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:

In the appeal²¹ which was presented before us on January 7, 1985, the court did not find sufficient cause to compel²² the husband to divorce his wife. The Court did, however, try to persuade the man, who is religiously observant, that he follow the proper path and to obey the decision of the court [that it is proper for him to issue the divorce], for it is a good deed to heed the words of the Sages who religiously obliged him to divorce his wife and that he has chained his wife needlessly²³. The court gave the husband an extension of three months within which to grant a divorce to his wife. However, when the Court saw that three months passed without response, we instituted the separations of Rabbenu Tam as found in the Sefer HaYashar (Chelek HaTeshuvot §24) which states:

Decree by force of oath on every Jewish man and woman under your jurisdiction that they not be allowed to speak to him, to host him in their homes, to feed him or give him to drink, to accompany him or to visit him when he is ill.....

We added to these strictures that no sexton of any synagogue in the area where the husband resides be allowed to seat him in the synagogue, or call him to the Torah, or ask after his welfare, or grant him any honor. All people are to distance themselves from him as much as possible until his heart submits and he heeds to voices of those instructing him that he grant his wife a divorce . . .

And so it was done, at which time the husband submitted and granted his wife a divorce²⁴.

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:

Central Rabbinical Congress of the United States and Canada, its Rabbinical Court and its members (the "Rabbinical Congress"), and defendants from making any efforts to have plaintiff withdraw his action from this Court and submit it to a rabbinical or ecclesiastical court and from temporarily or permanently excommunicating plaintiff, his counsel, and staff²⁷.

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:

1. The functioning of the power to exclude in Jewish law;
2. The balance developed in Jewish law between the right to form a community of like minded people and the right of those who wish to deviate from the practice of society; and finally
3. The insistence of American and Canadian constitutional law that civil and criminal authority not be given to insular religious groups to be used by those groups to control its members and prevent religious deviation -- and how Jewish law responds to that directive.

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:

1. May one shun or excommunicate a person when the shunning process might (or will) drive this person completely away from the religious community or religious observance?³²; and
2. May one shun or exclude the relatives of a person in order to encourage the person to cease his or her activities?

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:

Shunning and excommunication became so common in the later centuries that they no longer made any impression and lost their force [to the uncommitted]. They became the standard rabbinic reaction to all forms of deviation or non-conformity considered incompatible with or dangerous to Orthodoxy As such, they are sometimes imposed by extreme Orthodox authorities at the present day, but as neither the person afflicted nor the public at large regard them as bound by them, they have ceased to be a terror or have much effect³⁶.

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:

We excommunicate or shun a person who is supposed to be excommunicated or shunned, even if we fear that because of this, he will bring himself to other evils [such as leaving the faith].

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 Church [Jehovah's Witnesses] has four basic categories of membership, non-membership or former membership status; they are: members, non-members, disfellowshiped persons, and disassociated persons. "Disfellowshiped persons" are former members who have been excommunicated from the Church. One consequence of disfellowship is "shunning," a form of ostracism. Members of the Jehovah's Witness community are prohibited -- under threat of their own disfellowship -- from having any contact with disfellowshiped persons and may not even greet them. . . . "Disassociated persons" are former members who have voluntarily left the Jehovah's Witness faith. . . . disassociated persons were to be treated in the same manner as the disfellowshiped⁵⁰.

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:

It is within the power of a Jewish court to order [as part of a shunning] that a violators children not be circumcised, that his dead not be buried, that his children be expelled from the school, and that his wife be removed from the synagogue until he accepts the ruling of the court⁵⁴.

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:

Heaven forbid this. The world is only in existence because of the studies of children in school. It makes sense to prohibit circumcising children, as that obligation is solely the father's;⁵⁶ the same is true for burying his dead .... However, studying by children has no restitution... So too, to exclude his wife from the synagogue is improper; If he sinned, what was her sin?⁵⁷

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:

He [the one being shunned] would agree to obey the law, in the particular area which he is remiss, in order to afford his wife and children a proper religious environment. Using the children as leverage is not to be confused with punishing them unjustly⁵⁹.

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.