2012 Law Service

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Rabbi Jeremy Lawrence spoke to members of the judiciary at Sydney’s The Great Synagogue’s annual Law Service last week.

Rabbi Lawrence said:

Chief Justice of NSW TF Bathurst and Rabbi Jeremy Lawrence pic: Giselle Haber

In his address to the Law Society at the opening of this year’s law term, The Chief Justice mused over the possibility of repeating one of his predecessor’s orations and observed that “judges are nothing if not fastidious plagiarists”.
He then attended to the theme of the community as participants in justice and the confidence inspired by the jury system.
I was tantalised by the tangent, the notion of fastidious plagiarism.  Is it better to plagiarise fastidiously, with punctilious fidelity to the original or to do it in a haphazard manner, casually interpolating the ideas of others amongst your own?
The integrity of the quote and thought are important concepts in Jewish Law and establish our own doctrine of intellectual property.  We are taught in the Ethics of the Fathers that “one who teaches a precept in the name of its originator brings redemption to the world”.  Conversely, the sages admonish, one who teaches an idea without citing its provenance is a destroyer of souls and a lowly thief.
Why use such strong language?
From the perspective of the Torah, confidence in the system and the integrity of the system come from establishing authority.  An idea that derives from an acknowledged understanding of a verse, or a teaching that is cited by a sage, carry the weight of revelation and wisdom.  Stated faithfully, a remark correctly attributed counts for far more than the same idea independently claimed as new and original.
This point underpins the passage we shall read from the Torah tomorrow – the revelation of the Decalogue, the Ten Commandments, at Sinai.
It is a fundament of Judaism that the revealed Torah is the word of God; and that its commandments and the rules by which they are interpreted and developed are Divine in origin.  We relate them tomorrow as we heard them related to us – as our parents heard from their parents and so on in unbroken narration through the ages.  Our Torah is a text fastidiously preserved, faithfully transmitted from two millennia before the common law established “time immemorial” or “time out of mind”.  Its very antiquity and authenticity are one element underpinning public confidence in the halachic system.
Maimonides posits that there is in wisdom and the arts discovered truth, which speaks for itself whoever says or claims it.  The Torah, by contrast, is revealed truth.  Its credentials depend on us knowing and preserving the chain of transmission.
Yet, as we read tomorrow, when it comes to public confidence, the revealed word of God alone is insufficient.   It all happens in just over a dozen verses in Exodus 18…

David Knoll and Justice Clifford Einstein pic: Giselle Haber

The Torah sets the scene; Moses is sitting in judgement.  The people are standing before him.  From morning to evening.  His father in law, Jethro admonishes him; “What is this thing you are doing to the people?  Why do you sit alone with all the people standing by you from morning to evening?”
The repeated verses of the Torah, those setting the scene and then in Jethro’s petition stress that Moses was sitting while the people stood and that the administration of justice ran from morning till evening.
“From morning till evening.”  The words echo the language of creation.  “It was evening, it was morning…” a new day.  God brings order where there was chaos as each new day dawns.  Here, from morning to evening, we do the same.  When the judiciary resolves discord and makes peace, humanity is a partner of God in this world.  Our justice by day furthers Creation.  As we strive for harmony and concord we make our world a more godly place.
And yet…  From morning till evening Moses is sitting and the people are standing.  Jethro is alarmed.  “What are you doing to the people?” he cries – why are you inconveniencing them making them stand all day, while you sit alone?
First off, the commentators observe that justice which becomes tiresome is flawed.  Moses’ qualifications and competence were unsurpassed.  Who better to judge the people?  Who else had spoken with God?  He alone climbed Sinai.  Nonetheless, if justice is delayed with people standing and squabbling from dawn till dusk, as Jethro observes, that system of justice is defective.
As you know, Jethro counsels that god-fearing and respected persons of accomplishment should be appointed from the populace to assist in the administration of justice.  There should be leaders of thousands, of hundreds, of fifties and tens… local tribunals, district and regional jurisdictions.  They will try the small cases and Moses the major ones.  Delegation will empower.  It will regulate better, bring people closer.  In Jethro’s words, it will alleviate the pressure and bring the people to their shared destination in peace.
The Torah continues that Moses accepted the words of his father in law and did everything he said.  Everything?  Not quite everything.  The text is emphatically repetitive with Moses citing Jethro’s instruction.  But we see that Moses is no fastidious plagiarist.  He clearly acknowledges Jethro’s inspiration.  There is, however, a significant change in language, Moses’ own interpolation.  The judges, as Jethro stated, will try the minor cases.  Moses will hear not the big cases, but the hard ones.  Even if the dispute is over a small amount, where the matter at hand is complex, this will resolved by his superior tribunal.
It is not just about the process.  In explaining himself to Jethro, Moses revealed his own perspective on justice; “The people come to me to seek God…  One man comes to me and I judge between him and his fellow.  I make known the decrees of God and His teachings.”
The words are carefully chosen.  Before Moses are not just the disputants but the people as a whole.  Individuals come with cases for resolution – but “the people come to me to seek God.”  The community attends.  Why so?   The public likes to be involved and benefits from participation.  As they watch and they listen, they learn and are drawn closer.
“Hark the hour of ten is sounding, hearts with anxious fears are bounding.  Halls of justice crowds surrounding, breathing hope and fear…”  As the opening chorus of Gilbert and Sullivan’s Trial by Jury observes, the courts can be an interesting spectacle.
But the crowds before Moses were not there simply for entertainment value.  Seeing justice being done is a religious mandate on two levels.  First, it is seen as beneficial for the public to oversee the courts and feel the benefits.  Accountability and transparency within the courtroom inspires confidence and order in the streets.  For this reason the judges and court officers must be people of integrity and standing.  Responsa literature throughout the ages has seen the rejection of brilliant judicial scholars whose conduct is not commensurate with their responsibility.
On a second level, Judaism requires the entire community to be students of Jewish law.  The Torah is both a Holy text and a constitution.  Within it are copious instructions to teach, to study, to review, to learn, to ask and inquire.  “These words shall be before you…” “You shall pass them to your children…” “All that God instructs, we shall undertake to do, to listen and to understand…”
From the biblical era, study and schooling were not just for the elite.  Education was required and we know, certainly from Temple times, literacy was an expectation.  Jewish literacy was not simply the ability to make out the characters of the alphabet. The Ethics of the Fathers is a second century text.  It records that five year old was supposed to begin study of scripture, a ten year old the study of the Oral law and a fifteen year old engage in the debates of the Talmud.
On this second level, standing by Moses’ side from morning till evening represents ongoing study –seeing the translation of principle into practice; seeing the evolution of revealed instruction into applied resolution of real cases.  It is highly significant that the first scriptural reference of people seeking out God is not in the context of an altar or a sanctuary, in a tabernacle or the realm of ritual.  God is found when we bring Him into our lives, in the things that matter to us, when we and our fellow are in strife.
Contrary to popular misconception, Jewish schooling is not about reading the same Bible stories or covering the festive calendar year in year out.  It is the study of torts and contracts, equity, the obligations of employers and the rights of individuals, social welfare and human dignity.  From the age of ten these are the currency of the classroom.  While God charges us to be a kingdom of priests and a holy nation, that journey begins with a kindy of lawyers.  And no wonder we are so argumentative!
I submit that if we aspire to confidence in the judicial system and respect for its institutions, inspiring young minds with the beauty of law and its role in society is a good way to start. If we, the practitioners, shy away from this because we have become too cynical or no longer believe it, then small wonder that the wider community sees the profession and the practice through jaded eyes.
In the Temple period, the new moon was proclaimed by the court in Jerusalem upon the report of witnesses that the first sliver had been sighted.  So important was the regulation of the calendar that witnesses of the new moon were allowed to travel on the Sabbath to give their testimony.  It must be remembered that violation of the Sabbath was a capital offence in all but extenuating circumstances.
The Mishna records that one Saturday, the great Rabbi Akiva stopped forty pairs of witnesses who were passing through Lod to Jerusalem.  It’s a forty minute taxi ride today; much longer by donkey.  Rabbi Akiva was clearly concerned at an awful lot of Sabbath violation.  Surely witnesses from nearer Jerusalem would have presented themselves.  He was prepared to let through one pair or two – but forty?  How much testimony does a court need?   How many people need to break Shabbat for the new moon to be declared?
Rabban Gamliel was the head of the Sanhedrin.  He countermanded Rabbi Akiva and admonished him with the following dicta; “If you hold back the public today, you’ll be placing a stumbling block before them in the future.”
The commentators explain.  If you knock people back now, they’ll be disillusioned – having started the journey and being told that their good intentions are not welcome.  If you stop these witnesses now because others have come first, then next time they won’t bother and will assume that others will do it for them. If you tell people that they have nothing to offer, they’ll become alienated from the process.
Not every witness was examined at length but each was made welcome and rewarded for his participation.  Everyone who has something to contribute to society should be encouraged and invited back.  Our communities and their institutions are strengthened when we are invited and we step up, where we feel our role has value.
Whether we serve as witnesses or jurors, advocates or judges, we are all a part of the administration of justice – as indeed is every teacher and student of law – and so too every citizen beyond.  It falls on all of us who play more prominent or regular roles in facilitating the rule of law to engage or explain to the others – so that they see the value of our world and see in it the edification, civilisation and sanctification of their own.
Chief Justice, I welcome you to this, your first Great Synagogue Law Service as head of the New South Wales Judiciary.
May you and your colleagues be inspired in your calling, guided with wisdom and righteousness.  May the Almighty bless you in the discharge of your duties; bringing healing and harmony to discord; bringing confidence, trust and hope to our community.
Chief Justice, I wish you and your judiciary every success in the year ahead.