Forming Religious Communities and Respecting Dissenter's Rights: A Jewish Tradition Model for a Modern Society
Michael J. Broyde
II. Jewish Law on Excluding
Classical Jewish law offers a broad variety of penalties for those who violate the law. The Bible has four different types of death penalties7 for a variety of offenses, some of which one could hardly describe as "criminal8." Generally, those offenses for which death is not the prescribed punishment, were punished by whipping according to Jewish law9. A small number were punished by karet, a divinely mandated punishment which humans had no hand in, and some violations were not punished at all10. Beyond those penalties found explicitly in the Bible, a Jewish court had available makot mardut, literally the whipping of a rebel -- a process that allowed the court to punish a person who defied the law -- through judicially mandated beatings11. So too, a Jewish court had available the kipah, a (sort of) Jewish version of "three strikes and your out," where a person who was a repeat offender could be (informally) killed if he violated the law with impunity12.
All this is no more. Jewish law has not had the judicial authority to punish people in any of the manners described above for nearly two thousand years13. Indeed, Jewish law has functioned for the past two millennia with only two real jurisdictional bases to punish violations: the "pursuer" jurisdictional grant, and excommunication or shunning14. The pursuer rationale (in hebrew: rodef) is the jurisdictional source of power for a Jewish court or community to intervene15 to prevent a murder16. That area of Jewish law is widely known and much written about17, and irrelevant to the formation of a sub-society in modern times, as the class of cases it governs are crimes that are nearly always also violations of basic general moral principles and thus subject, on a practical level to concurrent jurisdiction within secular society and its organs of government. Thus the normal response -- even in a very insular, fastidiously observant, Jewish society -- to a murder would be to call the police18.
This paper concerns itself with the remaining power Jewish courts are left with to address the routine problems involved in formation of a sub-society -- excluding people from the sub-society, typically through excommunication and shunning19. The ability to form a sub-community, and to exclude people from that community is a power that can frequently encourage conduct in ways that formal law itself either cannot or will not accomplish. Jewish law and culture was quite aware of that fact, and designed within its legal and ethical system rules that relate to the use of social pressure. A recent case arising in the rabbinical courts of Israel demonstrates this well, and presents itself as a modern -- but classical -- example of the power of a Jewish court to order social shunning of a person whose conduct is not in full compliance with the ethical dictates of Jewish society. The Supreme Rabbinical Court in Israel is discussing what to do in a situation where a divorce seems proper, and is desired by the wife, but yet the husband will not co-operate in the processing of the divorce20. The court states:
This case involved the use of the communal sanction of mild shunning to encourage a person who wished to be part of the religious community in Israel25 to obey the mandates of Jewish law and ethics. A person who felt no desire to belong to the community, and thus was not threatened by the possibility of exclusion from it, would not have reacted in the manner this person did. The sanction would have had no effect.
One should not think that such methods of persuasion occur only in Israel. For example, in the case of Grunwald v. Bornfreund26 the plaintiff sought an injunction from the Federal District Court prohibiting the:
Modern rabbinical courts can and do excommunicate. Indeed, excommunication and its lesser cousin, shunning, remain valid expressions of religious will within the Jewish community to this very day, and they are used to express communal disdain for a person's actions28.
Three different issues must be addressed, each of which is central to the question of why and how Jewish law exclude people from its religious sub-community:
The Talmud discusses the legal rules related to shunning in some detail29; as time passed the legal rules have grown in detail and purpose30. One over-arching theme emerges from a review of the legal discussion: unlike the many forms of punishment found in classical Jewish law, the purpose of the exclusion process was to deter future violations of Jewish law -- primarily by other members of society, but also by the excluded person. Punishment and retribution as aims were not thought to be part of the process, as they were in classical Jewish criminal law31.
Any analysis of the rules relating to excluding people from the Jewish community, immediately draws one to two major issues constantly raised in the Jewish law discussion of shunning. These two issues demonstrate the purpose of exclusion:
These two questions are central to the seminal issue of this paper: what is the purpose of excluding people from the community?
The problem of excluding people from the community when they will abandon religious observance in response to such treatment is part of a very important discussion as to whom Jewish law is seeking to deter through the process of excommunication. Is it the person who is flaunting community standards, or is it the community at large that will witness the person's exile from the community, and thus be deterred? If it is the former, then one does not shun a person who will abandon the faith when shunned; if it is the latter, then that factor is not relevant. Indeed, this discussion reflects the ultimate reality concerning all shunning cases: in modern times and democratic countries, the penalty of exclusion only works on the one being shunned if he or she desires the approbation of the faith that is excluding him.
This fact itself reflects a profound historical change in the purpose of excluding people from the community. In other historical eras, it has been remarked that: "it is said that a person on whom an excommunication ban lies can be regarded as dead."33 Indeed, flogging was perceived as a more merciful punishment than excommunication in classical Jewish law34. In a closed and tightly knit community, surrounded by a generally hostile society, exclusion from the Jewish community was a very severe penalty. Due to its severity, many classical Jewish law authorities simply would not shun or excommunicate under any circumstances35. This has changed in post-emancipation times. As noted by a secular critic:
Particularly in our modern society, a person who is shunned can simply leave the community and join a different community adhering to different religious principles37.
Rabbi Moses Isserless, one of the codifiers of Jewish law, writing in his glosses on Shulchan Aruch38, resolves the issue of the purpose of exclusion by stating:
The rationale for this is explained clearly by later authorities. The purpose of the shunning or excommunication is to serve notice to the members of the community that this conduct is unacceptable, and also, secondarily, to encourage the violator to return to the community. In a situation where these two goals cannot both be accomplished, the first takes priority over the second39. This is true even in situations where there is a reasonable possibility that the person will leave the Jewish faith completely and simply abandon any connection with the community to avoid the pressures imposed on him. The shunning and excommunication can be said to have accomplished its goals in such a situation -- even if the shunned person continues in the path of defiance and leaves the faith community40. Not unexpectedly, the vast majority of civil suits related to excommunication involved people who have left the faith community in response to their exclusion41.
It is worth noting that there is a minority opinion to the contrary which rules that one should not shun or excommunicate a person who will leave rather than be excommunicated. Rabbi David Halevi, writing in his commentary Turai Zahav42, states that he disagrees with the approach of Rabbi Isserless, and in his opinion it is prohibited to shun a person when one suspects that the person shunned will withdraw from the Jewish community in response43. However, many commentators, while noting his remarks, make a crucial distinction as to why people might be excluded. They note that while as a matter of theory one could be shunned or excommunicated merely for violating any law, or even for avoiding a financial obligation44, in fact, that is not how and why exclusion is used. Exclusion, these authorities state, is used as a deterrence, to prevent other people from violating the law, and is no longer used as a method of punishment. Thus, these authorities note that Rabbi Halevi's point is true, but inapplicable. In a case where a person is violating the law, and the punishment imposed will drive him further away -- but there is no other community value at stake -- it might be that Rabbi Halevi's point is correct that it is prohibited to punish by exclusion. However, such is no longer the purpose of shunning and excommunication; inevitably, more is at stake than this single person's violation45.
It is important to note one other factor. The process of shunning or excommunicating individuals relates not solely to their violation of religious law, but also to their apparent status as members of the community in good standing46. For example, Jewish law reserves the right, as a matter of jurisdiction, to assert that any Jew who willfully deviates from Jewish law may be excluded. However, the law is established that such shunning or excommunication does not, in fact, occur unless it is actually pronounced by a Jewish court, and such pronouncements are not forthcoming unless the person started as a member of the faith community and now is publicly deviating from it in a way designed to hinder communal organization47. Thus, in modern times vast numbers of Jews are distant from any version of traditional Judaism, happy with that status, and yet are not under any decree of excommunication48; the few who are excluded, appear to be people who are deeply insiders within the faith but yet are actively dissenting49.
Other religions adopt similar postures regarding who should be excommunicated. For example:
The status of "non-member" is considerably better as a matter of legal status than that of one who joins and is expelled or wishes to leave, at the very least in terms of the need to shun this person51. This is consistent with the essential purpose of shunning and excommunication in the Jewish tradition: to establish a religious community. Non-members do not disrupt such a community: dissenters do52.
The second issue that needs to be addressed within the Jewish tradition is whether one may shun the relatives of a person in order to encourage the person to cease his disruptive activities. This situation also crystallizes the purpose of this treatment. (As a general matter, classical Jewish law prohibits punishing an innocent person as a way of punishing another person for a violation of the law.53) Thus, the question is, whether shunning really is a form of punishment, or is it some other type of activity not bound by the jurisprudential rules of punishment?
Once again, Rabbi Isserless adopts the legal rule that posits that punishment is not the goal. He states:
Thus, Rabbi Isserless endorses exclusion not only of those who defy the community, but also recognizes that people can be excluded from the community when their inclusion, through no fault of their own, will prevent the formation of the community55. Letting the close family of an excluded person participate in the religious sub-community -- using its synagogue, cemetery or schools -- still allows the "excluded" person to be part of the community although he is "excluded."
By no means, however, is this the only ruling possible. Commenting on this phrase, Rabbi David Halavi, writing in his classical commentary Turai Zahav, states:
Clearly this approach assumes that the use of excommunication and shunning is a form of judicial punishment, subject to the general rules regulating the fairness and propriety of any given punishment. Indeed, this ruling by Rabbi Halevi is consistent with his analysis, discussed above, which prohibited exclusion when the person will leave the community in retaliation58. It is predicated on a judicial model of exclusion bound by the rules of punishment.
Rabbi Isserless, and those authorities who follow his view, simply assume that the normal rules regulating judicial punishment do not apply in the case of shunning and excommunication -- not because on a practical level the innocent person is not hurt, but because on a philosophical level, exclusion is not punishment. Such an approach is recounted in a recent article by Rabbi Hershel Schachter, where he agrees with Rabbi Isserless's ruling. He states:
The question is why is leverage not to be confused with punishment? Certainly from the perspective of the children or spouse, they are -- for all apparent purposes -- being punished. The point that is being made goes to the purpose of the shunning or excommunication, rather than its apparent impact. The purpose is to compel communal cohesiveness, and to exclude people who prevent it. In a situation where shunning relatives would have no impact on the conduct of the principal and would not de facto admit the person to the community, such conduct is prohibited60.
In summary, Jewish law has an institution called shunning and excommunication whose goal is to exclude people from the community who seek to dissent from central tenets of the community. However, it is not used as a form of punishment, and does not have its origins in any judicial institutions. It is designed to encourage people to conform to communal norms or cease to be part of the religious sub-society61.
This section demonstrates that exclusion was used primarily to create communal unity. In the next section, further proof is adduced to that proposition by a review of the grounds found in Jewish law to exclude. It will be shown that the types of violations that exclusion was warranted for are those that relate to community formation. It was not the seriousness of the offense that determined whether one was excluded; it was the communal effect.
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