[an error occurred while processing this directive]
Transcript of "A Contemporary Perspective on 2000 Years of Jewish Law"
David Morris: Good evening everyone. My name is David Morris. I'm chair of the Brandeis Lawyers Alumni Network. I'd like to welcome you all to tonight's discussion. In a few minutes we'll hear from our panelists on the philosophy and history of Jewish law and its effect on law and the present day. And we'll have some time for your questions towards the end. This event is co-sponsored by the Department of Near Eastern and Judaic Studies, the Legal Studies Program, and the Brandeis Lawyers Alumni Network. Before I introduce our speakers, I'd like to go over a couple of housekeeping items. Aside from the speakers, all participants are muted on the call for now. If you have questions for the speakers, please use the Q&A function to enter those and we'll do our best to get to as many of them as we can towards the end of the session. Now it's my pleasure to introduce Professor Lynn Kaye, Professor Alexander Kaye, and Justice Sheila Sonenshine. For quick intros, Lynn is Associate Professor of Rabbinic Literature and Thought at Brandeis. Her areas of interests include Rabbinic Law and Narrative, the Philosophies of Time, Legal Theory and Critical and Literary Theory. She completed her master's in the Hebrew Bible at University of Cambridge and her PhD in Rabbinic Literature at NYU, during which time she held fellowships at Cardozo Law School and NYU Law School. She completed the graduate program for women advanced Talmudic studies at Yeshiva University and her 2018 book, Time in Babylonian Talmud, was a finalist for the National Jewish Book Award. Among other topics in Jewish legal theory practice in texts, she writes about strategies and ordinary Jews in the Talmudic courts. Alexander Kaye is the Carl, Harry and Helen Stoll, Chair of Israeli Studies at Brandeis. His research deals in the history of Jewish thought with a special focus on political thought, the history of law and theories of Jewish modernity. Excuse me. He's also an expert in Israeli studies and focuses on the relationship between law of religion and politics and in particular, the history of religious Zionism. He's the co-editor of the Journal of Israeli history. His latest book, The Invention of Jewish Theocracy, the Struggle for Legal Authority in Modern Israel, was published in 2020. The Honorable Sheila Sonenshine has 50 years of legal and business experience, including 11 years as a full-time neutral with jams. She's been recognized by the American Bar Association and the State Bar of California, the Orange County Bar Aassociation, and the Academy of Matrimonial Lawyers for her various accomplishments. She's a much sought after mediator, arbitrator, Judge pro tem, and neutral evaluator in a broad range of practice areas including business and commercial, family employment, real estate, probate trusts, malpractice, and appellate disputes. The judge served on the Orange County Superior Court where she was the presiding judge for the family law panel. During her 16 years as Justice on the California Court of Appeal in the fourth district, third division, she heard literally thousands of cases and published a multitude of significant opinions. She attended Brandies from 1963-1964. With that, I'll hand that over to Lynn Kaye.
Lynn Kaye: Thank you David, for moderating this panel and thank you to the sponsors of this very exciting event. I'm honored to be with my fellow panelists and with all of you tonight. I want to get started by talking about two interconnected things this evening to begin the discussion about 2,000 years of Jewish law. First, I'm going to define Jewish law for us as something more than rules. Its interpretation is shaped by the communities that practice and judge it. The rules create communal norms, social roles, values, and shared narratives about laws meaning and the identity of the people bound by it. My first point tonight will be that Jewish law is more than rules. Then I will connect the definition of Jewish law with a case study for the challenges of being a judge in the classical Talmudic period, which is the first half of the first millennium of the common era. I'd like to consider together the issue of judicial advocacy or legal advice to people who appear before a rabbinic Judge With the labels judicial activism often traded as criticism by different camps in the US polity today it's an interesting time to think about perspectives that ancient Jewish law can offer on the role of judges. To begin, Robert covers description of law in general has been enormously influential in academic studies of Jewish law over the past several decades because while Cover used biblical examples to explicate a general theory of law, one which would apply to multiple coexisting normative communities in the United States. Many find that his theory makes Jewish law and Jewish legal texts much easier to define and to understand as well. He wrote, no set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning, law is never just a set of rules in his opinion. The stories that people tell about the rules which explain them, which ground them, and which connect those rules to people's lives and values are intrinsic to the category law. When memorable example that cover sites is a biblical example, which is the rule that a firstborn sons portion in the Torah and the Pentateuch should be double. So if there's many children, the first-born son would receive a double portion of the inheritance. In Deuteronomy, that is the rule. First-born son gets a double portion of the father's household property. Yet, any readers of Genesis will remember that the stories of the patriarchs consistently depict heroic younger sons usurping the role of the firstborn. Ishmael, Esau and Ruben are all relegated. So which is it? You cannot ignore the founding stories of the people of Israel and yet the rules guiding how lag would be distributed in that population contradicts those stories. Cover's insight is that we need to study the laws along with the stories to see the meaning of the law, and to understand the normative community that the law creates.
Lynn Kaye: Cover's insight gives theoretical language to my part of the academic field of rabbinic scholarship, which studies the narratives of Jewish legal collections as equally important as the rules and the reasoning that often get more attention. The Talmud has many narratives about judging, and that's going to be in the second part now of my presentation. In the Talmud, court proceedings are judge-directed and fact finding. This is not an advocacy based legal system. I understand that even in the late Roman Republic and early Roman imperial law, legal advocacy was not done by legal experts. It was a form of rhetoric and it was informal, friendly court accompaniment until it was legalized by the Emperor Claudius in the first century of the Common Era. Now by the 17th century, hiring lawyers in rabbinic courts wasn't established practice and today there are advocates and lawyers in rabbinic courts. But Talmudic law from antiquity presumes that the judges are fact finders and there are no professional advocates also appearing before the Rabbinic judges. Cases are meant to be solved by judges discerning the proper ruling by questioning witnesses and examining other forms of evidence. Now both of the Talmud's from Roman Palestine and from Babylonia show concern about judges crossing a line from a judge to an advocate on behalf of one of the petitioners that appears before them. The Palestinian Talmud or the Talmud of land of Israel, seems more open to the advantages of judges offering legal information to petitioners if this would help them to present their cases more successfully. The Babylonian Talmud seems to counsel caution on that. But Babylonian Talmud stories do show judges occasionally advising their relatives, their friends, and sometimes ordinary Jews as well, when they appear before them in judgment. In the wake of the Talmudic opinions that I'm summarizing for you, Maimonides, who was a towering figure of medieval Jewish law, offers the following advice to judges to help them maintain their position as an impartial finder effect. He says, "How do you know that a judge should not be an advocate?" Because the Torah, the Pentateuch says, distance yourself from lies. His first idea is that there's something not honest if a judge advocates. Maimonides continues, the judge should say what appears to him and then be silent. Maimonides presumes only male judges in Rabbinic law. He must not instruct either of the litigants at all, even if one of them brings a single witness. The judge should not tell that, man, we do not accept single witnesses rather say to the respondent, this one testified against you. Hopefully the respondent will admit what's being claimed and say, "That's true." Unless and until the respondent himself argues he is a single witness and has not believed against me. That's first paragraph. Maimonides says that in Jewish law, classically, only in most cases, only two witnesses are acceptable as witnesses, a single witness would not count. But the first paragraph suggests that even if a single witness which is not admissible is presented, the judge should not tell either the person bringing the witness or the person who witnesses testifying against that this is an actually valid evidence. Rather, one can say somebody said this, and unless the respondent is actually knowledgeable that that is not admissible, they could lead them to admitting what's true, that they did it or something like that. Then that would have ended up being that the judge didn't offer any counsel at all. The next paragraph though, goes to a different direction. If the judge still sees that a litigant is having trouble presenting a valid claim because he's unable to express himself logically or is overcome with anger, which causes them to lose the thread of his argument, or if he makes mistakes as a result of foolishness, the judge is allowed to help the litigate a little by explaining to him to beginning of his intended claim. The judge can see that what the person's trying to suggest that they're getting off track in some way, the judge can start them off. As it is written, open your mouth on behalf of the voiceless, however, concludes Maimonides, take great care not to act like an advocate. These two paragraphs show a definite tension and this comes from Maimonides amalgamating both Babylonian and Palestinian Talmudic views. But I invite each of you in the audience to consider how should a judge, if they are the only legal professional, act in order to maintain fairness, but also act in the interests of justice. Both Talmuds include hundreds of short narratives that show judges stretching and straining between fairness and justice, or fairness and compassion when it comes to people appearing before them. Many of whom are unnamed lay people who do not know how the law and the details that they know about in their cases might affect them. If you like, during discussion, we can talk about some examples. For Maimonides making the right choice is left to the good judgment of the judge. I'm about to conclude. This evening, I presented two ideas about Jewish law from its earliest stages in the time of the Talmud. The first is that Jewish law is about more than its rules and even more than its legal argumentation. Its narratives, whether they're stories in rabbinic texts or the narratives of the communities who interpret them practice Jewish law, are integral to understanding the meaning of Jewish law. The second idea that I mentioned tonight is that Jewish law has a rich tradition in its rules and narratives about the role of judges in accomplishing justice. The story show rabbinic judges maintaining allegiance to legal traditions and the precedents that they inherit and showing concern for the difficulties of the people appearing before them. Absent professional legal advocacy. Talmudic judges are charged with navigating a subtle distinction between judging the merits of two sides of a case and ensuring that each of those sides of the case have the advantages that the law might afford them. Returning to the traditions of Classical Jewish law might provide a useful counterpoint in contemporary arguments about the roles of judges and judicial activism today.
David Morris: That you are Alexander. Go to the next.
Alexander Kaye: Thank you very much. It's absolutely a pleasure to be here in this conversation. In some ways, the talk that I'm about to give builds on what Lynn just talked about. She showed that Jewish law is not simply a list of rules, but it's embedded in a series of narratives in a culture of the people. I'm going to show similarly the Jewish law is not something that's a discreet unit of laws unto itself, but it also exist in a historical context and in a social context. People often feel that Jewish law is self-contained. Here's Rembrandts, Moses coming down from Sinai with the two tablets of the law. In the biblical tradition, this is the written law, which is accompanied by the Oral Law. You'll often hear it said by people will talk about Jewish law, but basically this system has everything in it that is needed to run anything from individual lives to societies, to an entire nation. For example, the state of Israel and there are people that argue that the state of Israel, even today is a modern democratic state, should be run by Jewish law. What I'm going to say over the next few minutes is that there are at least three ways of noting that Jewish law, not only today, but always has been in conversation with other kinds of political and legal institutions. In other words, it's not a discrete hermetically sealed system, but it's a legal system in conversation with other political and legal systems. I'm going to briefly touch on three ways in which that is true. The first is the way that Jewish law is in conversation and has historically always been in conversation with other kinds of Jewish institutions. In other words, within the Jewish community itself, Jewish law is in conversation with other kinds of authority and which is distinct from Rabbinic law. The second thing I want to show is that Jewish law is in conversation not only with other institutions inside the Jewish community, but with other institutions outside of the Jewish community. In fact, Jewish law is often in conversation with, often in collaboration with and certainly always very knowledge about legal institutions that are outside of the Jewish community. Finally, I'm going to say a word or two about the state of Israel because this is a particularly interesting test case about the ways that the context matters. In this case, in the case of the state of Israel, the context is a modern democratic state. The way that Jewish law as it operates in the State of Israel, has actually been effective and transformed in all kinds of ways because of its context and a modern nation state. Let me briefly taking each of these in turn. When I talk about Jewish law being in conversation with other non rabbinical Jewish institutions and there are a couple of ways that this happens. The first thing to note is that, I think it's a very common assumption that before the modern period, all Jews who by and large were what we would today call religiously observed. In other words, they followed Jewish law and they believed to be binding upon them. They held a central place in every Jewish community. The assumption today is simply the courts in Jewish communities were rabbinical courts exclusively. Jewish law, Halakha was the law that governed every aspect of Jewish life. But in fact, that's not the case. It's certainly true that Halakha, that Jewish, traditional Jewish law did play an incredibly important role and authoritative role in the way that Jewish communities were run and let their lives. Indeed, most Jewish communities did have either within them or at least nearby somewhere that they could have access to some rabbinical judge an occasion, even are more extensive rabbinical court. But it's also the case that Jewish communities had non rabbinical courts inside of them. In other words, even Jewish communities that had and they were granted autonomy to govern their own concerns, were not exclusively ruled by Halakha by rabbinical law at all. There were courts on which there were judges who did not necessarily have any rabbinical training, have any special rabbinical knowledge. In fact, they were often there because they were the leaders of the community often because they were wealthy individuals. These courts, these lay courts, these non rabbinical courts, often sat side-by-side with the rabbinical courts, in particular Jewish communities and the relationship between them buried according to historical context, sometimes the rabbis were very much more powerful and dominant. Sometimes the lay courts work, and often there was a good relationship between them. This was very important, even from the perspective of rabbis themselves who appreciated this non rabbinical authority in the community. One of the reasons for that is that Jewish law has very stringent standards when it comes to criminal convictions. For example, there had to be two witnesses to any criminal prosecution and the witness had to be adult males who are not related to each other. They had to issue a warning and explicit warning to they assume criminal before the act was done and so on. Because of its very difficult to convict criminals according to the strict letter of Halakha of Jewish law. For that reason, Jewish courts often essentially used the lay authority, the authority of the non rabbinical courts to sometimes come in and help achieve a conviction where a person was obviously guilty. But according to Halakha strictly speaking, they would not have been convicted. In other words, even rabbinical courts themselves, made use of non rabbinical laws and conventions in order to carry out proper justice. That's the first example and this tremendous amount to say about that. I'm happy to expand upon it later on. The first example in which Jews governed themselves by Halakha, yes, but in addition to other kinds of law, the law of lay courts. Now Jewish law also is not just a matter for the closed off Jewish community, but Jewish law always has been in conversation with other kinds of legal system, of course. For most of the history, most Jews have lived in a wider societies that are not governed by Jews. For the past 1500 years or so, most Jews have lived under either Muslim or Christian rule. Jewish courts will always acutely aware of the laws and the norms and practices of the Muslim or Christian or secular courts around them. In fact, in places with a significant Jewish community, those Muslim or Christian courts will also acutely aware and very interested in the way that Jewish law worked as well. I'll give you just a couple of examples of this of very many. This image is an image of the Pinkas, which is the name for the community register. Basically the court records and the government records of a city called Metz, which is in France. This particular images of one of those registers towards the end of the 18th century, in the decade or so before the French Revolution. There's a professor called Jay Booker which is has written extensively about these records and shows that these records are certainly and deeply based on Jewish law. But also evince a tremendous familiarity with the laws of the French courts and Christian law which was observed by people around them. Indeed in the Christian courts, which were right next to the Jewish community of Metz at the time, there was all kinds of familiarity with Jewish contract law and other kinds of Jewish legal tools and terms and so on. In other words, the courts knew about each other and use each other's terminology and systems. This is not limited to Christian contexts. Here's an image, the writings are a little small so you probably can't see. This is an image that I know about because of the work of Professor Jessica Marglin from the University of Southern California. These two images are actually the same piece of paper, but two sides of the same piece of paper. This is a contract that comes from Marrakesh in Morocco in 1875. It's a real estate transaction. Professor Marglin shows that the two sides of the contract are basically similar to each other, except that one side is written in Hebrew and uses the terms of rabbinical law and the other side is written in classical Arabic and uses the terms of Sharia. This is because the people that carried out this real estate transaction wanted their transaction to be recognized both by Jewish courts, Halakha courts, and by Muslims Sharia courts. Again, we see these two legal traditions very deeply intertwined.
Alexander Kaye: Let me close briefly by saying a word about the state of Israel. The state of Israel, as you probably know, has officially recognized Rabbinical courts. These Rabbinical courts have exclusive jurisdiction over the family law of all Jews living in Israel. You may have thought that this is because Israel defines itself as a Jewish state. But, in fact, that's not the case. There were Rabbinical even before the state of Israel was founded in 1948, when it was part of the British mandate, and, in fact, even before the British took over Palestine when it was still under the rule of the Ottoman Empire or Muslim empire. Under all of those jurisdictions, this particular territory has had family law under the exclusive jurisdiction of religious courts, be they their Christian, be they Muslim, be they Jewish. This was the case under the Ottomans. This was the case under the British, and it's still the case in the state of Israel today. Whereas the state recognizes Rabbinical courts it also recognizes Sharia courts and also recognizes Christian courts to have exclusive control over the family law of their own communities. One thing though that has changed during the period of the state of Israel itself since 1948, is that the very fact of the existence of a sovereign Jewish state has itself had an impact on the way that Jewish law is carried out in the state of Israel. In other words, the context matters. Jewish law is not hermetically sealed. It responds to context and in this case even being in a Jewish state has an impact which changes in certain subtle ways the way that the law is carried out. There are many examples of this but let me just give you one example. You see here a photograph of the Rabbinical judges on Israel's high Rabbinical court in Jerusalem. If you were looking at this from a purely stereotypical point of view, you'd see a bunch of men who looked like ultra-Orthodox men with beards and black hats and you'd say that this is clearly an extremely conservative, very traditional institution. Indeed in some ways it is or has been for the past few decades. This is a high Rabbinical court in Jerusalem, which is essentially a court of appeals for the other Rabbinical courts in the state of Israel. If a Rabbinical court in let's say Tel Aviv or Haifa makes a decision, this court that you see pictured here can overturn that decision as a court of appeal. What's striking though is there are with very, very few exceptions, there has never ever been a court of appeal in institutionalized Court of Appeal in Jewish law for the entirety of Jewish history until the 20th century in Palestine. This was essentially again, with few and marginal exceptions, this is a tremendous innovation in Jewish law and the reason it was set up is because the British who were in control at the time that this institution was set up believed that all courts had to have courts of appeal or court systems had to have courts of appeal in them, and the Rabbinical courts responded to that pressure, to that intellectual influence into that historical context to actually develop a way of setting up a court of appeal, even though, by most readings, the Hallahan does not require in some senses even object to a court of appeal like this existing. There are other examples which I'm happy to attend to that pupil are interested, but the main takeaway point here that I really wanted to emphasize the way the Jewish law is not a thing sealed off in its own world but is and always has been in conversation with other legal and political systems.
Sheila Sonenshine: Hello. I'm Sheila Sonenshine and I'm happy also to be participating in this panel with professors Alex and Lynn Kaye. I'm going to focus my remarks on contemporary perspective on 2,000 years of Jewish law. I thought I'd start by giving you a little background on my Jewish background. I was born Jewish. My parents were happy to be Jewish, but I had no religious education actually until I became an adult and that was a promise on the fact that my mother didn't really appreciate organized religion. As a result, I spent five years in Christian Science Sunday school, seven years in a protestant boarding school and I attended a Catholic girls school. I have a very well balanced, if not particularly Jewish educational background. I did become a bat mitzvah at 45 and that was with our third child, our daughter, and we had our b'nai mitzvah and that was already 10 years after I was on the bench as a trial court judge and as a justice on the court of appeal. The laws placed in society and God's place in the law I think is fundamental to understanding the contemporary perspective of Jewish law. The purpose of law in my opinion is to regulate behavior. You regulate behavior by rules and by consequences and punishment. The first religion satisfied those goals and when that didn't work perfectly then we got the law and judges. Contemporary law, as far back as you want to define contemporary has always relied on God in one aspect or another. In 1873, Mrs. Bradwell graduated from law school in Illinois and she passed the bar and she applied to become a member of the bar and the Illinois State Bar said, not so fast. We don't think that women should be lawyers. She took her case to the United States Supreme Court and the Supreme Court agreed with the state of Illinois. Since there was no law per se, that could be sided or no precedent, the court relied on God, saying, "God designed the sexes to occupy different spheres of action, and that it belong to man to make, apply, and execute the laws. That is the paramount destiny and mission of women, are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator." We still in contemporary law see examples of falling back on God or biblical precepts in order to decide or frame the issue on a case including the right to die and choice. Mind you just your philosophy is very simple and actually ties in to what Professor Lynn Kaye said.
Sheila Sonenshine: That is the justice. I don't see that much of dichotomy between fairness and justice. Because to me, fairness equates to justice and justice equates to fairness. When you consider the up to the mandate of justice shall we pursue, and then the way that justice is achieved, it comes down to a question of being fair. When I first became a judge, my Israeli father-in-law gave me a Bible with the inscription, you shall not render an unfair decision, do not favor the poor nor show deference to the rich, judge your neighbor fairly. In my opinion is a Jewish legal system by definition, and fairly in my opinion, is to start with the question and not the answer. In other words, as a judge, when you're determining the outcome of the case, you don't start where you want to wind up. You start at the beginning and you look at the facts, and you look at the law, and then you can come to a conclusion. That is not taken to account advocating for anyone. It only takes into account what the parameters are, and within which you can make your decision. What is Jewish laws relevancy in the contemporary world? From the beginning, in Judges, Judaism recognize you shall setup judges and law enforcement. This was a realization that having laws without someone to interpret them was meaningless. As Professor Alex Kaye said, "Judaism sets forth a complete framework for living, including from conception to birth, from criminal towards to business, to taxes to the environmental to property, to contracts, and even as far as the death penalty, which Judaism prescribes there's no proscription against the death penalty. But the concept was, if the courts compose the gap penalty, I think it was more than every 80 years. That was too often." When I was on the bench, I wrote two cases that I think tie in very well with a lot of Jewish legal precepts concepts. I didn't realize this at the time that I was writing these cases. I didn't realize that actually until I studied to become a bar mitzvah and could see the correlation between what I was doing on the bench, and the issues I was determining, and analysis that I had to make. The first case involved legal service on a garden gave I sue you. I try and serve you with the papers. You live in a garden at community or guarded condominium in New York. How do I get service if you don't allow me inside the gate or up the elevator? The underlying law, and California at that time was that service is complete. If you leave the papers with a competent member of the household and a person apparently in charge. Our court held that a pellets had authorized the guard to control access to them and their residents, and that based on an assumption that therefore we can assume that the relationship between the resident and the guard ensures delivery of service. We held that litigants have the right to choose their votes. They do not have the right to control who may sue them by denying them physical aspect. The bottom line moral of that story is that you can wall you're herself in, you cannot wall the outside out. Judaism is a community, being part of a community and nation or people is a huge aspect of the religion. We can't even pray unless we have nine other Jews with us. The second case, and I think this also goes to Alex's point about the narrative behind are actually lands point as well. Then narrative behind the rule is as important as the black letter of the rule itself. In this case, again, involving people who lived behind a gated community, I can't see any of you, so I don't know if you're young, old, I certainly don't know where you're from and this is intimidating to talking to myself. But I know that there are a whole bunch of you out there. I don't know how many of you are from California and are old enough to remember when we didn't have Prop 13 change the way that people basis upon which property taxes are assessed on residences, and prior to 1976 when the law was changed, this homeowner's association predicated it's homeowners assessment based on the assessed value of the property. In 1975 when the law changed, that didn't work anymore because the law at that time, I actually still does predicated property taxes based on the '76 value unless there was a sale or transfer of the property. What that result again, in this particular case was two homeowners, I mean, side-by-side, same exact property, same distance to the beach and to the other manages within the community, and actually maybe even the same side of the size of the house, were paying substantially different amounts in their assessment because one was based on '75 value of the house, assuming they were still in it, and the other was based on what they paid a year before. So they sued. They brought the issue to the court and we determined we looked at the narrative behind them, how that fee was to be accessed and determined that the purpose of the assessment was to base on it value of each home. But that purpose was no longer attainable because the method of assessment was no longer related to the value. We determined that the a flat rate would be the way to go in order to determine the assessment per home. Now, the Jewish law through the Tom within the Mishnah have answered that same question, but the facts were different, but the concept was the same. In fact that situation, the question was who builds the wall? I'm not talking about the wall that we're all talking about now. I'm talking about the world, the citizen back in those times. The answer was who builds the wall? If we had a screen and you can see a bouncing ball, you could follow me. I'll start with number 1. The poor closer to the wall give more than the poor who are far from the wall. The wealthy who are close to the wall give more than the wealthy who are far from the wall. But the wealthy who are far from the wall still give more than the poor who are close to the wall.
Sheila Sonenshine: I want to now turn my attention to a specific topic which is ageism and I'll tell you how I got into this. Twenty five years ago when I turned 50 I was asked to speak to a newly formed group within the Orange County Bar Association on elder law and I had done a lot of speaking up until that time on gender bias. So I figured out just turn the sexism gender bias to ageism. So I've basically been talking on this subject for 25 years. Ageism is a deep and profound prejudice against the elderly in a systematic stereotyping and discrimination against people because they were old. With animism it defines people by generalities rather than specifics. How does Judaism define old age? The torah we have many examples of people living anywhere from 110 to 175. The Mishnah gives many different definitions at different ages including from strength at 30 to almost gone at 100. But at any age that Judaism concept was that old age was predicated upon being healthy and viable and vibrant and able to live happily. The Judaism also differentiates to some extent between just reaching a certain age and the wisdom that comes with a recognition that senility may back the young as well as the old. The Torah and describing how old a priest or when a priest has to retire does not mention age specifically but relates to physical blemishes. Later writings say that the priest could serve until they tremble. So ageism within Judaism at an age exemplifies, in my opinion, some of the most basic aspects of Judaism and the law. First and foremost is the concept as I said before of fairness. You don't judge someone better or worse because they're rich or poor. This is just another way of saying that same thing. You don't judge people by their age either because they're old or because they're young, you judge them by who they are. The other I think very important concept of Judaism exemplified here is the concept of honor and respect. We respect our father and mother, and we're told that we need as a society to consider every man and woman as our mother and father. So it's not just a personal obligation, but a societal obligation. Society is judged by how it treats the elderly. Honor it's a word with meaning and substance. How do you honor? How is the honor bestowed? It's more than just providing food and shelter and clothing. Those are the things that we have to do. But the meaning of our honor is really the way in which those actions take place. What is honorable? What is honorable is the promotion of self-respect. The enabling of people to feel that their pocket of the human race and that they haven't been put out to pasture. We honor somebody by showing them respect, by recognizing that they're worth. When God told Moses gather the elderly and have them help you deliver the people was a recognition for those people who were gathered. It was a recognition of their worth. The concept of self-respect which comes under this concept is a self-fulfilling prophecy for society and for the person because when you went, society does something that recognizes the elderly. I laugh every time I say that because it's 75 I'm definitely in that category. So to some extent I'm talking about myself. But the self-respect is important because it becomes a self-fulfilling prophecy as I said. Giving money is not necessarily the same thing as doing something that enables someone to have feelings of self-worth. Jewish law and judges prescribes that the Tom that says an old man may not serve on court hearing capital fancies doesn't define what old is. But my honor days was concerned about the force retirement added in the adjective very, a very old man cannot serve. The reason for this and the writings is not necessarily because the scholars were concerned that someone was too old to make a decision, but rather the concern was that an older person may not be sympathetic to young people, therefore an old judge couldn't maybe not be fair to a younger person. So this again goes back to the whole concept of Judaism and fairness. Why our society's perceptions of the old relevant today? Well, one thing I think comes to mind Number one is employment discrimination.
Sheila Sonenshine: Ageism can prevent people from even getting any job or an appropriate job, considering their background and abilities. Also totally relevant today is the whole concept of health rationing and whether we just left the old people die and get rid of them and of course, who's going to get the vaccines. In my last few minutes, I'd like to focus on price discounts and how those affect ageism and how it's tied to Judaism. The 1990s, there were two cases that came out in California. One approved of bank's paying higher interest to older people than the other people and the other case approved movie theaters offering discounts so older people paid less to go to the movies. Both of these cases are still good law in California and in both the cases used basically the same rationale, which was everyone will eventually be entitled to those discounts so that's not really discriminatory. As my husband pointed out to me, that assumes that no one dies before they reach that age. But assuming that they're still alive, they said it, it's not arbitrary or invidious or unreasonable because social policy considerations i.e old people earn less and therefore, it's doing a mitzvah so to speak, to allow them to benefit from these discounts or increases in interest. Well, first of all, what we're getting back to Judaism concept of justice and fairness, that may not be true and the statistic show that well, there's so many older adults have severe financial hardships. That is not necessarily if you can't say that obviously about everyone and even generally speaking, we're going to do percentages or generalization that doesn't always apply. To the extent that it does supply i.e. older people make less, need more money, if so, to some extent it's because of the age discrimination which prevents them from having a job or a good job to begin with. It becomes again, a self-fulfilling prophecy. The other reason that the courts upheld these two instances of ageism was because on the concept that, encouraging and enabling citizens to enjoy life and the benefits of society as they reach old age. Well, that concept is to some extent an oxymoron because you're didn't quite recognize or by premise saying the discount on the fact that they need help, you are denying them the one thing that may be most important in their life at that point, which is self-respect. First it's not true and secondly, it doesn't, when we talk about it as I did earlier about honoring the elder, you don't honor somebody by saying, I feel so sorry for you. I'm gonna give you something, financial benefit. My all time favorite case in this area involved a law that we had in California, this law no longer exists the other two do. We had a law in California that said that if judges stay working past their 70th birthday and they die and they're married, their spouses are not entitled to any retirement benefits. In other words, they lose their retirement benefits by staying on the band Chapter 70 years. Now, this case, as I said, was written in 1984, so that's a really long time ago. The judge who wrote it is now close to 80, if not over 80, he's still on the bench but at that time, obviously he was much younger and he thought that that was just dandy to be able to terminate the retirement benefits because it promoted old people from staying on the bench. His opinion said, he actually said this, I admit it's a stereotype, but it's okay because it's ingrained in society and all it does is translate social attitudes into reality and it could save money because if we had to go and have a commission or a hearing every time somebody seems incapable of being on the bench, then that would take, this is just much easier. We'll just have a blanket rule and we don't have to go through on an individual basis and it's not discriminatory. Because every judge who reaches 70 and is married, is going to have the same thing happen to him or her and then at the end, he justified it by saying there was a correlation. There could be, or actually there was a correlation between age and ability. In other words, the older you got, the less capable you are. There are two new cases that came out in California, one in 2018, and the other is just pending now it's just been filed and hasn't been ruled on. Both involved age discrimination, but in favor of the young and not directed at the old. Although when you, like any discrimination, when you favor one person you're discriminating and not favoring a person who doesn't fall into the same category. The first case, which was 2018 case, the Tinder offered, does everybody know who Tinder is I can't or what Tinder is, I can't see your faces so I don't know, but Tinder is a sex app or an app to hook up I guess is my grandchildren would say.
David Morris: No Judge, it's effectively a dating app. I think it's probably the fairest way to say it.
Sheila Sonenshine: I know, but it's not as much fun to say it's a dating app.
David Morris: That is true.
Sheila Sonenshine: From what my grandchildren tell me it is what I just said, but thank you. It's a dating app and what Tinder came up with was to say, if you're under 30, you pay a certain amount to use our service and if you're over 30, whatever the under 30 pays, you pay twice as much. It substantiated that service or that offer by saying that younger users had lower incomes and less ability to pay for premium services. The court said not quite and there's no independent justification for, there's no statute saying what the policy considerations are that would defend this age based pricing system. The other case, which is United Airlines, young people are, United Airlines is offering a substantial discount to people between 18 and 22. As I said, that hasn't gone to court but my guess is that that case, if it follows the Tinder case will not be, that discrimination will not be allowed because we have in California as most states do now a law, the unruly act which says that no business establishment can discriminate on the basis of, and there's certain classifications, age being one of them. If United Airlines said, we will offer a discount to anyone who's in college, which was what United Airlines said the purpose was, then that would have been upheld because college is not a protected category or classification. What's is the bottom line? What do all these cases say? Well, what they say is that the older less qualified to take care of themselves. That the old need financial help, that we fulfill our duty as citizens and as a society to people. Not by seeing them as a whole person, not by providing, not by allowing them to work, but by giving them, letting them go to the movies for less money. What is the result and why is this against the concepts of Judaism and age? Well, it promote self negative feelings. As I said, it becomes a self-fulfilling prophecy. If, for example, justifies firing, we don't have to worry as a society about not hiring or firing older people because we are giving that we are giving them the benefit by letting them go to the movies for less money. In the case of the Tinder matter.
Sheila Sonenshine: Sex is something that is really promoted within Judaism. There are even laws about it and the spouses' obligations one to another, mostly that man to the woman. Judaism recognizes that sex is more than just for procreation and it is encouraged as one of the most special things in life, even when you are past the procreation age. When you take this all together, this price discount castrate the very essence of what it is that Judaism suggest, which has living, not just a long life, but a fulfilling life. Thank you.
David Morris: Thank you very much, Judge. That was fantastic. We have a couple of questions that we're going to go through now. Feel free to add some more, either the chat or the Q&A, and I'll go through them as appropriate. I think the first question is for Professor Alexander Kaye. Can you give some examples of concepts from US law or British common law that are grounded in Jewish law?
Alexander Kaye: This may be better for them than for me. I'm really intrigued to hear her answers to this.
David Morris: You guys can all chime in.
Alexander Kaye: Please do.
Sheila Sonenshine: Okay.
Alexander Kaye: Please go ahead. Please.
Sheila Sonenshine: No. I'll go after you.
Alexander Kaye: I'm looking forward to hear what you have to say. Thank you.
Sheila Sonenshine: Honestly, I think just about everything. I gave the death penalty example and I know that I've heard people say in my 50 years of being a lawyer and a judge. I've had 27 million people asked me, why does it takes so long for the death penalty? Why are there so many appeals? Why does it get to the point of pulling the plug, so to speak, or giving the injection and the Supreme Court looks in? Why do we have to have all those lawyers involved? If the Jewish law isn't clear on that, I don't know what is. If the Jewish law says that every 80 years of killing somebody as capital punishment is too much. Also that Jewish underlying concept, I don't know what the number is, it's better to let nine guilty people go free than execute or find guilty one innocent person. So that topic comes to mind. I think the whole concept of confidence when talked Lynn about you can't just have one person testifying. We can just have one person testified, but the rules of evidence are sacrosanct in terms of what's admissible evidence and what isn't admissible evidence. Our environmental laws are based on the concept in the Torah of every seven years. Is that good enough, Mr. Morris? David, do you want more?
David Morris: Yeah. I think so. Professor Kaye, do you want to add to that?
Alexander Kaye: Simply to say that I'm always intrigued when it comes to these things with the questions of historical causation. So that when we see these kinds of overlaps, I'm sure there are the ones that the judge mentioned and I'm sure many others as well. As a historian, I'm always interested in trying to figure out, did these things find their way into American law because they were in Jewish law? If so, what was the historical connection there? Is there some kind of independent causality that two legal systems came to similar answers for some reason or another. But there is no question that certainly the legal system of the United States is heavily based, of course, on the Christian past of this country and in the United Kingdom also. Of course, Jews and Christians share at least some of the scriptures, although they interpret aspects of them differently. So that's where I might look for some of the historical background to these things.
David Morris: All right. Thank you.
Lynn Kaye: I'm just going to add one thing, David. I'm going to put this into the chat for all of our people. This is an author. She's a Law Professor, Suzanne Last Stone, who has written some really interesting, really engaging articles about, for example, recent legal scholarship having a big tendency in the past few decades to turn to models and Jewish law to try to give a counterpoint to what they're seeing in US law. So this isn't one law that professor does, but then a lot of folks are using Jewish law as a counterpoint to principles and processes. In American law, the one point that Suzanne Stone makes is that whereas Jewish law makes a role for God, as Sheila was talking about, Stone argues that there isn't really a comparable place for God when you're trying to set up some of these structures in some of the US functions. I'm summarizing an intricate legal argument, but that's a really interesting article to look at. The other piece, just because the question was asking about the common law tradition, and I certainly can't speak to particular aspects of the English common law that might have Jewish origins, but Suzanne Stone makes the point that common law as a way of developing law through cases and precedent, is very much a useful structure for looking back at Jewish law, which we don't think about with legislatures and then putting things into practice rather than the classical corpora Jewish law. The Talmud do include a lot of common law type legal material, which is cases that came before judges and how they ruled. So just a few other interesting aspects regarding the overlap with common law.
Sheila Sonenshine: I have another comment, if we have enough time. First of all, when God is used in civil law, whether it's American or British or whatever, to me, that's a cop-out. I mean, I've cited that case and discussed set maybe 4 million times and I never stopped wondering at what I'm reading because this is United States Supreme Court. I'm not minimizing God at all, but they all think that they could come up with is that it's not God's way. That's telling onto itself. In terms of Alex's question, what was the significance or how did we start relying on Judaism, Jewish laws, and what's the similarities between our law and American law? I think whatever of society's laws were looking at, they are or should be focused on fairness. So if that is the keystone, the underlying foundation of Jewish law, then it's not surprising that there is a continuation of that theme in American law. Secondly, Alex and I both mentioned, because Judaism covers everything. Again, it's not surprising that there is a Jewish Law Foundation for whatever it is that we're considering. Another example of that is the right to privacy. As I understand it, when people were told how to erect their tents, it was always so that the entrances were this way and one couldn't see into the others. That makes that foundation more reliable than slander laws. All the cases that we see now on invasion of right to privacy to some extent, have their foundation in Judaism concept of privacy.
David Morris: I'll move on to the next question. The next question is, the methodology of Jewish justice defined in the Bible anywhere earlier than Leviticus, and is Leviticus how you define how to judge, and the related question, is there a fairness doctrine inherent in that.
Sheila Sonenshine: Lynn, can you.
Lynn Kaye: Are we talking about, for example, the idea that which is I think what Sheila specifically quoted, that was inscribed in her Bible that one of the biblical injunctions to judges is to not prefer the rich. If the question is that some of the earliest material, that's certainly very early. You can get into what pieces of the Pentateuch might be earlier than others. But I would certainly considered biblical material the first level and then anything from the rabbinic oral tradition to be after that, and I think that those recommendations are absolutely foundational and that the classical rabbis go back to them again and again. I think another interesting thing that comes up biblically that the rabbis are very interested in regarding fairness is that you might not just prefer a rich thing. I think that you might prefer a poor person. In other words, the law presumes the judge can't take a bribe. So that's maybe preferred rich person, but you might feel compassion and feel that it's going to be a hard thing to rule against a person who was already feeling pressure from other kinds of parts of their context, and so the Pentateuch also tries to show that the law has to stand with fairness to all, even if compassion makes one want to change it. The rabbis are very interested in all of those things and so that's a question whether that's one of the earliest. I would certainly say it's one of the earliest, and if you want to get into whether how you want to compare the dating of Deuteronomy and Leviticus, we could do that during a Bible seminar.
Sheila Sonenshine: Deuteronomy is the first to establish the, to say that you shall set up judges, and I find it interesting because you shall set up judges and law enforcement. My husband and I had a conversation about this because I said I thought that was interesting that first you have judges and then you have law enforcement, and he didn't think that was the least bit strange, because he thought that you have to have the interpretation before you can enforce, and I'm thinking no, first you enforce it, you say you've done something wrong and then you bring it. That would be the natural thought. You bring it to the judge to interpret. But Deuteronomy recognizes the significance of having the judge from before law enforcement, which is cool.
Alexander Kaye: If we're thinking about earliest law, and this isn't exactly about the fairness doctrine perhaps, but a question of natural law. Again, I don't know about whether this is historically precedes on a theoretical basis, and the Bible seems to assume some natural law that is independent in all and indeed precedes the law that's revealed to Moses on Sinai. For example, right at the beginning of Genesis. The whole world seems to sin and God kills everybody with a flood, and later in the pinnacle that you showed the question is raised, on what basis does God and judge the people if there's no law by which to judge them. I mean, there was no Sinai, there was no law that we don't see any explicit commandments that God gave the people to not murder or steal or whatever else, and the answer given by monotheism and others medieval rabbi, is that there's a natural law that precedes any law that's given by God or that's legislative by human beings, which is just taken as given in any human society and people ought to be held to that. In a way, Jewish law recognizes a law that precedes it, which is a natural law that applies not just to Jews but to all human beings.
Lynn Kaye: The question that the very fact that they're asking the question, how could there be punishment if no law was given? The answer being, there was law means that the rabbis are ascribing to God a fairness that people are not going to be retroactively judge by laws given retroactively, that no, there had to be a law in place and God would be judging according to that law in order for there to be punishment. That's a theology that's implicit there.
David Morris: All right. I have two more related question. I think these are really good ones and thank you to the audience. The first is, how much do biblical historians think that Jewish law is codified with Torah, was shaped by the legal conventions of other cultures coexisting at the time? Then the second question I think is related is, what are the basic differences of law between the bodies of law of Judaism, Christianity, and Islam? It's a little chronological there.
Lynn Kaye: I'm going to take the first part of that. There is a very good comparative work which places the legal parts of the Pentateuch. Like the oldest part of the Hebrew Bible, are among the oldest parts of the Hebrew Bible that places those legal parts and the context of other ancient Near Eastern legal codes. I have colleague Sara Milstein, who does very interesting work on this and you can look up her work. First thing to say is that the Hebrew biblical law often parallels in many ways, but the laws of the empires in which it was developing, and then also has some very interesting differences. I'll give you an example of a parallel that you might not have thought of. I'm not going to go with eye-for-an-eye stuff for a second. Did you know that having two heads of the year is not for example, that Passover is the head of the year because it's on Jewish month number one, and then Rosh Hashanah, the Jewish New Year is also ahead of the year. Did you know that there are also two heads of the year in Canaanite. Ancient Canaanite laws. That's something that we're not even going to go near criminal law, to just say that there's a lot of overlaps between certain things, I guess you might call ritual law and then also regarding criminal or civil ways of writing codes, use of case law and then some actual like similarities, and there are whole collections. If you can get yourself to a more academic library, there are whole collections that placed the biblical texts within ancient Near Eastern texts that are like them. So I'm going to put this in.
Lynn Kaye: Bill, hello and others have this three volume wonderful collection of ancient Near Eastern legal documents and other documents. If you want to see what looks like parts of Leviticus or parts of Deuteronomy. There are differences and they could be to do with inheritance, to do with punishments, to do with procedures, so it's a great area of comparative law that you can learn a lot more about. I just want to say something about late antiquity, the time when the rabbis are, similarly, there is a great deal of knowledge we have now about how Roman law and Rabbinic law that was coming in the Roman period might be similar. Then how later Rabbinic law that was happening in the Sassanian Babylonian Mesopotamian context are similar to rules that Zoroastrian priests put into effect and also different. I'll give you two examples, in the Roman context, there was a recent article by legal scholar, Rabbinic scholar or Lee Malcolm , who points out that the categories of people who are excluded from testimony in Rabbinic law, like the people who bet on pigeons and other, as a category of strange category of folks and what brings all those people together? Malcolm argues that what brings those together is a similar set of Roman moral ideas that those people are not participating in the right way in what it would be to be proper Roman citizens. By comparing Roman ideals and also Roman law, sometimes things in Jewish law become much clearer that's a Lee Malcom's idea. In the Babylonian context, there's a new book by a guy called Shai Secunda called the Talmud's red fence, where he compares very carefully, Jewish laws of menstruation and how women observed purity and impurity to do with menstrual cycles and their families and how the rabbis, in a context where the Zoroastrian practices were very, very, very strict. What did the rabbis do to react to those contexts and also make it clear that the Jewish people practice differently. There's a lot of very interesting comparative work in both the Rabbinic contexts and in the Biblical Ancient Near Eastern context to explore.
Alexander Kaye: I see we're coming towards the end of our time and I definitely would like touch the last word, so let me just say very briefly a word about the comparison of Jewish, Christian, and Muslim law. It's often understood that because Christianity recognizes what Christians call the Old Testament, what Jews call the Hebrew Bible and that Islam recognizes certain aspects of both Judaism and Christianity. For example, the prophecy of Moses and the Islam recognizes Jesus as a prophet as well, that there're some connection between the laws, faiths and indeed, there are all ways pointing an overlap in similarities, and that could certainly be done. One thing to bear in mind is that when it comes to Jewish law and people who are non-experts in Jewish law often focus on the Bible as the source of Jewish law and of course, the Bible is hugely important in Jewish law. Fundamentally, Jewish law is a Rabbinical institution, in other words, it's based in some respects on the Hebrew Bible, but it comes out of Rabbinic interpretations of the Hebrew Bible. Even if the Scriptures is held in common at least with Christians, the interpretation of the Scripture is very often different. This was something that Christians in the Middle Ages learn and to their horror and Christians, according to the doctrine of Augustine, had been happy having Jews around for a long time because they recognize them in the Middle Ages as people that preserve the witness of the truth, that's the Old Testament. When Christian scholars found out that Jews heard about the Bible, but the main basis for their legal institutions, was the Talmud, it was greeted with tremendous horror and in fact, a lot of push back and violent oppression and sued as a result.
David Morris: Excellent, thank you for the context on that. Judge, anything you'd like to add before we wrap up, I realize we're coming.
Sheila Sonenshine: Well, I noticed there was one chat, I mean one question that I don't think we specifically addressed. It really is a summation of everything I had to say. We haven't lens conversation about justice and fairness and I have very strong thoughts about that, I think that at least in the system in which I operate, which is how fine your legal system. Justice is the goal and fairness is the way we achieve that goal and once you start substituting or equating fairness with what you deem as morally right or practically correct or anything. You lose the whole concept of justice because justice has to be based on the evidence, the facts and the law and once you go outside of that, you've destroyed the whole concept of civil justice and there are far too many people in the United States today that don't appreciate that difference. Somebody wanted to know why the big deal about living close to the wall, I don't know if you're still on the call, but the big deal was that that the closer you lived to the wall, the batter protected your were. That was a premium as it would be in the communities that I discussed, which its how close you are under the ocean or how big your house is.
David Morris: Thank you, that's fascinating I was actually wondering that one as well. Listen, thank you everyone who you did such an amazing job, this was fascinating, I learned quite a lot tonight. Thank you for taking your time out of your busy schedules to be here with us tonight, thank you for such a large crowd here on zoom we really appreciate your engagement with the Brandeis community in the strip great learning event. We look forward to seeing you all another upcoming lawyers network event, hopefully in the very early 2021. Thank you all very much and good night.