Tuesday nights in Indianapolis, I have been teaching an introduction to the classic literature of Judaism. This last Tuesday, the topic was the Talmud, an amazing book, unique in world literature, but a book which has been closed, sometimes partially, sometimes nearly entirely, to my students — and how much the more to those who have never come to such a class.
This notwithstanding that the large majority of students in this course are Jewish. But like myself, they were educated in the literature of the general culture, which has relegated religious literature to a place off to the side, away from the mainstream. Even the Bible, which is shared across denominations and religions; how much the more so, a book which has never been widely studied outside of Judaism, save among some outstanding — and influential — scholars.
As Eric Nelson pointed out, the political thinkers in Holland and Britain who were spearheading the drive towards what we call democracy made many of their arguments from religious texts.
After a summary introduction, the class tackled a discussion or two from the Talmud’s text. The topic was contested ownership and the goal was to establish the principles and procedures by which contests over ownership can be resolved in a just and proper way.
The first case was of two people who were both holding on to a garment. Each of them claimed that the garment belonged entirely to them. Neither of them had any proof of ownership aside from their hold on the garment itself. The Talmud ruled that each of the two must swear that they own no less than half of the garment and then the court awards half the garment (that is, half its value) to each of them.
This seems intuitive enough. The students were satisfied; it felt right.
Then we went on to a second case. This time, the contested property was a boat that was floating in the water. Again, both claimed it was theirs entirely but neither could prove it at the time. However, the boat was currently in the possession of neither of the litigants. The Talmud ruled in the end that the court must do nothing, and should not intervene.
This seemed on the surface to contradict the case of the garment, so it excited some discussion. Clarity came with the enunciation of a great principle in Jewish law governing property — one who wishes to use the power of the court to take away something in someone else’s possession must bring proof to the court that it belongs to him or her.
Using this principle, we can see that in the case of the garment, each person had half of it under his control, but neither could prove that the whole of it belonged to him. Therefore, the court allowed each to keep the worth under his control, but could not use its power any further, even though clearly, one of the two was making a false claim.
In the second case, not only did neither of the litigants have proof of ownership, but the boat itself was in neither of their hands. Therefore, the court could not act at all, either to uphold or deny either claim, even in part.
At this point, the discussion turned to the wonder of the court limiting its own power. Why would it do that, was the question. Those in power tend to concentrate ever more power in their hands. Why would a court choose to forswear its power in these cases?
I proposed to the class that we were touching on the key to constitutional government. The core mission of the great constitutions of Britain and of the United States is to preserve the integrity of the power of the people by limiting the power of the constituted government.
Why should a government or a court limit its power? Because should they employ power unjustly, their integrity is compromised, and with that, the willing compliance of the people.
In the Talmud, the court draws a line for itself. It is better that one person should lose half of what is justly his than that the power of the court should be used to seize property that really belonged to someone else. The love of the people for their nation would be compromised if the nation’s institutions party to such oppression and injustice.
True, one person will certainly be losing half the value of what was his. But the court did not do that. That had already been done by the other litigant. The court could not correct that wrong, as sadly, not every wrong is justiciable. But the court could and would make sure no further injustice would happen. It orders the value to be split.
However, in the case of the boat, were the court to seize the boat and then split its worth, the court would necessarily be giving half its value to the wrong person. The court must stay its hand. Since neither of the parties had hold of the boat, no injustice had yet been done. Were the court to assert its power, the injustice that would result to the boat’s rightful honor by causing him to lose half the value would be the court’s doing.
Back at the end of the Middle Ages and after the Reformation, when thinkers began to make the case for modern political freedoms, the culture of the West was deeply steeped in religious culture. As Eric Nelson, professor of government at Harvard, pointed out in his groundbreaking book The Hebrew Republic, the political thinkers in Holland and Britain in the 1600s who were spearheading the drive towards what we call democracy made many of their arguments from religious texts.
Interestingly, they did not content themselves with going to the Bible. Many had become acquainted with rabbinic literature: Talmud, Midrash, and Maimonides’ law code in particular.
What they saw in these sources was constitutional limitation. They saw that the law tradition that grew out of Biblical civilization operated under constitutional restraints, as we saw in the cases above. Power, even in the sanctioned institutions of the nations, had to be accountable. God who empowered the government and gave it legitimacy requires that the government not use power beyond what God allows it to use. The power of the government, the power of the courts, must restrain itself.
And so in our American tradition, we have the Bill of Rights whose Fifth Amendment tells the courts that they may not put a person twice in legal jeopardy for a crime, lest the courts become party to the evil of unjustly imprisoning or killing someone through repeated trials. True, because of the prohibition of double jeopardy, a wrongdoer may escape punishment. But better that than that the court becomes an active partner in injustice.
We had only a limited time for the class, much as there is limited space for this article. But all could see easily enough how this idea is present throughout the Constitution, in so many different ways. The sovereignty is God’s in the first place, and then delegated by God to every citizen. The government’s power has no right to go beyond that which its citizen sovereigns choose to give to it.
As the great English Common Lawyer and Talmudist John Selden pointed out, there is one great river which flows from the Bible and its ongoing system of law and governance out to the world. It flows in the hearts of all, and gives them the right and responsibility to order their own affairs, governing with the assent of the governed, together under the larger sovereignty of the Giver of both Law and Love.
The unbridled pursuit of power inevitably leads to hatred. There is no more loving act than to uphold the constitutional ideal of restrained power that alone can inspire the love and devotion of citizens to each other and to the high and abundant order that free people alone can attain.