Tuesday, October 31, 2006

The Unevolved Ethics of the Torah I

With all the discussion recently about atheism and morality, I think it may be worth taking a look at just how anomalous, in the virtuous sense of the word, the moral code of the Torah was, in its time, and in certain ways, still is.

Rabbi Dr. Warren Goldstein, the Chief Rabbi of South Africa, wrote a book, Defending the Human Spirit, in which he fleshes out, in great detail, what he calls "The Vulnerability Principle". Meaning, that one of the macro-concerns of the Torah is that those who are subject to being victimized by abuse of power be protected by the law.

In one of the sections of the book, he focuses on the oppression of women, and how the Torah protects them from it.


"Sexuality is one area in which women have faced particular threats from men in general, and their husbands in particular. Dr. Diana Russell, a leading researcher in this field, found that marital rape is common. In fact, according to Russell, 'wife rape is clearly one of the most prevalent types of rape, and by some measures it is the most prevalent form.'

The law of rape in marriage is a strange phenomenon. Even during the very last decade of the twentieth century, many Western legal systems still held that a man was legally entitled to rape his wife. On the other hand, the millenia-old Jewish legal system, regarded by some as primitive and patriarchal, always held that rape in marriage was illegal and immoral.

...An astonishing picture of consistent and protracted legal approval of the marital rape exemption will emerge from the analysis of these [Western] systems... the contrasting position of Jewish law... the remarkable phenomenon of Jewish law's more enlightened approach with reference to the vulnerability principle."
To wit:
"For hundreds of years in England, a man was legally entitled to rape his wife. This position persisted until October 23, 1991, when the House of Lords declared rape in marriage to be a crime."
"The position in the United States of America, another member of the common-law family, is similar. Despite vast differences between the fifty states in terms of culture, law, human rights, climate, population, urbanization, history etc., until the late 1970s they all shared this in common: a man was legally entitled to rape his wife.
In 1977, the New York University Law Review summed up the marital rape exemption in American law as follows:
The bar to prosecuting a husband for raping his wife is almost as deeply rooted in our criminal law as the requirement that guilt be proved beyond reasonable doubt... He is immune from a rape charge in most states, however violent the force he uses and however long he and his wife have been living apart..; For instance, a wife whose husband comes home drunk every night and violently forces sex on her, causing her physical and mental suffering, is not protected by the rape laws of forty-six states."
Rabbi Goldstein sums up:
"The marital rape exemption survived not because it was forgotten and buried under piles of antiquated law. Seemingly rational, civilized and enlightened judges and lawmakers sat down in the 1990s, considered the exemption and decided to keep it."
"Cohen vs. State of Israel
The Cohen case highlights the perplexing phenomenon of the marital rape exemption, and its tenacity in surviving in Western legal systems until recently - contrasted with Jewish law's enlightened position on rape in marriage.
In 1980, the Israeli Supreme Court encountered this strange legal phenomenon. In Cohen v. State of Israel, the defendant, Cohen, had violently attacked his wife and forced her to have sexual intercourse with him against her will.
... The court was faced with a dilemma. Judge David Bechor, who authored the main judgement in the court, noted the position of English law at the time, which supported a marital rape exemption. English law carries alot of weight, because both English and Turkish law systems were operational in the area before the establishment of the State of Israel in 1948. Yet Jewish law has always condemned rape in marriage. Jewish law is also influential because it molds Israeli private law as it pertains to Jewish citizens.
Judge Bechor stated that he was "delighted" not to have to follow English law on this issue... Judge Bechor concluded: 'The people of Israel can take pride in their progressive and liberal approach of their blessed heritage and the position of Jewish law on this matter from time immemorial'."
Now, I think we would not be remiss in presenting the following question: From what wellspring of progression did this attitude of the Torah bubble forth? Clearly, built in to the laws of Nezikin, Onaas Devarim, and the like, is no exemption of such when relating to one's wife. (Actually, regarding Onaas Devarim, the Gemara cautions about a wife in particular). This has been the Torah's stance since it's advent at Har Sinai, and is codified in the Gemara and in the Shulchan Aruch.
Did a particularly sensitive human being, about 3300 years ahead of his time, write this? Was the Torah written by a progressive woman's rights advocate, while granting limited governmental and historical role to women? [Bear in mind, this is not the only law that is being suggested. This is not a one-dimensional agenda of the Torah, in complete opposition to prevailing moral sentiments. This is a complete personal and national moral code]
I want to emphasize that this same Torah advocates Lo Techaye Kol Neshama and LaNochri Tashich. I am not saying that we need be apologetic for the moral code that the Torah espouses. It was given by the Source of Morality.
What I am suggesting is that this law (like many others, stay tuned) is so refined, in direct opposition to prevailing sentiment of the role of the woman in marriage vis-a-vis marital intimacy, both of ancient times, and of the very recent past, as to suggest an inclination of evidence toward an Author who was not mortal man.
"Ki Hi Chochmaschem U'Binaschem L'Einei HaAmim, Asher Yishme'u Eis Kol HaChukim HaEile, V'Amru Rak Am Chacham V'Navon HaGoy HaGadol HaZeh."

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