Laws and Legality
Rabbi Berel Wein

Rabbi Berel Wein

A great deal of human cruelty and perversity is based on the rule of law. In our century we have been witness to the justification for some of the worst human behavior in history by the use of excuses such as "I was just following orders" or "I was just enforcing the law." That was Eichmann's defense of his efficiency in organizing the slaughter of millions, of the Communist apparatchiks who destroyed an entire society, of sadistic police the world over who use their power to brutalize others. We cannot exist without the rule of law. However, the traditional rule of law of civilized societies can be perverted. George Orwell named the murderous secret police in his fictional (but unerringly true to life) totalitarian society "The Department of Love." Law alone is not the safeguard of society and human values. A sense of morality and an inner compass that points to right and wrong are the true guarantees of the justness of the rule of law in human affairs.

The Torah contains the admonition "You shall not do evil (perversity) in the exercise of justice (legislation, courts, police, government, etc.)." The Torah here repeats one of its constant themes: Justice is served only by acting justly. There are no just ends that support the use of unjust means. The law is never to be used for evil purposes. G-d's demand for moral behavior takes precedence over all rules and laws. Ramban, in his great commentary on the Bible, states: "One should beware not to be a naval b'reshus ha Torah (a base person who is technically observing the law of the Torah)." He further states: This is the pattern of our Torah - after stating the laws of judges, courts, and monetary and business matters, and cautioning us not to steal or to be otherwise [legally or technically] dishonest, it then demands of us that we live up to the great general rule 'And you shall do what is just and good in the eyes of the L-rd your G-d.' One should introduce into his behavior the moral rightness and fairness and do more than the law demands in order to accommodate his fellow human beings." Only when such an attitude becomes second nature to us can we hope to fulfill this Biblical injunction of not doing evil in the (seeming) exercise of justice. One cannot look at the law as being detached from life's circumstances, as being somehow above the fray; that is how evil is perpetrated through the law. One must always see the consequences of the law's application, and if those consequences are unjust, evil, or immoral, the Torah rejects that path.

But how are we to know in advance the consequences of following the law? Moreover, how are we to know what is right and what is wrong, what is good and what is bad, in a society that changes its standards so capriciously? An answer to that question was offered in the 19th century by Kant and others, who claimed that man and man alone is capable of deciding these issues. After the disasters of the 20th century, we are no longer so sure of man's ability to chart an effective moral course for the individual and society. Wilhelm, Nicholas, Hitler, Lenin, Stalin, Pol Pot, Mao, Sadaam Hussein, to name a few of the "legalists" of the 20th century, have disabused us of the notion of human morality existing independently. The Torah's morality is based on the will of G-d. It subscribes to G-d's definitions of right, wrong, good, and evil. "You shall do what is right and good in the eyes of the L-rd your G-d" is the Jewish method of not perverting legality into evil. It alone allows us to be certain that what we believe to be good and right now will also be seen as good and right by our descendants generations later.