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The Limits of the Law: Toward Religious Voluntarism

A story about what repentance on Yom Kippur eve should look like.
Rabbi Dr. Shraga Bar-On is the Director of the Kogod Research Center for Contemporary Jewish Thought and the David Hartman Center for Intellectual Excellence, and a lecturer of Talmud and Jewish Thought at Shalem College. At the David Hartman Center, he is responsible for the advanced training of aspiring public intellectuals through the Beit Midrash for Israeli Rabbis, the David Hartman postdoctoral fellowship, and the Maskilot fellowship for women pursuing their doctorate. His research in Jewish philosophy and identity addresses

Modern secular thought tends to assume that “theocracy” is equivalent to clericalism. According to this assumption, God as an absolute authority stands behind human authority. God as an absolute power transfers enormous power to people. People rule from God’s power. According to this view of theocracy, radical theocracy means radical politics. If God is absolute, and the divine providence is absolute, then politics must also be absolute. Under these circumstances, whoever wants to create a private sphere, characterized by “negative freedom” must relinquish God, religion, and clergy. Less God means more privacy. In order to liberate politics, we have to liberate ourselves from God.

Indeed, the liberal idea is based on a sharp distinction between “religion” and “politics.” However, the Middle Ages and the modern era have taught us that society pays a very heavy price for linking faith and politics. Historically, the separation between religion and politics was a result of great disasters that were a result of combining faith and politics. That’s how John Locke’s famous “Letter concerning tolerance” was born; that’s the logic laying behind the First Amendment to the US Constitution, which created a firewall of separation between religion and state, as Thomas Jefferson wrote to the Danbury Baptists. Indeed, from an institutional perspective, some Western nations succeeded in establishing strong separations between religion and state.

Yet, there is a completely different understanding of theocracy, according to which we actually have to empower God in order to enable freedom. Indeed, in some good cases – like the American case – secularization restrains politics to a certain degree. But the experience of 20th century humanity has taught us that in many other cases the opposite actually happens: secularization deifies politics itself. By contrast, I would like to suggest that God does not necessarily constitute a threat to political liberalism, but rather may actually be a source of political liberalism.

Through analysis and interpretation of ancient and modern Jewish sources I would like to claim that relying on God may enable us to limit the usage of the Religious law system. Although I do not claim that the argument I offer represents the main road in the Jewish tradition, I’m definitely convinced that it is a significant voice in Jewish tradition.

Now, using the terminology of Sir Isaiah Berlin, both “positive freedom” and “negative freedom” demand legal systems. However, while the role of the legal system in a culture based on “positive freedom” is to motivate people to act in a certain way, the role of the legal system in a culture based on “negative freedom” is to protect people from authorities and – to a certain extent – from the legal system itself. To a large degree, the function of the judicial system is to restrain judgment, or more precisely, to restrain the attempts of the judicial system to advance “positive freedom.”

One cannot talk about negative freedom without free choice. I would like to add that we cannot talk about real freedom of choice without letting go of enforcement. You cannot institute a religious life based on “negative freedom” without releasing believers from the threat of the legal system. You can’t claim that you are instituting freedom while imposing an auto da fe.

I would like to present a theological shift within the Jewish sources in which religion makes more and more room for voluntary religious action.  You all learned the story in BT, Baba Metzia:

R. Eleazar, son of R. Simeon, once met an officer of the (Roman) Government who had been sent to arrest thieves, How can you detect them? he said. Are they not compared to wild beasts, of whom it is written, Therein [in the darkness] all the beasts of the forest creep forth? (Others say, he referred him to the verse, He lieth in wait secretly as a lion in his den.) ‘Maybe,’ [he continued,] ‘you take the innocent and allow the guilty to escape?’ The officer answered, ‘What shall I do? It is the King’s command.’ Said the Rabbi, ‘Let me tell you what to do. Go into a tavern at the fourth hour of the day. If you see a man dozing with a cup of wine in his hand, ask what he is. If he is a learned man, [you may assume that] he has risen early to pursue his studies; if he is a day laborer he must have been up early to do his work; if his work is of the kind that is done at night, he might have been rolling thin metal. If he is none of these, he is a thief; arrest him.’ The report [of this conversation] was brought to the Court, and the order was given: ‘Let the reader of the letter become the messenger.’ R. Eleazar, son of R. Simeon, was accordingly sent for, and he proceeded to arrest the thieves. Thereupon R. Joshua, son of Karhah, sent word to him, ‘Vinegar, son of wine! How long will you deliver up the people of our God for slaughter!’ Back came the reply: ‘I weed out thorns from the vineyard.’ Whereupon R. Joshua retorted: ‘Let the owner of the vineyard himself [God] come and weed out the thorns.’ – [BT Tractate Baba Metzia 8b2-84a
Because we don’t have the time to analyze in great detail the story of Rabbi Elazar Bar Rabbi Shimon from the tractate of Baba Metzia, I would like to highlight the theological significance of the expression, “Let the owner of the vineyard himself [that is, God] come and weed out the thorns.” I intentionally want to take it out of context (and those who will demand to return it to its context later will be justified in that demand). I would like to hear these words in their full power. This phrase means: God does not need any help. God makes the need for human intervention redundant. If we take this to its logical endpoint, it means that we should fire all the police. To be a police officer is a denial of God.

In other words, when we take this idea to its extreme, it means that theocracy equals anarchy. William Blake had one of the sharpest expressions of this notion of anarchy when he wrote: “Prisons are built with stones of Law, Brothels with bricks of Religion.” According to this claim, the law does not prevent crime but rather creates it. It does not curtail the human tendency for sin but rather empowers it. I am not sure that Blake would like the story in the Talmud. But here we have an example of the fact that religion itself – especially cases like this in which
Jewish religion encounters evil regimes – actually breaks down the stones of law. Religion does not threaten liberty. On the contrary, it acts as an incentive for more freedom and less enforcement. A law that is intended not to be enforced does not limit our freedom but actually strengthens the freedom of humanity.

Now, if I wasn’t Jewish, I would be able to stop here. However, in the Jewish tradition, one cannot take seriously a claim that is not grounded in halakha. As we all know, Judaism is a legalistic religion, with Jewish law – halakha – at its core. In Judaism therefore, “everything is subject to law.” All areas of religion are translated into a tight, normative system of laws, halakhot. From this, one might get the impression (which is usually correct) that Judaism is preoccupied with regulation and control.

Here I would like to expand on a shift in the rabbinic literature. This move is meant to limit legal intervention in people’s religious actions. It finds expression in the halakhic principal we learned today in the Hevruta: “Every commandment which carries its reward by its side does not fall within the jurisdiction of the Court below.”

The source of this idea is in the interpretation of the verse, “Honor your father and your mother in order to lengthen your days on this earth that the Lord your God has given you.” In my opinion, this is a wonderful example for the way in which theological considerations penetrate halakha. Since God is personally involved in the reward for keeping this commandment, God clearly has appropriated jurisdiction from the court.

At the end of the midrash, there is a generalization: “From here we learn, every commandment which carries its reward by its side does not fall within the jurisdiction of the Court below.” It turns out that this rule was known. There is a norm according to which a court does not pass judgment on commandments that carry their rewards by their sides.

I think this is a revolutionary statement. First of all, it is not clear at all that we do not judge and punish people who do not fulfill these commandments. Whoever has participated in theological conferences at the Hartman Institute has no doubt encountered the laws of the rebellious child (?? ???? ?????). The rebellious child is a person who does not respect his parents, and his punishment is quite severe. The idea that “every commandment which carries its reward by its side does not fall within the jurisdiction of the Court below” can be interpreted as negating words of Torah.

The second commandment – to send the mother bird from the nest – also generates a controversy in the Tractate Hulin, about whether a person who does not send the mother away deserves a punishment of lashes. Thus, the determination that brings God into the picture as an instrument of reward for the religious act uproots the need for the courts to intervene and pass judgment on people who do not follow divine orders, and is a revolutionary determination in and of itself.

But even if we accept this revolutionary interpretation that the Torah mentioned the reward for these two commandments in order to make them “non-judgable” still leaves us with a very strange generalization. What does that mean, “every commandment which carries its reward by its side does not fall within the jurisdiction of the Court below”? After all, the Torah only has two such commandments – honor your parents, and send away the mother bird. That’s it.

Here is where the Tosefta in Tractate Hulin comes into play. By delaying the reward of the commandments to the next world, all positive commandments became “commandments which carry their reward by their side.”

Thus, we encounter a generalization from two commandments – honor your parents and send away the mother bird – applied to all positive commandments. From here on in, every commandment has its reward at its side. And if that’s the case, then, we can say that for all positive commandments, the courts have no jurisdiction. The entire arena of positive religious activity – as opposed to prohibitions – is not judgable, but is entirely voluntary.

The sages are experts at illustrating extraordinary ideas via stories. I think that the story about the visit of Rami Bar Tamari in Sura on the eve of the Day of Atonement is one of the most brilliant manifestations in rabbinic literature, of the importance of negative freedom for Jewish society:

In Sura people did not eat the udder at all, in Pumbeditha they used to eat it.
Rami b. Tamri, also known as Rami b. Dikuli, of Pumbeditha, once happened to be in Sura on the eve of the Day of Atonement. When the townspeople took all the udders [of the animals] and threw them away, he immediately went and collected them and ate them. He was then brought before R. Hisda who said to him: ‘Why did you do it?’ He replied: ‘I come from the place of Rab Judah who permits it to be eaten.’ Said R. Hisda to him: ‘But do you not accept the rule: [When a person arrives in a town] he must adopt the restrictions of the town he has left and also the restrictions of the town he has entered?’ — He replied: ‘I ate them outside the [city’s] boundary.’ ‘And with what did you roast them?’ He replied. ‘With the kernels [of grapes].’ ‘Perhaps they were [the kernels] of wine used for idolatrous purposes?’ He replied. ‘They had been lying there more than twelve months.’ ‘Perhaps they were stolen goods?’ He replied. ‘The owners must have certainly abandoned all rights to them for lichen was growing amongst them.’ He [R. Hisda] noticed that the other was not wearing the Tefillin and said to him. ‘Why do you not wear the Tefillin?’ He replied. ‘I suffer from the bowels, and Rab Judah has said. One who suffers from the bowels is exempt from wearing the Tefillin. He further noticed that the other was not wearing fringes [on his coat] and said to him. Why are you not wearing fringes? He replied. The coat [l am wearing] is borrowed, and Rab Judah has said.

A borrowed coat is, for the first 30 days, exempt from the zizith. While this was going on a man was brought in [to the court] for not honoring his father and mother. They bound him [to have him flogged], whereupon [Rami] said to them. Leave him alone, for it has been taught. Every commandment which carries its reward by its side does not fall within the jurisdiction of the Court below. Said [R. Hisda] to him. I see that you are very sharp. He replied. If only you would come to Rab Judah’s school I would show you how sharp I am!  -BT Tractate Chulin 110, a+b

A basic analysis of the story – without any connection to liberal thinking – I heard some years ago from Rabbi Yehuda Brandes. Upon the first reading of the story, Rami Bar Tamari seems like a bit of a wise guy, or as they say in Yiddish, an uber chochem. He arrives in Sura on Yom Kippur eve, and instead of doing what everyone else is doing, he breaks the rules of the place. When he is caught, he starts to justify himself and tries to demonstrate his wit. For every question that Rav Hisda asks him, he finds an excuse. In the end he also outwits and mocks the judge, Rav Hisda. But Yehuda Brandes exposed the subtext of this story. When you check Rami Bar Tamari’s arguments, you discover a heart-wrenching human episode. Rami Bar Tamari arrives in Sura on the day before the Day of Atonement with nothing to eat for the break-fast meal. Nobody invited him for a meal. Turns out he had to go to the trash piles to collect the coals that residents discarded. When Rabbi Hisda tries to blame him for using them to roast stolen items, it turns out that he had been digging through the trash for find a bunch of spoiled grapes. Then, surprise surprise, he ended up with a terrible stomach ache that did not allow him to don his tefillin. When Ravi Hisda continues to seek blame, we learn that he is so poor that even his tallit, his ritual fringes, are not really his but are borrowed. When we look deeply into the story, we discover its true character. This is not a story about a brazen student but rather is a criticism of the judge. The judge is so busy with the minutiae of halakha rather than with the spirit of halakha, he is suspicious and so busy finding the guilt of the suspect that he does not pay any attention to the person standing before him. The story takes place on Yom Kippur eve, the holiest day of the year.

The story teaches how one should enter into the Day of Atonement. But it teaches this lesson in a negative way. In Sura, people wanted to go into Yom Kippur pure of all sin. How did they do that? They purify the camp, and search for guilty parties. They set the judicial system into overtime. They hunt for offenders. There is no freedom in Sura, no negative liberty. But the rabbis were not afraid to criticize this method. They used this story to teach us how we should be going into Yom Kippur, what the real meaning of repentance is.

Now we have to understand the story’s climax, the final scene. While Rav Hisda is looking to blame Rami Bar Tamari, another suspect is brought into the court: a boy who did not honor his parents. Here, Rami Bar Tamari the accused becomes the accuser. He tells Rav Hisda to release the boy. He teaches him the principle that we’ve been talking about, that every commandment which carries its reward by its side does not fall within the jurisdiction of the Court below. On Yom Kippur eve, the heavenly Day of Judgment, Rami Bar Tamari teaches that the human legal system does not need to help God judge those who do not fulfill the commandments, but rather must enable them to be free.

Note that it’s very possible that this boy did in fact disrespect his parents. The halakhic justifications that Rami Bar Tamari provides to defend himself show that he did not disobey the law. By contrast, when he defends the boy, he does not argue that the boy was innocent.
Rather, he said, you have no right to judge him! Honoring one’s parents is a commandment given to the heavens to judge, not people.

The case in front of us deals with honoring one’s parents, but it is clear that Rami Bar Tamari is not relating only to that. He is offering a principled critique. Halakha itself, the law itself, limits the jurisdiction of the court. In order to enter the day of heavenly judgment – Yom Kippur – clean of sin, we actually have to restrain ourselves from judging others.

There we have it, a story in which rabbis are criticizing rabbis, a story about what is repentance, a story about what repentance on Yom Kippur eve should look like, a story that epitomizes the significance of negative freedom.

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