appeared in LA Daily Journal, January 2000
Jewish Law and the Supreme
Millennium From an Ancient Legal Tradition
Rabbi Yitzchok Adlerstein
When a famous
Washington attorney recently filed his Supreme Court brief, he provided
the rest of us with a wonderful millennial bonus.
concerned Florida’s notorious Old Sparky, and it was more remarkable for
what it did not say than for what it did.
Nat Lewin made no reference to a single Supreme Court decision.
In fact, he does not cite a single instance of any case law
together with his daughter and retired Israeli Supreme Court Justice
Menachem Elon, attempts to shed light upon the “cruel and unusual
punishment” clause of the
Eight Amendment. Claiming to
know what the framers of the Constitution meant – or should have meant
– has become a pastime as American as sandlot baseball. But Lewin builds his case on the strength of what likely is
the world’s oldest continuously-practiced legal code. He holds up the performance of Florida’s temperamental
electric chair to the scrutiny of the Jewish Talmud, the backbone of
Jewish law for the last two millennia.
The Court agreed
to hear the case of an inmate on Florida’s death row, who claims that
the state’s preferred method of execution is wired for failure.
It has required mutliple applications of electrical jolts to do its
job, and induced foot-long licks of flame to jump from the head of one of
its victims. This, claims the inmate, amounts to a violation of his
Lewin does not
address the issue of whether or not all capital punishment itself is cruel
and unusual. Instead, he shows how Jewish legal tradition examined not
only the outcome of punishment, but the procedure as well. Methods of execution were banished if the Talmudic sages
believed them to subject the prisoner to more pain than absolutely
necessary, or resulted in great shame or bodily disfigurement. He appends passages from four Talmudic tomes, as well as a
twelfth century code authored by Maimonides.
essential point is that many of the pressing moral, ethical, and legal
issues that are front-burner today were already painstakingly and lovingly
considered by savants of the past. Jewish
law in particular surprises and delights moderns, because it not only
suggests solutions, but teaches how complex moral issues can be attacked
and dissected. Within its ancient legal code are deep and detailed
considerations of issues like privacy, allocating medical resources, the
causes of violence, and many more. So
much of the future stands to be illuminated by the minds of those who
specialized in pondering deeply and subtly.
Many of us
approached the new millennium with less than consummate joy and abandon.
One estimate projected that over 70% of Americans would have no
special plans to celebrate. Multiple
concerns wrinkled our brows as we mulled over how we would ring in the
We suffered from
both too little, and too much. On
the one hand, we were not completely convinced that the successful
completion of another millennium accomplished all that much for mankind.
Those of us in the legal professions had special cause to be
mindful of the failures. Looking
backward a thousand years, one of the most prominent images we beheld was
the lack of personal security.
For most of the world’s inhabitants, no Law governed
- or adequately protected against
– the caprice of local
despots, feuding monarchs, bands of brigands, and marauding armies that
could snuff out lives and communities in a moment.
We would have
liked to believe that the flowering of Law in the last set of centuries
has made a major difference. Yet,
more people were killed by war or their own governments in the first
decades of the past century, than the entire population of the Roman
Empire at its height. Jonathan
Swift wrote that, “We have just enough religion to make us hate, but not
enough to make us love.” We
seem to have enough Law to make personal security an expectation, but not
a reality. The specter of
ruthless and bloody terrorism that threatened to accompany the birth of
the new millennium added to our uneasy feeling that not enough of the old
On the other
hand, we were burdened by too much of the new.
So much of our world had been taken over by the increasing
invasiveness of new electronic gadgetry which, we were told, could not be
depended upon to keep the electricity running, or the water flowing, or
planes guided steadily along their intended routes.
The future, we
suspected, might offer the allure of the unknown and changes in
inflection, but not necessarily
promise substantive answers.
we should find Mr. Lewin’s brief. It
reminds us that when the future fails, there is much to applaud in the
The Law means
many things to many of us. It
settles disputes; imposes order where chaos would otherwise reign; it
rights many wrongs. It provides many of us with a way to earn a living, and
sometimes assist human beings and communities in their struggles.
But beyond all
else, Law must always imply the search for Truth.
How reassuring it is to be reminded that while the issues and
concerns are wondrously new, that Truth need not be reinvented in every
generation. Some of the
richest troves of it are gifts from the past, patiently waiting to
contribute to a richer future.
Yitzchok Adlerstein directs
Project Next Step of the Simon Wiesenthal Center in Los Angeles.
He holds the Sydney M Irmas Chair in Jewish Law and Ethics at
Loyola Law School
articles by Rabbi Adlerstein: