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March 6, 1976

"Coercion and Consent": Insights from the Halachah on some Issues in the Patty Hearst Trial (1976)

Shavuot
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Freedom and Constraint in the Jewish Judicial Process (1979)

Benjamin Nathan Cardozo, in his small but influential volume, The Nature of the Judicial Process, made a major effort to separate and describe the subjective elements that operate in the judge’s decision-making process and in the body of objective law which he must consult and whose loyal interpreter he must be in reaching a judicial decision. The four “methods" he elaborates offer a structure by which to probe the degree of freedom of and restraint upon the judge in his judicial role.It is appropriate to pursue the same theme in other forms and traditions of law. This essay is devoted to a preliminary exploration of the question of freedom and constraint in the Jewish judicial process. Because of certain basic dissimilarities between Jewish law (Halakhah) and Anglo-Saxon and American law, the problem will have to be posed in different form and begin with more fundamental philosophic issues. Hence, we shall first investigate the theoretical underpinnings of the question, and we shall then proceed to a halakhic survey and analysis.I. The Halakhic System: Monistic or Pluralistic?The Halakhah claims for itself divine origin: the Written Law (or Torah—i.e., the Scriptures, especially the Pentateuch) and the Oral Law (later reduced into writing in the Talmud) were revealed to Moses at Moun nai, and contained a warrant for the judges of each succeeding generation to decide, in each case brought before them, all doubts and disputes in the light of the revealed legislation. This assumption of divine provenance must, of course, be accepted at face value and on its own terms if any investigation into the nature of the halakhic judicial process is to be valid in assessing the role of the judge who must, a priori, accept this assumption in order to qualify as a judge.The problem, then, may be stated as follows: Is the Halakhah, which has undergone massive development and elaboration through the centuries, always assumed to be in consonance with the absolute, divinely revealed …
General Jewish Thought Halachik Method Jewish Law & Secular Law

Synagogue Sermon

Why Moral People Need Torah (1970)

A fundamental of Judaism that is a perpetual source of wonderment is the relation of religion and morality. A major part of Torah concerns the social and ethical obligations of man to his fellow man. The question is, why should it be necessary to have revelation at all for ideas and regulations of behavior that man can arrive at independently? Do we not know of societies preceding that of Israel at Sinai which arrived at moral codes by themselves? Do we not know individuals who are not committed to Torah and who nevertheless lead ethical, decent lives? The question is too extensive and the problem too significant to attempt anything approaching an exhaustive answer. But on this Festival of Revelation, permit me to commend a more specific line of approach. The site of the revelation is called by two names in the Bible, Sinai and Horeb. The Rabbis, as is their wont, offer us a remarkable insight by means of a play on words; they took these two names of this mountain where the Torah was revealed, and related them to two rather negative terms. Sinai is reminiscent of sin’ah, hatred, and Horeb to hurvah, destruction. Essentially, what they mean to say is that Torah, revealed at Sinai-Horeb, is what allows man to avoid hatred and curtail destruction in the world.Simply put, the Rabbis meant that the Torah is, as Zvi Kolitz has called it, “the great deterrent” against the innate evil that rises from the breast of man. Torah restrains him, it curbs his evil propensities, it allows man to repress his concupiscence and envy by accepting the moral code of revelation.However, just as Judaism acknowledged man’s evil inclination, so it posited his native moral intuition. Man is, after all, created in the image of God, and just as God is good so does man possess extensive reservoirs of goodness and morality. Man naturally possesses noble wishes, the feel for ethical living. Men are good and virtuous on their own, even without divine instruction.Why then is Torah necessary? It is …
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Correspondence

Letter from Abraham Guterman about Halachic Parallels to the Patty Hearst Case (1976)

Dear Rabbi Lamm: I thank you for sending me the copy of your article on the Halachic parallels in the Talmud with reference to the Patty Hearst case. I was particularly glad to receive the footnotes which did not appear in the article, which touched upon various points that add to the completeness of your analysis. In that connection the difference between a single event and a series of events presents the heart of the controversy in that case. In the Anglo-American Common Law there are various situations in which the problem is dealt with under the heading of Res Gestae, that is, whether a given series of events are sufficiently related to be regarded as a single event. For example, in the Law of Evidence hearsay is excluded on the ground that the person who made the statement is not present in court for cross-examination. However, there are a series of exceptions to the hearsay rule where evidence is accepted even if it is hearsay, because of special circumstances. Thus, for example, a statement made by a person who knows that he is dying may be testified to by a third person who heard the statement on the basis that a person facing depth would be presumed to be telling the truth. Similarly, when a person, for example, cries out while watching a railroad train about to run over a person and the statement is made as part of the emotion generated by the event, then the test of admissibility of such evidence is whether it was part of the Res Gestae. Thus, if the statement were made while the accident was happening it is acceptable, but if it is made after the entire event is over it is not admissible in evidence, because it is not part of the Res Gestae.It is possible for the Res Gestae to be a series of events but normally such events must be sufficiently close in time for the purposes of this rule. In the final analysis the true test would be, as you point out, whether the original coercion continued to be operative at the time of the commission of the crime. This…
Jewish Law & Secular Law