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THE GREATEST INJUSTICE

by Rabbi Lee Jay Lowenstein    
Torah from Dixie Staff Writer    

Justice. What a sweet sound that is; seconded only by revenge.

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Justice. What a sweet sound that is; seconded only by revenge. We live in times when the pursuit of justice and its administration has become a mere exercise in theory. When O.J. and his ilk walk the streets safely, when the Menendez brothers are initially acquitted of murder because "the unusual distress they were in and the horrible abuse they suffered drove them to blast their parents at point blank range with a shotgun"; one really has to wonder if justice exists at all anymore. Our only recourse is to grit our teeth with anger and frustration every time another murderer gets off because of a technicality and pray that they fry the ones who are caught in an attempt to "teach them a lesson they'll never forget". Lately, the dispute over capital punishment has reared its head once again and is spilling out of the courtrooms into our homes and office places. "Line 'em up and shoot 'em all down", "Chop off their hands", "Torture them slowly", and other "creative" epithets are all too common in the course of a discussion. Even those who oppose the death penalty must admit that instinctively these feelings of fury and rage are most warranted.

To the casual reader, the Torah would seem to be in support of "barbaric" punishments, eagerly meting out harsh sentences for violators. Flip on a light switch on Shabbat and we'll stone ya' to death; melt a slice of cheese on a burger and get flogged; wound one of your parents and you'll be hanging at high noon. Sounds more like an episode taken out of the Wild Wild West than a doctrine of holy life. And yet, in spite of this, we find the sages saying: "Any court which performed an execution once in seventy years was deemed a murderous court" (Talmud Tractate Makkot 7b). Furthermore, a brief survey of the requirements for capital punishment would have us believe that the Torah system possesses "more bark than bite". For example, in order to convict a felon of first-degree murder the following conditions must be met: 1) There must have been two valid witnesses at the scene of the crime (i.e. they may not be related to each other, they must be G-d fearing Jews, etc.). 2) These witnesses had to have warned the killer prior to his act and must clearly inform him of his punishment due for carrying his intent to fruition. (Can you imagine someone having the peace of mind to start a dialog with a gun-brandishing madman? When someone pulls a gun your first reaction is to hit the floor, not make suggestions.) 3) The murderer must acknowledge that he understands the consequences and wants to do it anyway. (What is the chance of that happening?) 4) Once warned, the murderer must pull the trigger within three seconds, otherwise he can always claim that he "forgot" that he had been warned. 5) The witnesses are put through a grueling process of cross-examination wherein if even one minute detail is contradicted the entire case is thrown out. 6) Finally, the conviction cannot be based upon total agreement. If there is no one who finds some merit in the case then the criminal is let go.

A joke? Surely not. What then is the Torah's message to us? Every good parent knows the value of teaching a child about consequences. Any book on parenting that's worth its paper is loaded with concrete suggestions of rewards and punishments which have been tried and tested in the arena of childhood discipline. They range from the simple (a chocolate bar) to the elaborate (a new car). On an emotional level too, we often find ourselves reminding our children: "Before you act, imagine that I'm standing behind you, watching like a hawk; think if I would approve." Conversely, we hope that when our children behave properly they feel inner pride knowing that they have given us nachas in making wise decisions. This concept is at the root of behavioral training and is a basic reality within the scientific world of cause and effect, action and reaction, that we live in. In the view of the prominent psychologist B.F. Skinner, human beings are essentially no different than any other animal in our ability to be trained to perform an elaborate set of tricks. While it is unquestionably true that with regard to many areas of behavior we are creatures of habit - mere robots going through the motions which were set into action by the rewards or consequences we received as a child - morality and the acquisition of ethical behavior is an entirely different issue.

Let us think for a moment about how "ethical" we are and what good our training has done us. Many of us were scared to death by our parents about the consequences of stealing. Popular refrains emanating from any given home could sound like this: "Just think how bad Sammy must feel now that he doesn't have that toy to play with." "Because you took that without permission you are grounded; for one week you have lost the use of the car." "If you get caught shoplifting you could go to jail, have your record permanently scarred, lose your friends and the respect of others."

These are all very real dangers and serious repercussions which nobody would willingly ask for. Or would they? What if you knew that you wouldn't get caught? What if you don't care about Sammy's feelings? What if you think the benefits far outweigh the risks? (Michael Milkin will still be a very rich man when he gets out of jail.) What in the world could possibly stop you from committing the crime of the century? Absolutely nothing. Even the threat of death will not stop the Timothey McVeighs from standing up for what they believe to be true and proper. Are we any better?

What do you do when nobody is watching? How do we treat each other when the doors are closed? Ultimately, fear does not motivate us nor is it our measuring stick for morality. Rather, there exists an absolute standard of morality, one that cannot be tampered with or made to serve us in any way. The true standard of "to do or not to do" is: Is this act holy or not?; plain and simple.

Yes the Torah recognizes that, like any other animal, Man responds to training based upon the fear of punishment. However this is only the starting point, a stepping stone to a higher awareness that stealing is evil. The term "sinner" carries many negative connotations; nobody likes to think of themselves as evil. Unfortunately, until we come to terms with the fact that there are just some things in life that we can never rationalize or trivialize, we will continue to re-create our systems of morality on a day-to-day basis, turning yesterday's "evil" into today's "mitzvah". Think about it. If we teach our children that the basis of morality is consequence-oriented, then we are, in fact, opening the doors for confusion and corruption. Let us instead teach them what it means to be a holy person, not just another trained monkey.

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This piece is based upon a lecture by Rabbi Yochanan Zweig, dean of the Talmudic University of Florida.

Rabbi Lee Jay Lowenstein, an alumnus of Yeshiva Atlanta, is a Torah educator in Miami.

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