Rabbi Avi Weinstein

The Hearings, Sotomayor, Hillel, Shammai and the nature of interpretation…

In Uncategorized on July 14, 2009 at 9:26 pm

I’m addicted to these hearings not only because they are so “Talmudic”, but because it reminds me of the intellectual limitations of those who represent us in the Senate. Although she is no Bork when it comes to parrying the same challenge over and over again, Judge Sonia Sotomayor does more than hold her own.

Any serious student of Gemara understands that interpretation of law never happens in a vacuum. Either consciously or unconsciously one brings his/her own experiences to understanding what’s in front of them. They are, however, shackled by what the parameters of a phrase will allow and that phrase still has to ring true in context.
One may argue that the right to abort a fetus is an extension of the Constitutional right of privacy , or one may say that it isn’t a legitimate understanding of the 14th amendment. When Roe vs. Wade became law, it did not contradict anything in the Constitution, but the case redefined our understanding of the 14th amendment. An extension of personal liberty would certainly be within the what one might call the spirit of the law.
If, however, one sees abortion as murder, and the fetus as the most vulnerable of society, then this conclusion is an obscenity. What one brings to the table will color the way one understands the law–the pretense of being a robot, is just that, a pretense. In the end, one’s argument has to pass muster, and that is the litmus test for its validity. The fact that the argument emanated from a manor on a plantation, or a housing project in the South Bronx is irrelevant.
As much as the Talmud valued concepts well argued, it valued temperament even more. When Both houses of Hillel (the kid from the projects) and Shammai (the man with the house on the hill) argued, a heavenly voice declared that “These and these are words of the living God, but the law goes like Hillel.” (Babylonian Talmud, Eruvin 13b) Why like Hillel?
Because they were humble in their demeanor and gentle–and they always were careful to quote Shammai’s position, before their own. It was said of their master, Hillel, that he never lost his temper and was profoundly patient. One could argue that this sensitivity came from his humble origins, and this was reason enough to follow Hillel.
In the end, the most clever argument may not bring the truest decision. The Torah expected judges not only to be beyond reproach, but to not favor a particular background when cases come before them. Nevertheless, they must be empathetic to the plight of their fellow Jews for creation cannot be sustained if scrutinized through the lens of absolute justice–justice has to be coupled with mercy.
The Torah demands no less, and the Constitution shouldn’t either!
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