Law and Interpretation

The story is somewhat shocking. A young (un-named) mother from Guelph, Ontario killed two of her four children. In 1998, angered by her son’s incessant crying, she smothered him in his crib under blankets and a plastic bed sheet. In 2001, she gave birth to another child from a second father. One year later, she smothered her third child in his crib when he was 10 weeks old. She had a fourth child in 2003. In 2004, when she was being treated in a mental health clinic, she confided to a doctor that she had killed two of her children. That set in motion a series of actions that culminated in her arrest and arraignment on two counts of murder.

The judge presiding at the trial acquitted her of murder and, instead, found her guilty of the lesser crime of infanticide. The punishment meted out was 18 months in custody, three years probation, and a requirement to report any subsequent pregnancies to the appropriate child welfare service. Needless to say, the penalty seems rather lenient for the crime of taking two young lives; particularly the helpless children completely dependent on their mother’s love and protection. But the judge was insistent that he was dutifully following the provisions of the law that has been on the books for 57 years. That law specifically sets apart infanticide from murder.

The problem, the Ontario Court of Appeals ruled in February 2011, is not with the judge but with the system. It would take a legislative change to effect a different outcome. In other words, the judge was compelled to follow the law as written. If, as the prosecution contended, society’s conception of the value of a baby’s life has changed over the years since the law was enacted, it was up to parliament to emend the law.   But unless and until the law is re-written, the trial judge had no alternative but to rule according to the statute.

In considering the process rather than the outcome, we have a wonderful opportunity to appreciate the working of Jewish law. The appellate court operates under a simple and straightforward rule: follow the law as written. And the corollary: if you don’t like the law, change it. Judaism, however, takes a different view. Since the law must be rooted in the Torah, and since the Torah is reputed to be the eternal word of God, it cannot be re-written. Human beings do not have the authority, let alone the capacity, to overrule God. But human beings are left with the responsibility of interpreting the law. The sages of the Talmud see this responsibility imbedded in the Torah itself. Jews are commanded to follow the decisions made by the judge and teachers in their day (Deuteronomy 17:9). And the Torah proclaims that the meaning of the Torah is “not in heaven” (Deuteronomy 30:12) but determined by human qualification and application (Babylonian Talmud, Baba Metzi’a 59b).

The result is that the law remains unchanging but how the law is understood and under what circumstances it applies is subject to change. The various branches of Judaism – Reform, Orthodox, Conservative, Reconstructionist – are all united in this view. Where they differ relates to who is an authoritative interpreter and which interpretations are authentic and legitimate. The irony is that without the ability to change the law, Jewish judges and scholars have far more latitude than their Canadian counterparts.

An addendum: Jewish law makes no difference on the age or stage of the victim. Once born, a child is a person and taking any person’s life is murder.