Pinehas

The Right to Remain Silent

July 15, 2022

I found a story to illustrate the relationship between Jewish law and American society:

According to the American Lung Association, about 1 in 8 smokers die from lung
disease. The question arose, is smoking equivalent to suicide, and therefore a violation of
Jewish law? The question was posed to representatives of each of the major movements
of American Judaism: Reform, Conservative and Orthodox.

The Reform rabbis considered the question and concluded... Yes, smoking is equivalent
to suicide, and is a violation of Jewish law. From now on, all Reform Jews will have to
make an informed choice about whether or not to smoke.

The Conservative rabbis considered the question and concluded:

Yes, smoking is equivalent to suicide, and is a violation of Jewish law. From now on, all
Conservative rabbis will stop smoking. Members of their congregations will do whatever
they wish.

The Orthodox rabbis considered the question and concluded:

Yes, smoking is equivalent to suicide, and is a violation of Jewish law. From now on, all
Orthodox Jews who want to smoke will have to sell their lungs to a gentile.

As I began reading this week’s Torah portion I recognized that the story is one that is considered
to be a significant precedent in Jewish law. So many of the laws of the Torah seem to be tedious
and, frankly, sometimes boring. Yet this week is the story of the daughters of Zelophehad, a man
who died with no male heirs but had four daughters. Until this event Torah law dictated that
property pass exclusively to male children so that the family’s land would be recognized as
remaining in the family.

Yet Zelophehad died with no sons. In order to preserve the family estate—normally what would
happen would be that the property would transfer to the closest male heir – a brother or nephew
for example. So Zelophehad’s four daughters became, perhaps, the first suffragists.

As the land was apportioned out the daughters came before Moses and declared [Numbers 27]:

“Our father died in the wilderness and has left no sons. Let not our father’s name be lost
to his clan just because he had no son! Give us a holding among our father’s kinsmen!”

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Moses brought the matter before God and God affirmed that the case of Zelophehad’s daughters
was just and that they should be given their father’s inheritance.

This set a precedent in Torah and Jewish law allowing for daughters to inherit from their father.

As I first read through this passage this week, I thought that there was a story here, yet how
could I make it relevant and interesting for contemporary American Jews? When most of us
think of Jewish law, known in Hebrew as halakhah, we think of it existing in a vacuum.

We often think of Jewish law as separate from the rest of the world, a system of not driving on
Shabbat, making sure that dishes are kept separate, how high the walls of a sukkah should be or
perhaps in civil cases of what happens when an ox gores a cow. For many of us, none of this
seems particularly important.

But in the case I quoted from the Torah, about the daughters – the law is not an irrelevant point.
It was an important step in the development of women’s rights. Maybe the Torah’s law seems
antiquated by today’s standards, but we have to remember that in the ancient world women had
very few rights at all, and this assertion by the Torah was an important development in the quest
to grant greater legal enfranchisement to women. It was not until 1920 that the right of women to
vote was guaranteed by the US constitution, and yet the Torah began that endeavor more than
3,000 years ago.

And this brings me the Fifth Amendment. The Fifth Amendment itself was enacted as law at the
time of the implementation of the US Constitution back in1789. From my earlier study of Jewish
law I was aware of an analogy in Talmud to the Fifth Amendment.

As I was researching the Jewish law regarding self-incrimination I learned that in American law
the direct development of this legal concept came from the abolition in England of the Star
Chamber, the English Court of Law that was located at the Palace of Westminster, held in secret,
with no indictments, no juries, and no appeals. The eradication of this secret legal chamber led to
the concept in British law that it was against the law of God and nature to compel someone to
testify against himself, or, of course, herself.

And I knew of Jewish tradition’s view on self-incrimination. Yet, as I was researching the
history of protections against self-incrimination, I was surprised to find a footnote in the famous
Miranda ruling written by US Supreme Court Chief Justice Warren. This is one of the most
famous cases in the history of American criminal law, written in 1966. The phrase you always
hear on TV…

—and I HOPE you only hear it on TV—

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when the police arrest the criminal and declare, “you have the right to remain silent,” – that
statement, the declaration of an accused’s “Miranda rights,” came about because of this Supreme
Court Case [Miranda v. Arizona, June 13, 1966].

In the decision, Chief Justice Warren, stated the following:

We sometimes forget how long it has taken to establish the privilege against self-
incrimination, the sources from which it came, and the fervor with which it was
defended. Its roots go back into ancient times.

PAUSE

“Its roots go back to ancient times.”

Which ancient times are those?

In a reference to those “ancient times” Chief Justice Warren explained in a footnote within that
official Supreme Court decision as:

Thirteenth century commentators found an analogue to the privilege grounded in the

Bible. “To sum up the matter, the principle that no man is to be declared guilty on his
own admission is a divine decree.” Source? TA DA… Maimonides, Mishneh Torah
(Code of Jewish Law), Book of Judges, Laws of the Sanhedrin, c. 18, 116, III Yale
Judaica Series 52-53. See also Lamm, The Fifth Amendment and Its Equivalent in the
Halakhah, 5 Judaism 53 (Winter 1956).

Right here Chief Justice Warren cites Jewish law as an origin of the protection from self-
incrimination! Jewish Law quoted by a US Supreme Court Chief Justice in a landmark decision
that has affected American criminal law throughout society.

In fact, that protection from self-incrimination quoted by Maimonides is even older than the
thirteenth century. Maybe Chief Justice Warren needed to research Jewish law a little further.

In the Talmud itself, the third century jurist “Rava” stated

“a man is his own relative and therefore is not able to incriminate himself.”

There you have it – the Fifth Amendment spoken from the mouth of a third century Talmudic
rabbi. According to Jewish law it is not that a defendant MAY not incriminate himself – he
CAN not. If a person gives testimony indicating his own guilt the court MUST ignore that
testimony. And it only applies to the witness. If a defendant gives testimony admitting to his own
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guilt and that of another person, the court accepts the testimony from the witness against the
other defendant but cannot prosecute the witness based on his own testimony admitting guilt.

In other words, a defendant has built in immunity. In the Talmud there is no need for the Fifth
Amendment. Oliver North would never have had to remain silent if Iran-Contra had been
investigate by a Beit Din—a rabbinical court—because he could have testified against others
even when that testimony would have incriminated himself. Because Jewish courts are not
allowed to incriminate a defendant from his own testimony.

I was really how astounded see this Jewish Talmudic principle quoted in American Law, albeit in
a footnote in a decision written by an American Chief Justice.

As modern Jews we think of Jewish law as mostly irrelevant. But perhaps more significantly, we
think that Jewish tradition exists in a vacuum separate from the rest of the world, having a sense
that Talmudic and Rabbinic Judaism was so separate from the rest of society that it was neither
influenced by non-Jewish culture nor had any influence upon world philosophy.

Not only do WE think much of Jewish law is irrelevant. We think that the rest of the world sees
Jewish law as irrelevant.

And this is simply not true.

Few of us could have imagined Jewish law being quoted in a major Supreme Court decision
written by a Chief Justice.

And here we see a primary principle of American law, a principle that had its root in English law
and codified as the fundamental law of the land by the US Constitution – and indeed Jewish law
not only developed this idea more than a thousand years before it entered Western legal
philosophy, it was even quoted by the Chief Justice of the US Supreme Court in one of the most
important rulings in the history of American law.

From Zelophehad’s daughters to American women’s Suffrage, from the Talmudist Rava to Chief
Justice Warren – Jewish philosophy has had important contributions to the development of world
society, and those positive contributions have been far reaching and long lasting as we, the
Jewish people, recognize that we have assumed our proper role in history.

Copyright © 2022 Rabbi Jeffrey Kurtz-Lendner