Justice, Politics, and the Risks of Religious Rhetoric

For various personal and ideological reasons, I have avoiding signing on to rabbinic positions or statements for several years. I recently made an exception to join over 150 Jewish leaders in signing a petition supporting the Child Victims Act (CVA) which according to its summary, “Eliminates statute of limitations in criminal and civil actions and revives civil actions for certain sex offenses committed against a child less than eighteen years of age.”

Reasons in favor of supporting this bill should be obvious and others can do so more eloquently and persuasively than I can. What I would like to address today revolves around the subsequent discussions over the potentially negative unintended consequences of this legislation, they may provide useful insights regarding religious rhetoric for political activism.

For several years, the CVA has been met with opposition from those concerned for the welfare of institutions who would now be exposed to legal liability. Agudah spokesperson R. Avi Shafran was quoted as saying, “Our concern is simply protecting the economic viability of Jewish schools. Yeshivas operate on shoestring budgets” which would be jeopardized by, “ancient claims and capricious litigation.”

To reframe this position a little more charitably, without a statute of limitations, an institution could be sued for the actions of its employees even if the perpetrators (or accessories) no longer remain at the institution or if the institution subsequently overhauled and improved its policies. Limited budgets and skyrocketing legal fees could mean a single claim from the past could bankrupt some institutions, regardless if the institution is eventually exonerated. Even if the institution is found to be guilty of abuse in the past, should the institution provide essential services to a community in the present, then a civil suit against the institution suit would adversely affect individuals who had no connection to the abuse, far more than the perpetrators (or enablers) themselves.

Writing in the New York Daily News, R. Ari Hart rejects this argument on religious grounds.

Judaism is a religion as concerned with what happens in the courthouse with what happens in the synagogue. Fairness, justice and protecting the vulnerable are hallmarks of the Torah — calls made in our sacred texts over and over again.

In addition, Jewish law does not recognize the concept of a statute of limitations: If a wrong was committed, if someone has harmed, they always have the right to seek justice….But if the passage of statute of limitations reform means that religious institutions will have to bear the burden of increased financial risk, that is a burden we must find a way to bear. Have victims with profound emotional scars, shattered faith and more not paid a price beyond any dollar amount?

We must ask ourselves: to which bottom line are we accountable? Those of profits, of those of the prophets?

R. Hart’s argument follows a familiar three-part formula frequently employed by rabbis when exhorting a committed congregation towards a cause or action, regardless of the underlying political or religious ideology. First, identify a source from canonical literature. Second, claim that a current cause corresponds to the cited material. And finally, conclude that supporting the current cause constitutes fulfilling divine will, and is thus a religious mandate for its practitioners.

Those who are in the habit of dissecting arguments will immediately notice potential points of contention. The most obvious would be the connection between current events and the canon may be subject to interpretation because people often view the world differently from each other. But even before we address modern parallels, most of the canonical material is itself subject to interpretation, particularly when addressing abstract concepts such as “justice.” Furthermore, while a conclusion may be viable when based off of a particular source in isolation, including additional (possibly contradictory) sources from canonical material may alter the perception of the divine will.

The canonical basis for R. Hart’s argument is that the Torah’s repeatedly calls for justice and protecting the vulnerable. Since Jewish law does not include a statute of limitations, then limiting the right of a wronged vulnerable individual to seek redress in court would violate the Jewish conception of justice to which observant Jews must comply. Therefore, the religious obligation to seek justice would not only compel observant Jews to support ending statute of limitations, and the religious importance of seeing justice be done should override all other concerns.

The interpretive assumption in this argument is that Jewish law defines (or refines) the biblical standard for “justice,” which is why the absence of a statute of limitations in Jewish law would constitute a violation of the religious mandate. But if Jewish law is our standard for Jewish justice, then by that same criteria, holding institutions liable for their employees’ misconduct may be equally unjust.

In “Jewish Law and Modern Business Structures: The Corporate Paradigm“, Rabbi Michael Broyde and Rabbi Steven Resnicoff briefly address the question of holding a company liable for damages caused by its employees.

Although a comprehensive analysis of Jewish tort law is beyond the purview of this Article, internal Jewish law rules, unlike secular laws, do not generally impose vicarious liability on principals for the tortious acts of their agents, whether the tortious conduct is purposeful or merely negligent. Consequently, the only way shareholders could be vicariously liable as a matter of Jewish law is because secular tort law is somehow incorporated into Jewish law. [Emphasis added]

R. Broyde and R. Resnicoff do not elaborate further, but I suggest the reason is because according to Jewish law financial culpability lies in the hands of whoever has the agency to cause damage or injury.

In general, Jewish law holds human beings responsible for their own actions and are expected to behave accordingly. People are considered to be automatic risks for damages by default, such that they are always liable to repay damages in full regardless of the mode of the damage or the person’s intent. 1 A person is even liable for damages committed while sleeping because the ultimate responsibility to control one’s actions falls on each individual, as would their consequences. 2

As long as an individual possesses agency, any actionable liability falls on the person and the person alone. If a slave causes damage, the master is not held responsible. 3 On the other hand, a person may be legally responsible for damages caused by others, provided they do not possess agency – the classical examples of the deaf-mute, the cognitively impaired, and minors. For example, a person who gives such an individual a lit torch (such that subsequent damage is assured) would be liable to pay for the damages. 4 Following these rules of justice, in order for an institution to be held financially liable for the misconduct of its employees, we must deny the agency of the perpetrators.

None of this is to suggest that Jewish law would treat the enabling individuals as innocent. Someone who hires a hitman is exempt from punishment in human courts on the grounds that “there is no agent to commit a sin,” and the hitman is presumed to possess personal agency to decline to murder. However, the person who hired the hitman is considered liable in the heavenly court, that is, subject to punishment by God directly. 5 The question here is not whether an institution or its agents violated Jewish laws, 6 but whether halakhic justice allows financial restitution for this particular transgression.

I addressed the distinction between human justice and divine justice in greater detail elsewhere, 7 but certain points bear repeating. According to Jewish law, courts must follow certain rules and procedures in order to reach a just decision. Biblical law prohibits distorting or perverting the judicial process, even to assist a sympathetic litigant. 8 Judges who consider their personal reputation, or are influenced by the accolades of “courage” or the like may be violating what the Talmud calls, “the bribery of words,” 9 which would still be prohibited even to exonerate the innocent and convict the guilty. 10 The burden of proof must always be met by the claimant, 11 and R. Yochanan is quoted as saying that God removes life from the judge who unjustly transfers money from one party to another. 12

Regardless of the desirability of the conclusion, human justice may be said to have been served if the judicial process was conducted with integrity. 13 This does not mean that human courts have the capacity to always punish the guilty 14 or provide adequate redress to the victims. Under certain circumstances, doing so might even constitute a perversion of justice. In these instances, the responsibility of cosmic comeuppance where the guilty are punished commensurately falls into the hands of God himself. This is not an abdication of an objective “justice,” but a different perspective of Justice, 15 one which incorporates recognition of human limitations and an affirmation of faith in God.

What all of this means is that if we are going to hold to biblical standards of justice as defined by intrinsic Jewish law, 16 then we would have to distinguish between suing the individual perpetrators of abuse and the institution itself. If we apply the halakhic standard of biblical justice consistently, we may even have to consider institutional liability itself as not only unjust but a violation of divine will. 17 If we allow for the “incorporation” of civil law to impact the Jewish definition of justice, 18 then the statute of limitations cannot be considered to be inherently oppositional to Judaism. I suspect these are not the conclusions which the religion-based advocates wish to reach. 19

Contrast the religious argument for the CVA with the pragmatic approach adopted by R. Yosef Blau. In addressing the potential risks of institutional lawsuits to the New York State Assembly in 2013, R. Yosef Blau argued that it is precisely the threat of legal exposure which will motivate institutions to prioritize protecting its charges over its own reputation. 20 This position is also shared by Cardozo Law Professor Marci Hamilton, who adds, “Only through a civil case can you document an institution’s negligence and the way it failed children.” In other words, exposing institutions to potentially ruinous lawsuits provides a magnificent incentive for institutions to proactively prevent abuse. 21 In my opinion, this is the superior reason to support the CVA legislation.

At this point you may be wondering what is the whole point of this discussion. After all, if we ultimately reached the same conclusion, does it really matter how we got there?

When Judaism is invoked to support policy, the implication is that God desires or demands a certain course of action. It suggests that those who disagree are, to put it bluntly, bad Jews. But civil legislation is not written directly out of Jewish texts, which means that details essential to the holistic system of halakhah will inevitably be excluded. To claim or imply that such a policy authentically represents Judaism is to disregard the parts of the Torah which one finds inconvenient or anachronistic, thus creating a misrepresentation of the Torah itself. While these sources may not make for good modern policy, a Shomer Torah cannot pretend they do not exist. 22

I am not suggesting here that religious leaders cannot or should not advocate for what they think is best, nor that people cannot be inspired by the religious texts of their choosing. However, there is a significant difference between using canonical texts and interpretations to influence one’s opinion and claiming that one’s opinion is synonymous with the canon.

Avot 5:8 teaches that the punishment of the sword is brought to the world for the transgressions of torturing justice and teaching Torah not in accordance with Jewish law. 23 It is imperative to remember that one transgression cannot be corrected at the expense of the other.

Notes:

  1. M. Bava Kamma 2:6 – אדם מועד לעולם
  2. B. Bava Kamma 4a-b – אדם שמירת גופו עליו
  3. M. Bava Kamma 8:4
  4. B. Bava Kamma 22b
  5. B. Kiddushin 43a, Rambam Rotzeach 2:2-3 – אין שליח לדבר עבירה
  6. It seems to me ignoring and/or enabling abuse would at the very least violate the prohibition of לא תעמוד על דם רעך “do not stand idly over the blood of your fellow” (Lev. 19:16). See B. Sanhedrin 73a, Rambam Rotzeach 1:14. Additional prohibitions may also apply.
  7. See my class on Reparations for Slavery and Racial Discrimination
  8. Deut. 16:19 prohibits generally “recognizing faces” in judgment. Ex. 23:3 and Lev. 19:15 both prohibit favoring the poor in their disputes with the wealthy (the latter also prohibits favoring the wealthy). Ex. 23:6 also prohibits perverting the justice of the poor, which Mechilta R. Yishmael Mishpatim 20 and Reish Lakish in B. Hullin 134a interpret as including distorting in favor of the poor.
  9. B. Ketuvot 105b שחד דברים
  10. B. Ketuvot 105a
  11. B. Bava Kamma 46a where this is called “a great principle in judgment.” זה כלל גדול בדין המוציא מחבירו עליו הראיה
  12. B. Sanhedrin 7a
  13. See the unfortunate case of Shimon Ben Shetach’s son in Y. Sanhedrin 6:3 23b
  14. M. Makkot 1:10 records R. Tarfon and R. Akiva bragging that had they been in the Sanhedrin they would not have executed anyone. R. Shimon Ben Gamliel points out the tradeoff of increasing the number of murderers in Israel.
  15. While it should be obvious that it is more accurate to say there are different traditions of justice, some speak as if their personal tradition is the only true possibility.
  16. A strict application of Jewish law as the standard for justice would lead to other relevant discrepancies, including how damages are calculated and more generally if Jews are even permitted to sue for civil damages in secular courts altogether (B. Gittin 88b). The details of these important questions are beyond the present scope, but would also need to be addressed according to the standard.
  17. Because institutions change personnel over time, it is worth briefly mentioning the question of inheriting someone else’s guilt. According to B. Sanhedrin 27b, even though “a person is killed for his own sin” (Deut. 24:16), a son may be punished for the sins of his father (Ex. 20:5, 34:7) if he does not learn from his father’s mistakes. While this would not impact the financial liability of institutions, it may affect the religious attitude towards institutions which have corrected previous policies. Alternatively, in B. Makkot 24a R. Jose b. Hanina considers any inherited punishment to be a decree from Moses which was overturned by the prophet Yehezkel (Ez. 18:4,20), which would preclude inheriting guilt for the sins of one’s predecessors.
  18. The assimilation of extrinsic legal norms may fall under the rubric of דינא דמלכותא דינא, “the law of the land is the law” (B. Nedarim 28a) or what is knowns as מנהג סוחרים the “custom of merchants” (see Y. Bava Metzia. 7:1 11b).
  19. I have not even addressed the unstated assumption that Jews ought to advocate for the implementation (or imposition) of religious ideology on the rest of society. This tactic is also used selectively, usually only to support one’s policies, but can easily lead to less desired outcomes.
  20. In R. Blau’s words, “Serial abusers tend to work in frameworks which give them access to children.  The organizations that employ them are primarily concerned with protecting the institution’s reputation.  This tragically trumps concern for victims.  Only when schools, youth movements, and religious bodies understand that there are consequences for their inaction, will they begin to take responsibility.”
  21. Not to mention the risk of “capricious litigation” is the same risk faced by every institution.
  22. This point is a running theme developed in greater detail throughout my Economics and Social Justice class series.
  23. חרב בא לעולם על ענוי הדין ועל עוות הדין ועל המורים בתורה שלא כהלכה