History of the Jews (28 page)

There is, then, no system in the history of the world which has sought for so long to combine moral and ethical teaching with the practical exercise of civil and criminal jurisprudence. It always had many drawbacks. That was why the Jewish Christians could achieve universalism only by breaking away from it. Eventually, in the Age of Enlightenment, it came to be seen as irredeemably backward, even positively abhorrent by many educated Jews, as well as by non-Jewish society. But it had many remarkable strengths too, and it gave to the Jews a moral and social world-view which is civilized and practical and proved extremely durable.

The notion of human life being sacred, because created in God’s image, was the central precept of Jewish ethics, and as we have seen it determined the provisions of Jewish criminal codes from the earliest times. But the sages and their successors worked out the implications of this doctrine in ingenious detail. Everything came from God, and man merely had the temporal use of these gifts: thus he must, for instance, farm the land industriously and with a view to its use by future generations. But these gifts included man’s own body. Hillel the Elder taught that man therefore had a duty to keep his body fit and healthy. Philo, like many influenced by Greek notions, separated the body and soul in moral terms and even referred to the body as an emotional, irrational ‘plotter’ against the rational soul. But mainstream, rabbinical Judaism rejected a body-soul dichotomy, just as it rejected the good powers/evil powers of gnosticism. Body and soul, it taught, were one and jointly responsible for sin, therefore jointly punishable. This became an important distinction between Christianity and Judaism. The Christian idea that, by weakening the body through mortification and fasting, you strengthened the soul, was anathema to Jews. They
had ascetic sects as late as the first century
AD
, but once rabbinical Judaism established its dominance, the Jews turned their backs forever on monasticism, hermitry and asceticism. Public fasts might be commanded as symbols of public atonement, but private fasts were sinful and forbidden. Abstaining from wine, as the Nazarites did, was sinful, for it was rejecting the gifts God has provided for man’s necessities. Vegetarianism was rarely encouraged. Nor—another important distinction from Christianity—was celibacy. The rabbinic attitude was: ‘Do the prohibitions of the Torah not suffice for thee that thou addest others for thyself?’ In all things, the body made in God’s image must behave, and be treated, with moderation. Over a whole range of human behaviour, the Jewish watchword was continence or temperance, not abstinence.
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Since man belonged to God, suicide was a sacrilege, and it was sinful to risk one’s life unnecessarily. For a people now without the protection of a state, and in constant danger of persecution, there were important issues here, which became paramount during the Holocaust two millennia later. The sages ruled that a man had no right to save his life by causing the death of another. He was not required to sacrifice his life to save another either. During the Hadrian persecution, the sages at Lydda ruled that a Jew, in order to save his life, could violate any commandment save three: those against idolatry, adultery-incest, and murder. When it came to human life, quantitative factors did not signify. An individual, if innocent, might not be sacrificed for the lives of a group. It was an important principle of the Mishnah that each man is a symbol of all humanity, and whoever destroys one man destroys, in a sense, the principle of life, just as, if he saves one man, he rescues humanity.
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Rabbi Akiva seems to have thought that to kill was to ‘renounce the Likeness’, that is leave the human race. Philo called murder the greatest of sacrileges, as well as by far the most serious criminal act. ‘Ransom’, wrote Maimonides, ‘is never acceptable, even if the murderer is ready to pay all the money in the world, and even if the plaintiff agrees to let the murderer go free. For the life of the murdered person is…the possession of the Holy One blessed be He.’
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As God owns all and everyone, he is an injured party in all offences against fellow men. A sin against God is serious but a sin against a fellow man is more serious since it is against God too. God is ‘the Invisible Third’. Hence if God is the only witness to a transaction, false denial of it is more wicked than if there is a written transaction; open robbery is less wicked than secret theft since he who perpetrates the latter shows he has more respect for the earthly power of man than the divine vengeance of God.
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As men are all equally made in God’s image, they have equal rights in any fundamental sense. It is no accident that slavery among the Jews disappeared during the Second Commonwealth, coinciding with the rise of Pharisaism, because the Pharisees insisted that, as God was the true judge in a court of law, all were equal there: king, high-priest, free man, slave. This was one of their prime differences with the Sadducees. The Pharisees rejected the view that a master was responsible for the actions of his slaves, as well as his livestock, since a slave, like all men, had a mind of his own. That gave him status in the court, and once he had legal status, slavery could not work. The Pharisees, when they controlled the Sanhedrin, also insisted that the king was answerable to it, and must stand in its presence—one source of the bitter conflicts between the Sanhedrin and both the Hasmoneans and Herod. These violent kings might and did overawe the court in practice but the theory remained and triumphed completely when Jewish halakhic practice was being collected into the Mishnah, so that equality before the law became an unassailable Jewish axiom. There was a conflict here with the notion of the Jewish king being ‘the Lord’s anointed’, which later Christian theorists used to evolve the doctrine of divine-right kingship. But the Jews never accepted the legal implications of anointing. All David’s acts of arbitrary power were roundly condemned in the Bible and Ahab’s getting possession of Naboth’s vineyard is presented as a monstrous crime. These were reasons why kingship did not mix with Judaism: the Jews wanted a king with all the duties and none of the rights of kingship. In their hearts, indeed, many never believed in anointing but in election, which appeared to precede it. In favour of elective kings, judges or other authorities, Philo quoted Deuteronomy: ‘Thou shalt establish a ruler over thyself, not a foreigner but from thy brethren.’
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Josephus took Gideon’s view that God and no one else ruled but that, if kings were felt necessary, they must be of Jewish race and subject to the Law.

The truth is, the real rulers of the Jewish community, as was natural in a society under divine law, were the courts. One stresses the court, not the judge, since one of the most important axioms was that men could not constitute solitary judges: ‘Judge not alone, for none may judge alone save One.’
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The verdict went with the majority and in capital cases a majority of at least two was required. The same majority principle applied to the interpretation of the Torah. One reason why Judaism clung together over the centuries was its adherence to majority decisions and the great severity with which it punished those who refused to submit to them once they were fairly reached. At the same time, submissive dissentients had the right to
have their views recorded, an important practice established by the Mishnah. In courts and scholarly bodies, co-option rather than election applied, since learning was a necessity and only the learned could judge—Jewish society was the first to construct a franchise by educational qualification—but in practice, ‘We do not appoint an officer of the community unless we first consult with it.’
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Not only the courts but the Law had an underlying democratic basis. A body not unlike the later Anglo-Saxon jury was used to ascertain what the practice in a particular community was, so that legal decisions might take this into account. The principle that the Law must be acceptable to the community as a whole was implicit in Judaic jurisprudence and sometimes explicit: ‘Any decree which the court imposes on the community and which the majority of the community does not accept, has no force.’
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Man was seen both as an individual, with rights, and as member of a community, with obligations. No system of justice in history has made more persistent and on the whole successful efforts to reconcile individual and social roles—another reason why the Jews were able to keep their cohesion in the face of otherwise intolerable pressures. Society required that there should be equality before the law—the greatest of all possible safeguards for the individual—but society, especially one under constant persecution, had its own priorities within that general equality. A remarkable series of rulings by the sages runs:

 

The saving of a man’s life takes priority over a woman’s…. The covering of a woman’s nakedness takes priority over a man’s. A woman’s ransom has priority over a man’s. A man in danger of being forcibly sodomized has priority over a woman in danger of rape. The priest takes priority over the Levite, the Levite over the Israelite, the Israelite over the bastard, the bastard over the
natin
,
*
the
natin
over the proselyte, the proselyte over the slave…. But if the bastard is learned in the Law and the high-priest is ignorant of the Law, the bastard has priority over the high-priest.
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A scholar was more valuable to society than, say, one of the
am ha-arez
, an ignorant fellow. The scholar therefore was entitled to sit when before the court. But if the other party to the suit was of the
am ha-arez
, the principle of individual equality demanded that he sit too. The sages were the first jurisprudents to accord all men the right to their dignity. They ruled: ‘If a man wounds his fellow man he becomes thereby culpable on five counts: injury, pain, healing, loss of time and indignity inflicted.’ But loss of dignity was assessed hierarchically in terms of social standing in the community.
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Man was not only equal before the Law, he was physically free. The sages and rabbis were extraordinarily reluctant to use imprisonment as a punishment (as opposed to a restraint before trial), and the notion of man’s basic right to roam freely was very deep in Judaism, another reason why it was the first society of antiquity to reject slavery. But if a man was free physically, he was certainly not free morally. On the contrary, he had all kinds of duties to the community, not least the duty of obedience to its duly constituted authorities. Jewish law has no mercy on the rebel, whose punishment might be death. In late antiquity, each Jewish community was ruled in effect congregationally, with a governing board of seven, which fixed wages, prices, weights and measures, and bye-laws, and had powers to punish offenders. The obligation to pay communal taxes was religious as well as social. Moreover, philanthropy was an obligation too, since the word
zedakah
meant both charity and righteousness. The Jewish welfare state in antiquity, the prototype of all others, was not voluntary; a man had to contribute to the common fund in proportion to his means, and this duty could be enforced by the courts. Maimonides even ruled that a Jew who evaded contributing according to wealth should be regarded as a rebel and punished accordingly. Other communal obligations included respect for privacy, the need to be neighbourly (i.e. to give neighbours first refusal of adjoining land put up for sale), and strict injunctions against noise, smells, vandalism and pollution.
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Communal obligations need to be understood within the assumptions of Jewish theology. The sages taught that a Jew should not regard these social duties as burdens but as yet more ways in which men showed their love for God and righteousness. The Jews are sometimes accused of not understanding freedom as well as the Greeks, but the truth is that they understood it better, grasping the point that the only true freedom is a good conscience—a concept St Paul carried from Judaism into Christianity. The Jews thought sinfulness and virtue were collective as well as individual. The Bible showed repeatedly that a city, a community, a nation, earned both merit and retribution by its acts. The Torah bound the Jews together as one body and one soul.
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Just as the individual man benefited from the worth of his community, so he was obliged to contribute to it. Hillel the Elder laid down: ‘Separate not thyself from the community and trust not in thyself until the day of thy death.’ Even a liberal like Maimonides warned that a Jew who held aloof from the community, albeit God-fearing in other ways, would have no share in the next world.

Implicit in the Bible is the holistic notion that one man’s sin,
however small, affects the entire world, however imperceptibly, and vice versa. Judaism never allowed the principle of individual guilt and judgment, however important, to override completely the more primitive principle of collective judgment, and by running the two in tandem it produced a sophisticated and enduring doctrine of social responsibility which is one of its greatest contributions to humanity. The wicked are the shame of all, the saints are our pride and joy. In one of his most moving passages, Philo writes:

 

Every wise man is ransom for the fool, who would not last an hour did not the wise preserve him by compassion and forethought. The wise are like physicians, fighting the infirmities of the sick…. So when I hear that a wise man has died, my heart is sorrowful. Not for him, of course, for he lived in joy and died in honour. No—it is for the survivors that I mourn. Without the strong protecting arm which brought them safety, they are abandoned to the miseries which are their desert, and which they will soon feel, unless Providence should raise up some new protector to replace the old one.
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A wise man must give of his wisdom to the community, just as a rich man must give of his wealth. So it is a sin not to serve when required. Prayer for others is a duty. ‘Whoever is able to plead God’s mercy for his fellows and does not do so is a sinner.’ Every Jew is a surety for every other Jew. If he sees a fellow sinning, he must remonstrate and if possible prevent it—otherwise he sins too. The community is responsible for the man who does wrong publicly. A Jew must always bear witness and protest against evil, especially great public sins of the powerful crying to God for vengeance. But precisely because the duty to protest against another’s sin is so important, false and malicious accusations are particularly abhorrent. To destroy a man’s reputation wilfully and unjustly is one of the worst of sins. The ‘witch hunt’ is a great collective evil.