Parashat Maṭot-Mas‘ei and the Spirit of Anglo-American Law

In memory of my friend and teacher Joseph Dan, זכרונו לברכה

This week’s double Torah portion is read during the three weeks between 17 Tammuz and 9 Menachem Av. The Tamid or daily sacrifice ceased on the first day, when the Roman armies breached the inner wall of the besieged holy city of Yerushalayim; and three weeks later the accursed Romans destroyed the Second Temple. The invaders bore off the golden treasures of God’s chosen House, the Bet ha-Beḥira, and marched them through their “Eternal City” in their victory parade- the so-called “triumph”. The holy vessels were then put on public display- a kind of proto-museum exhibit. And the triumph itself is portrayed for posterity on the Arch of Titus, which the conqueror erected some years later. It displays the golden table of the showbreads, the twin silver trumpets blown by the Levites, and a Menorah.

A digression, with your kind indulgence. Although the magnificent Menorah shown in bas-relief there was to become the emblem on the escutcheon of the reborn State of Israel, it differs from portrayals of the Menorah from the late Second Temple itself, notably in that it rests, not on a tripod, but on a gently rounded columnar palm base that stands two multi-faceted plinths that depict mythological hippocampus creatures.

First and Second Temple Jewish art was never wholly aniconic, so the presence of the fanciful sea creatures is not in itself an objection; but I would propose that the typically Ancient Iranian palm base may provide a clue about this Menorah’s origin. Such bases, dating back to the Achaemenian period, were popular wherever Persian culture went. We find one, for example, on the lion pillar of king Ashoka from Sarnath that is now the emblem of the Republic of India.

But why would a Persian-style Menorah have graced our Bet ha-Miqdash? I would propose here that the Menorah on the Arch of Titus was not that of the Temple rituals but one of the several golden gifts of Queen Helena, a Jewish proselyte from the little north Mesopotamian kingdom of Adiabene (Hedayab), which was Aramaic-speaking but thoroughly Parthian in its culture. Her husband’s name was Monobazus, from Iranian Mana-vazah; the name of her son Izates is the Zoroastrian word for a supernatural being worthy of reverence, yazata. The ossuary-sarcophagi of Adiabenian royalty have been found in Jerusalem. (The practice of secondary burial in an ossuary is itself probably a Zoroastrian practice that was embraced by Second Temple Judaism but later abandoned.) It would stand to reason that a decorative Menorah donated to the Temple by Adiabenian royalty would reflect the artistic style of the Iranian rather that the Greco-Roman world, or if anything an amalgam of the two. In short, what the Romans carted off was a Menorah, not the Menorah. But we want it back anyway.

To return to the three weeks of contemplation of the disaster of the year 70 C.E., then, it would seem that the understanding of the Torah readings would reflect the solemnity of the period; and in the case of the selection of Haftara readings that is indeed so. But Torah itself remains unchanged, and indeed invites us to look beyond disaster to a triumph of Divine revelation beside which the cruel spectacles of the long extinct pagan Romans diminish in importance.

Parashat Matot begins with an intricate consideration of nedarim, vows: a man’s word is his sacred bond, and the verbal obligations men undertake is not only the measure of his own character, his probity, but also the warp and woof of society itself. If I promise to pay you for work I need and you don’t perform it, my material well being is disrupted; and if I don’t pay you, you and your family won’t eat. The Children of Israel are about to enter our Promised Land, and the Parsha anticipates how a just and holy society is to be constructed there. The text continues to specify that if those who are under legal age or otherwise do not have full social and economic authority make a neder, a vow, they are responsible for its fulfillment unless their guardian intervenes expeditiously to annul it. That is, it is no good if he tarries and then attempts to abrogate the contract after, perhaps, some damage will already have been done. The operative principle here is duration: in the case of a vow, justice requires that if the party is defective, it be canceled at once or not at all.

The war against the Midianites follows at once, with the laconic statement at the end of an enumeration of enemy casualties, ve-et Bil‘am ben Be‘or hargu be-ḥerev “and they killed Balaam the son of Beor by the sword” (Numbers 31:8). The text doesn’t say how the preceding Midianites were killed. Presumably it was also by the sword: the Israel Defense Force did not yet possess fighter planes and tanks. Why then specify a sword here? It would seem redundant; but redundancies belong to fallible human literature, and the Torah is Divine and perfect. Rashi explains that Balaam, who came from a degenerate culture that lived by the sword, had to die by it, especially since he had presumed to try to destroy Israel, who live by the Word, with a corruption of human speech- Balak, you will recall, had earlier hired Balaam to pervert the power of the word by cursing us. And later on, as the Parsha reminds us, Balaam had employed Midian’s heathen whores in an attempt to destroy us from within, to seduce Israel away from Divine worship. The manner of Balaam’s condign execution underscores, then, the importance of the sanctity of the spoken word, the neder of the opening section of the Parsha, re-focusing our attention, as it were, on that long discourse on vows.

The second of the week’s two Parshas, Mas‘ei, takes its name from the stations where the nation paused on our forty-year-long trek through the desert: it enumerates all forty two till the present moment- the encampment on the Jordan opposite Jericho. The Lord then draws the borders of Israel. (A personal digression, if I may. These boundaries at the close of the Book of Numbers are not a “green line” or the porous “ceasefire lines” of 1949 that existed only to be disregarded by Arab armies and terrorists. They are not the present boundaries derided by foreigners and assimilated Jews as reflective of a problematic “occupation” demanding a two-state solution. They are the borders defined by the Master of the Universe. I remember attending a lecture one evening in Jerusalem in the winter of 1992. I was seated at the back of the hall next to a big, red-faced Canadian Christian who had a hook where one of his hands would have been- not an easy figure to forget. As the University of Chicago professor at the podium blathered on about the coy soft porn mixture she had made of Scripture and the Vedas, my neighbor grumbled “Blasphemy, blasphemy.” I liked this fellow and after the lecture asked him where he lived. He named a place in Gush Etzion. It’s late to drive in the West Bank, I commented, and offered to put him up in my tiny apartment in Bayit ve-Gan. “All the ‘banks’ are closed,” he exclaimed with a broad grin. “I’m going to the Land of Israel!” But a week later he did come to Bayit ve-Gan with some friends, for a pizza.)

Once God has set the boundaries of His country, He decrees the designation of six places as ‘arei miqlaṭ, “cities of refuge”. These are places where a person who has inadvertently (bi-shegaga) killed another is to be accorded sanctuary- that is, protection from instant blood vengeance till the case can be properly considered and adjudicated (Num. 35:12, 15). The text then considers the differences between homicide and manslaughter, and states ve-shafṭo ha-‘eda bein ha-makeh u-vein goel ha-dam ‘al ha-mishpaṭim ha-eleh “and the court will judge between the killer and the redeemer of the blood according to these laws” (Num. 35:24) The establishment of cities of refuge is defined by the text as a ḥoq– an a priori supra-rational Divine statute not susceptible to alteration or amendment by logic.

Note that in the case of nedarim, vows, that are subject to annulment, no time must be allowed to elapse if a vow is to be canceled. Duration, that is, must be brief. Here the same durative principle applies, but in reverse: the natural impulse when a man is killed is for his relatives to exact immediate retribution. But this is precisely what the Torah prohibits: Divine law takes precedence over animal emotion, and the city of refuge is instituted to force a delay between the commission of the alleged crime and the possibility of punishment. That delay enables the court to be convened and to consider the evidence, which in a capital case must include the testimony of multiple witnesses- not just one. (One might recall here the Ninth Commandment: You shall not bear false witness [‘ed shaqer]. The restatement of the Ten Commandments in Deuteronomy phrases this differently, as “vain witness”, shav’.)

The durative quality of this procedure is essential to its fairness: due process is slow process. It is of course possible to stage a travesty of justice, and to manipulate court procedure in such a manner as to camouflage automatic blood vengeance or similar barbarism as civilized law. The locus classicus for this is the blood curdling colloquy in William Shakespeare’s tragedy King Lear, Act III, Scene vii: “Though well we may not pass upon his life/ Without the form of justice, yet our power/ Shall do a court’sy to our wrath, which men/ May blame but not control.” The spirit of the Torah procedure, the key to understanding it, is that it is assumed that the killer acted inadvertently until and unless it is meticulously proven that he has done otherwise, and the burden of proof rests with the court- the stipulation that one witness is insufficient indicates this. That is, the defendant is presumed innocent until proven guilty.

What I am suggesting, with confident audacity, is nothing less than that the very cornerstone of Anglo-American law, the PRESUMPTION OF INNOCENCE, has its roots in Hebrew- not in Latin- in this week’s Parsha- not in a pagan or deist law code- and among a crowd of freed slaves standing on the banks of the Jordan River at the threshold of a new kind of society- not in the colonnaded halls of Rome with its toga-clad patricians, slave-owners, and empire-builders.

Why is the presumption of innocence essential to democracy and the rule of law? It defends every man against the arbitrary exercise of power by the state and against the passions of the mob. It thus places the decent rights of every individual above and against any system or aggregate or ideology. As Sir Isaiah Berlin argued, the Western conception of liberty is superior to any idea of liberty elsewhere, in that it is liberty from, not liberty to– it is the freedom to be left alone. I should say, indeed, that there is no other sort of liberty or freedom worthy of the name- and the presumption of innocence is the bulwark, the guarantor of that liberty. Look, after all, at the alternatives- the kangaroo courts of fascist tyrannies, the cynical KGB maxim “Give us the man and we’ll find the law”, the lynch-mob rule of shari‘a law in places like Pakistan and Iran.

The Parsha is followed by the Haftara, in which Jeremiah delivers, well, a jeremiad. But this is how the Prophet’s angry peroration concludes: Im tashuv Yisrael ne’um Adonai elai tashuv ve-im tasir shiqutsekha mi-panai ve-lo tanud. Ve-nishba‘ta ḥei Adonai be-emet, be-mishpaṭ u-vi-tsedaqa, ve-hitbarekhu vo goyim u-vo yithalalu. “If you return, Israel- says the Lord- if you return to Me and if you take away your detestable things from before Me, you will wander no longer. And if you swear- as the Lord lives!- by truth, by justice, and by righteousness, then by that shall the nations be blessed and in that shall they exult.” (Jeremiah 4:2) Fair legal procedure, probity, the presumption of innocence- that is the armature of the future polity laid down just before Moses’ final, month-long valediction in Deuteronomy, as the Children of Israel prepare to reconquer our land. “Truth, justice, and the American way,” as that nice Jewish boy from Cleveland, Superman, would say- brought to you by the God of Israel and His Torah. Now that is a triumph.

About the Author
James R. Russell is Emeritus Professor of Armenian Studies at Harvard University, and has served as Distinguished Visiting Professor of the Hebrew University of Jerusalem, Associate Professor of Ancient Iranian at Columbia, and part-time Lecturer in Jewish Studies and Biblical Hebrew at California State University, Fresno. He is on the Editorial Boards of the journal Judaica Petropolitana, St. Petersburg State University; the journal Linguistica Petropolitana, Russian Academy of Sciences; and the journal Homo Loquens, Russian Christian Humanities Association. He is a founding member of the International Association for Jewish Studies, chartered in the Russian Federation. He holds the PhD in Zoroastrian Studies, from the School of Oriental Studies of the University of London; B.Litt. (Oxon.); B.A. (summa) (Columbia). His recent books include "Poets, Heroes, and Their Dragons", 2 vols., UC Irvine Iranian Series, 2020, and "The Complete Poems of Misak Medzarents", CSU Fresno Armenian Series, 2021.
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