Due process is needed

JAMIE BONHAM SPECIAL TO THE JEWISH BULLETIN

The basic tenets of the western legal system, due process and the supremacy of objective reasoning over subjective emotion, can be traced back, in part, to the teachings of talmudic scholars. That was part of the message delivered by Prof. Eliezer Segal of the University of Calgary during the third annual Itta and Eliezer Zeisler Annual Memorial Lecture.

"At the core of rabbinic discourse, whether in the courtroom or the academy, is the emphasis on free and rational discussion, wherein every opinion must be defended against opposing arguments," Segal told a crowd of about 75 listeners.

Segal was addressing the ramifications of the talmudic rabbis' approach to religious zealotry in his lecture Disarming Pinchas: The Rabbis Deal With a Biblical Extremist, delivered at the Norman Rothstein Theatre at the Jewish Community Centre of Greater Vancouver Feb. 1. He explained that the same teachings that provided the underpinning of current legal ideology also renounce the need for religious zealotry.

The biblical Pinchas was a prototypical religious zealot who justified the use of violence in defending the integrity of his faith. In the Torah, Pinchas spies Zimli, a fellow Jew, consorting with a gentile woman and, outraged by their disregard for divine laws, follows them to their tent where he kills them with a spear. The Torah commends Pinchas for his actions against blasphemy and rewards him and his descendents through Divine intervention.

The story of Pinchas was problematic to the rabbinic sages of the Talmud due to its apparent glorification of fanaticism and its disregard for legal due process. Segal's lecture addressed how the rabbis were able to establish the immorality of religious assassination without seeming to contradict the Torah.

The talmudic discussions were a reflection of a fundamental philosophical and moral mindset that "strove to impose moral and legal order upon the world through the instrument of Jewish law.... The whole nature of talmudic reasoning, if properly internalized, really should militate against that kind of tragic extremism," he said.

Thus, there was no room in the sages' worldview for violence dictated by zealotry. They found several different ways to justify their stance that religious assassination, although explicitly endorsed by the Torah, was not a viable tenet of Judaism.

"[They] assumed that Pinchas' zealous attack had been justified by a very special constellation of circumstances, of personality traits and motivations that for all practical intents and purposes were irreproducible," said Segal.

In essence, they argued that Pinchas's actions were only justifiable because he had the backing of Divine intervention and that the same circumstances would otherwise result in the charging of Pinchas for murder. In the eyes of the Jewish legal system, only God could deal with Zimli's transgression, whereas Pinchas's impetuous violence was a violation of proper judicial process. It is this respect for due process that has spread beyond the talmudic discourses to the legal system enjoyed by much of the western world.

The rabbis minimized or neutralized other instances of bloodthirstiness in the Torah, such as the "eye for an eye" tenet, which would ostensibly endorse murder without legal process.

The use of reason to refute religious fanaticism is an important legacy of the Talmud overlooked on occasion by modern day zealots, according to Segal.
"The talmudic sages may very well have been reacting to the violent excesses that had led to tragic consequences in the previous era – that is to the destruction of the second Temple – excesses that they ascribed to the baseless hatreds of religious fanaticism," he said.

The noble tradition of due process and rational debate is one that is in danger not just from religious zealots, according to Segal. In particular, the western world, Canada included, is becoming increasingly distanced from the ideals of due process in response to the terrorist attacks of 9/11. Governments around the world have begun the dangerous erosion of individual rights and have shown an alarming disdain for calm, reasoned debate. Segal argues for the maintenance of the ideals that govern our legal and social lives.

"We should be more protective of those values which are constantly under challenge," he said.

The Itta and Eliezer Zeisler Annual Memorial Lecture is sponsored by Irv and Betty Nitkin in honor of Betty's parents, and Segal took the time to praise the Nitkins for their commitment to the community. Segal also addressed a first-year class at the University of British Columbia earlier in the week with the same lecture.

Segal is the current head of the department of religious studies at the University of Calgary. His primary areas of research include talmudic literature, Jewish law, kabbalah and comparative biblical interpretation. He has been published extensively and has contributed to a variety of comparative studies.

Jamie Bonham is a freelance writer living in Vancouver.

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