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Address on Jewish Law Day
May 24, 2001
by Jerome J. Shestack
How muddy was their crystal ball!
We suffered the two greatest wars in history and the scourge of Fascism and Communism. T.S. Eliot once said the world would end not with a bang, "but with a whimper." The world did not end, but Fascism ended with a bang, and Communism with a whimper.
From a Jewish perspective during the 20th century, we shared in all the world's evils to which was added our own suffering of persistent persecution. Above all, seared in our souls, is the unspeakable horror of the Holocaust, the tragedy for which there is no metaphor, no redemption. How vast were our rivers of blood and how endless our days of darkness. Yet, everlastingly hopeful, we took heart in decrees of emancipation; we danced on waves of immigration; and we sang the birth of Israel.
Now, at the start of a new century tyrannies still flourish, wars continue, the resolve of many of Israel's enemies to destroy it remains, and new repressions arise daily to test our faith in a just world. The still waters promised by the psalmist remain troubled and turbulent.
Yet, my theme today is not a gloomy one; rather, it is the heartwarming theme of human rights, how they have advanced and, in particular, the Jewish relationship to human rights.
But before speaking of Judaism and human rights, let me briefly speak of human rights as they developed in modern history. The fact is that during most of history, human rights were not relevant to the human condition. During the 17th and 18th Century civil and political rights first come to be asserted against the sovereign as a result of the Enlightenment age philosophies. But it was always in a domestic context, such as the revolution of the colonists against George III, and the French masses against Louis XVI.
On an international level, human rights simply did not exist in any meaningful context. In international law, the individual counted for nothing. International human rights did not really come about until after World War II, when the enormous tragedy of the Holocaust and the Nazi experience led a shamed and horrified world to say "Never Again." As the new United Nations came into being, those words propelled the nations of the world to adopt the Universal Declaration of Human Rights. One of the principal architects of the Universal Declaration of Human Rights was Rene Cassin, a French Jew, later to win the Nobel Peace Prize.
The Universal Declaration was called by Eleanor Roosevelt a "Magna Carta for the World." It was more than that. The Universal Declaration included the civil liberties of our Bill of Rights but also economic and social rights the right to work, to health care, to education, and to a decent standard of living. The Declaration then became the foundation for a series of human rights treaties developed over the next 30 years to form, what is today, the substantive international law of human rights. The Rome statute for the International Criminal Court is the latest of these.
However, despite the Universal Declaration, and the various human rights treaties, authoritarian and totalitarian regimes around the world continued to abuse their citizens. The international law existed, but for decades after World War II implementation of human rights languished.
Yet remarkably perhaps even miraculously in the last 25 years human rights rose high on the global agenda and have made remarkable progress. Communications narrowed the globe and the aspirations of peoples around the world for human rights was fueled by knowledge of what their condition could be and by the rise of articulate human rights champions. Archibald MacLeish once called human rights "the true revolutionary movement of the 20th Century." And so it became albeit slowly. Thus, we saw the fall of Idi Amin in Uganda, of Salazar in Portugal, Somozoa in Nicaragua, the generals in Argentina, Brazil and Uruguay, Strassner in Paraguay, Marcos in the Philippines, and Pinochet in Chile. Virtually all of Latin America progressed toward democracy. As the Berlin Wall crumbled in 1989, so shortly thereafter did Communism crumble and give way to emerging democracies throughout Eastern Europe. Hope began to succeed despair.
Yet, as we know, the human rights revolution is far from fulfilled. In China, Miramar, Afghanistan, Kosovo, Cambodia, Sudan, the mid-east, in much of Africa, and in too many other areas, human rights are still grossly abused. Vivid in all of our minds are the horrible massacres in the Balkans and in Rwanda.
Nonetheless, while there is still much to agonize our spirits; there is also much to uplift it. Human rights law is now part of the law of nations and despite periodic regression, it is, indeed, an article of faith among human rights believers that the realization of human rights is part of the moral inevitability of our times.
For Jews, there has never been doubt about Human Rights. Human Rights have always been part of our moral faith, even as we were victims and as realization of human rights seemed far beyond reach. For Jews, our commitment to human rights did not await the advent of this century, but is in the warp and woof of our religion and in our most sacred traditions through the centuries.
Seven weeks ago, Jews all over the world celebrated Passover, commemorating freedom from slavery. Next week, we celebrate Shavuos, the Feast of Weeks, which commemorates the giving of law to the Jewish people on Mount Sinai. One holiday deals with Liberty, the second deals with our obligation to live righteously under the Rule of Law. The history of Judaism is bound up in these two ideals -- the right of human beings to be free and the promotion of a society that deals justly with its people. In its basic elements, that is what human rights is all about.
Oddly enough, the term "human rights," does not appear in the Bible. But there is no doubt that human rights values permeate both the Bible and Rabbinic learning.
One might fancy that the very first human rights inquiry occurred when Adam ate the forbidden fruit in the Garden of Eden. God asked Adam what he had done. Surely, God knew the answer to his interrogatory. Yet, Adam was provided with elementary due process that is, the accused was given the dignity of a hearing and the opportunity to defend. And perhaps the first denial of human rights was when Cain, after slaying Abel said, "Am I my brother's keeper?"
Whether you regard these early traces as authentic or apocryphal, as Judaism developed in Biblical precept and Rabbinic learning, human rights principles surely were the very essence of Jewish tradition and philosophy.
Let me identify four principles which are part of the fundamental values of Judaism and which are central to human rights.
The first fundamental principle, which provides the moral foundation of human rights is the inviolability of the individual.
If we examine the civil liberties and due process protections in modern international human rights treaties we see that most of them deal with the integrity of the person.
In Judaism, the integrity of the person was sacred. Judaism views the destruction of any soul as equal in tragedy and sinfulness to the destruction of the world. Thus, the Talmud warns that a witness in a capital case is to be admonished in the following words:
". . .a single man was created, to teach that if one has caused a single soul to perish, it is as though he had destroyed the whole population of the world. And, if he saves the life of a single soul, (it is). . . as though he had saved the whole world."
A poignant anecdote illustrating this concept is found in the commentary in the Passover Hagadah about the drowning of the Egyptian hosts in the Sea of Reeds. We are told that when the drowning took place, the angels in Heaven began to sing praises to the Lord. But the Lord rebuked them saying, "My children are drowned, and you would sing!"
Implicit in Judaism's emphasis on the value of the individual is the concept that the worth and dignity of the human personality must be upheld even against the will of the majority. Judaism emphasizes that before the Creator, the worth of human souls does not depend upon mathematical majorities. The will of many souls does not give the right to violate any one soul. It is striking that recognition of the value of individual worth and dignity is the essential goal which underlies a democratic society.
The second concept in Jewish tradition is the equality of human beings before the law, which includes the principle of non-discrimination. Judaism and Jewish lore has often elaborated on this theme.
Ben Azzai, a Talmudic sage, asked, "what is the most important verse in the Bible?" And the answer was, the verse from the Book of Genesis that says, "Adam was created in the Divine image." That verse establishes the fundamental relationship between one person and another. All were created in the image of God. Therefore, all are entitled to equal treatment.
Another portion of the Talmud relates that Adam was made from the dust gathered by God from the four corners of the earth so that no people should later say that he was made from the dust gathered only in their own part of the world. In still another Talmudic passage, the Rabbis ask why were there not several Adams and several Eves. And they answer: "So that it might no be said that some races are better than others."
It is telling that the Torah and the Talmud do not refer to a "good Jew," but to a "good man." In the Book of Proverbs, there is no mention of Israel, but Man is mentioned 13 times and Wisdom and Understanding and Knowledge are mentioned many more times.
The prophet Micah succinctly expressed the universalist view when he said, "Have we not all one father? Hath not one God created us?"
These are not merely enchanting homilies. They represent the very well springs of our Jewish tradition.
Surely, one of the sources of moral failure even among democratic governments has been their failure to extend equality to all persons, no matter their color, race or creed. Such a failure indicates an ethical confusion which never existed in the Jewish religion.
The third concept in Judaism, which is fundamental to human rights, is reverence for the Rule of Law.
No nation in history, I believe, has equaled the Jewish people in their reverence for the law. Wherever the Jews went, the law went with them. No other people in history continued to preserve its law even though it lost its political independence, was dispersed across the face of the earth, and was persecuted constantly for belief in its laws.
English history boasts of the confrontation between Lord Coke and James I, when Coke declared that the King must be under God and the Law. This was a startling new concept in that age. But the Rabbis had taught this long before. The Talmud tells us that no one can be above the Law whether he wear the crown of Torah, or the priestly crown, or the royal crown. Indeed, even God himself was considered bound by the Law.
The concept of the Law's supremacy, is strikingly illustrated in a Talmudic allegory about the oven of Atendi. A dispute arose among the Talmudic sages on a rather dry legal question regarding the ritual purity of that particular oven. Rabbi Eliezer was of the opinion that the oven was pure, whereas the other sages held that the oven was unclean.
Having exhausted his legal arguments, Rabbi Eliezer sought other ways to convince the majority and he said to them:
"If the Law agrees with me, let this carab tree prove it." Therefore, the tree was torn a 100 cubits out of its place. But the Rabbis retorted: "No proof can be brought from a carab tree."
Again, Rabbi Eliezer said, "If the Law agrees with me, let the stream of water prove it." Whereupon the stream of water flowed backwards. But the Rabbis rejoined: "No proof can be brought from a stream of water."
Finally, Rabbi Eliezer said: "If the Law agrees with me, let it be proved from Heaven!"
And a Heavenly Voice cried out, "Why do ye dispute with Rabbi Eliezer, seeing that in all matters the Law (halachah) agrees with him."
But Rabbi Joshua arose and exclaimed, "The Law is not in Heaven since the Law had already been given at Mt. Sinai we pay no attention to a Heavenly Voice, because Thou hast long since written in the Law, one must follow the majority."
And the Talmud goes on to say that Rabbi Natan, met Elijah and asked him what the Holy One, did when upon hearing that response. And Elijah replied: He laughed with joy saying, "My sons have conquered me, my sons have conquered me."
What a remarkable allegory to express the supremacy of the Rule of Law even over the very Law giver.
Our Jewish tradition recognizes that there can be no freedom in the absence of a rule of law which governs all and which restricts ruler and citizen alike. "When Law came into the world," the Talmud says, "freedom came into the world." Yet, until that lesson has been learned there can be no basis for either domestic or world order.
The fourth major contribution of our tradition is the passion for justice. What after all, are human rights but a recital of what is just? And we know that these rights are never realized without passionate advocates to pursue them.
For Jews, the passion for justice is an axiom of our tradition. "Justice, justice, shalt thou pursue," the Bible tells us and that pursuit has been a driving force in Judaism.
Professor Edmond Cahn put it this way: "What. . . is the Bible but a living library of social and individual justice, a set of ordinances to teach man how to pursue justice, a set of court reports to record when justice prevailed and when it lapsed and succumbed? Where in the literature of any people can one match the savage anger of the Jewish prophets in the face of injustice. . . .their noble hatred of oppression, their divine compassion for the oppressed?"
What should be underscored about the Jewish emphasis on individual rights is how courageously our forefathers and prophets acted to confront injustice. In Judaism, an injustice is to be condemned, no matter who commits it.
Abraham confronted even God and insisted that it was unjust to destroy the righteous individuals of Sodom and Gomorrah along with the wicked.
Abraham was brave in challenging God who is All Merciful. But the prophets were braver still since they challenged kings whose mercy was less likely. When King David unjustly violated the rights of one of his citizens by sending him off to war because David coveted the man's wife, the prophet Nathan accused him saying, "Thou art the man."
And when King Ahab unjustly seized the vineyards of Naboth, the prophet Elijah confronted the King, not just with quiet diplomacy but by speaking out openly against injustice.
Isaiah, even on the Day of Atonement, called out against "ye that grind down the faces of the poor." So too, did Jeremiah, Ezekiel, Amos, and Micah castigate injustice wrought by the powerful.
Indeed, where in the literature of any people can one match the ominous warnings of the Jewish prophets in the face of injustice and oppression, their calls for human equality, and their constant compassion for the oppressed?
But if our commitment to mitigate suffering and injustice is to be real, we need to be able to comprehend the problems and needs of others and to bring them within the ambit of our own concerns.
Such sympathetic understanding has always existed in Judaism. It is not easy to really understand the feelings of others. It is not easy to put oneself in the place of parents in Rwanda who sees their children facing starvation, in the place of the mother in the Kibbutz whose child has to sleep in bunkers, or the youth in the Arab refugee camp facing a lifetime of idleness and hopelessness. Yet, if a commitment to redress injustice is to be achieved, we must have that empathy which enables us to view our fellow human being's plight not merely in terms of cold statistics, but in subjective terms of despair and human pain.
This need is well illustrated in the Hasidic tale told by the Rabbi of Sassow. He once declared to his disciples: "I have learned how we must truly love our neighbor from a conversation between two villagers:
"Understand, then, my sons," continued the Rabbi, "to love, to truly love, means to know what brings pain to your comrade."
The road to our truly comprehending what brings pain to our fellow human beings may be a long one, but it is a road we must traverse if human rights for all is to be achieved in our world.
I have spoken of traditional religious values. Those same values have passed into secular tradition, through the philosophies of Locke, Montaigue and Paine in earlier years, and through the modern philosophies of Martin Buber, Isaiah Berlin, John Rawls, Ronald Dworkin and others. The basic values of Jewish ideology have become part of the humanism of our Western world.
Not only in philosophy but in practice, Jews have long been immersed in furthering their humanistic values.
Jewish groups and individuals formed the vanguard of European liberalism. The emancipation of the Jews of Western Europe was related not only to their own interests but to the creation of a social order in which all citizens would have equal rights. Jews were also pioneers in the emergence of self-determination for linguistic and ethnic groups in the first half of the 20th century. Indeed, the Zionist movement itself was a pioneering effort to assert human rights and self-determination for an oppressed minority.
It is no accident that in the fight for human rights in the modern era, the descendants of the prophets have continued to play a prominent role. And not only in their own causes.
Surely, the dramatic gains in civil rights and civil liberties during the past 50 years have benefitted in large measure from the efforts of Jewish organizations and Jewish advocates, who led movements and brought the test cases and fought them to victory and to acceptance. We all recall the many Jewish young men and women who went to our Southern States in the 1960s to fight for civil rights -- some of them died there.
To be sure, the record is not unblemished. There have been times, even now, when our parochial interests have come into conflict with universal human rights values, and when we have felt compelled to favor the former. But we have not done so without agonizing over the choice and hoping that the conflict would not last.
Jewish lawyers have been notably significant in human rights -- in fighting racial and religious intolerance, in efforts on behalf of Soviet Jews, in leadership in NGOs, in defending Andrei Sakarov, Nelson Mandela, Natan Sharansky, and other dissidents. Behind the Universal Declaration stood a Jewish lawyer, Rene Cassin. Behind the Genocide Convention stood Rudolph Lemkin. Behind the International Bill of Rights stood Herschal Lauterpacht.
And in current times, Thomas Buergenthal, Ahron Barak, Louis Sohn, Theodore Meron, Louis Henkin, Irwin Cotler and Rosie Abella, all are lawyers or jurists, who are magnificent exemplars of human rights advocacy and devotion. And there are many others.
On balance, as we review this century's saga, it is a fair statement that in every significant movement of human rights, civil rights and civil liberties around the world, Jewish names are prominent.
The passion for justice which moved our forefathers remains a proud inheritance for their children.
Finally, what does this all mean for each of us as individuals today? Jewish tradition has always sought to instill a sense of awesome individual responsibility for each person to contribute to the sum of good and evil in the world. Moses himself was heralded by our Rabbis as one who searched out the cause of "those he knew not," and his example resonates throughout Rabbinic teaching. The Mishna put it succinctly and lyrically Because everyone was created with the stamp of the first human and in the divine image, everyone must say, "For my sake was the world created."
Let us make no mistake about it. Jewish tradition and experience do not allow us to remain uninvolved in the pain and distress of our generation and in the pursuit for justice and human dignity. As Rabbi Simon Greenberg succinctly put it, from the viewpoint of the Jewish tradition, a life that is not involved in some aspect and manner with the problems of alleviating suffering and pursuing justice and human dignity is lacking the most important ingredient of the good life.
In the Ethics of the Fathers, there is an axiom, "Know from whence you came." As we move forward into the 21st century, I take heart in the belief that we particularly Jewish lawyers will remember from whence we came in our Jewish tradition.
The Bible, in speaking of Jacob and Benjamin, tells us that the soul of Jacob was "bound up" in the soul of his youngest son. So, too, throughout history, the souls of Jews and the quest for justice and human rights have been bound up together. That fact is a tribute to our Faith. That tradition is the source of our most splendid hours.