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Isha Bekia

Hildesheimer lecture

Jan 9, 2017 | Speeches


Thank you, Rabbi Savage, for the warm words of introduction which I appreciate very much. Professor Waldorf, Professor Heger, Rabbi Spinner, Rabbi Halpern, honored Rabbis, communal leaders, academics, students, it’s truly an honor to be able to be here this evening with you and to deliver this important lecture, which is a tribute to the two institutions that have partnered together to spread knowledge and specifically to spread the knowledge of Jewish law in the world. And I would like to take the opportunity to pay tribute not only to the school of Jewish law at Humboldt University, but also of course to the Rabbinerseminar of Berlin, to the fact that these two very important institutions have teamed up in a spirit of partnership. This evening is a testament to their work and their partnership and I would like to thank them very much for the gracious invitation. Indeed it is an honor to address this august gathering and to continue this honorable tradition of an annual lecture and I thank you for that opportunity very much.
Friends, we live in confusing times, dangerous times, and times filled with tremendous opportunity. And it is in times like these that we need to turn for insight to Jewish law. And it has so much to offer. I’d like to quote to you from the previous chief Rabbi of the state of Israel, Chief Rabbi Herzog. He said something very important about the relevance of teaching Jewish law to the world and that’s why I think this school of Jewish law here is doing such an important and outstanding work in continuing this tradition of teaching about Jewish law because it has so much to offer. Rabbi Herzog, who was the very first Rabbi Chief of the state of Israel, wrote a two-volume work on Jewish law for an English speaking audience. And he wrote as follows in the introduction to his work on Jewish law: “It has been my ardent striving throughout to afford the general student of jurisprudence at least an elementary conception of the elaborate mass of towering structure of Jewish law. When its literary sources have been made more accessible and its accumulated treasures of the ages have been laid bare, the worlds’ jurists may yet come to realize that the utter neglect of Jewish law on the part of students of law and of cultured persons generally have meant a serious loss to the progress of humanity.” This is what Chief Rabbi Herzog wrote so many years ago, talking about the importance of Jewish law and what it has to offer because it is indeed an ancient system of law that has formed the basis of so much of Western tradition and yet has been ignored not only because of generations of prejudice, but also because its sources have been
written in Hebrew and Aramaic and have been inaccessible to many people. And so the work of promoting an understanding of Jewish law advances society in so many ways. And specifically in the area of morality because Jewish law has stated from the beginning and this is what the Book of Deuteronomy says: „You shall safeguard and perform them for it is your wisdom and insight in the eyes of the people who shall hear all of these statutes and say: surely a wise and insightful people is this great nation and this nation has righteous laws and statutes such as this entire Torah that I place before you today. So the Book of Deuteronomy makes a very important claim, it describes the laws of the Torah as righteous laws and statutes. And there is a very interesting word: righteous. It is making a claim about law, which is very interesting. It is calling for the righteousness of law, not only the structure and the order. What does the legal system provide a society? A legal system provides a society with order, with structure, with predictability with a way of governing the affairs of human beings in a manner which is dignified and which is structured and ordered. But it’s more than order, the primary Jewish insight is that law is not only about an orderly society, it’s also about creating a righteous society, a society of morality and of goodness. I would like to quote to you a statement from Rabbi Mordechai Gifter, who was one of the leading American Talmudic scholars of the 20th century, who delivered a lecture at the University of Cleveland in which he describes the quintessential distinctive dimension of Jewish law. He says as follows: “The law itself can become cold and sometimes even cruel if it is designed only to meet the requisites of an ordered society.” So we hear what Rabbi Gifter says, that generally legal systems can be cold and even cruel. Indeed there is a law even among barbarians, the cruelty and tyranny of the dictator is also framed in the order of law. One is reminded of the words of the Psalms in speaking of the tyrant, describing him as being “one who frames violence by statute”. The tyrant is the one who frames violence by statute[1]. This is such an interesting phrase: “frames violence by statute”, because law can be used as a tool of oppression, we know that. As a South African I know that, because that is the South African experience. The apartheid regime structured its oppression of the South African society through the legal system. It had a very advanced legal system, with elaborate statutes and courts and lawyers and legal departments. And all of those tools were actually just tools of oppression because it brought order to society, but no righteousness and no morality. And of course there was a similar experience here in Germany with the Nazi regime of Adolf Hitler, who also used laws, the Nuremberg laws, where it was the methodology of law that was used as a tool of oppression. And so we know that law by itself does not guarantee a society of goodness. Law creates order, but it doesn’t necessarily create righteousness. And this is what the Book of Deuteronomy says: A legal system to truly uplift and transform society needs to be a legal system which is filled with righteousness, with goodness, with morality, not just order and structure. Order and structure have to be blended with morality and with righteousness. But then of course arises this crucial question: What is the definition of righteousness? What is the definition of goodness? How do you define it? Of course we can say that it is important for the laws to be good, but whose definition of goodness? How do we find a principle of righteousness which can be adopted to transform society through the law and do it in such a way that uplifts people and transforms society into a place of goodness and decency? What is that definition? And I would like to explore with you this evening an understanding of Jewish law to try and find the essence of what morality is about. If we are to define what is the defining essence of morality, what would that be? What is the essence of righteousness? When the Book of Deuteronomy says: “I place before you”, and that someone will say that these laws are righteous laws, how do we define righteousness? And the methodology I would like to use is a methodology which is very case-based and practical. As many legal scholars would know there are different legal systems in the world that have a different approach. The continental legal systems, those that come from the Roman-Dutch tradition of legal systems, as is well known in South Africa and of course here, on the continent, is very much based on principles. The Anglo-American system is often very much case-based and I am talking specifically about the laws of delict and the laws of damages where in the Anglo-American system there are torts, which are specific cases of damage, which are established by the law and for which a person can claim damages. In the continental system, in the Roman-Dutch, tradition we talk about principles. So there are two different approaches within the law. Within certain traditions of legal systems the focus is on broad ranging principles, within other legal traditions the focus is on cases and specific examples and from the cases you derive the principles. The Jewish tradition is very much practice-based. In the Talmud, in the written law itself, you will not generally find any sweeping statements made about general values of the system as a whole. Instead you will find an analysis of one case after another, after another. A student of Talmudic law will know that when you open the pages of the Talmud you encounter real life examples and it is from those examples that the general principles have to be derived and extracted. And so if we are to define and extract the essence of the definition of what is morality, what is righteousness, then we need to delve into the practical cases of Jewish Law and try to extract from it. There are four particular cases that I would like to place before you, which are essentially a puzzle. There are four specific examples that I want to share with you only in brief terms as we won’t be able to go into the full depth of each example. They are all examples of laws where we find a long-standing tradition within Western law. And when I use the term Western law, it’s a broad term, referring both of course to the continental legal systems of the Roman-Dutch tradition and then the legal systems which applied right across the continent of Europe, in English law, American law, and also in South African law. These are all systems that fall within the concept of Western law. And what you find in these four cases that I want to place before you is an anomaly. As you will find a tradition within Western law that is across the board, uniformly all taking one position and Jewish law taking a different position. How can it be that all of the systems of western law, whether the Anglo systems, the continental systems, the American system, right across the board, everyone takes one position, and Jewish law takes a diametrically opposite position in trying to understand how the differences arise between the legal traditions of the West versus Jewish law. And the specific examples that I want to deal with are the following:
Number one is the issue of rape and marriage. It is interesting that in Western law, for generations, and going back right to the time of Roman law all the way through there has been a general acceptance that it is not considered a crime for a man to rape his wife. They have different reasons for it. In the Anglo tradition it is because at the moment of marriage irrevocable consent is given, in the Roman-Dutch tradition it is because the wife is considered to be the property of her husband, so they have different approaches to it. And this dispensation, which allows the act of rape not to be considered a crime, was allowed in all of these legal systems and right up to the end of the 20th century. In America, in England and in so many western countries and right across the continent this was accepted. What is fascinating is a case that happened in Israel, where it was State vs. Cohen, (and Mr Cohen is not actually out of a proverbial Jewish joke, it was a real Mr Cohen) who was called before the court for the crime of raping his wife and this case took place in 1981, in the state of Israel. His defense was that the modern state of Israel unfortunately does not have Jewish law as its primary legal code, it has adopted a combination of English and Turkish law, but it does allow at times for an introduction of elements of Jewish law within the legal system. And Mr Cohen used as his defense that his actions were not illegal because he was basing himself on the English law that allowed rape in marriage even in 1981. The prosecution put the following argument before the court, that in terms of English law it may be legal what he has done, but in terms of Jewish law, it is a crime because it is completely forbidden in the context of Jewish law for a man to rape his wife and there is no dispensation and no allowance for that at all. And the court brought in Jewish law and overturned the English law and said that from then on the law of the State of Israel would be that it would be illegal for a man to rape his wife based on Jewish law. So this was the one example where we find this anomaly where you have Western law for a tradition of more than 2000 years across all of these jurisdictions, all taking this one position and Jewish law taking a different position and standing as an anomaly versus everything that took place within Western law.
Number Two: political power. This is more of a political example, but it touches on the heart of the legal system. The western tradition, until the French revolution and the American constitution, was very much one of the exercise of absolute political power. Which meant that a king or a ruler, an emperor of a state was given absolute power to govern in the way that he saw fit. I am not talking here about a notion of democracy. There is something else. Because democracy is a question of how the people who govern the society are elected. Are they elected through a closed council or are they elected by the people? But there comes a more fundamental question. A person who exercises political power, whether it is as a result of the democracy or it is the result of some other method of choosing the leader, how is that power exercised? Is it exercised absolutely meaning that the person who has the power in their hands has the right to do whatever they wish to do or are there limitations placed on their power? And within Western tradition and not only Western tradition, throughout the world, the basic assumption was that the person who wheels executive power does so absolutely. A very modern concept arose, and that was from the time of the French revolution and then more specifically the American constitution and that is the notion of the separation of powers. That you have executive powers, legislative powers and judicial powers, there is a separation of powers and that the person who wheels executive power is not the final authority and does not carry the final power within a society. They are answerable to a supreme constitution which is enforced and holds the executive accountable through the judiciary, through the courts. A concept of the judiciary being the supreme force within the society is a very modern one in Western society and certainly in the rest of the world, which are the parts of the world that haven’t even adopted it to this day. And yet, in Jewish law the judiciary has always been supreme. As the concept of the Sanhedrin, the grand Sanhedrin that was established of 71 judges and the king was subservient to the Sanhedrin which means that firstly there was a separation of powers between the executive powers of the king and the Sanhedrin exercising judicial power, but secondly, the king was held accountable by the Sanhedrin. Meaning, if he wanted to go to war or (increase) his defense budget or in fact the king could even, according to the certain sources, be impeached for improper conduct and held accountable by the judiciary. And so this notion of a separation of powers is a very modern one, but yet an ancient one in Jewish law and it was always there. Right from the beginning of Jewish law there is the notion that it is ultimately the judges who are the final authority within a society and that is such an important part of maintaining freedom within a society. In fact, in South Africa at the moment we have seen that in action. Because South Africa is a relatively young democracy, one of the big battles has been holding the president accountable to the values of the constitution. And it’s been a remarkable victory of the new South Africa, which is such a young democracy which was only established in 1994, and yet has been stretched to its limit, where president Jacob Zuma was subjected to an inquiry about the public protector concerning the allegations of corruption that he was perpetrating and the public protector made findings; the president ignored the findings and the opposition parties took the president to the constitutional court and asked the constitutional court to order the president to accept and to live by the findings of the public protector which is in fact what happened. The court found the president in violation of the constitution, in violation of the authority. The public protector ordered the president to pay back the money that he had taken unlawfully and to fulfill all of the requirements of the public protector which he has done. And so that was a great victory for democracy, but you can see and is something that we, South Africans, have experienced first-hand, the importance of having a separate and independent judiciary, a separation of powers and to ensure that absolute power is not in the hands of a single individual. This has always been the approach of Jewish law and, so once again, that’s the second example that we have which is an example of how Western law followed one tradition for thousands of years. Jewish law always took another position and now, in modern times, Western law has come around to the position of the Jewish law, and the question that I’m placing before you is: what is it in Jewish law that drove it to these answers, answers which the world has come to only in recent times?
Number Three: The third example is that of judicial torture. Torture is a controversial topic today, but the controversies that range around torture are generally (focused on) police torture. Where torture is used as a tool of extracting information from an accused and particularly where it is most controversially used is in the USA, when terrorists are arrested and there is an attempt to extract information from them in order to reveal more about the terrorist network. And there is a discussion about that. I’m not talking about police-driven torture, that is a separate discussion which we don’t have time for tonight. But in Western law, and this is right from the time of Greek law and Roman law and throughout the continent, and in England, and throughout Europe, in Western law there was an acceptance of a concept which is called judicial torture. Where the judge orders a criminal accused to be tortured to extract a confession and that confession is admissible in court and the person is held guilty based on that confession. Judicial instructed torture is an accepted part, was a very well accepted part of Western law, and it was on the statute books. There, for all to see, and it is famous in England, of course you could go and see the rack and all of the various instruments of torture that were used, but what people often fail to understand is that we’re not talking about police-driven torture, we’re talking about judicial torture where a judge actually instructs it. Now if you contrast this with Jewish law, it is fascinating. Jewish law not only never accepted judicial torture, Jewish law rules that a confession, even a voluntary confession, given without any pressure is inadmissible as evidence. This is so because it is regarded to be tainted. You cannot accept the word of the criminal accused for his own conviction, even if it has been voluntarily given. Of course, through the Miranda decision[2] and other famous cases in American law and in Western law, a tremendous emphasis is placed on ensuring that there is no coercion of an accused today, and so eventually Western law has come around to this position. And the person has to be aware of the right and be aware of the right to have legal representation and not to deliver any kind of confession, anything which is incriminating without a legal representative. So Western law has made progress towards this position, but here is the anomaly (again). We have Western law having a system that accepts judicial torture, as opposed to Jewish law which doesn’t even accept a voluntary confession. And how is that so?
The fourth and final example that I want to put before you, is that of the question of poverty alleviation. There were laws throughout Europe and in the west for many centuries that made it forbidden for a person to beg for money, laws that actually made it a crime to be homeless. Today we talk about looking after the homeless and unemployed. But for centuries, for centuries, it has been the accepted position throughout the continent and in Britain that it was illegal to beg and in fact illegal to be homeless. For many centuries, I mean as far as in 18th century France, the law was that a person, a vagrant, in other words a homeless person, an unemployed person was actually branded with a “V” on their skin for vagabond, and a person who was caught begging illegally was branded with an “M” for mendicant, a beggar. And many horrific punishments were inflicted, in Britain in particular there was the law of settlement and removal and there were many terrible things that occurred in the context of that law. There is a reported case of a woman, Ellen Dixon, a blind woman who was whipped and sent away to Windermere in 1635 because she was caught begging. Now this sounds horrific to us, but this was the standard position right across the continent and throughout Western law because the position taken was that you should be working. How do you come to beg when you should be working? And yet, once again, Jewish law took the position that if a person puts out their hand you give unconditionally, you do not ask questions. As it says in the book of Deuteronomy, a person puts out their hand you put charity money in their hand. And so once again you find this anomaly, centuries of Western law in one direction, Jewish law taking a contrarian view in the opposite direction, but going against the trend. And what is very significant is that as human beings one of the most powerful influences that we have is the influence of the society in which we live and that we are influenced by one another. The fact that you have a particular position taken on a number of different crucial human rights issues right across the continent and in Britain and later on in the USA where everyone is going in one direction and the Jewish law is going in the other direction raises the question: why? What is at the heart of it? And I think if we look at these four cases that I mentioned we will be able to uncover a principle, a principle which is not mentioned specifically by Jewish law. The principle I am about to share with you is something you will not find written anywhere because the methodology of Jewish law is not to give broad sweeping principles, but rather, as we said before, case based, looking at specific cases and extracting the principle from the cases. And the principle that can be extracted from all this is, in my own terms, “the vulnerability principle”. Meaning – Jewish law took a position which is this: Analyzing the situation of who is in the most vulnerable predicament and making it the responsibility of the legal system to protect the vulnerable. You find this principle throughout the Torah; you’ll find that in the Talmud council that 36 times the Torah, the Five Books of Moses mention the importance of protecting the stranger, the widow and the orphan. 36 times which is more times than any other commandment is mentioned in the Five Books. You find the importance of protecting the most vulnerable members of the society. In the Hebrew Bible, in the prophets of the Bible, you will find mentions of the importance of protecting the vulnerable and the importance God gives to it. For example, you’ll find Isaiah the prophet say “learn to do good, seek justice, vindicate the victim, bring the justice to the orphan, take up the grievance of the widow”. That’s in Isaiah, chapter 1, verse 17. Jeremiah the prophet says: “Administer justice and righteousness. Save the robbed from the hands of his oppressor. Do not taunt and do not cheat the stranger, the orphan and the widow, and do not spill innocent blood in this place.” That’s Jeremiah 22, verse 3. And there are many more examples. There are verses throughout the Hebrew Bible that talk about the importance of protecting the most vulnerable member of society. And I believe that if you look at the four examples that I have placed before you, you will see that in each example Jewish law seeks to protect the most vulnerable. And that is why it came out with the correct solution to these problems. In the example of rape and marriage, the wife in the marriage is the vulnerable party, vulnerable to the physical abuse of her husband and therefore she is protected. In the situation of the exercise of political power it is the absolute monarch, the tyrant who is exercising the power, his people are those most vulnerable to the abuse of power. In the example of judicial torture, it is the criminal accused who is in the position of vulnerability. Anyone who is accused of committing a crime is in a very vulnerable situation because the state has complete command of that person’s freedom, has complete command of that person’s life and so there is actually no more vulnerable person than the criminal accused. And then of course in the situation of poverty alleviation, a person who has no home, who has no job, who has no money, is a person who is in a situation of extreme vulnerability. And so, the guiding principle that we can extract from these four cases as well as looking broadly at the verses throughout the Torah, the Five Books and throughout the Hebrew Bible, we will find the concept of protecting the vulnerable that goes to the heart of the Jewish law. If we come back to our original question, what is the definition of righteousness, then we have to say, from a Jewish law perspective, righteousness is defined as protecting the most vulnerable members of society. That is the definition of righteousness from a Jewish law perspective. And it is that, that has driven Jewish law since its inception and of course as Jews we believe that it was given by God at Mount Sinai and he gave this system of law for all future generations to see that this is an eternal principle of righteousness and goodness and morality for all times, the importance of protecting the vulnerable. What does the vulnerability principle mean for us today?
It means the following:
1) The vulnerability principle gives us an understanding of the role of a legal system. If we go back to our original question: “what is the role of a legal system?” Is the purpose of the legal system to establish order and structure in a society? Certainly that is an aspect of it. But we have seen that a legal system which is purely based on structure and order can be a cruel and unforgiving legal system. So now we understand that the purpose of a legal system is to protect the most vulnerable and it goes to the heart of the purpose of law, because what is a society that has an absence of law? That is a society that lives in the state of nature. The philosophers speak about the state of nature which Thomas Hobbes famously called the “life in a state of nature is nasty, brutish and short”. If you take human beings out of civilization and you put them in a state of nature without any civilization, then “life in a state of nature is nasty, brutish and short”. What is the purpose of law? It is to protect life and to ensure that it is not nasty, brutish and short. How does it do that? By protecting those who are most vulnerable. And of course, it must be the purpose of law, because if the purpose of law was the survival of the fittest, we would not need law for that. You can allow that to be governed by the state of nature, the state of nature allows for the survival of the fittest. Law comes to redeem the state of nature and to uplift it, and to transform it and to refine it. And therefore the vulnerability principle gives us a proper understanding for the role of the legal system. That is number one.
2) The vulnerability principle also gives us a measure for how to judge the morality of our societies. If we want to know how we are faring in terms of the righteousness, as defined by the morality which God gave us through his revelation of the Torah, then if we want to understand the definition of righteousness, how do we judge our society, we need to judge our societies by how we treat the most vulnerable members of the society. And that is why one of the great German rabbis in the history of this community, Rabbi Samson Raphael Hirsch, famously said, in “Parashat Mishpatim”, the Parashat, the section of the law, which deals with many of the monetary laws of the Torah, in the Book of Exodus, he says “it begins with the laws of the evet ivri, the servant”. That is where the laws begin. The very first law given in terms of monetary jurisprudence is the laws relating to the servant. Why? Because he says the servant is the most vulnerable member of society, and therefore you must start the laws with that, because that is the beginning and that is how our society is measured.
So the vulnerability principle gives us an understanding of the purpose of law in the first place (No. 1). The vulnerability principle also helps us to establish and to judge the morality of the societies in which we live (No. 2). What made apartheid South Africa evil is that it was a society that led to the oppression of people and the subjugation and the exposing of the vulnerabilities of the human beings in the most terrible way, and of course in a much more severe fashion that was at the heart of the evil of the Nazi regime.
3) What the vulnerability principle gives us as well is an appreciation for the understanding of the complexity of vulnerability. Here is a very interesting dimension of this. Jewish law does not accept a voluntary confession. In fact, Jewish law is so opposed to criminal punishment that it makes it a requirement, not only can you not accept a voluntarily confession. In order to convict a person for murder for example, you would need two witnesses who witnessed the act of murder, circumstantial evidence being inadmissible and to also even deliver a warning to the person before the act is perpetrated. Making it practically impossible to impose capital punishment in the case of murder even though the bible in principle has it on the statute books. And yet, the Talmud raises a situation where within Jewish society there was a state of emergency and where what happens when you have a situation developing where there is rampant crime and it is completely out of control and it gives the discretion to the courts in those circumstances to relax some of these very strict laws that make it impossible to impose any form of criminal punishment. And why is that? This is so because the concept of vulnerability can shift. Sometimes the most vulnerable party is the criminal accused. But sometimes the most vulnerable party can be the society itself. And in an orderly society the criminal accused is the person that we are primarily concerned with, and so regulations are imposed that make the imposition of any form of criminal punishment almost impossible with the idea being that education and self-regulation is the ideal of any society. On the other hand, there can be situations where the society itself is so vulnerable to violent crime that it has to take certain measures and this is a very interesting debate and I thought something that one can conclusively take a position. There was a famous case in South Africa, State versus Makwanyane (1995), right at the beginning of the democracy in South Africa, when one of the very first laws that was placed before the constitutional court, was the death penalty. And the judges of the Constitutional Court unanimously held the death penalty to be unconstitutional and they did so in spite of the fact that at the time South Africa was suffering from a wave of violent crime. And the debate is very interesting. I don’t want to focus on the death penalty, because if you don’t have an effective police force and other things are missing, it’s not necessarily going to provide all of the answers to violent crime. I am just saying that the Constitutional Court made a ruling on that case without reference to the fact that its living within the environment of South African in a new democracy finding its feet in a situation of unraveling of law and order and versus being in a very orderly society, perhaps somewhere in Scandinavia where everything is pristine and orderly without any complications. I am saying, are you in Johannesburg, or are in Copenhagen? And that is a question which lawyers have to ask themselves. I am not saying that I take a specific position on the death penalty. It’s too complicated a problem to debate in the short time that we have. It would require a lecture in its own right. But there has to be a consideration for the circumstances of the society and who is the most vulnerable party within that society? And similarly, and this is a dilemma which Europe is facing at the moment, on the one hand, when people are refugees and they are running from situations of conflict and terrible oppression, then they are the most vulnerable people on earth. Who can be more vulnerable than a person who has no home, who has no livelihood, who has no safety, no education to give to his children, who has no food to give to his children, and is running for his life. There are no more vulnerable people than refugees. On the other hand, there is also the vulnerability of the society to potential terror attacks. And one has to create policy, and I am not suggesting I have the answers to what specific policies have to be created. What needs to enter the debate is that in the same way there is a moral principle which requires one to look after refugees, there is also a moral principle, the vulnerability principle itself, that it is the same vulnerability principle which says that you need to protect the vulnerable, the refugees. So there is also a vulnerability principle that says you have to protect your society from terror attacks and therefore a society has to craft both policies as well as operational implementation which achieve both, and both are moral principles. It’s very important because, and one can quote from the Hebrew bible and talk about the stranger, the widow and the orphan, and welcoming in refugees and the importance of that, not only from the context of the values of Jewish law, but in the context of Jewish history itself, but on the other hand, there has to be an appreciation as well for the importance of the nuance and the complexity where the vulnerability principle is not only a vulnerability principle about protecting refugees, but is also about protecting society from the threat of terror. There is a consensus around us, in the Western society, that terrorism is a threat to human civilization and it is a threat to the values which we have all fought so long and so hard to establish within the societies in which we live. The forces of terrorism represent a threat to that and need to be taken seriously and we need to speak about the threat of terrorism not in the context only of law and order, we need to use the vocabulary of morality. That the fight against terrorism is a fight for morality, it is a fight for freedom, for dignity, it is a fight to protect vulnerable people from savage attack from those who do not subscribe to civilized values. It becomes an important part to be able to make the discussion of terrorism, not just about law and order and security, but about morality, the morality of protecting the vulnerable, that will be a step forward. There is something else that we can learn from the vulnerability principle. And it relates to this idea of the complexity of vulnerability. We mentioned in the fourth example this evening the importance of giving financial and other assistance to poor people, to help alleviate poverty. And whereas for centuries there was a deep discomfort in western society about helping those who are destitute, and it took a long time to work that out of the system, there is another dimension to vulnerability and that touches on the future of the welfare state. And that is another issue which Europe is grappling with at the moment. What is the future of the welfare state, of the state which provides financial assistance to people in various forms throughout the society? And in a certain sense the pendulum has now swung. Whereas in Western law there was the persecution of what they called the undeserving poor, the pendulum has now swung to where in Western societies there is a very serious concern with people living in any situation of low quality or deprivation and the welfare state sets itself up in order to provide financial and other assistance to people in need. And here comes the flip side. On the one hand, Jewish law is unequivocal in the importance of supporting people financially who are in desperate need, unequivocal in that. When a person puts out their hand, you give and you help. And that is a crucial part of it, and the Talmud talks about the importance of setting up a charitable infrastructure in Jewish communities. The importance of ensuring that people have food, shelter, the money that they need in order to live a proper religious life as well, and so that is unequivocal and it is very clear. On the other hand, Maimonides, the Rambam, writes – basing himself on the Talmud, he says that the highest level of charity is not to give a person money, but to give a person a job, a partnership, an interest free loan. Because then you are helping them achieve financial independence. And I think we can understand this from the perspective of the vulnerability principle, because on the one hand the vulnerability principle says that a person who is in financial need and they are poor, you need to look after them because they are vulnerable. On the other hand, there is no one who is more vulnerable than a recipient of government or any other form of welfare. Because it means that their whole future and their livelihood is dependent on the good grace of another person. And if that person decides to withhold the money, the support, then the recipient of that welfare is in a terrible predicament. So there is nothing more vulnerable then to depend on another human being so that you do not control your own destiny to be able to look after yourself and after your family. Therefore, the same vulnerability principle which says that you must give to the poor unconditionally is the same vulnerability principle that says the highest value is the value of financial independence. Jewish law sets up a number of mechanisms so that a person should not have to receive welfare. In fact there are some practical ideas that can be implemented by any state and it would be a way to helping people move from welfare to financial independence. The first thing is “Education” (i). We know that the value of education has deep roots in Jewish law. The first schooling system was established going back in Talmudic times more than 2000 years, the first national schooling system. Education has been the backbone of Jewish society for thousands of years. As it says in the Torah: “Veshinantam lewanecha” – “You should teach your children”, the Talmud says: “from the moment the child can speak, you need to start to educate them.” Education is the key and the ladder out of poverty and every single person has the right to a good education, so that is one aspect.
The second mechanism is “Access to capital” (ii). For a person to be able to get out of poverty, they need to have access to capital. And that is why there is a concept within Jewish law of an interest free loan as an act of charity (to give it because you’re entitled you should be entitled to charge interest). Why can’t you charge someone if you charge them for the use of your property, why can’t you charge them for the use of your money? But there is an understanding that people need access to capital and how do you grant access to capital if not through helping them with an interest free loan? That is a very important aspect of Jewish law: Debt rehabilitation (iii). When people go out and they make money and they try and they risk, and then they fall and they get into debt, society needs to have mechanisms for debt rehabilitation and Jewish law has mechanisms. It has, for example, the sabbatical year that every seven years debts are cancelled. And of course there is the famous discussion in the Talmud where that had the reverse effect and again you can see the nuance and the concept of vulnerability because a person, the debtor, is the vulnerable party, so he is of course protected by this law of the cancellation of debts in the sabbatical year, every seven years. And then the Talmud says, but they found that then no one was giving loans because they said that the debts would get cancelled after seven years. And the Talmud found a mechanism whereby the loans were seeded to the court and the court became the owner of the loan in order to enforce the debt even after the sabbatical year. And again you see the Talmud debating because on the one hand, the purpose of the law was to ensure the people have access to capital. If they can’t have access to capital, as a result of the same law, then you have a problem, but the principle, however the practicalities are worked out, the principle is access to capital. So you need (i) education, (ii) access to capital, (iii) the ability for debt rehabilitation and you also need a free market. There are many debates in the Talmud. The Talmud comes unequivocally in favor of a free market where there are no barriers to entry. If a person wants to open up a shop, he can open up. It is an area of Jewish law which is sometimes misunderstood, but the position is: if one person opens up a shop, another person can open up next to him. Talmud has a debate that says: “Can you cut the prices?” One opinion in the Talmud says you can’t undercut your competition because you’re taking away his livelihood. And the other opinion, which is in accordance with the final position of the law, says that such a person should be remembered for the good, because he has reduced the prices and that benefits the consumer and that a free market where people can enter and there are no barriers to entry, is one that ultimately benefits the consumer. But it also benefits people who are looking to improve themselves. On the one hand, Jewish law supports the concept of unconditional welfare, on the other hand it has a number of mechanisms that are there to help a person rehabilitate and reestablish himself. And so, in summary (before I say the final and concluding point): What does the vulnerability principle mean for us today? If we look at what we have discussed this evening, we have said that from the perspective of Jewish law, law is not only about order and structure in society, it is about goodness, morality or what the Bible calls: righteousness. We then ask what is the definition of righteousness? How do you define goodness, and then, through an analysis of certain cases, we came to the conclusion that Jewish law’s definition, at least an aspect, of Jewish law’s definition, of righteousness, one very important aspect is the protection of the vulnerable. And we have termed that the vulnerability principle, although as I said, you will not find anywhere in the literature of Jewish law the specific reference to the concept of “vulnerability principle”, but I believe it to be implicit in every dimension of Jewish law’s approach. And then, the final part of our discussion has been “What does the vulnerability principle mean for us today in practical terms?” So number 1: It gives us an understanding of the purpose of law; number 2: it gives us a measure for the morality of society; number 3: it helps us understand the complexity of the notion of vulnerability. We have analyzed that in the context of two examples. One is the example of the refugees, and the other is the example of welfare, where the notion of vulnerability is not only to give to those in need, because they are in need, but there is an ultimate vulnerability to be dependent on welfare. So it is the complexity of understanding that vulnerability is not always what it seems but rather that it needs to have further analysis. The final point is this: The vulnerability principle opens our eyes to the ultimate vision of what society should be about. And here I would like to share with you the commentary of a man whose surname is the same as this city, but he lived far to the east. His name was Rav Naftali Zvi Berlin and he lived in the city of Volozhin, to the east of where we are. He was one of the great rabbinic leaders and figures of the 19th century and he had the following insight. When the Torah says “you shall be kind to the stranger”, for you were strangers in the land of Egypt. The conventional reading of that verse is that you shall be kind to the stranger because you know what it is to suffer. And as Jews, we know, what it is to suffer and to be at the end of prejudice. And therefore we should be more sensitive than anybody else to prejudice and to oppressing the stranger, because we were strangers in the land of Egypt. But Rabbi Berlin says this: “the verse is to be understood as follows: Be kind to the stranger because you never know the potential within each and every human being. Because you were strangers in the land of Egypt and look what became of you. You became a great nation, a nation of brilliance and of achievement, a nation that made such an important contribution. And yet when we were in Egypt, it was about us whom the ruling class said “nothing will become of them”. It was about us whom the ruling class said: “They have no future; they have no potential; they have no ability; they are a threat to society; they are not an opportunity; they have no greatness; they represent evil.” And so we know from first-hand experience the awesome potential of the human spirit”. “Ki Gerim haitem ba erez mizraijm” – “Because you were strangers in the land of Egypt and look what became of you.” And so therefore be kind to the stranger, be kind to every human being because you never know the potential that lies beneath the surface because every human being, and this goes to the heart and soul of the Torah’s message about the human being, every human being is, as the Book of Genesis says, “bezelem elokim” – “created in the image of God”. And that means that every human being has a soul and that soul is a reflection and has a greatness of God himself that has within it the powers of intellect, of altruism, of generosity, of courage, of beauty, of refinement, of greatness, of kindness, of compassion. Every human being has that within him. And we can never underestimate the power of the human spirit to achieve greatness. And so therefore, our sacred task is to defend that human spirit that lies within each and every single human being. And the sacred task of society, if we say what is the role of government, what is the role of society? The role of government and the role of society and the role of every human being is to ensure that we live in an environment that can unleash the awesome potential of the human being. It is a particular philosophy of the world. It is not saying that the purpose of the government and of a legal system is to look after its people. That’s paternalistic. The purpose of the state and of society is not to look after its citizens, it is to create an environment which is safe, which is nurturing in order that the greatness of the human spirit within every human being can be unleashed and every person can achieve their maximum potential in life. Which is awesome. Because look at the achievements of the world, in medicine, in building, in science, in literature and poetry, in technology. All of these are the achievements of the human spirit. The human spirit is truly awesome and it has the power to change the world and to create worlds and God has given us the tremendous creative power to create universes. But that human spirit needs to be nurtured, it needs to be protected and looked after, it needs to to have everything that it needs in order to achieve the greatness that it is capable of. And then, when it achieves the greatness, it is that human being that rises to greatness. And that is what our society is all about. And that is the purpose of society. So the vulnerability principle is not about looking after the vulnerable. The vulnerability principle is saying we need to create a safe environment so that human beings can soar and they can achieve the greatest possible. And they can live up to that calling, to be the “zelem elokom”, to be created in the image of God. And that is our holy and sacred task as human beings, building societies together, here in Europe, in Africa and across the world. Our vision should be to create a world in which the human spirit can thrive. A world in which the human spirit can truly reflect the greatness of our creator.
Thank you very much.

[1] Psalms 94, Verse 20.
[2] Miranda v. Arizona (1966)