October 2001

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LDS and Judicial Perspectives on Stories from Jewish Tradition




Jathan W. Janove, Ralph R. Mabey and Hon. Dale A. Kimball


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On January 26, 2001, at the Joseph Smith Memorial Building, a panel discussion was sponsored by the J. Reuben Clark Law Society, Salt Lake Chapter, in which religious and legal scholars from the Church of Jesus Christ of Latter-day Saints responded to stories from Jewish religious tradition. The panelists were Dallin H. Oaks,2 who in addition to serving in the Quorum of the Twelve Apostles, was a justice of the Utah Supreme Court from 1980 to 1984; Dale A. Kimball, who in addition to serving as a U.S. District Judge for the District of Utah, has also served as a bishop and stake president; and Ralph R. Mabey, who formerly was a U.S. Bankruptcy Judge for the District of Utah and currently serves as a bishop. The stories were selected by and the panel discussion was moderated by Jathan W. Janove, who practices employment law but has a degree in Jewish studies and has served different synagogues in the capacities of religious schoolteacher, youth director and congregational president.

Janove began the session with background on the Jewish stories and their sources. Amidst this vast, millennia-old corpus of material, there is the centerpiece of Judaism, the Five Books of Moses or Pentateuch (referred to by Jews as the "Torah" or "Chumash" from the Hebrew word for five). The Chumash is part of the "Tanach," which is a Hebrew acronym for "Torah," "Nevi'im" (the Prophets) and "Chetubim" (the Writings -which include such canonical works as the Book of Psalms and Book of Proverbs). There is also the "Oral Law," a set of commandments that traditionally observant Jews believe were given by God at Mount Sinai along with the Torah. These oral laws were codified in the early part of the Christian era by scholars in Palestine and Babylonia and form the central part of the "Talmud" which sets forth a comprehensive set of rules and teachings for traditionally observant Jews. In addition, there are libraries full of commentaries on Jewish law that have been compiled over the centuries. On another path, there is a body of material on Jewish mysticism referred to as the "Kabbalah" and stories and legends told throughout the millennia to illustrate points from Jewish law and tradition, generally referred to as "Midrash."

In presenting this background, Janove offered a possible contrast between Jewish and Mormon tradition. He explained the long-standing Jewish tradition of debate and contention among rabbis striving to determine the meaning of God's Word. Some rabbis have even taught that when it is for God's sake, a debate over the meaning of God's Word is more divine than the Word itself. Janove illustrated this point with a story from the Talmud in which God essentially concedes an argument to Jewish scholars debating the meaning of His Word. This point is also represented by an old joke told among Jews:

    Four learned rabbis were debating a passage in the Torah. Three of them lined up on one side of the argument but could not persuade the fourth to join them. The fourth rabbi insisted that the majority was wrong and declared: "I know that God agrees with me. I ask that He cause a dark storm cloud to appear in this blue sky as a sign that I am correct." Almost before the rabbi finished speaking, a dark thundercloud materialized over the heads of the four rabbis and then just as suddenly disappeared. "See," proclaimed the rabbi, "I told you I was right." Nevertheless, the other rabbis were unpersuaded and said that while unusual, the cloud could be explained by natural phenomena. The dissenting rabbi, now becoming agitated, exclaimed, "If I am right, I ask God to cause a storm cloud to appear and pour rain upon that yonder grove!" Again, almost before he had finished speaking, a storm cloud appeared in the otherwise cloudless sky, moved rapidly over to the grove, poured rain upon it, and then disappeared. "Now you see," asserted the rabbi, "your position is wrong and should be conceded!" Yet the three rabbis again demurred and opined that while highly unusual, the event could still be explained by natural causes. Before the dissenting rabbi could even cry out for another sign, the sunny blue sky turned completely dark. Lightning flashed, thunder crashed, and then complete stillness ensued. Suddenly, a giant resonating voice called out from the heavens: "Heeeeee's Riiiiiight!!!" Then, in an instant, the sky became clear and bright. The fourth rabbi looked upon his colleagues with a broad, triumphant smile. However, his triumph was short-lived as one of the three faced him and said, "So? It's still three to two."

Janove then invited his panelists to comment on whether any similar such tradition exists in Mormonism.

Mabey - Since the Church of Jesus Christ is founded on continuing revelation, the voice from heaven should trump mortal opinion. On the other hand, under the rule of common consent in the church, significant decisions are voted upon. Almost invariably, the decision proposed by church leaders entitled to revelation from heaven has been sustained by the vote of the people -but not always.

Kimball - Most of the time, before important proposals are presented, input is sought and vigorous discussion has occurred. The rabbis' debate reminds me of a story told by Leonard J. Arrington about Bishop Edwin Woolley, Brigham Young's business agent. Although he remained loyal and faithful, Bishop Woolley often exasperated Brigham with his stubborn nature and outspokenness. On one occasion, an irritated Brigham remarked caustically to the bishop: "Well, I suppose now you are going to go off and apostatize." "No, I won't," retorted Edwin. "If this were your church I might, but it's just as much mine as it is yours." On another occasion, Brigham remarked that if Bishop Woolley should fall off his horse while crossing the Jordan River, searchers should not expect him to be floating downstream; rather, they should look for him swimming upstream, obstinately contending against the current. Brigham Young: American Moses, at 200.

The panelists then turned to the stories and provided their observations.

Story Number 1:
The first story comes from the Talmud and addresses the occasional friction between the rule of law and notions of morality and compassion. It also deals with the concept that although there is only one God, He has more than one aspect. Indeed, the Torah gives God different names, such as one name when God acts in the capacity of justice and a different name when He acts in the capacity of mercy.

    A landowner employed a group of itinerant day laborers to move barrels of wine. The laborers carelessly handled one of the barrels and it fell and broke, spilling all of its contents. The landowner refused to pay them their wages and seized their knapsacks containing all of their worldly possessions. He then went before the Sanhedrin (the high Jewish court) seeking a ruling that his actions were legal in light of the fact that his damages exceeded the value of both their wages and possessions. The judges agreed with the owner's position as a matter of law. However, they reminded him that the God of Justice is also the God of Mercy. They then asked the owner which aspect of God he wished to encounter when it became his time to be judged. Acknowledging their point, the owner accepted the court's ruling that the laborers were entitled to return of their possessions and to their full wages.

Panelist Observations

Mabey - This reminds me of the parable found at Matthew 18:23-34: The Lord forgives his servant 10,000 talents, but the servant refuses to forgive his fellow servant 100 pence. The Lord asks the unforgiving servant, in verse 33, "Shouldest not thou also have had compassion on thy fellow servant, even as I had pity on thee?"

Kimball - Were all of the workers negligent or just one? Did one or more act recklessly or intentionally? Should that make a difference? Would you sue a homeless person you hired to work for you when that person broke something valuable? The owner's actions here just seem wrong. What were the working conditions? Today this would be covered by insurance. Some see a distinction between the God of the Old Testament (Justice) and the God of the New Testament (Mercy).

Janove - As the only non-Mormon on the dais, I have to confess my surprise that I am the one to provide the obvious moral of the story -you get into trouble when you handle alcoholic beverages!

Story Number 2:
This next story centers on humility and was taught by Rebbe Menachem Mendel Schneerson who led the Lubavich Hasidic movement until his death in 1993. Rebbe Schneerson placed great emphasis on the quality of humility and held: "Immodesty is the root of all inappropriate behavior." The importance of humility goes back to the Torah or Chumash which centers on the great hero of Jewish history, "Mosheh Rabbennu" (or Moses the teacher, leader and prophet). The Five Books of Moses end with the statement that never again in the land of Israel arose a leader such as Moses. Yet the Book of Numbers states, "Now Moses was the humblest man on the face of the earth." There is a Midrash or legend that an awe-struck Israelite approached Moses and expressed wonderment at Moses' extraordinary political, social, military and ecclesiastical leadership and his intimate relationship with God. Moses, however, would not accept this glowing assessment and explained: "perhaps if God had blessed you with the same gifts He has bestowed upon me, you would have accomplished more."

    This story comes from Eastern Europe of the 1800s

    A businessman planned to file a lawsuit and had a choice of two jurisdictions. He sought advice from his rabbi as to which jurisdiction would be better. He explained that the judge in one town was renowned for his legal brilliance and copious scholarship. By contrast, the other judge was known for his humility. The businessman suggested the former should be preferred but his rabbi disagreed. The rabbi explained that the brilliant judge would be tempted to use the case as a means to demonstrate his own brilliance whereas the humble judge would be concerned only with discovering and applying what the law truly was.

Panelist Observations

Mabey - The Rabbi is right. Just as Felix Frankfurter described the qualities essential to a Justice's functioning on the Court and concluded, "The attitudes and qualities which I am groping to characterize are ingredients of what compendiously might be called dominating humility." (Felix Frankfurter: Foreword, Columbia Law Review, April 1955; quoted in The Quotable Lawyer, edited by Shrager and Frost and published by Facts on File, 1986.) President David O. McKay named humility the solid foundation of all virtues. Indeed, all virtues flow from humility: "Be thou humble; and the Lord thy God shall lead thee by the hand and give thee answer to thy prayers." Doctrine & Covenants 112:10.

Humility is crucial for the judge because the judge must be willing to be educated by the evidence and the argument. If the judge does not exercise humility, he or she is uneducable.

Humility is also the essential virtue of lawyers. Unless they learn from their adversaries, learn from their clients, and learn from their weaknesses, they remain mediocre. Even a Michael Jordan, who has the confidence to want the ball at the end of the game, gained that confidence through the humility to learn from every opponent and to conquer weakness by recognizing it and practicing to eliminate it.

The paradox that humility builds strength is a basic tenet of The Book of Mormon: "...If they humble themselves before me, and have faith in me, then will I make weak things become strong unto them." Ether 12:27. "...They did fast and pray oft, and did wax stronger and stronger in their humility." Helaman 3:35.

Kimball - Forum shopping is all right if it's legal. Humility is a marvelous attribute. A cause-oriented judge is a dangerous judge and one cause may be a judge's own brilliance. Is the humble judge also intelligent? Or is he humble and stupid? A stupid judge is dangerous also. If the matter is complex you may want to take your chances with the brilliant unhumble judge.

Janove - This reminds me of Mark Twain's saying: "I was born modest, but it wore off."

Story Number 3
Two renowned Jewish legal scholars from around Jesus' time, Hillel and Shammai, had famous debates on points of Jewish law. Hillel's views have predominated over the centuries, not, according to tradition, because of his superior scholarship, but because of his humility. The Talmud records that Hillel and Shammai were presented with the following issue:

    A man steals a beam of wood and uses it in the construction of his house. The man later voluntarily admits his guilt. According to Shammai, the stolen beam must be removed even if it means the destruction of the man's house. Hillel, however, holds that the man should only be required to pay the monetary value of the wooden beam, citing the concept of "takkanat hashavim" -the extension of the law for the sake of encouraging those who would repent. According to Hillel, one should not place obstacles before the penitent; the goal is not to punish but to change the penitent's future actions.

Panelist Observations

Mabey - Hillel is right. The first purpose of church discipline is to save the souls of transgressors by helping them repent.

On the other hand, one must recognize that while the purpose of contract law is simply compensation, the legitimate purpose of criminal law may well be punishment, not just rehabilitation.

Kimball - We need to exercise common sense and judgment. It makes no sense to destroy the house to recover the stolen beam. We should not put obstacles in the path of reform. We should not be married to the concept of the "last" farthing. There may need to be some appropriate criminal penalty. The goal of reformation should inform our attitudes about sentencing and punishment, punitive damages, etc.

Story Number 4
The following is a real-life tale of a rabbi who lived in Eastern Europe. As many clergymen of many faiths would acknowledge, sometimes one still has to have a day job to make ends meet. This particular rabbi owned a tanner business.

    A businessman approached a tanner who also happened to be a revered rabbi. He offered the rabbi a certain price for a quantity of hides. However, the rabbi said the price was too low and quoted him a higher price. The businessman declined. After the businessman left, the rabbi reflected on the matter and decided that given the quantity involved, he could still make a fair profit at the price the businessman offered. The rabbi thus resolved to do the deal at that price if the opportunity arose again. A short while later, the businessman returned. He explained that the other tanners in town had quoted even higher prices and he was therefore willing to make the purchase at the rabbi's price. "No" replied the rabbi, "we will use your price. You see, we already have a contract." The rabbi then quoted Psalms (15:1-2): "Who shall live in Your Tent? Who shall dwell on Your Holy Mountain? He who walks with integrity, does righteousness, and speaks the truth in his heart."

Panel Observations

Mabey - This story no doubt arose before theories of free market, profit and competition were prevalent. In the context of these modern principles, diligence in business is important. "Seest thou a man diligent in his business, he shall stand before kings; he shall not stand before mean men." Proverbs 22:29. Moreover, in Matthew, Chapter 25, the servant who hid his lord's money instead of putting it at interest with the money exchangers was deemed slothful and wicked and forfeited his share.

In the story, the market fixed the price of the goods, and if those dealing in the market established that price honestly, without fraud or concealment, the price was fair and the Rabbi was entitled to sell at it. As Elder Ezra Taft Benson said of private enterprise and free competition, "Everyone has a chance to cast his vote in the election which will decide what is a fair price, fair wage, and profit, and what should be produced and in what quantities. To contradict the justice of that decision is to contradict the whole concept of justice by the democratic process." (Remarks given in 1948 and quoted in Prophets, Principles and National Survival at 165-66).

As President Hinckley said in his Teachings at page 268, "Clean competition is wholesome; but immoral, dishonest, or unfair practices are reprehensible, and particularly on the part of a Latter-Day Saint." He further emphasized that, "Integrity is the heart of commerce in the world in which we live. Honesty and integrity comprise the very underpinnings of society." (Standing for Something, at 18.)

On the other hand, while the Rabbi would have been justified in selling at the market price, he may be sanctified for having sold at the compassionate price.

Kimball - There was no legal contract, no meeting of the minds. It would be a wonderful world, however, if everyone behaved as did the rabbi in this story. The rabbi's standard is too high to impose on everyone. It is rare and wonderful to be able to see another's point of view, to get beyond one's self interest.

Story Number 5
This story is a Midrash from Eastern Europe. It stems from the Book of Leviticus' injunction to protect the widow and orphan.

    A penniless orphan had been taken in by a prominent rabbi and his wife and given lodging and wages in exchange for services as a maid. Unbeknownst to the rabbi, the young woman had broken a precious household candlestick and the rabbi's wife was taking her before the Beit Din (the local ecclesiastical court), seeking monetary damages. On the morning of the hearing, the rabbi observed that his wife was putting on her formal clothes and inquired why. She explained, whereupon the rabbi began putting on his formal attire and said he would accompany her to the Beit Din. "Good!" exclaimed his wife, noticeably pleased with her husband's apparent support. "You don't understand", explained the rabbi, " "I go to testify on the maid's behalf." "Why?" asked his stunned spouse. "Is not my claim just according to the law?" "It is," replied the rabbi. "However, the Torah commands us to protect the widow and the orphan -I go to fulfill God's commandment."

Panel Observations

Mabey - The widows and fatherless are entitled to special consideration justifying the rabbi's action. "Let each... bear an equal proportion... in taking the poor, the widows, the fatherless... that the cries of the widows and fatherless come not up into the ears of the Lord against this people." Doctrine & Covenants 136:8. Moreover, there are numerous examples in the history of Church Courts (now Disciplinary Councils) in which the verdict was one of compassion. In a case very similar to story #5, the church-owned Salt Lake streetcar hit and maimed an innocent 4-year-old boy. President Brigham Young, president of the company, appeared in the court and acknowledged that the civil law imposed no liability (tort law was in its infancy), but committed as a matter of religious principle and compassion to care for the victim. There are many other examples where Church Courts reduced the interest rate or the balance owing on a lawful debt; in most instances, both parties agreed to the result.

Kimball - This is somewhat similar to Story No. 1 and some of the same comments should apply. Should one's status give one a different or unique standing before the law -the modern concern over protected classes? Clearly, widows and orphans should be protected. We have here a good rabbi who needs more communication in his marriage.

Janove - This Midrash seems to run contrary to another age-old Jewish tradition -"Shalom Ha-Bayit", which literally means peace in the home but which has been construed to require affirmative duties (particularly on the husband) to maintain loving and supportive relations with one's spouse. One thing is for certain -if I were to behave as the rabbi in this story did, there would be no "Shalom" in the Janove household!


1. Mr. Janove wishes to thank his good friend and Jewish scholar Michael Walton for his able assistance and instruction.
2. While Elder Oaks' comments were a compelling part of the live presentation, he was unable to participate in the preparation of this article.