These are the laws that you shall set before them. (Exodus 21:1)
One of the main requirements for judges, as for rabbis and for all of us, is common sense. Law can be manipulated and justice can be perverted. The integrity of any system of justice lies in the wisdom and good common sense of those who rule and administer it. Hitler’s Germany, Stalin’s Russia, Khomeni’s Iran, are all examples of systems where the courts and their judges were the agents of evil. But that is not the subject of this article. Rather, I write about judges and their judgments that defy any rational common sense. And there is unfortunately a recent trend in the Western world for these types of judgments and decisions.
An example of this type of legal irrationality is the decision by France’s highest court of Appeal, the Cour de Cessation. It ruled that disabled children are entitled to be compensated if their mothers were not given the chance to abort the defective fetus. Lance Morrow, writing in Time Magazine’s opinion column (July 16, 2001) stated:
The metaphysics is breathtaking. A child stands in court, and demands the legal right never to have existed. The judges on the bench nod gravely. Except that it is not the ‘deformed’ child that stands in court. It is parents and lawyers, collaborating in odious work.
The abandonment of common sense is not an exclusively French problem. But it is disturbing to find the French courts affirming Nazi principles of eugenics. The decision savors of Vichy. The court’s logic – which is the true deformity – would encourage wholesale prenatal slaughter. It stigmatizes the handicapped and states, as a principle of law, that they should never have been born. Such children are an error that would, in the utopia toward which the idealism of the law aspires, be eliminated, pre-emptively.
Under the menace of this decision, French doctors, whenever the slightest shadow turns up on the sonogram, will advise: Abort. Perfect children are mandated by law. Parents will be considered irresponsible if they bring forth a specimen less than perfect….
The idea of perfectibility by abortion is an odious meme that should have vanished with Dr. Mengele. But instead it has survived and prospered. Instead of being tried as a war criminal, the idea ends up being validated by a French court….
The problem with such nonsensical judicial decisions, is that they undermine the basic trust that society must have in a judicial system in order for that system to be effective. Court conclusions that fly in the face of common sense destroy public confidence and respect. Without such public confidence in the fairness and good sense of the courts and in the absence of public trust in the wisdom of the court’s decision, the entire base upon which a just society is built is destroyed.
There is an old rabbinic joke about common sense and rabbinical/judicial decisions. It seems a man came to a strange town late Friday afternoon and had no place to stay for the Sabbath. He went to the synagogue, where he was graciously greeted by a fellow Jew who offered him hospitality – lodgings and meals – over the Sabbath. The host entertained his guest royally over the Sabbath and when the guest was about to depart and was showering blessings upon his host for the hospitality extended to him, the man presented him with a bill for payment for the room he slept in and the meals he ate. Aghast, the guest appealed to the local rabbi to straighten out the matter. The rabbi contemplated the issues in the matter, researched the tomes of Jewish law and then most solemnly stated that according to his interpretation of relevant Jewish law the guest was required to pay the bill. Crestfallen, the stranger began to take money out of his wallet to pay the host, when that man stated that he would never take money for hosting a Jew for Sabbath in his home.
“Then, what was all of this with the bill and the rabbi all about?”
The host looked at the perplexed stranger and said, “I just wanted you to know what kind of rabbi we have in this community!”
Common sense is really the basis of all human based justice and laws. Without such common sense we are likely to find fulfilled before our eyes the dire words of King Solomon, “The place of justice has become the place of evil.” Some of the excesses of courts and their judges worldwide indicate how perilously close we are to Solomon’s comment being actualized.
