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Home » K'doshim, Questions of Ethics

Kedoshim: Legislating Moral Conduct

Submitted by on April 29, 2009 – 1:29 amOne Comment | 4,085 views

Human Rights Commissions

I attended a seminar on Canadian Human Rights Commissions. On the whole the event amounted to a wholesale “Let’s Quash Human Rights Commissions” extravaganza. But I must concede that the tone of the event was rather peaceful. The presenters articulated their call for abolition in reasoned, albeit impassioned, tones; their arguments a blend of thoughtful ideas and emotional appeal.

The idea of abolishing a body committed to the protection of human rights seems absurd to most, but I must admit that I found the arguments compelling. On the way home my wife and I compared what we had heard with our Torah based values and education. To explain our musings I must first share some of the more memorable remarks of the evening.

The panel consisted of three presenters. Mrs. Kathy Shaidle, the controversial blogger behind the blog Five Feet of Fury. Mr. Ezra Lavant, who was notably hauled before the Human Rights Commission for publishing the now famous Danish Cartoons offensive to Islamic sensibilities, and subsequently exonerated. Salim Mansur, a published and well respected professor of Political Science at the University of Western Ontario.

Kathy Shaidle

Mrs. Shaidle argued that protection of human rights has become a platform for political correctness. “You can have diversity or tolerance,’ she stated,’ but you can’t have both. Protection of human rights requires that the liberty of some be curbed for the benefit of others and under these conditions a clash of conflicting rights is as assured as it is inevitable. The choice of whose rights we protect is usually rooted in political correctness; a sentiment that serves the most vociferous or populous of ethnic minorities.legislating moral conduct - innerstream At the moment, for example, the Canadian Gay Community outnumbers the Canadian Muslim community, a reality that will eventually change for obvious reasons. Whose rights will the guardians of political correctness protect when that eventuality occurs,” she challenged.

She is right, I later reflected. Yet the Torah also mandates the protection of the innocent and that we provide for the poor. How does the Torah resolve this glaring problem?

Actually, I reflected, the Torah does not protect rights as much as it mandates obligations. It does not entitle the poor to my charity. Quite the reverse, it requires me to look after the poor. Obligations denote sacrifice, which requires me to part with money that is ostensibly mine by rights. Yet the Torah entitles neither me nor the recipient. The money belongs to charity and is allocated accordingly.

This entirely different paradigm completely avoids the confluence of rights problem and its resultant clash of entitlements. From the Torah’s perspective there are no rights to protect. There are merely obligations.

Ezra Lavant

Mr. Lavant talked about the ridiculous notion of legislating thoughts and feelings. Human rights Commissions prosecute those who say or do things that might cause others to experience hatred.

Free societies enact laws against physical violence and monetary damages, but not against ill will or incitement of ill will,” argued Mr. Lavant. Feelings are an integral part of the human experience and no legal authority can deem a feeling illegal. Destructive and inappropriate as anger and contempt might be they can be neither mandated nor outlawed. If we could do that, quipped Mr. Lavant, we would long have passed the Love thy Brother as thyself act.

On our way home my wife reflected that the Torah does just that. It legislates precisely the feeling that Mr. Lavant cited, “Love Thy Neighbor As Thou Love thyself.” It is not just a moral teaching; it is a commandment mandated by religious law as absolutely as the courts mandate secular law. How does the Torah get away with outlawing or mandating feelings? Why is it immune to Mr. Lavant’s charge?

The answer lies in a comment made by Mr. Mansur.

Salim Mansur

The most memorable quote of the evening belonged to Professor Salim Mansur. He first explained that Human Rights Commissions were established to protect the weak and innocent from abuse. He then proceeded to articulate the flaw in this reasoning. “The founders of these commissions,’ he proclaimed,’ neglected the teachings of Aristotle, Plato and Einstein that the human condition is inherently imperfect. All decisions made by the human are perforce also imperfect. The only solution to this imperfection is a democratic system of checks and balances. Mandating perfection is simply beyond the realm of human achievement.”

My wife and I agreed that this argument touched on the core of the problem and explained why the commissions on human rights have so frequently abused their power while the Torah has remained pristine for thousands of years.

In free societies we are free to express our opinions even if they are offensive or injurious to another’s feelings. Bigots and the fair-minded are accorded equal voice so long as their words do not injure or incite injury to another’s person or property. It is true that such freedom allows bullies and bigots to prey on the weak, but in a free society such abuse is inevitable; it is the product of human imperfection.  What is the solution?

The founders of Human Rights Commissions thought they could enforce a solution from the top down. They established standards of proper etiquette and proceeded to prosecute discriminators and abusers. On the face of it this seemed a credible solution. The problem, as Mansur presented, is that they failed to take into account Lord Acton’s warning that power corrupts and absolute power corrupts absolutely. The result was that those appointed to guard against discrimination abused their power and began to discriminate. Ironically the combat against imperfection resulted in even greater imperfection.

Laws are as imperfect as those who legislate them and as grossly misapplied as those who enforce them. It is not practical to empower imperfect humans with the legal authority to enforce moral standards. That is a situation ripe for abuse and cannot work. The only workable solution is a democratic system of checks and balances. Imperfect as democracy is, it is the best we humans have.

The Torah

On the other hand, a Torah society is not democratic and free; it is a theocracy. Its laws are absolutely binding on its adherents. Its authority to mandate and to legislate, to obligate and to require is truly above the law. Such power in the hands of human beings can only corrupt. The Torah has remained pristine because it derives its authority from the Creator; a supreme moral being.

Human beings can only achieve approximate perfection through freedom of expression and a system of checks and balances. The Torah, because it speaks for G-d, articulates the values that are absolutely correct. G-d, the perfect Creator of humankind, can discern constructive emotions from destructive ones. He knows which feelings derive from our imperfections and which feelings combat those imperfections. G-d and only G-d can legislate feelings.

The Torah doesn’t attempt to solve human imperfection from the top down, but from the inside out. G-d does not instruct us to tell others how to think, He empowers us to tell ourselves how to think and because He empowers us all, we are all able to reach for perfection.

Humans, who can barely govern their own feelings, cannot be entrusted with governing the feelings of others.We can barely be entrusted with the governance of our own feelings, yet that is precisely what G-d expects of us.

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One Comment »

  • Anonymous says:

    I agree with the good rabbi completely.
    Obligation is that which flows from inside out, it is anchored in one's private conscience, it is the embrace of the other as one would seek the other's embrace. It cannot be legislated, then it is coercive and nullifies the sanctity of the private conscience. The private conscience for the believers in a Supreme Diety, the God of Abraham, is the protected space where God-man dialogue takes place. When this space is breeched by man's fallen or imperfect instinct to control another man on the basis that he knows better, then by such invasion into the private domain of human existence the space reserved for God-man dialogue is wrecked. The struggle for the preservation of this space is the essential fight for freedom, all other aspect of freedom flows from the protection of this space as sacred (whether by religious arguments or by secular arguments). Wreck this space and you have wrecked freedom. Slavery exists because this space has been obliterated. Abolishing slavery is restoring this space for an individual to once again have meaning in living.
    In various ways this space is symbolized in all religions, and with specific reference to the space symbolically in the Abrahamic faith. In the Qur'an it is stated in various verses that there is no belief where faith has not entered the hearts of men. In other words, if there is no change in the heart of man then such men are irrespective of outer demonstrations of faith people without belief. So in Islam, the private conscience is located in the human heart, and it is said by the Prophet and others the ritualistic aspect of faith is to clean the heart of its rust and make it into a mirror where God's light will shine meaning precisely that only then will there be the God-man dialogue.
    Furthermore, obligation as carried forth by private conscience and performed in private as part of the God-man dialogue is the duty in Islam to give to charity. This duty is between man and God, and cannot be coercively mandated by man on another man, for then the meaning of charity changes into taxation of some sort or the other. This is what happened as the first generation of Muslim ventured forth transforming private faith, Islam, into state and empire. Then inevitably corruption followed, and the rest is history. This is also the paradox of freedom of which I spoke about. The same history is repeated earlier in the case of Christians and Christianity, and even earlier by Jews and the Jewish kingdoms. When man turns from God-man dialogue into man-man dialogue man inevitably gets snared by the inescapable reality of the freedom paradox. There is no escape from this except awareness which hopefully brings humility, and then caution of how not to proceed deeper into that snare.

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