying on religious sources to analyze and apply secular concepts within the American legal system. See, e.g., Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (1993); Kent Greenawalt, Private Consciences and Public Reasons (1995); Kent Greenawalt, Religious Convictions and Political Choice (1988); Michael J. Perry, Religion in Politics: Constitutional and Moral Perspectives (1997); Michael J. Perry, Love and Power: The Role of Religion and Morality in American Politics (1991); Michael J. Perry, Morality, Politics, and Law: A Bicentennial Essay (1988); Suzanna Sherry, Religion and the Public Square: Making Democracy Safe for Religious Minorities, 47 DePaul L. Rev. 499 (1998); Symposium, Law and Morality, 1 Notre Dame J.L. Ethics & Pub. Pol’y 1 (1984); Symposium, Religion and the Judicial Process: Legal, Ethical, and Empirical Dimensions, 81 Marq. L. Rev. 177 (1998); Symposium, The Role of Religion in Public Debate in a Liberal Society, 30 San Diego L. Rev. 849 (1993); Ruti Teitel, A Critique of Religion as Politics in the Public Sphere, 78 Cornell L. Rev. 747 (1993). A less extensive but somewhat parallel debate has focused on the application of Jewish legal theory to American law. See, e.g., Chapter 5 in Volume 1 (comparing examples of scholarship endorsing such application, David R. Dow, Constitutional Midrash: The Rabbis’ Solution to Professor Bickel’s Problem, 29 Hous. L. Rev. 543, 544 (1992); Irene Merker Rosenberg & Yale M. Rosenberg, Guilt: Henry Friendly Meets the MaHaRaL of Prague, 90 Mich. L. Rev. 604, 614-19 (1991), with examples of scholarship expressing a more cautious approach, Steven F. Friedell, Book Review: Aaron Kirschenbaum on Equity in Jewish Law, 1993 BYU L. Rev. 909, 919 (1993); Suzanne Last Stone, In Pursuit of the Counter-Text: The Turn to the Jewish Model in Contemporary American Legal Theory, 106 Harv. L. Rev. 813, 893-94 (1993)). Regardless of the different stances taken in these debates, the application of Jewish law appears appropriate here, given Garvey’s acknowledgment of religion and Jewish law as early sources for the concept of atonement, see supra text accompanying notes 5-6, as well

Teshuva: A Look at Repentance    Chapter 26

In addition, providing another parallel to the process of teshuva, Garvey proposes a process of atonement that places separate obligations on the wrongdoer and the victim. The initial burden, understandably, falls on the ­wrongdoer, who must engage in “expiation,”17 a moral journey consisting of the four steps of “repentance, apology, reparation and penance.”18 After the wrongdoer has finished this journey, the victim is then obligated to forgive the wrongdoer, thereby completing the atonement process through a “reconciliation of the wrongdoer and the wronged.”19 Noting a similar dynamic in Jewish law, this chapter further likens Garvey’s system of atonement to the process of teshuva, as Garvey’s willingness largely to dispense with distinctions between the secular and the religious in discussing the process of atonement. See supra text accompanying notes 7-9. 17 See Garvey, supra note 2, at 1813. 18 Id. Before describing the steps that comprise the process of secular atonement, Garvey establishes that, as a prerequisite to undertaking the process, a wrongdoer must first experience “guilt.” See id. at 1810. According to Garvey, a person who commits a wrong “acquires guilt” or “becomes tainted.” Id. Indeed, he writes, “feeling guilt is the appropriate—the virtuous or morally decent—response to one’s wrongdoing.” Id. at 1810-11. It is the sense of “being ‘tainted,’ or more ominously ‘disfigured’ or ‘polluted,’” id. at 1810, that, ideally, leads to the path of atonement as a means of removing the taint. See id. at 1810-13. For discussions of the importance of feeling guilt or shame in order to facilitate teshuva, see, e.g., Ezekiel 18:61-63; Ezra 9:6; Rabbenu Yonah Gerondi, supra note 14, ch. 1, at 21-22. It should be noted that one of the caveats inherent in a comparative study of legal systems composed in different languages involves inevitable ambiguities in syntax. See supra note 10, discussing the translation of teshuva. Thus, for example, while Garvey emphasizes a distinction between “guilt,” which he sees as a positive reaction to wrongdoing, and “shame,” which he sees as unproductive and unlikely to result in atonement, see Garvey, supra, at 1811-13, the Hebrew terms for these concepts do not carry such contrasting connotations. See, e.g., Kaplan, supra note 11, ch. 15, at 18-19 (writing that one who repents “should experience deep shame” but “should not sink into depression . . . knowing how ready God is to forgive. . . .”). See also Steinsaltz, supra note 10, at 6. [G]enuine regret for one’s misdeeds and recognition of one’s failings do not necessarily lead to the desired outcome . . . instead, they can cause a deepening sense of despair and a fatalistic resignation. Rather than promoting positive changes, such despondency, regarded in our tradition as one of the most serious afflictions of the soul, can cause one to sink even further. Thus remorse . . . must be accompanied by something else: belief in the possibility of change. In this sense, the principle of teshuva—that no matter what the starting point . . . penitence is possible—is itself an important source of reawakening and hope . . . . [K]nowing that there is no irredeemable situation [ ] can itself serve as a goad to teshuva.

Id. at 6‑7. “[W]e focus on our blemishes and faults, not in order to wallow in guilt, but to use our flaws for leverage in the effort to progress . . . . Evil deeds, once recognized, become a constant goad and encouragement to reform.” Id. at 56. 19 Garvey, supra note 2, at 1813.

209

210

Section Eight    Law and Public Policy

comparing the obligations placed on both parties, and the requirements for achieving true atonement.

PART ONE | THE OBLIGATIONS OF THE WRONGDOER In Jewish thought, the process of teshuva20 is often broadly depicted in four stages, similar to Garvey’s process of secular atonement.21 Although the p­ recise enumeration and identification of these stages varies among scholars of Jewish law,22 the general formulation of the process of teshuva contains essentially the same elements listed by Garvey:23 remorse, resolution not to repeat the wrongdoing, confession, and changing one’s ways.24 The similarity in the conceptual 20 Scholars have emphasized that teshuva is a complex and often difficult process, akin to a spiritual journey. See Peli, supra note 10, at 89 (comparing process of teshuva to a journey along the circumference of a circle, in the course of which it may be difficult to realize that the path ultimately leads to the desired objective); Steinsaltz, supra note 10, at 7 (comparing one who engages in teshuva to “a person on a journey who at some point decides to change direction” and stating that “the new path, like the one abandoned, is long and arduous”). 21 See supra text accompanying notes 17‑19. 22 See Steinsaltz, supra note 10: Many books and articles have been written about teshuva, providing detailed analyses of the various stages of the process from start to finish. Yet, for all this elaboration, a few fundamental principles underlie all forms and levels of teshuva . . . . In fact, two essentials are found in every kind of teshuva: the renunciation of a regretted past and the adoption of a better path to be followed henceforth. Id. at 4. 23 Scholars also list these elements in various orders, many of which differ somewhat from the order described by Garvey. For the purposes of this comparative study, Garvey’s order has been adopted as a general framework. Indeed, Garvey’s list is likewise a compilation of enumerations by different theorists. Compare Garvey, supra note 2, at 1804 n.4 (stating that “[a]tonement involves four components—repentance, apology, reparation, and . . . penance (though not all of these are always required)”) (quoting Richard Swinburne, Responsibility and Atonement 81 (1989), with id. (listing “perception of wrongdoing, guilt, and repentance”) (quoting James Griffin, Well-Being: Its Meaning, Measurement, and Moral Importance 272 [1986]). 24 See Kaplan, supra note 11, at 209; id. at n.37-40. These elements are, indeed, quite similar to those articulated by Garvey. Thus, attention should be paid to the similarity in substance, rather than to the slight differences in terminology, particularly because the terms used for the elements in Jewish thought are translations of the original works. See discussions supra notes 10, 18. Because the Bible serves as the fundamental source of Jewish law and philosophy, many of the medieval scholars who discuss the process of teshuva cite various biblical sources for the different stages of teshuva.

Teshuva: A Look at Repentance    Chapter 26

frameworks of Garvey’s process of secular atonement and the process of teshuva may allow for meaningful comparative analysis of the two systems.

A. Repentance Garvey relies on a definition of “repentance” as “the remorseful acceptance of responsibility for one’s wrongful and harmful actions, the repudiation of the aspects of one’s character that generated the actions, the resolve to do one’s best to extirpate those aspects of one’s character, and the resolve to atone or make amends for the [wrong and] harm that one has done.”25 Garvey thus sees repentance as a crucial first step in removing the taint of wrongdoing because it is “active,” leading “[t]he repentant self [to] focus . . . on the wrongdoing that produced the stain in the first place and on what the self can now do about it.”26  In Jewish law and philosophy, remorse for a wrong, coupled with the ­resolution not to repeat the wrongdoing, is likewise essential to any possibility of atonement. In particular, as Maimonides writes in his Code of Law, these elements of repentance are prerequisites to effective confession.27 Words of a­ pology that are not accompanied by sincere feelings of regret and resolve to change remain empty, bereft of the crucial component that lends them ­meaning.28  For example, verses cited as sources for the of step remorse include Hosea 14:2, cited in Sa’adia Gaon, Emunoth V’deoth 5:5; Jeremiah 8:6, cited in Rabbenu Yonah Gerondi, supra note 14, ch. 1, at 10; Jeremiah 31:18, cited in Maimonides, supra note 10, Laws of Teshuva 2:2; Joel 2:14, cited in Bachya Ibn Paquda, supra note 14, ch. 7, at 4. Sources cited for the requirement to resolve not to repeat the wrongdoing include Hosea 14:4, cited in Sa’adia Gaon, supra; Isaiah 55:7, cited in Rabbenu Yonah Gerondi, supra, ch. 1, at 11; Maimonides, supra; Job 34:32, cited in Bachya Ibn Paquda, supra. Confession is included as part of the process of teshuva in such biblical sources as Hosea 14:3, cited in Sa’adia Gaon, supra; Leviticus 5:5, cited in Rabbenu Yonah Gerondi, supra, ch. 1, at 40; Numbers 5:6-7, cited in Maimonides, supra, 1:1; Proverbs 28:13, cited in Bachya Ibn Paquda, supra. Finally, the need to change one’s ways is derived from such sources as Hosea 14:2, cited in Sa’adia Gaon, supra; Isaiah 55:7, cited in Rabbenu Yonah Gerondi, supra, ch. 1, at 11; Maimonides, supra, 2:2; Bachya Ibn Paquda, supra. 25 Garvey, supra note 2, at 1814 (quoting Jeffrie G. Murphy, Repentance, Punishment, and Mercy, in Repentance: A Comparative Perspective 143, 147 (1997)). 26 Id. at 1815. 27 See Maimonides, supra note 10, Laws of Teshuva 2:3. 28 Cf. Matthew Atkinson, Red Tape: How American Laws Ensnare Native American Lands, Resources, and People, 23 Okla. City U. L. Rev. 379, 381 (1998) (“It’s difficult to take seriously an apology that is not coupled with atonement.”) (citation omitted); Jonathan R. Cohen, Advising Clients to Apologize, 72 S. Cal. L. Rev. 1009, 1017 (1999) (“For an a­ pology to comfort the injured party, it must be sincere, or at least perceived to be sincere. . . .

211

212

Section Eight    Law and Public Policy

To illustrate the futility of an insincere confession, Maimonides cites the powerful Talmudic image29 of an individual who undergoes ritual immersion while continuing to grasp a ritually impure object.30 Just as it is impossible for ritual purification to take effect until the individual casts away the impure object, it is inconceivable that the purifying effects of confession will set in before the improper acts have been cast aside, through regret and resolve for the future.31  In addition to elucidating some of the philosophical underpinnings of teshuva, the analogy to the laws of ritual purity underlines the legal nature of teshuva in Jewish thought. Indeed, for generations, ­scholars of Jewish law have looked to Maimonides’ Laws of Teshuva as a springboard for extensive legal discussions of the concept of teshuva.32 Among the works of contemporary scholars, Rabbi Joseph B. Soloveitchik’s discourses are ­perhaps the most notable example of a carefully crafted legal analysis of teshuva, ­articulated through a close reading and exposition of Maimonides’ Code of Law.33  Analyzing Maimonides’ approach to the first stages of the process of teshuva, Rabbi Soloveitchik observes that, in chapter one of Laws of Teshuva, Maimonides lists the stage of remorse prior to the stage of r­ esolution for the future, while in chapter two, the order of these two elements is reversed.34 Finding no contradiction between the two descriptions, Rabbi Soloveitchik suggests that in chapter one, Maimonides refers to teshuva that is motivated by emotion, resulting from the wrongdoer’s spontaneous inner feelings of shame, which instinctively lead to remorse.35 In such a scenario, he explains, it is the individual’s sense of utter remorse that automatically brings about the resolve never to commit the same wrongs.36 Chapter two, in contrast, describes an

29 30 31 32 33 34 35 36

[W]hen an apology is given too cavalierly, the listener may question its meaning.”); Deborah L. Levi, Note, The Role of Apology in Mediation, 72 N.Y.U. L. Rev. 1165, 1177-78 (1997) (“Like other important rituals, an apology is worthless unless the required gestures are filled with meaning. Apologies are speech-acts . . . .”). See Maimonides, supra note 10, Laws of Teshuva 2:3 (citing Talmud Bavli, Ta’anith 16a). See id. Cf. Swinburne, supra note 23, at 82, cited in Garvey, supra note 2, at 1814 n.47 (“Repentance also involves a resolve to amend—you cannot repent of a past act if you intend to do a ­similar act at the next available opportunity.”). See, e.g., Peli, supra note 10; Yitzchak Hutner, Pachad Yitzchak: Yom Ha-kippurim (2000), passim. A portion of these discourses have been collected in Peli, supra note 10. See id. at 188 (citing Maimonides, supra note 10, Laws of Teshuva 1:1, 2:2). See id. at 200. See id. at 200‑1.

Teshuva: A Look at Repentance    Chapter 26

individual who has arrived at teshuva on an intellectual level, who understands the impropriety and negative effects of sinful behavior and therefore resolves not to engage in this behavior in the future.37 In such a case, according to Rabbi Soloveitchik, the individual does not immediately experience passionate feelings of remorse; rather, remorse will grow out of the individual’s continued determination not to repeat the wrongful actions.38 Thus, the first stages of the process—as depicted both by Garvey and by Maimonides—incorporate elements of emotional commitment and future resolve, which must be achieved before continuing on the road to atonement.

B. Apology The next stage Garvey delineates in the process of atonement, “confession,” serves as “the wrongdoer’s public expression of his repentance, whereby he openly acknowledges his wrongdoing and simultaneously disowns it.”39 Alluding again to the theological roots of the concept of atonement, Garvey refers to an apology as a “secular ritual of expiation”40 that demonstrates the profound willingness of the self to “accept . . . responsibility for its wrongdoing but at the same time d­ isavow . . . the wrong.”41 In short, an apology “embraces” guilt and then “expels” it.42  Vidui—confession, or apology—likewise serves an indispensable f­ unction in the process of teshuva. Through vidui, the individual unequivocally accepts responsibility for wrongdoing, at the same time displaying an outward expression of remorse and a willingness to make amends.43 Maimonides enumerates 37 See id. at 202‑03. 38 See id. at 204; cf. Steinsaltz, supra note 10: The recognition of the need [for teshuva] comes about in different ways. Sometimes one is overcome by a sense of sinfulness, of blemish, of defilement, which resulted in a powerful desire for escape and purification. But the desire [for teshuva] can also take more subtle forms, feelings of ­imperfection or unrealized potential, which spur a search for something better. Id. at 5. 39 Garvey, supra note 2, at 1815. 40 Id. (quoting Nicholas Tavuchis, Mea Culpa: A Sociology of Apology and Reconciliation at viii (1991)). 41 Id. at 1816. 42 Id. 43 Through an analogy to medical ailments, the medieval legal authority Rabbenu Nissim Gerondi (Ran) illustrates the significance of open admissions of wrongdoing in the process of teshuva. Ran observes that a doctor cannot heal an individual suffering from a physical

213

214

Section Eight    Law and Public Policy

the essential elements of vidui, which include: a clearly articulated admission of having committed a wrong against another; precise identification of the wrong; a statement of strong remorse; and a declaration of a desire not to repeat the wrong.44  Indeed, Maimonides, who is known for precision and economy of language,45 repeatedly emphasizes the importance of verbalizing feelings of remorse and resolve.46 In addition, Maimonides cites Talmudic sources praising an individual who recites a more extensive vidui, consisting of an expanded form of confession and apology.47  Building on Maimonides’ discussions, Rabbi Soloveitchik offers an important psychological insight to explain the power and significance of verbal vidui. Rabbi Soloveitchik notes that human nature sometimes leads a person, consciously or otherwise, to refuse to accept the reality of unfavorable facts.48 Moreover, he observes, in an attempt to deny an unfortunate reality, a person may avoid verbally expressing the unpleasant truth.49 Perhaps one of the most difficult truths a person must face involves the acknowledgment of having committed a wrongful act.50 Through the verbal expression of vidui, then, rather than continuing to evade responsibility by deluding others—and possibly one’s malady unless the patient fully reveals the illness to the doctor. Similarly, to be healed of the spiritual ailments that accompany wrongful acts, an individual must fully acknowledge and identify the wrongdoing, to one’s self and to God, so that the process of teshuva can begin. See Ran, supra note 14, at 149‑50 (citing Hosea 7:1). See also Rabbenu Yonah Gerondi, supra note 14, ch. 2, at 8 (employing a similar analogy). Classical sources of Jewish law and philosophy have often employed analogies to physical health as a means of illuminating the spiritual ailments connected with wrongdoing and, conversely, the healing that accompanies teshuva. See, e.g., Bachya Ibn Paquda, supra note 14, ch. 7, at 1 (citing Jeremiah 31:29); Maimonides, supra note 10, Laws of De’oth, chs. 2, 4; Maimonides, Introduction to Commentary on The Mishna, Introduction to Pirke Avoth; Peli, supra note 10, at 146‑50 (citing Psalms 103:2‑4; Isaiah 6:10; 57:19); Rabbenu Yonah Gerondi, supra, ch. 2, at 3 (citing Isaiah 33:24; Psalms 41:5); id. ch. 4, at 1 (citing Isaiah 6:10; Psalms 41:5); Ran, supra, at 99-100; id. at 107 (citing Hosea 14:5; Ezekiel 18:27‑28; Talmud Bavli, Yoma 86a‑86b). 44 See Rabbenu Yonah Gerondi, supra note 14, ch. 1, at 1; see also generally Kaplan, supra note 11, ch. 16. 45 See Isadore Twersky, Introduction to the Code of Maimonides (Mishneh Torah) 97 (1980). 46 See Maimonides, supra note 10, Laws of Teshuva 1:1, 2:2, 2:9. 47 See id. at 1:1. 48 See Peli, supra note 10, at 93. 49 See id. 50 See Chaim Shmulevitz, Sichoth Mussar 74-76 (1980) (citing numerous sources in Jewish thought describing the tendency of an individual to justify wrongful acts and the importance of overcoming such an inclination). Cf. Talmud Bavli, Avoth 5:9 (listing qualities that indicate wisdom, including willingness to admit error, or “to admit truth”).

Teshuva: A Look at Repentance    Chapter 26

self, the individual admits to the truth of the wrongdoing, thereby facilitating the process of teshuva.51  51 See Peli, supra note 10, at 93-96. Cf. Joel Feinberg, Autonomy, Sovereignty, and Privacy: Moral Ideals in the Constitution?, 58 Notre Dame L. Rev. 445, 480 (1983). Genuine repentance as well as such states as contrition, remorse, the feeling of guilt, and the desire for atonement, all require some sense of continuity with the past and self-identity with an earlier wrongdoer. The essence of these states is the deliberate taking of responsibility for an earlier doing. To deny one’s identity with the wrongdoer is to evade or deny responsibility for his crimes, quite another thing from repentance.

Id.; Theresa Klosterman, Note, The Feasibility and Propriety of a Truth Commission in Cambodia: Too Little? Too Late?, 15 Ariz. J. Int’l & Comp. L. 833, 838-39 (1998) (stating that, on a societal level, “[d]etermining the truth about human rights violations is crucial” and that “officially sanctioned . . . acknowledgment is important because, in many religious and ethical traditions, it is a prerequisite to societal forgiveness and atonement.”); Seymour Moskowitz & Michael J. DeBoer, When Silence Resounds: Clergy and the Requirement to Report Elder Abuse and Neglect, 49 DePaul L. Rev. 1, 67 (1999) ( “The ‘confession’ can be the catalyst for new behavior. In fact, repentance and accountability for the evil in which the penitent participated may ameliorate or end past wrongs.”); Steinsaltz, supra note 10: The great obstacle in the way of teshuva . . . is self-satisfaction . . . . This great stumbling block has been referred to by one sage as “obtuseness of the heart.” Obtuseness of the mind is easily recognized as an impairment of cognitive functioning; that of the heart is more insidious, a condition of blocked moral and emotional awareness. Without this prodding awareness, however slight, without some feeling of inadequacy, no amount of intellectual sagacity can change a person’s behavior . . . . The initial perception and awakening is, in effect, the first and most inclusive “confession.” When a vague feeling of discomfort turns to clear recognition that something is wrong, and when that recognition is expressed in words spoken either to oneself, to God, or to another person, the first step in the process of [teshuva] has been taken, the part that relates to one’s previous life and character.

Id. at 5-6; Scott E. Sundby, The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse, and the Death Penalty, 83 Cornell L. Rev. 1557, 1584 (1998) (documenting that a capital defendant’s “acceptance of responsibility truly does influence the jury’s decision making” and that “a defendant’s verbal acknowledgment of his killing would increase the likelihood of receiving a life sentence”). This explanation of the importance of verbal vidui would likewise appear to be the rationale behind the principle, which Maimonides again cites from the Talmud, that a person should engage in public vidui as an effective step in the process of teshuva. See Maimonides, supra note 10, Laws of Teshuva 2:5. Criticizing those who view public apologies as merely “shaming penalties,” Garvey cautions us not to “forget that the offender is not only being exposed and shamed, he’s also making an apology. Indeed, as far as atonement goes, treating an apology as nothing more than a chance to cause shame misses the point.” See Garvey, supra note 2, at 1816 (emphasis in original).

215

216

Section Eight    Law and Public Policy

Thus, according to both Garvey and Maimonides, this stage of the process requires that the wrongdoer engage in a clear acceptance of responsibility for the bad act, and an overt expression of regret and repudiation of the wrong.

C. Reparation and Penance In the next stage of Garvey’s depiction of the process of atonement, it is incumbent upon the wrongdoer to “make amends.”52 Garvey suggests that most crimes result in both harm and a moral wrong; therefore, the remedy for wrongdoing consists of two corresponding actions: reparation and penance.53 As Garvey further explains, because reparation, in the form of restitution or ­compensation, “makes amends for the harm the wrongdoer does, but not for the wrong he has done . . . the wrongdoer must [also] submit to penance.”54 Thus, Garvey refers to penance as “the final, critical piece of the expiation half of the atonement process.”55  Garvey defines penance as “a self-imposed punishment, i.e., self-imposed hardship or suffering, which completes the process of expiation and finally rids the wrongdoer of his guilt.”56 Penance plays a unique role in Garvey’s view of atonement, which “insists that punishment should do more: It should restore the offender to full standing in the community.”57 To explore the potent ­question of “[h]ow suffering manage[s] to effect this restoration,” Garvey posits the need “to shift perspectives.”58 Specifically, Garvey’s approach requires us “to look at punishment not from the victim’s perspective, but from the

For descriptive and normative discussions of the use of apology in American law, see, e.g., id.; Cohen, supra note 28; Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L. Rev. 591 (1996); Steven Keeva, Does Law Mean Never Having to Say You’re Sorry?, A.B.A. J., December 1999, at 64; Levi, supra note 28; Hiroshi Wagatsuma & Arthur Rossett, The Implications of Apology: Law and Culture in Japan and the United States, 20 L. & Soc’y Rev. 461 (1986). 52 See Garvey, supra note 2, at 1816, 1818. Cf. Moskowitz & DeBoer, supra note 51, at 67 (emphasizing that “[t]rue repentance does not deal with feeling, but with action—changing one’s behavior, reversing direction”); Reverend Katherine Hancock Ragsdale, The Role of Religious Institutions in Responding to the Domestic Violence Crisis, 58 Alb. L. Rev. 1149, 1168 (1995). 53 See Garvey, supra note 2, at 1816‑27. 54 Id. at 1818. 55 Id. at 1819. 56 Id. 57 Id. at 1822. 58 Id.

Teshuva: A Look at Repentance    Chapter 26

wrongdoer’s.”59 This simple, yet profound, suggestion recognizes that often, a wrongdoer “will feel smaller than before” and “will experience anger and ­resentment toward himself.”60 Therefore, Garvey concludes, “the wrongdoer cannot restore his own moral standing unless he submits to punishment.”61  A look at Rabbi Soloveitchik’s discourses on teshuva provides a helpful complement to Garvey’s thoughts on penance. Anticipating Garvey’s analysis, Rabbi Soloveitchik establishes a conceptual framework based on the premise that the commission of a wrong results in two interrelated, but distinct, ­consequences. On one level, in relation to the victim, a wrongful act produces liability on the part of the offender.62 Similar to Garvey, Rabbi Soloveitchik explains that to counteract this ­culpability, the wrongdoer must engage in reparation, through the payment of restitution or compensation.63 This mode of teshuva effects ­kappara—a degree of forgiveness or acquittal from wrongdoing.64 An individual who undertakes this kind of teshuva both literally and metaphorically pays a debt owed to another, and is thereby released from further liability.65 Indeed, Rabbi Soloveitchik notes an etymological link that underscores the conceptual similarity between reparation and this form of teshuva: kappara derives from the same root as kofer, the Hebrew term for payment of an obligation.66  Yet, kappara does not adequately amend for the second result that Rabbi Soloveitchik attributes to the commission of a wrongful act. Employing an approach that again anticipates Garvey’s, Rabbi Soloveitchik relies on v­ arious sources in Jewish thought67 to examine the effect of ­wrongdoing on the individual who has committed the improper act: the spiritual defilement caused by the impurity of sin,68 which obligates the individual to do more than merely compensate the victim. 69 As in Garvey’s system, in the final stages of teshuva, 59 Id. 60 Id. at 1823. 61 Id. 62 See Peli, supra note 10, at 49‑50. 63 See id. at 50-51. 64 See id. at 51. 65 See id. 66 See id. 67 Rabbi Soloveitchik grounds his approach in biblical sources and in both legal and narrative strands of the Talmud—the halacha and the aggada. See id. at 51-55. For a discussion of halacha and aggada in Jewish thought, see Chapter 17 in this Volume. 68 See Peli, supra note 10, at 51. In addition to its powerful philosophical implications, the notion that a change takes place in the wrongdoer’s personality is expressed in a technical legal sense as well: individuals who have not reformed from their improper ways are disqualified as credible witnesses. See id. at 55-56 (citing Talmud Bavli, Sanhedrin). 69 Cf. Maimonides, supra note 10, Laws of Teshuva 1:1 (emphasizing that a person who dam-

217

218

Section Eight    Law and Public Policy

Jewish law demands not only reparation but, more importantly, penance, in the form of fundamental change in the individual’s mode of behavior.70  To fully erase the taint of the wrongdoing, an individual must engage in a more extensive form of spiritual expiation, which Rabbi Soloveitchik terms teshuva of tahara—repentance of purification.71 Like penance, teshuva of tahara requires that a person undertake self-imposed hardships directly related to the particular nature of the act committed.72 Through teshuva of tahara, an individual truly regains and returns to the state of undefiled spirituality lost as a consequence of the wrongdoing.73

PART TWO | THE OBLIGATIONS OF THE WRONGED: RECONCILIATION Finally, Garvey writes, once the wrongdoer has successfully completed ­expiation, and the guilt has thereby been removed, it is time for the victim to ages another does not achieve atonement merely through the payment of restitution or compensation). 70 See id. at 2:2 to 2:4. 71 See Peli, supra note 10, at 51-52. Cf. Hutner, supra note 32, at 39-45. 72 For example, the Talmud discusses the acts of penance required of a usurer, who has violated the laws of the Torah and, as a result, is disqualified as a credible witness. The Talmud instructs that the usurer must destroy all credit slips and refuse to lend money on interest under any circumstances, even when it may be legally permissible to do so. See Peli, supra note 10, at 56 (quoting Talmud Bavli, Sanhedrin 25b). Restoring spiritual purity and, as a result, testimonial credibility, requires teshuva of tahara, which entails acts that renounce even the conditions that led to the improper past behavior. See id. Cf. Maimonides, supra note 10, Laws of Teshuva 2:4 (describing such practices as “distancing one’s self far from the means of wrongdoing, changing one’s name to demonstrate that ‘I am not the same who committed those acts,’ changing all of one’s ways toward the good and proper path, and exiling one’s self ”); Rabbenu Yonah Gerondi, supra note 14, ch. 1, at 35. 73 See Peli, supra note 10, at 55-56. The medieval scholar Rabbenu Yonah Gerondi elaborates on the biblical analogy of cleaning a stained garment to illustrate different modes and levels of teshuva and their relative effectiveness in removing the spiritual taint of wrongful acts. See Rabbenu Yonah Gerondi, supra note 14, ch. 1, at 9 (citing Jeremiah 4:14; Psalms 51:4). Specifically, he points to differences between a superficial washing of a garment, which may merely remove dirt, and a more thorough cleaning, which will restore the garment’s original color and brightness. See id. Cf. Ran, supra note 14, at 108 (citing Talmud Bavli, Yoma 86b) (describing different types of teshuva and corresponding levels of expiation); Steinsaltz, supra note 10, at 53 (“Teshuva has two essential phases: a leap of disengagement from the past, and a lengthier, more arduous process of rectification. The first phase is one of destruction, the second of reconstruction.”). See generally Kaplan, supra note 11, ch. 17.

Teshuva: A Look at Repentance    Chapter 26

complete the process of atonement through forgiveness.74 According to Garvey, forgiveness “achieves the reconciliation of wrongdoer and wronged.”75 Just as expiation “enables an offender to purge the taint of guilt,” expiation coupled with forgiveness “enables the victim to overcome his resentment.”76 To be sure, Garvey argues that although “[a] victim may permissibly extend forgiveness to a wrongdoer who has done nothing but repent . . . [,] a victim may also legitimately withhold forgiveness until the wrongdoer has paid his debt in full, i.e., until the wrongdoer has not only repented but also apologized, made reparations, and endured his penance. Indeed, forgiveness may take some time in coming.”77 Ultimately, however, Garvey considers forgiveness “one of th[e victim’s] responsibilities.”78 Indeed, Garvey finds that “[i]t reflects a moral failure . . . for victims to withhold forgiveness unreasonably from offenders who have done all they can do to expiate their guilt.”79  A similar approach is found in Jewish thought. As Maimonides explains, in addition to paying reparations, the wrongdoer must appease the victim and ask for forgiveness.80 The responsibility on the wrongdoer is such that, if the victim initially refuses the request, the wrongdoer must

74 See Garvey, supra note 2, at 1813. 75 See id. 76 See id. at 1828. Cf. Nygaard, supra note 3, at 984 (“Forgiveness looks evil in the eye, condemns it, but still permits one who meets the forgiver’s criteria, to start anew.”). 77 Garvey, supra note 2, at 1828 (emphasis in original). 78 Id. at 1827. Cf. Levi, supra note 28, at 1178 (stating that the “effectiveness [of an apology] in reconciliation depends not only on the speaker but also on the participation of an injured party. Absent the eventual complicity of the injured party, the apologizer’s words are just talk.”). 79 Garvey, supra note 2, at 1828. Cf. Cohen, supra note 28, at 1021 (citing psychological evidence finding that “an injured party . . . who fails to forgive after receiving an apology [ ] may suffer the corrosive effects of storing anger”); Levi, supra note 26, at 1178 (“By apologizing, the offender acknowledges her diminutive moral stature and asks for restorative forgiveness. She also acknowledges the existence and importance (to both parties) of the moral register itself. When the apologizee gestures to acknowledge that meaning, he closes the circle of performance, thus establishing a new moral equilibrium.”); Nygaard, supra note 3, at 1012. For the offender who is sincerely repentant; feels shame for his act; who has recaptured compassion for the feelings of others; realizes the pain he has caused; and, who truly desires to turn a new leaf and be reconciled with society; the system must determine how it can facilitate that desire, not frustrate it out of ignorance or misguided notions. Id. 80 See Maimonides, supra note 10, Laws of Teshuva 2:9; Rabbenu Yonah Gerondi, supra note 14, ch. 1, at 44.

219

220

Section Eight    Law and Public Policy

continue to undertake repeated attempts to obtain forgiveness.81 Once the wrongdoer has demonstrated this sincere desire for reconciliation, p­arallel to Garvey’s approach, Jewish law places the burden on the victim to grant forgiveness. Maimonides emphasizes the responsibility incumbent on the victim, writing that it is improper for a person to withhold forgiveness; instead, a victim should be receptive to the wrongdoer’s genuine attempts at reconciliation and atonement.82 Indeed, in the powerful formulation of Maimonides, if the victim ­continues to deny forgiveness, the wrongdoer is released from further action, as the victim is then deemed to be the sinner.83

CONCLUSION Despite the prominent position it has held for millennia in religious and moral thought, the atonement model is relatively new to American legal theory. Professor Garvey’s attempt to offer a systematic depiction and analysis of the process of atonement, and its possible relevance to American law, appears to represent the most extensive such effort to date.84 As Garvey himself concedes, any application of a theory of atonement within the workings of the American legal system will encounter a number of objections. For example, he acknowledges that “[i]f in the end you remain convinced that the ideal of community on which I base my account of atonement is indeed dangerous or irretrievable, then you will . . . be forced to turn elsewhere for your understanding of punishment.”85 This challenge is compounded in attempts to apply the concept of teshuva, from Jewish law and philosophy, within the context of American law.86

81 See Maimonides, supra note 10, Laws of Teshuva 2:9; Rabbenu Yonah Gerondi, supra note 14, ch. 4, at 19. 82 See Maimonides, supra note 10, Laws of Teshuva 2:10. 83 See id. at 2:9. 84 See also Stephen P. Garvey, Is It Wrong to Commute Death Row? Retribution, Atonement, and Mercy, 82 N.C. L. Rev. 1319 (2004); Stephen P. Garvey, Restorative Justice, Punishment, and Atonement, 2003 Utah L. Rev. 303 (2003). 85 Garvey, supra note 2, at 1803. 86 Indeed, I have expressed my own doubts about attempts to derive practical lessons for the application of the death penalty in the United States based on the approach to c­ apital punishment in Jewish law, because, “the processes of repentance and atonement are inherent parts of the Jewish legal system, [and] that is clearly not the case in American penal law.” See Chapter 5 in Volume 1.

Teshuva: A Look at Repentance    Chapter 26

Nevertheless, as Garvey emphasizes, his “immediate aim is normative, not practical,” and therefore, rather than “develop[ing] any concrete proposals for institutional or doctrinal reform,” “the discussion proceeds at a high level of abstraction.”87 In addition, Garvey argues that a new model is necessary, based on his conclusion that “the prevailing models of punishment . . . deterrence[,] retributivism[,] restorativism and libertarianism . . . fall short.”88 Finally, as Professor David Dolinko noted, Garvey’s proposal offers a fresh perspective at a time when “[c]riminal punishment is an institution that is large, growing, and quite possibly mutating into new and surprising forms.”89 Ultimately, it is perhaps ironic that in developing a new theory of ­punishment for American legal thought to consider at the start of a new millennium, Garvey looked back to past millennia to draw upon the theories of atonement and teshuva. The path to teshuva may, indeed, provide insights and ideas helpful in formulating a new perspective on notions of p­ unishment underlying American law.

87 Garvey, supra note 2, at 1804. 88 Id. at 1829-30. 89 David Dolinko, The Future of Punishment, 46 UCLA L. Rev. 1719, 1726 (1999).

221

Index

Note: Page numbers followed by ‘n’ denotes notes

A

Abrahams, Israel, Jewish Life in the Middle Ages, 97, 97n103 Abramson, Rabbi Robert, 1, 3–4, 19–21 Adler, Felix, 52, 54, 59 admittedly arbitrary rule, 132 aggada, 1–41, 217n67 in Mishne Torah, 32–35 in Talmud, 28–32 in Torah, 21–28 Alkabetz, Rabbi Shlomo Halevi, 71n63 American Arbitration Association, 88 American Jewish Committee (AJC), 88, 93n78 Amish, 6, 8 Anabaptists, 6, 7n28 Andrews, Judge William S., 106 anti-Semitism, 61–79, 93n78, 94, 134 antislavery constitutionalism, 10 atonement, 183–184, 194, 205–211, 211n28, 213, 215n51, 216, 218n69, 219–221

B

Bachya ben Asher, Rabbenu Kad Ha-kemach, 192n18 Bialik, Hayim Nahman, 4, 18–19n91, 35–40 Bible ( Jewish), 11–18, 22, 25, 26n129, 29n138, 33, 34, 46, 58n96, 174, 191, 208, 210n24 Torah, see Torah Nevi’im Former Prophets Judges, 189n2 2 Samuel, 189n2, 201

1 Kings, 189n2, 207n12 Latter Prophets Isaiah, 181n46, 184n62– 63, 189n2, 206n10, 207n14, 211n24, 214n43 Jeremiah, 189n2, 211n24, 214n43, 218n73 Ezekiel, 209n18, 214n43 Twelve Prophets Hosea, 189n2, 206n10, 211n24, 214n43 Joel, 211n24 Jonah, 183–184 Micah, 189n2 Zechariah, 200 Ketuvim Psalms, 34, 72n63, 189n2, 207n12, 214n43, 218n73 Proverbs, 211n24 Job, 26n129, 189n2, 211n24 Ecclesiastes, 207n12 Esther, 175, 185–188, 189n2 Mordechai, 185–188 Ezra, 209n18 Nehemiah, 189n2 1 Chronicles, 15, 16n73 2 Chronicles, 189n2 biblical principles of succession, 10, 11, 22 Blackmun, Justice Harry, 136n121 Block v. Hirsh, 99–100, 103 Bob Jones University v. United States, 6, 18n90 Brandeis, Justice Louis D., 90–91n59–61, 107–109, 109–110n160 Brennan, Justice William, 121, 134–135, 139

Index Brisker method, 66–67, 142–148, 151–157, 159–163, 166n131, 167–169, see also Chaim, Reb, of Brisk Brodsky, Louis, 104 Burke, John, 74–75

C

Cardozo, Judge Benjamin, 57n95, 80–82, 87, 100–107, 110–111, 155 Cardozo Law School, 80 Carle, Susan D., 58n96 Chaim, Reb, of Brisk, 66, 142–143, 146–148, 151–154, 157, 159–163, 167, see also Brisker method cheftza/gavra dichotomy, 147–148, 151 Clarke, Justice Harold G., 86n41, 103, 110 Cochran, Robert, 43 Cohen, Julius Henry, 42, 44–45, 49–60, 80–82, 85–111 The Law: Business or Profession?, 43–44 Cohen, Rabbi Shear Yashuv, 203n90 Cover, Robert, 1–41,184n66 The Supreme Court, 1982 Term— Foreword: Nomos and Narrative, 1–41 Constitution of United States, 6, 8, 10, 37, 121, 130, 134, 156n81 constitutionalism, 10–11, 16, 18n90 First Amendment, 6, 8, 37, 121, 123, 130, 133–134, 136, 139, see also Free Exercise Clause Crane, Judge Frederick E., 101–103, 110 critical legal studies, 142n1, 158, 159n100

D

Davis, John W., 106n149 Deutsch, Bernard, 84 dispossession proceedings, 83 Dostoevsky, Fyodor, The Brothers Karamazov, 68

E

Eck (Maier), Johann, Refutation of a Jewish Booklet, 69 Edels, Rabbi Shmuel Ha-Levi (Maharsha), 29n140 Edgar A. Levy Leasing Co. v. Siegel, 84–86, 94, 95n85, 103 Edwards, Judge Harry, 131, 137–138 Eliezer, Rabbi, 30–31 Elkins, James R., 7n29 Emanuel, Herbert L., 130

F

Free Exercise Clause, 6, 130–133, 136n121, 137

G

Garet, Ronald, 25n125, 26n129, 30n141 Garrisonian abolitionists, 10 Garvey, Stephen, 190n3, 205–211, 213, 216–221 Gerondi, Rabbenu Nissim (Ran), 30, 31, 207n14, 213n43 Derashot Haran, 31n147–149, 180n44, 197n55, 207n14, 214n43, 218n73 Gerondi, Rabbenu Yonah, Sha’arei Teshuva, 207n14, 209n18, 211n24, 214n43–44, 218n72–73, 219n80, 220n81 Ginsburg, Justice Ruth Bader, 132–133, 137 Glendon, Mary Ann, 54 Glynn, Martin, 101n122 Goldman v. Weinberger, 121–141 Green, Bruce, 43, 44n10 Greenawalt, Kent, 121 Grodzinsky, Rabbi Avraham, 115 Guthrie, William D., 85n32, 92–94, 101–102, 105–106, 109n158, 110n160, 110 Guttag, Jacob, 84

H

halacha, 1–41, 19n91, 217n67 in Mishne Torah, 32–35 in the Talmud, 28–32 in the Torah, 21–28 Hamelitz, 63–64, 66, 70 Hand Formula (B < PL), 149, 154 Harno, Albert J., 61, 63–64, 71, 75–79 American criminal law textbook, 61–64, 66, 71, 75–76, 78–79 Cases and Other Materials on Criminal Law and Procedure, 61, 75–78 Herczeg, Rabbi Yisrael Isser Zvi, 62n2 Hershkopf, Bernard, 92, 93n78, 94 Hillquit, Morris, 89, 91n61 Hoffman, David, 57n95, 58n96 Hogan, Judge John W., 101, 106 Holmes, Justice Oliver Wendell Jr., 81, 86n40, 100, 102–103, 109n158, 110–111 Holocaust, 112–113, 117–118, 120

I

Ibn Paquda, Rabbenu Bachya, Duties of the Heart, 207n14, 211n24, 214n43 imitatio Dei, 27n133, 34, 191, 194n30

223

224

Index in personam jurisdiction, 147n30 in rem jurisdiction, 147n30 insular communities, 6, 9, 18n90 Irish Law Times, 61, 63–64, 70–77 Isaacs, Lewis M., 98 Isaacs, Nathan, 97n102, 108 Israel, ancient (also Land of; Nation of), 11–17, 20n98, 23–25, 31 State of, 203 Itzkowitz, Rabbi Dovid, 115–117

J

Jewish Welfare Board, 127 John Paul II, Pope, 189–190, 203–204 Dives in Misericordia, 189 Journal of Legal Studies, 164

K

Kabbalah, 46, 184 Kafka, Franz, 46 Kaplan, Lawrence, 153n65, 161–162n108 Kaplan, Rabbi Aryeh, 47–48, 49n39, 197n57 Karasik, Vladimir, 63n5 Karlinsky, Rabbi Chaim, 62n2,70 The First of the Chain of Brisk, 66 Karo, Rabbi Joseph, 146–147 Kaufman, Andrew, 57n95, 101n122, 104, 105n143, 106n146 Kovno ghetto, 112, 115, 117–119 Kronman, Anthony, 43, 48

L

Laird, Melvin, 124 Lamberth, Judge Royce C., 136 law-and-literature movement, 3n8, 5 Leff, Arthur, 157–158, 166–167n131 legal storytelling, 2, 4–5, 7n29, 8–9, 18n91, 45n12, 102 Lerman, Lisa, 53n75 Lewin, Nathan, 129, 137–138, 140 Lichtenstein, Rabbi Aharon, 167–169 Lincoln, Abraham, 54 Loew, Rabbi Judah (Maharal of Prague), 23–24, 28 Gur Aryeh, 24n116, 24n118–119 London, Meyer, 91n61, 91n63 Lukinsky, Rabbi Joseph, 21n102, 41

M

Maharal of Prague, see Loew, Rabbi Judah

Maimonides (Rambam), 4, 13n63, 32–35,47n26, 57n90, 99n113, 146, 148, 152,160n102, 160n104, 161, 167n131, 177,206n10, 211–216, 219–220 Guide of the Perplexed (Guide for the Perplexed)/Moreh Hanevuchim, 47n26, 202n81 Mishne Torah (Code of Law), 4, 13n63, 32–35, 143n4, 146n20–21, 152,160n104, 161n105, 211–212 halacha and aggada in, 32–35 Laws of Chametz and Matzo, 146n24 Laws of De’oth, 57n90, 214n43 Laws of Estates, 34n159 Laws of Idolatry, 67n33, 177n14–15, 177n18–19 Laws of Kings, 13n63, 180n43, 181n47– 48, 185n68–70 Laws of Megilla, 34n161 Laws of the Passover Sacrifice, 145n16 Laws of Prayer, 67n34 Laws of Repentance, 181n47 Laws of Sabbath, 114n7 Laws of Sanhedrin, 67n35, 199n67 Laws of Teshuva, 206– 207n10, 211n24, 211n27, 212, 214n46–47, 215n51, 217n69, 218n72, 219n80, 220n81–83 Laws of Yom Tov, 34n161 Marcus Brown Holding Co. v. Feldman, 94–95n85, 103, 107 Marshall, Louis, 80–82, 85–93, 95n85, 98–99, 100n118, 103, 105, 110n160 Marshall, Justice Thurgood, 134 Matthew, 68n37, 71 McDonald, Charles, 126–127 McKenna, Justice Joseph, 86n40–41, 108–109n158 McReynolds, Justice James C., 86n40–41 Mennonites, 6–8 The Menorah Journal, 97, 107–108 Meyer, Max, 91n61 Michigan Law Review Symposium, Legal Storytelling (1989), Foreword to, see Scheppele, Kim

Index Mikva, Judge Abner, 131, 138–138 Minnesota Multiphase Personality Inventory (MMPI), 125 Minow, Martha, 36n165

N

Nachman of Breslov, Rabbi, 42, 44–51, 53, 56–57, 59n96, 60 Nachmanides (Ramban), 24–25, 28 Commentary on the Torah, 13n63, 14n65, 24n119–121, 25n122, 175n6,179n32, 179n38, 187n88, 191n9 New York Court of Appeals, 81–83, 85–86, 94–95, 98, 99n113, 100–102, 105, 107, 110, 155 New York Emergency Rent Laws of 1920, 80–111 Noachide laws, 182–183 nomos, 4–23, 25, 28–30, 32, 34–41 Novoye Vremya, 69n42

O

Oberly, Kathryn, 138–139 Oshry, Rabbi Ephraim, 112–120 Sh’eilos U’Teshuvos MiMa’makim, 112

P

Passover, 31, 113, 118–119, 145–148, 179, see also Pesach sheni Passover sacrifice, 145–148 Passover Seder, 113, 118–119 Pearce, Russell, 54–55, 58n96 Perry, Michael, 8n29 Pesach sheni, 145–146, 148 peshara, 198–203 Pierce v. Society of Sisters, 87, 93n78 Plessy v. Ferguson, 122 Posner, Judge Richard, 142–144, 148–151, 154–157, 158n93, 164–166, 168–169 Pound, Judge Cuthbert W., 102, 106, 110 Pound, Roscoe, 97n102 Powell, Justice Lewis F., 133 Purim, 185, 187

R

Rakowsky, Ronald J., 126 Rambam, see Maimonides Ran, see Gerondi, Rabbenu Nissim Rashi, 23–24, 27n133, 28, 36, 177n17 Rehnquist, Justice William H., 133 religious freedom, 37, 87, 121–141

repentance, 183, 187, 193–194, 206–207n10, 209, 210n23, 211–213, 215n51, 216n52, 218, 220n86 Robinson, Judge Aubrey Jr.,129–132,136,140 Rosen, Rabbi David, 203n90 Roth, Jeffrey, 20n98 Russian Courier, 62–66, 68–71, 74, 78 Russian Herald, 68

S

Sa’adia Gaon, Emunoth V’Deoth, 211n24 Sabbath, 119, 152, 206n10 Sadowsky, Reuben, 91n61 Sammis, Elmer G., 94 Scalia, Justice Antonin, 132–133, 137 Scheppele, Kim, 5 Shapiro, Marc B., 160n104 Shaffer, Thomas, 54, 56, 58–59n96 Sharswood, George, 58–59n96 Shatzkin, Hyman, 84 Singer, Rabbi Israel, 203n90 Society for Ethical Culture, 52, 59 Solarz, Stephen, 141n162 Soloveitchik, Haym, 70 Soloveitchik, Rabbi Joseph Baer, 65–67, 70, 78 The First of the Chain of Brisk, see Karlinsky, Rabbi Chaim Soloveitchik, Rabbi Chaim, see Chaim, Reb, of Brisk Soloveitchik, Rabbi Joseph Baer (Dov), 20n100, 25–28, 36, 56–57, 60, 62, 65–67, 153, 156, 160n103, 161–162n108, 163n110, 167n131, 175n7, 177–178, 183–185, 190, 195–197, 199–202, 206n10, 212–214, 217–218 Stapleton, Judge Luke, 101–103 Starr, Judge Kenneth, 132–133, 136–138 Steinsaltz, Rabbi Adin, 28–29, 175 Stephen, James Fitzjames, 74–75, 77 Stern, David, 21–22, 37n168 Stevens, Justice John Paul, 125, 133–134 Stevens, Wallace, 37n168 Stone, Suzanne Last, 29n141 Swygert, Judge Luther, 131

T

Talmud, 4, 14–16, 22n110, 28–34, 46, 96, 99n113, 115–116, 145–146, 148, 151–152, 154, 160, 161n105, 162n108, 184, 191, 192n18, 198–202, 208, 212, 214, 215n51, 217n67, 218n72

225

226

Index halacha and aggada in, 28–32 Zera’im, 19n91 Mo’ed, 19n91 Shabbath, 191n10, 192n18 Pesachim, 146n18 Yoma, 114n7, 214n43, 218n73 Rosh ha-Shana, 32n151–153, 146n23 Ta’anith, 212n29–30 Megillah, 34n161, 67n34, 186n78, 187n85 Nashim, 19n91 Nedarim, 151n55 N’zikin, 19n91 Bava Bathra, 201–202n81 Sanhedrin, 67n35, 114n6, 116n11,180n42, 182n48, 184n64,199n63–66, 200n75, 201n77, 201n81, 202n84, 217n68, 218n72 Avoth, 49n29, 214n50 Kodashim Menachoth, 151n54 Taft, Justice William Howard, 86n40, 109n158 Temporary Restraining Order (TRO), 129 teshuva, 205–221 Toaff, Rabbi Elio, 203n90 Tobias, Julius, 84 Torah, 4, 5, 13, 21–26, 27n133, 28–29, 31n149, 32, 47n26, 48n31, 56, 65, 67, 69, 99n113, 114–116, 118, 120, 145, 153n64,159n101, 163n110, 176–177, 179–185,191, 193, 197, 201, 207n13, 218n72 Genesis, 12–14, 15n71 22–26, 27n133, 28, 47n26–27, 48n31, 68n41, 175–176n3–12, 177n16–17, 177n20, 187n88, 191, 192n16, 192–193n20–22, 193n24, 193n26, 193n28

Abraham, 12, 26, 47n27, 174– 179, 181, 188, 190–195 Exodus, 13, 23, 24n120, 26n129, 30n145, 31, 118n13, 145n14–15, 180n42, 180n44, 187n88, 189n2, 191n11, 194n30, 202n81 Egypt, slavery and Exodus, 178–179 Leviticus, 25, 26n129, 114, 178n26, 184n59, 187n88, 206, 208, 211n24 Numbers, 15, 145n17, 15n53, 189n2, 211n24 Deuteronomy, 11–13, 14n65, 15n71, 30n144, 67n33, 178n296 179n36, 180n42–43, 181n45, 192n18, 206n10, 207n14 halacha and aggada in, 21–28 Midrash, 33n157, 46, 48n31, 177, 192, 197 Torres, Gerald, 45n13 Tucker, Rabbi Gordon, 22n112, 36n165 tzedaka, 201–202n81

U

Usher, William P., 130–131

V

Van Devanter, Justice Willis, 86n40–41 vidui, 213–215

W

Weisbrod, Carol, 9 810 West End Ave. v. Stern, 84–86, 95n85 White, Justice, 133 Winter, Steven, 8n29, 18n90 Wise, Rabbi Stephen, 101n123 Wisconsin v. Yoder, 6 Wizner, Stephen, 41

Y

Yom Kippur, 10, 114, 183–184, 194n30, 206n10