Friday, January 25, 2008

The Nuremberg Defense

I received a brochure in the mail from a local frum lawyer. Here is what it said (b'kitzur):


The Torah states the laws of inheritance as (Bamidbar 27:8-11):
  • Sons inherit and daughters and wives don't inherit.
  • If there are no sons, daughters inherit.
  • A husband fully inherits his wife.

Many Rishonim and Acharonim rule emphatically that this Torah law supercedes any issue of Dinah D'Malchusah Dinah.

Solution (direct quote):

"Fortunately, there are halachically valid approaches to enable one to conform his/her estate plan to Halacha."
I cannot tell you how much I am troubled by this. It is funny because there is a lot of rhetoric from the "defenders of the faith" about skeptics being pleasure seeking atheists, scoffers, ignorant of the "true meaning of the Torah(s)". And many are.

But I tell you, I can believe in God. I can believe that many of the things described in the Tanach happened, even if not literally as described, even if the Torah was not composed by Moshe straight from God's lips. I can accept the idea of an Oral tradition, regardless of whether it was received directly from God at Sinai, and regardless of whether it was transmitted perfectly through the ages, but when I see things like this pamphlet, I really have to wonder - did we drop the ball?

What we are saying is that against the explicit words of the Torah, against the explicit rulings of the great Rabbis, who we are supposed to accept as Divinely sanctioned to interpret the Torah, we will find a way to do what we want to do anyway and then somehow justify it as consistent with the will of God.

This is just one example. Yet nobody in the frum community loses sleep over this. It is indeed a dsiplay of great emunah. I guess when it is time to stand before the Aibishter we can all use the Nuremberg defense.


Blogger Lubab No More said...

It's not that different from selling your chametz or heter mechira.

January 25, 2008 8:44 AM  
Blogger e-kvetcher said...

Yes, I agree. Although I felt that the way the brochure set it up made it particularly blatant.

Although, to some extent, while it is more common to find chazal "seemingly" contradicting the Written Torah, which you could argue was their mandate, here we seem to be contradicting both Written Torah and big name Rishonim/Acharonim.

January 25, 2008 9:07 AM  
Blogger -suitepotato- said...

Some days it seems that the biggest difference between Conservative and Orthodox is that Conservative comes out and says that Torah interpretation will be redone ongoing to keep with the times (less so than let's say Reform but you get the point) and prevailing world culture while Orthodox implies it at times by action.

Curious brochure, but I get what they're trying to do as much as why inheritance is greatly simplified in halacha. Oh well. We'll see how this plays out over time.

January 25, 2008 1:32 PM  
Blogger Tobie said...

Suitepotato: I would say that the difference is that Orthodoxy decides to work within the halachic system instead of rejecting the system as a whole. Looking for loopholes in laws that you don't like is an inherent part of any legal system; the whole thing really reminds me of how English laws of equity were evolved to deal with a system that the judges found too inflexible. Blatantly admitting that you're willing to wiggle in the halacha to find the results you're looking for feels weird, but I think that the halacha- at least as much as any other legal system- is sort of built for that. If the Sages had the right to interpret the Torah, we have the right to interpret them.

And this case is, to me, less disturbing than heter mechira and so forth because the prevailing interest for which we skew the law is a morally motivated one instead of a purely financial one.

January 27, 2008 12:42 AM  
Blogger e-kvetcher said...

Tobie, your argument holds together much better when the law is not God given. It is a lot easier to assume that human laws can be finagled through loopholes. To say that Divine "eternal decrees" can be finagled through halacha is a bit of a stretch to me.

January 27, 2008 8:24 AM  
Blogger Tobie said...

It's weaker, but I operate under the assumption that G-d approves of/intended the whole finagling thing. I don't quite see how people can believe in torah sheba'al peh as a divinely mandated system and think that G-d intended that human finagling, motives, loopholes, and creative interpretations weren't going to enter into it. The second you make a living legal system, it's going to do stuff like this. Of course, that doesn't legitimize every finagling and there is still a "c'mon!" test of believability in whatever interpretation you read into a text, but I can't believe that G-d gave a living, breathing legal document to a people like the Jews and wanted anything different.

January 27, 2008 11:01 AM  

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