Halacha, Sharia and the Religious Acceptance of Constitutional Governance
by Rabbi Jon Hausman (October 2009), New English Review
[Delivered at the Stop Islamization of America launch in the Rayburn House Office Building, 25 September 2009]
I am currently studying the Jewish tort laws contained in the Rabbinic tractate Baba Kamma. The tractate itself contains all kinds of abstruse cases dealing with damages and liability under specific circumstances.
Torts can be perpetrated by a person against another, or by one’s property (for example, an ox) against the person or property of another. There can be some sort of damage, yet the defendant can still be exempted from monetary compensation. The Halacha/principles of Jewish law in this regard also recognize damages and compensation for damages to one’s reputation, dignity…perhaps, caused by embarrassment or slander. There is punishment for striking one’s parent (death) or violating some specific law related to the observance of the Jewish Sabbath which, in fact, calls for the imposition of the death penalty according to the Torah (e.g. intentionally starting a fire on Shabbat).
Yet, if an owner’s domesticated animal kicks over a lamp and causes a fire on the Sabbath, the owner is exempt from the death penalty and pays monetary compensation only. If one owns a slave and knocks out a tooth or damages an eye, the slave is set free. Confusing, complicated, opaque.
Here is another well-known secret. In most respects, this Jewish legal material is of purely theoretical interest, its applicability limited solely to issues of personal piety and observance today (e.g. the Jewish dietary laws, prohibited Shabbat activity). Capital punishment has not been meted out by courts of Jewish law since approximately the year 300 BCE. Rabbinical courts do not generally handle cases of monetary or property damage. Jews no longer own slaves and haven’t done so for millennia. For these reasons, such halachot (plural of Halacha, Jewish law) do not have much in the way of relevance for us Jews and our lives today. Why?
Simply stated, there is a basic Rabbinic principle that has operated since roughly the year 226 CE. That principle is known as Dina d’malchuta Dina, the law of the country is binding and, in certain cases, is to be preferred to Jewish law/Halacha.
What were the practical reasons for the adoption of such an Halachic principle? There are many suppositions posited. However, the Rabbis who functioned between the years 200 – 630 CE were very practical. The Rabbis during this four plus century period recognized that Jews had to develop and maintain positive relationships with the governing non-Jewish civil society (e.g. Parthian and subsequent Sassanid Persian rulers of Babylonia) which surrounded the Jewish community.
Samuel, the leader of the Babylonian Jewish community in 241 CE, specifically imbued his community with the consciousness that one must be reconciled to changed circumstances regarding government, and that civil law is necessary for the functioning of the greater society. The result was an internal recognition of Judaism’s non-supercessionist and non-conversionary character. According to the Prophet Nehemiah, Jews should obey the laws of their rulers (Nehemiah 9:37).
As a result, Jews view this legal principle as deriving from the Biblical authority. It extends to real property issues (after all, the government could/can confiscate property), common currency, taxes, recognition of administrative officers and documents and regulations issued by such authorities, as well as the appointed juridical positions within and outside of the Jewish community.
The United States has a Constitution under which the government functions, and the Bill of Rights which protects basic human rights and freedom – rights derived from the Almighty according to the secular foundational documents of these United States – freedom of speech, freedom of worship, freedom of education and freedom to organize political parties. Judaism accepts this situation without issue.
Sharia would seem to have much in common with Halacha. Sharia means “the path” (as does the Hebrew word halacha at its etymological root) and, on its face might be described as the religious code for living the moral system according to Islamic tradition…perhaps, in the same way the Bible would serve for Christians. The question with Sharia (as with Halacha) is the same. At this point in time, is it the same kind of didactic and theoretical exercise in its application as is the application of the entire corpus of Jewish law? In the end, does the Rabbinic principle of ‘the law of the land is paramount’ apply in Islam?
You peal back the layers and understand that Sharia refers both to the Islamic system of law and the totality of the Islamic way of life. It is based on the Qur’an and the Sunna (Islamic Custom or practice; particularly that associated with the exemplary life of the Prophet Muhammad, comprising his deeds and utterances as recorded in the hadith, hadith literally defined as “report” or “narrative” in Arabic). Whereas Judaism took the Torah and its commands as rubrics within which to live, and generations of interpretation explain a number of mitzvoth (Torah commandments) out of existence according to the principle of Torah Lo Bashamayim Hi (Torah exists here for us, not in Heaven), Sharia holds a different view.
Muslims believe that the Qur’an is the direct word of Allah delivered to the last and greatest prophet Muhammad. Therefore, it is immutable, perfect, unchangeable, static, and unchanging. What can’t be derived from the Qur’an may be gleaned from the Sunna, which relates how Muhammad conducted his life in practice, and is considered by Muslims to be immutable for all time.
So, if Muhammad used the pretext of a hudna or tahadiya (two Qur’anic terms meaning an impermanent cessation of military hostilities) to regroup and strengthen his forces for a future battle against the Banu Quraysh, killing and enslaving the Jews in Arabia, legitimizing the rape of women as a tactic in war, it applies today as a tactic. (Parenthetically, the treatment of Jews as described and prescribed in the Qur’an is particular graphic and loathsome…kill the Jew where one finds a Jew and do so for glory and honor.) If the punishment for rudd/apostasy, to a murtadd was death, then apostasy continues to be a capital offense. Homosexuality, adultery, freedom of speech issues when it comes to criticizing Islam or Muhammad or drawing satire cartoons such as the Jylland Posten satires by Kurt Westergaard are capital offenses under Islam (Does anyone remember the painting of the cross smear with feces, declared protected speech under the First Amendment? America’s Mayor Rudy Guilani had many issues with this piece of art. He expressed his displeasure verbally and did not show his patronage to the exhibit)…How does this impact our Bill of Rights as Islam is as it has always been, expansionary, supercessionist? Or, in the words of a number of its defenders in the US, Islam is not meant to be one amongst equals but to be the supreme law of the land?
In theory, Sharia jurisprudence actually intended to be applicable to Muslims only. Christians and other non-Muslims were supposed to be exempt from the provisions of the law; a provision that is not and has never been universally followed. Indigenous Christian and Jewish populations of the Middle East whose communities pre-dated the advent of Islam by centuries later were/are subjected to jizya and other punitive taxes and dissociative treatment, etc. as a result of their direct or indirect refusal to submit (in Islam, one who submits is a Muslim) according the Qur’an and Hadith, it applies today. Because in Islam, Religion is State and State is Religion.
Islam is political, and is determined to conquer. “Fast during Ramadan, pray five times a day, go to Hajj, and listen to us and do what we say.” It concerns the unofficial sixth pillar of Islam, Jihad. What does the term Jihad actually mean and how is it operative? It can be overt as in outright military hostilities and actions, and it can be expressed in the manner in which non-Muslims are treated under Muslim governing authority. It can be covert in the manner in which the court system is used to further the grand goals of preferences for Muslims above others, and the use of Da’wa (conversionary outreach) and Taqiyyah (Islamic religiously sanctioned dissimilitude).
There is an underground Muslim organization in every Muslim state threatening the Muslim ruler with death if he does not adhere to Sharia. Reformers, those who try to bring democracy, are automatically ruddha, murtadd, apostates. If you’re a good Muslim and you follow Sharia, you have to follow all of it. You can’t pick and choose (how many Jews observe the Fast of Yom Kippur, but ignore Kashruth/Jewish dietary laws? Non-observance does not exclude a Jew from the Jewish body politic). While there is a personal relationship with Allah/G-d, the overall relationship is to the Ummah/the polity of all Muslims.
Theft, depredations suffered by women, plaintiffs exacting legal revenge (eye for an eye is taken literally), gambling, alcohol consumption all command exacting punishment under Sharia.
The values of Islam couldn’t be more different than American values of freedom, liberty, and individual responsibility. Also, the concept that all men (and women) are created equal under God and should be treated accordingly is a concept that doesn’t exist in Islam, beginning with its foundational and doctrinal texts.
Countries like Saudi Arabia, Iran, and Afghanistan under the Taliban, whose legal systems are based on Sharia openly torture and mutilate citizens, persecute homosexuals, sentence apostates to death and restrict all freedom of religion. The extent of Sharia’s influence in supposed moderate countries such as Egypt, Jordan, Lebanon, Bangladesh, and Pakistan is instructive.
Democratic, western societies embrace and legislate many basic human rights and freedoms. Some of these rights and freedoms include freedom of speech, freedom of worship, freedom of education and freedom to organize political parties. These are rights enshrined in the Bill of Rights, part and parcel of the system of governance defined by the United States Constitution. Imagine how different life would look with those “Islamic values” being put in place in America. Our country and way of life would look radically different and we would be poorer as a nation for it.
Rabbi Hausman serves the Ahavath Torah Congregation in Stoughton, Massachusetts. He holds a degree in law as well as Middle East Studies. He attended the American University in Cairo and is an Arabic speaker. He was interviewed for NER after hosting Dutch MP Geert Wilders at his Synagogue.
Pingback: Jewish,Synagogue,Torah,Judaism,Kosher » Blog Archive » Halacha, Sharia and the Religious Acceptance of Constitutional Governance
On Jewish Law:
Bava Batra 34a-b
September 24, 2009
Does Jewish law ever recommend to two litigants to “fight it out” between them?
The Gemara on today’s daf (=page) appears to offer this ruling when it states kol d’alim gvar – whoever is stronger wins – in a case where two people each claim a piece of land, and neither of them has a proof that is stronger than the other’s.
=0 A
The Rosh explains that this ruling is based on the assumption that the one who exerts himself more powerfully is more likely the true owner, and we will work with that assumption unless the other party brings a proof to court. He adds that it is essential for the court to have a mechanism for dealing with cases where two individuals are making claims and neither, apparently, can bring proof-positive of his position; if not, he argues, we will be left with situations of never-ending battles.
The Shittah Mekubetzet rejects this ruling and explanation out of hand, arguing that kol d’alim gvar cannot possibly be a court ruling, rather it is an indication that the court cannot make a decision in this case, and that the court therefore recuses itself, leaving a situation where the stronger party will be allowed to take what he claims b elongs to him. According to this approach kol d’alim gvar does not solve the problem, it merely postpones a decision, and should the losing party become stronger, he can grab it back, creating the never-ending battle that the Rosh was concerned about.
The Rashbam understands the meaning of kol d’alim gvar as either the person who is stronger takes it by force, or the one who brings the “stronger” proof.
While Rabbenu Barukh presents the ruling of kol d’alim gvar only in the context of a dispute over a field, the Rashbam suggests that it would apply in any case where two people argue and neither has convincing proof (or, alternatively, their proofs are of equal strength).
Bava Batra 35a-b
September 25, 2009
What should the court do in a civil case where the evidence does not allow for a clear-cut decision?
The Gemara on today’s daf (=page) raises the case of two contracts that have the same date, and there is no way of telling which one was written first. Both litigants claim that they bought the field and that it belongs to them. In such a situation, Rav says yahloku – they should divide the field between them; Shmuel rules shuda d’daynei – it is left to the discretion of the judges.
Understanding the ruling of shuda d’daynei is subject to different interpretations by the commentaries.
Rashi and the Rashbam explain that shuda d’daynei means that the judges must do their utmost to determine which one of the two claimants is most likely right, and the property should be given to him. In our case, where the contracts seem to carry equal weight, the court will need to investigate which one the seller was friendly with and did more business with. Most of the rishonim, however, view shuda d’daynei as power given to the court to make any decision that it chooses; they can give it to whichever litigant that they want to – although Tosafot point out that they cannot take a bribe from one side to decide in his favor. This appears to be the position of the Talmud Yerushalmi on this subject, as well.
Another approach to shuda d’daynei appears in the Ge’onic responsa, which interprets it to mean that the judges should make a pesharah – a compromise – which is also a reasonable method of dealing with a case where no clear decision can be reached.
Rabbenu Hananel brings a tradition that shuda d’daynei can only be applied in cases of disputes over land, but Tosafot disagree, and prove that it can be done in any civil case.
Is Western Jurisprudence better than this?
No kidding.
R. Hausmann echoes Geert Wilder’s views that there is no radical, moderate or peaceful Islam. There is only Islam.
Those adjectives used to describe Islam, do not describe Islam at all. Rather they are used to describe the degree to which individual Muslims believe in, accept, practice and act upon the doctrinal teachings of Islam as to what Muslims must believe in and what they must do in furtherance of those beliefs.
There are quite a number of experts who have written in that vein.
In the context of interfaith relations between Muslims on the one hand and Christians and Jews on the other, if the latter group were to raise these truths about Islam with their interfaith Muslim counterparts, it is very likely that interfaith relations would be greatly strained, if not break down completely.
Interfaith relations are of course important between Muslims and non-Muslims for obvious reasons. It appears that these relations are based on both seeking to find common ground where both can go forward in mutual peace, understanding and tolerance.
In focussing on trying to find that common ground upon which good relations can be built, non-Muslims are wittingly turning a blind eye to those aspects of Islam that openly raising with Muslims, is sure to make Muslims uncomfortable, if not angry and thus risks undermining efforts to reach the goal that interfaith relations seek to achieve.
Can sweeping the aspects of Islam that trouble non-Muslims under the rug as it were, be a successful strategy for solidifying good relations between non-Muslims and Muslims such that these more troublesome aspects of Islam will ultimately be far outweighed by the good that Muslims and non-Muslims find on the common ground of the surface of the carpet of interfaith relations?
There are those who say yes and those who say no. Those who say no, predict drastic consequences befalling Western Judeo Christian civilization if non-Muslims continue to turn a blind eye to those troublesome aspects of Islam that are antithetical and an anthema to Western Civilization.
Time will tell who is right and who is wrong.
Narvey, just curious what is; or how would you describe your often used term Western Civilization. You and others have used this term to death devoid of any underlying contextual meaning. Or, Just what is it that you so much want to protect and preserve?
Another point I would like to make is that You and others use constantly the term Judeo-Christian. I don’t know what is really meant by that term, as it seems to me to be an oxymoron as no two belief systems are so diametrical in opposition one to the other as Judaism and Christianity.
Hausman, who calls himself Rabbi, is a conservative rabbi of a very small conservative congregation. He would never pass mustard on my block and would never be considered as a real rabbi in the Jewish State.
Surely you meant to say “pass muster”.
LOL.
You know you’ve been in Israel too long when……
You can say that again.
Rabbi Hausman is a fighter for Israel, in fact he is called the Warrior Rabbi. Better he does this from a Conservative pulpit rather than an Orthodox one.
Yamit and Shy Guy you are both full of yourselves. Only people who conform pass muster. I haven’t been in Israel too long. You both argue well Israel’s case. So do others, so stop attacking them.
Bill, what the hell is this about?
What is your authority for saying so. I don’t for a moment think it is true. Its like saying the Pals want to negotiate because they want peace.
Yamit, (Uncle Nehum) I think I lost a couple of comments, did you by chance see them? I know I did submit. Maybe it was a senior moment.
They were submitted during breaks in the football games. Saturday at our home is all about college football. Have two sets going in the family room. Starts at 12:00 noon and is still going at 9:35 PM, Minnisota/Wisconsin – Michigan/Michigan State – PennState (Our team)Illinois – Notre Dame/Washington – Boston College/Florida State – Auburn/Tenn. – Oklahoma/Miami. Just remember back in the 50 & 60′s we had just one college game on Saturday. How did we survive? And of course Yamit your USC beat Cal.
By the way Obama made a fool of himself again in his quest for the olympic games for Chicago. He met with General McChrystal on Air Force One for 20 minutes. He spent more time with David Letterman. You know where his priorityies are. I am sure Generall McChrystal was impressed with the commander-in-chief (community organizer at best). Good grief.
Ted, just for the record: my comment was only to correct Yamit’s language usage. I did not mean to concur with Yamit regarding Hausman personally.
Also for the record: I do, however, agree with Yamit about the Torah view of conservative Judaism as a whole. But what that has to do with this particular article of Hausman’s is beyond me.
Moadim Le’Simcha.
Chag Samaech
Ted, I don’t get your #10 at all. What I said was hardly controversial as regards the intent and purpose of interfaith councils generally.
Your asking me to cite an authority for what I figured was my stating the obvious, seems like your asking me for proof that the sun rises in the east and sets in the West.
Though R. Hausmann was not writing as he did with interfaith relations in mind, it struck me that his point would likely have an impact on interfaith relations with Muslims, if the Jews or Christians seeking those relations with the Muslms in their communities, were as strong in their statements as R. Hausmann.
R. Hausmann concluded his piece stating:
Generally speaking Muslims have heightened sensibilities and sensititives and hair trigger defence mechanisms in relation to anything said of Islam or Muslims that is in the least critical or critical in their eyes, regardless that only they see a reasonable basis for their angry reaction.
It struck me that if Jews or Christians seeking interfaith dialogue with the Muslim community spoke of Islam as does R. Hausmann and others do, it is likely the Muslims would not take kindly to being told that in effect that they are moderate, peaceful or good and tolerant Muslims only because they do not believe in and practice their faith with the same degree of faithful observance as the Islamists do, who can be fairly described as the most devout Muslims.
I expect Muslims would take offence at that.
I am also questioning whether it is in the long run wise to focus on finding common ground as between Muslims and non-Muslims and sweeping differences under the rug or whether at interfaith council relations levels it is a good and even possible thing, given the Muslim sensitivities/sensibilities aforementioned, to raise and deal with those seemingly irreconcilable differences.
Ted, are you suggesting that the nature and purpose of interfaith councils is different as between Muslims and non-Muslims compared to say between Christians and Jews?
If not that, then I can’t figure what you are disagreeing with, so tell me.
Passing mustard… YUCK!
No.
Why is that?
I was not attacking Hausmann but I can find a lot of holes in his positions re: His use and understanding of the principles of:
all his conjectures derived from
and most everything else he postualtes using Jewish law as his authority I do take some issues with. Therefore I advised that even if he calls himself rabbi we must understand that the prefix conservative might be helpful to those who read his unauthorative misunderstanding of certain principles in Jewish law. Those who care, care and those who understand understand. That said, I have no idea of what are his attitudes are towards Israel nor am I aware of his efforts in Israels support. I accept your description of him. My position is totally neutral on that score. I know nothing about him personally.
It is neither confusing nor opaque if you understand Torah.
(Exodus 21)States rules about Hebrew slaves. Slavery of Hebrews was limited to six years. Slave girls were to be treated equally with wives.
What’s the point?
In the opening lines, the Laws immediately shock the reader into an entirely different moral reality. The Hebrews must isolate themselves from the old habits: from the barbarity of neighboring tribes, the brutality of Egypt, even from inbuilt human egoism. At this point, Hebrews are commanded to abandon the natural human behavior of exploiting their compatriots to the utmost extent feasible. They are told to care about the most vulnerable members of their society, Hebrew slaves.
It is not that caring for Hebrew slaves is a major civil law, but it relates the major legal principle, “Love your [Hebrew] neighbor as thyself.” That principle is not merely a moral piece, but a fully actionable law.
The legislator makes sure by the following verses that his intention that the weak be protected is clear: “And if a man would strike his slave or concubine in the eye and destroy it, he will set him free for his eye. And if he would kick out a tooth of his slave or concubine, he will set him free for a tooth.” How unusual is that, freeing a slave for merely a tooth! In that era and for three millennia afterwards, masters could kill their slaves with impunity.
This rule is a Jewish version of affirmative action. According to tradition, the rule does not apply to Hebrew slaves. Thus, Hebrew concubines are treated on par with wives (Exodus 21:7-11). Such a concubine should be set free even if her master/husband diminished her allowance of clothes. As she has her own clothes, she is a subject with property rights, and not a right-less slave.
Similarly, A Hebrew male slave owns his wife and children (Exodus 21:3), and so is not a slave in the regular sense. Hebrew slaves are set free at the end of six-year periods, so in effect they are temporary laborers rather than slaves.
In the case of foreign slaves, their masters own their bodies, but Hebrew slaves possess property rights: if they own their wives, then all the more they own their own bodies. Any injury done to a Hebrew slave’s body should be compensated just as with a free man.
The legislator here solved a curious puzzle: since foreign slaves are their masters’ property, a master cannot compensate his slave for injury like he would compensate a free person. That would be sort of like fining oneself for breaking one’s own instrument. That paradox surfaced in Exodus 21:20-21: murder of a slave is a punishable offense, but any other harm is not punishable, as slave’s body is “his master’s silver.” Freeing injured slaves is both ethical, instructive (to slave-owners), and the only logical way to enforce justice while respecting property rights.
No system of justice accounts for all possible circumstances. Murdering a slave is a criminal offense (Exodus 21:20), and injuring him permanently is a civil offense (21:26-27), but what about a situation in which the slave dies a considerable time after the beatings? Being dead, he cannot be released on account of his injuries, as Exodus 21:26-27 prescribes. At the same time, he was not exactly murdered, as he did live for considerable time afterwards; perhaps the blows were not lethal but his treatment was wrong? Even in modern courts, which have the benefit of autopsy and other types of expert analysis, there is often no clear-cut answer. And so the legislator sighs, “And if he lives for a day or two, he should not be avenged, as he is [his master's] silver.”
Note: Nothing in Hebrew law implies a requirement of kindness or even restraint toward enemies, unless those enemies are subjugated.
This is one example of many in his simplistic use of Halacha an his interpretations. But he is a rabbi and I’m not.