The culture of Western societies is structured in what is commonly called “The rule of law.” In each society there is a unified system of laws that the authority applies blindly (remember how “Justice” is symbolically represented as a woman with a sword, a scale and a blindfold) and without considering the person that the law will affect, for better or worse. Legal matters are assessed in black and white, one is innocent or guilty, one complies with the law or not. There are no half measures. Since the Greeks and Romans, as a reaction to the absolute monarchies, there has always been a desire to be governed by laws and not by men.

The concept of “The rule of law” in the sense that the laws are black and white is not what our sages proposed, especially in the time of the Talmud. The rabbis adopted a pluralistic idea of ​​law and their approach was the other way around: law is a matter of being governed by men and not by rules. The difference between a Western legal process where a person demands his “legal” rights and a legal process within the conception of the Talmudic sages, where the person asks for an ethical solution to his problem (his ethical rights) is evident, it is putting ethical principles before legal principles. For example, the laws of many countries allow the deportation of a person who is illegally in that country and the authorities do not care if because of that action his son, who was born in that country and is therefore considered a legal resident, will be left alone without his mother. A Talmudic court would consider the ethical aspect of separating a mother from her child before coldly applying immigration laws.

In the Gemara there are multiple examples of discussions between rabbis where both parties have solid arguments to defend their position and where in the end the sages agree that both positions are valid. The Talmud Babli even accepts that it can deviate from the accepted laws, if the case has the merit from an ethical point of view.

Unfortunately, in modern Judaism, the “rule of law” has notoriously infiltrated many contemporary halachic conceptions. Halacha is being applied in “black and white”: if you comply with the accepted rule you are a “good Jew,” or if you do not comply exactly with the precept then you are not a “good Jew.” The Shulchan Aruch, originally conceived by its author Joseph Caro as an introduction to the study of the Talmud, has become a kind of rigid regulation of what is or is not permitted within Judaism and has led us to “westernize” our ancient culture. Judaism is becoming “black and white.” And not only because of its clothing.

By Marcos Gojman Bibliography: “The Judicial Process and the Nature of Jewish Law” by Hanina Ben-Menahem (Chap. 16 of the book: An Introduction to the History and Sources of Jewish Law, edited by N.S. Hecht and others)