Influence of Jewish Law in Some American Constitutional Amendments

By Roberto Aron

ROBERTO ARON is listed in Whos Who In American Law as Author, Teacher and Writer:. He received his LL.B. degree from the University of Chiles Faculty of Law. He began his career as a trial attorney in Chile where he practiced law and taught a course in Forensic Oratory.

In 1957 he moved to Israel and became a member of that countrys Bar. Mr. Aron has three Master of Law degrees from New York University in International Legal Studies, in Corporate and Commercial Law and from NYUs Skirball Department a Master of Arts Degree (Talmudic Law). He has participated in two National Institute for Trial Advocacy (NITA) workshops held at Harvard Law School and in the Oxford Trial Advocacy Program, held at Oxford University Law School in England.

For fourteen years Mr. Aron has been the chair of Trial Advocacy at the Law School of Tel Aviv University. He has also been a guest teacher at New York Universitys School of Law in courses directed by Professor Chester L. Mirsky and Anthony G. Amsterdam.

In 1975 Mr. Aron was designated by the Israeli Government as adviser to the Israeli Mission to the United Nations and moved to New York where he began his work as a writer, co-authoring four books for Shepards/McGraw- Hill and West Group entitled: How to Prepare Witnesses for Trial, Cross Examination Skills- the Litigator Puzzle, Impeachment of Witnesses and Trial Communications Skills.

• Language: English
• Publisher: AuthorHouse
• Release date: Jul 16, 2012
• ISBN: 9781463433406

Roberto Aron

ROBERTO ARON is listed in Who’s Who In American Law as “Author, Teacher and Writer:”. He received his LL.B. degree from the University of Chile’s Faculty of Law. He began his career as a trial attorney in Chile where he practiced law and taught a course in Forensic Oratory.   In 1957 he moved to Israel and became a member of that country’s Bar. Mr. Aron has three Master of Law degrees from New York University in International Legal Studies, in Corporate and Commercial Law and from NYU’s Skirball Department a Master of Arts Degree (Talmudic Law). He has participated in two National Institute for Trial Advocacy (NITA) workshops held at Harvard Law School and in the Oxford Trial Advocacy Program, held at Oxford University Law School in England.   For fourteen years Mr. Aron has been the chair of Trial Advocacy at the Law School of Tel Aviv University. He has also been a guest teacher at New York University’s School of Law in courses directed by Professor Chester L. Mirsky and Anthony G. Amsterdam.   In 1975 Mr. Aron was designated by the Israeli Government as adviser to the Israeli Mission to the United Nations and moved to New York where he began his work as a writer, co-authoring four books for Shepard’s/McGraw- Hill and West Group entitled: “How to Prepare Witnesses for Trial,” “Cross Examination Skills- the Litigator Puzzle”, “Impeachment of Witnesses” and “Trial Communications Skills.”

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© 2012 Roberto Aron. All rights reserved.

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Published by AuthorHouse 10/02/2012

ISBN: 978-1-4389-6457-7 (sc)

ISBN: 978-1-4389-6458-4 (hc)

ISBN: 978-1-4634-3340-6 (e)

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Contents

Dedication

Words Of Oscar S. Straus

Foreword: Pynchas Brener

Foreword: Professor Jacob Zighelboim

Introduction

Chapter One: Influences Of Other Systems Of Law On Jewish Law And Vice Versa

S.1.01—The Code Of Hammurabi

S. 1.02—The Influence Of Jewish Law On The Development Of Jurisprudence In The Christian Orient

S. 1.03—Greek Influence On Jewish Law

S. 1.04—Comparison Of Roman And Jewish Law

S. 1.05—Resemblances Between Jewish And English Law

Chapter Two: Two Settings Of Laws: The Jewish Setting, A Religious One; The American Setting, A People’s Law.

S. 2.01—The Bible And The American Constitution

S. 2.02—Structure Of The Hebrew Bible

S. 2.03—Structure Of The American Constitution

S. 2.04—The Powers Of The Presidency

S. 2.05—The Extent Of Democracy In The Constitution

S. 2.06—Government As The Servant Of The People

S. 2.07—Checks And Balances Provided By The Constitution

S. 2.08—The Bible, A Religious Law; The American Constitution, A People’s Law.

Chapter Three: The Jewish Setting

S. 3.01—Is It Possible To Amend The Bible ?

S. 3.02—The Story Of Achnai’s Oven

S. 3.03—The Interpreters And Amenders Of The Bible

S. 3.04—The Halakhah

S. 3.05—Takkanot And Gezerot

S. 3.06—Personal Judgment

S. 3.07—What Part Of Jewish Law Can Be Considered Constitutional Law?

Chapter Four: The American Setting

S. 4.01—The Spirit And Meaning Of The Declaration Of Independence, The Constitution And The Bill Of Rights

S. 4.02—The Declaration Of Independence.

S. 4.03—The American Constitution

S. 4.04—The Legal System Of The New Republic

S. 4.05—The Bill Of Rights

S. 4.06—History And Development Of The First Amendment

S. 4.07—Freedom

S. 4.08—Religion.

S. 4.09—Freedom Of Religion

S. 4.10—Freedom Of Speech

S. 4.11—Freedom Of The Press

S. 4.12—Other Freedoms Included Implicitly In The First Amendment

S. 4.13—History And Development Of The Fourth Amendment

S. 4.14—History And Development Of The Fifth Amendment

S. 4.15—Double Jeopardy.

S. 4.16—Compelled To Be A Witness Against Himself

S. 4.17—The Due Process Of Law Protection

S. 4.18—Eminent Domain.

Chapter Five: Concepts That Could Help To Determine What Kind Of Influence Or Relation Exists Between Jewish Law And Some American Constitutional Amendments.

S. 5.01—The Concepts Of Analogy, Coincidence, Influence, And Other Expressions.

Chapter Six: Incidence Of The Jewish Setting In The American Setting

S. 6.01—The First Amendment And The Jewish Law

S. 6.02—Freedom Of Speech

   A. Injunction Not To Curse The Rulers Of The People

   B. Prohibition Against Speech Promoting Idolatry

   C. Not To Invoke The Name Of God In Vain

   D. Prohibitions Against Swearing Falsely And Committing Perjury

   E. Injunction Not To Curse The Deaf.

   F. The Prohibition Of Slander

S. 6.03—Freedom Of Religion

S. 6.04—Other Freedoms Regarding The First Amendment

S. 6.05—The Fourth Amendment And The Jewish Law

   A. Damage Of Sight.

   B. Eavesdropping.

   C. Violation Of A Person’s Mail.

S. 6.06—The Fifth Amendment And The Jewish Law

S. 6.07—The Right Against Double Jeopardy

S. 6.08—The Right Against Self-Incrimination

   A. Jewish Sources.

   B. English Sources.

   C. American Sources.

S. 6.09—The Right To Due Process

Chapter Seven: Principles Of Jewish Law Which Resemble Or Which Could Have Influenced Some Of The American Constitutional Amendments.

Introduction.

S. 7.01—Recapitulation

S. 7.02—Why Did We Write Chapter Eight?

Chapter Eight: Conclusions

S. 8.01—The Opinion Of Other Authors

S. 8.02—The Principle Of Freedom And The Jewish People

S. 8.03—Analysis Of The Principle Of Similar Circumstances

S. 8.04—Analysis Of The Elements Of Analogy

S. 8.05—Analysis Of The Elements Of Coincidence

S. 8.06—The Smoking Gun

S. 8.07—Analysis Of The The Body Of Liberties Of 1641.

S. 8.08—A Question Without Answer

S. 8.09—One Basic Conception (From The Jewish Law) Reproduced Into Two Different Legal Texts (The Body Of Liberties And The Bill Of Rights).

S. 8.10—Epilogue

Triptych One: Freedom of Religion

Triptych Two: Freedom of Speech

Triptych Three: Freedom of Assembly, the Right to Privacy and the Right against Double Jeopardy

Triptych Four: The Right Against Self-Incrimination and the Right to Due Process

Notes

Bibliography

Appendix

Addendum (The Body of Liberties of 1641—original text)

Dedication

I DEDICATE THIS BOOK TO MY TEACHERS—

PROFESSORS LAWRENCE H. SHIFFMAN, ROBERT CHAZAN, AARON KIRSCHENBAUM AND MENAHEM ELON FROM THE SKIRBALL DEPARTMENT OF HEBREW AND JUDAIC STUDIES AT NEW YORK UNIVERSITY, AND TO PROFESSOR MICHAEL CHERNIK, FROM THE HEBREW UNION COLLEGE, WHO WISELY ASSISTED ME TO DISCOVER THE EXTRAORDINARY ROOTS OF JUDAISM.

ALSO, MY SPECIAL THANKS TO MR. ERIC STOTTER FOR HIS WONDERFUL WORK IN EDITING THIS BOOK.

ROBERTO ARON

THROUGH THE WINDOWS OF THE PURITAN CHURCHES OF NEW ENGLAND THE NEW WEST LOOKED BACK TO THE OLD EAST.

(Preface to The Origin of Republican Form of Government in the United States of America by Oscar S. Straus).

Words of Oscar S. Straus

Foreword—BY PYNCHAS BRENER,

CHIEF RABBI OF THE UNION ISRAELITA CARACAS-VENEZUELA.

Roberto Aron, a respected Zionist leader in Latin America and Israel, shows erudition and investigative prowess in his use of the basic texts of the Jewish tradition. An expert in international law, a lawyer by profession, with great acumen Aron shows the relationship between American law and the Jewish legislation, with emphasis on the constitutional amendments that govern many aspects of modern life in America.

For the erudite, it will be an important source, while it will introduce the layman to some of the fundamental concepts of Jewish law, as found in the Bible, Talmud and the Rabbinic literature that ensued.

Aron’s work gives testimony to a fruitful and productive intellectual and professional life that spans more than nine decades.

Pynchas Brener

Chief Rabbi

Union Israelita de Caracas

Foreword—BY PROFESSOR JACOB ZIGHELBOIM,

CHAIRMAN OF THE BOARD THE ACADEMY OF JEWISH RELIGION CALIFORNIA.

"Mr Aron, a devoted student of Jewish Judicial traditions, as well as an accomplished author, Zionist leader, and lawyer specialized in International Law, has written an outstanding book about the influence Jewish Law has had on several Constitutional Amendments of transcendent import.

The book weaves elegantly the striking compatibilities between a Jewish Law that emerged a few thousand years ago, during the birth of the Jewish nation, and the inspiring amendments introduced by our foundational fathers into the American Constitution at the end of the 18th century.

The book is an exciting and informative read for people intrigued by the historical sources that inspired the emergence of our Bill of Rights, as well as for anyone interested in Jewish legal traditions and their influence in Western thought and jurisprudence. Mr. Aron’s work is novel, erudite, and I highly recommend it.

Professor Jacob Zighelboim

Introduction

1. Relationship Between Ancient Israel and the United States.

The Jewish presence in the New World predates the founding of America.

In 1654, a group of Sephardic Jews fleeing Portuguese persecution in Brazil, landed in New Amsterdam (later New York). But this was not an organized immigration. (Please, see Note 1)

The mass immigration of Jews into the United States began in 1881 and lasted until the First World War, bringing the Jewish population to about 1.974 million by 1914.

As mentioned by Jerold S. Auerbach, in the middle of the nineteenth century, the first German Jews arrived in the United States and their priority was to reconcile Jewish principles and law with those of America. "As they redefined Jewish legitimacy in American legal terms, they fused Torah and Constitution as the sacred texts of a Judeo-American legal tradition, which pointed to the biblical origins of the American rule of law." (emphasis added)¹

I will not discuss here the fascinating history of Jewish American leaders in their intellectual struggle to avoid conflict between Jewish and American values. But, I must at least mention some of the champions of Jewish rights in America: Solomon Schechter, Isaac Mayer Wise, Mordehai Kaplan, Rabbi Stephen Wise, Louis D. Brandeis, Benjamin N. Cardozo, Louis Marshall, David Dubinsky, Hannah G. Solomon, Samuel Gompers, Felix Frankfurter, and others.

Studying the history of Jews in America, we find interesting pearls that are worth mentioning; for example: By 1920 the recently expanded Washington Square campus of New York University was 93 percent Jewish, a higher proportion than in the tuition-free institutes of City College of New York or Hunter College whose estimated Jewish enrollment varied from 80 to 90 percent. That same year Columbia’s Jewish enrollment reached 40 percent, which it whittled down to 22 percent in two years²

There are many books describing how the early English Puritans of the seventeenth century had the sense that they were fulfilling a biblical destiny in the American Canaan.

One of these descriptions is found in Max I. Dimont’s book Jews, God and History: The Puritans regarded themselves as the spiritual heirs of the Old Testament, looking upon the New Testament only as the story of Christ. It was in the Old Testament they looked for God, which was one reason that in England the Puritans were viewed as Jewish fellow travelers. The Puritans compared their flight to America to the flight of the Jews out of Egypt, and they thought of the Massachusetts Bay Colony as the New Jerusalem. When Harvard was founded, Hebrew was taught along with Latin and Greek. In fact there was even a proposal that Hebrew be made the official language of the Colonies, and John Cotton once wanted to adopt the Mosaic Code as the basis for the laws of Massachusetts. Out of this Puritan spirit came many embodiments of the Mosaic Code in the American Constitution.³

Another author, Jerold S. Auerbach, also describes with precise words and examples the link between the Puritans and the Old Testament, mentioning that their trip to America could not be explained without reference to their devotion and belief in the Jewish Bible. (Please, see Note 2).

Studying the Puritans’ works and sermons, we cannot but remember the Zionist’s mottos about the Holy Land, The return to Zion, The Promised Land. The big difference is that the Zionists were thinking about the real Promised Land and the Puritans were using the phrase as a metaphor.

On one of the front pages of this book it is stated that Through the windows of the Puritan churches of New England, the new West looked back to the old East Rephrasing this idea and remembering the Zionist feelings of many American Jews, I might say Through the windows of the synagogues in America, the Jews also looked back to the East and prayed… if I forget you O Jerusalem, let my right hand wither.

Jewish Biblical influence in America was not the result of Jewish proselytism but rather of the Puritans’ belief in the Old Testament, laws and precepts for conduct.

Upon studying the incorporation of the Jewish people into America, one can ask: Was this incorporation a total assimilation or only an acculturation?

We know that assimilation is the absorption of a minority group by a more dominant group and that acculturation is the process of becoming adapted to a new or different culture.

We don’t think that the Jews of America have been assimilated to American habits and lifestyles. For example, Jewish tradition is respected in most Jewish homes; Jews have their synagogues (whether or not they practice their religion is another question); they maintain separate schools, institutions and clubs and normally they marry other Jews.

It was more a very special acculturation. We say special because the American character, culture and uniqueness was also in the process of formation as the Jews arrived in America. The Jews arrived mostly from European countries such as Germany, Russia, Poland, Romania and other countries with a cultural level at least as high as that in America.

What the Jews found in America was a new world of opportunities. (Please see Note 3).

The first years of the Jews in America were a time of perplexity. Certainly, it took time to forget the darkness and limitations of the ghettos and to get accustomed to the light of American freedom.

A new nation was born, America, and in its’ first steps it received all or just part of its’ nourishment (cultural, moral and social) from the old Jewish people. No doubt this influence molded the character of the American people and as Peter Grose wrote: the Judaic heritage flowed through the minds of America’s early settlers and helped to shape the new American Republic.

2. The words of Two Presidents of American Universities and two American Presidents on the Bible and the American Constitution.

Two presidents of American universities, Ezra Stiles, of Yale, and Samuel Langden, of Harvard, emphasized the strong link, not only between the people of Israel and the American people, but also between the Old Testament and the American Constitution. (Please, see Note 4)

And, as mentioned by Auerbach President Washington, responding to inaugural greetings from the Hebrew Congregation of Savannah expressed his conviction that the same God who had delivered the Israelites from their Egyptian oppressors and led them to their promised land had once again conspicuously demonstrated His providential agency… in establishing these United States as an independent nation. Jefferson, in his second inaugural address, reiterated the parallel, requesting the favor of that divine Being ‘who led our fathers, as Israel of old’, to the promised land. July 4th became known as the political Sabbath of freedom, its celebration resembling at least superficially, the covenant renewal ceremonies of ancient Israel."⁴

Let me end this introduction with some words written by Oscar S. Straus, which—in our opinion—summarize the whole idea that I wish to convey in this section: The Hebrew and American peoples, although separated by two millennia, were united in their commitments to constitutionalism, democracy, and republicanism. In the spirit and essence of our Constitution the influence of the Hebrew Commonwealth was paramount, in that it was not only the highest authority for the principle: rebellion to Tyrants is obedience to God, but also because it was in itself a divine precedent of a pure democracy as distinguished from monarchy, aristocracy, or any other form of government. By that means and to that extent it had a decisive influence in guiding the American people in the selection of their form of government.⁵

Chapter One:

Influences of Other Systems of Law on Jewish Law and Vice Versa

The Jewish people arrived on the world scene after many civilizations rose and fell into the dust of history (Susa and Kish; Pre-Dynastic period of Egypt; Sumeria; First Dynasty in Egypt; Sargon [unites Sumeria and Ak-kadia]; Babylonia). After arriving, and until the Jews began to organize themselves as a people, and even afterwards, they were treated by the Egyptians, Babylonians, Persians, Greeks and Romans like adopted children or worse.

It is clear that during this approximately 2500 years of Jewish existence in history, other people built civilizations and cities, developed their culture, customs and laws, went to war and knew the taste of triumph and disaster.

From our point of view the relevant question is: What was the influence of the laws of these people on the establishment of the new Jewish Law?

It is true that the purpose of this book is to show the influence or similarity of Jewish Law on certain American Constitutional Amendments; but, trying to answer the foregoing question could be of help, in the sense that it could show how the laws of one country or civilization can influence the laws of another country or people. It could also help to prove how a given legal system, copied, modified, interpreted or transferred from one country to another, develops and changes until converting into a more modern system of legislation.

After mentioning, in general, the possibility that the laws of one country or civilization can influence the laws of another country, it is necessary to go a step further and, in our work about the analogy or influence of Jewish Law in the American Constitutional Amendments, to ask : Is this a sheer coincidence ? Or is it a tendency? Is the influence and analogy of Jewish Law in some Constitutional Amendments the exclusive result of the Puritans’ belief in the Old Testament or can we find the same or similar influence of Jewish Law in the legal systems of other countries or civilizations?

In anticipation of what I will develop in the following section I want to mention what Edward Zipperstein wrote : The law systems of the world have been classified and compared, with results confirming the ancient claims for supremacy of Mosaic Laws. The legislation of Moses can be compared with the Roman laws of XII tables, the Greek Code and the Hammurabi code.⁶

I will begin my analysis and commentary by referring to the oldest known code in legal history.

S.1.01—The Code of Hammurabi

This code, engraved on a large stele, was discovered in 1902. The Sumerians were probably the first people on earth to have a written legal code. Later the Sumerian code was augmented and incorporated into the Code of Hammurabi.

Of course, the following material will not help me to prove the influence or analogy of Jewish Law in other legal systems. It can’t for the simple reason that the Code of Hammurabi was written some 400 years before the Mosaic code. Hammurabi is identified with Amraphel, King of Shinar (Genesis 14:1), an advanced and outstanding king of Babylon who united all the city-states of North and South Babylonia into a single mighty unified