My favorite story in all of Judaism isn’t in the Torah. It’s in the Talmud, where it’s written that rabbis were arguing over whether a certain oven was ritually impure or not; one rabbi said it was, and others said it was not.
The rabbi who said it was said, “If I’m right, this tree will prove it!” and the tree to which he pointed uprooted itself. But the other rabbis said, “An uprooted tree isn’t an argument; do better than that.”
So the first rabbi pointed to a stream and said, “If I’m right, this stream will prove it!” And the stream began flowing backwards, but the other rabbis shrugged and said, “A stream isn’t an argument, either; do better.”
And finally the first rabbi pointed to the walls of the study where they were arguing, and said, “If I’m right, and Heaven agrees with me, the walls of the study will prove it!” And the ground shook, and dust fell from the roof, and walls of the study leaned, and tilted, and began to fall in on the rabbis, and the sky opened into light, and an angel appeared and cried, “Why must you argue with him, even as the study is about to bury you alive, since the whole world shows that Heaven is in accordance with his opinion!”
Upon which one of the disagreeing rabbis leapt to his feet and said, “How dare you!”
The walls stilled; the ground ceased to shake. And the disagreeing rabbi said, “The law is not in Heaven; the law was given to us, on Earth, at Mount Sinai. God wasn’t invited to this argument. God doesn’t own the Torah – humans do; and if the walls cave in on us, that won’t prove a thing. Walls aren’t an argument. Make a real argument, with reason and logic, with the law. Do better.”
And the walls stood upright again, and the stream began to flow in its natural path, and the tree rooted itself back into the ground. And the rabbis continued to argue; and the first rabbi, who had called the tree and stream and walls to move, was found to be incorrect, since the majority of the rabbis disagreed with him.
Just yesterday, the U.S. 9th Circuit Court of Appeals upheld the stay on Donald Trump’s (ale tsores vos ikh hob oyf mayn hartsn, zoln oysgeyn tsu zayn kop) travel ban. I was thinking about this story even before this, though; I was thinking about this story on Tuesday night, while I listened to the court hear the case. I was thinking about this story while lawyers brought up the facts, argued over the facts, pushed the facts back and forth. I was thinking about this story in my coding class, the next day, as I changed one letter of a 150-line program I’d written and watched everything adapt and change.
We think of law and authority, in this world, as synonyms. They are the things which govern us; they are the things which we obey. They are the things which impose order upon us, the things which ensure that freedom does not become anarchy.
But law and authority are not synonyms. They are not even allies, necessarily. They are not combined in one body; they do not have the same history; they do not come from the same wellspring of human thought.
Authority is power. It is the ability to make decisions, to give orders and have them obeyed. It is the ability to act as arbiter of truth: the “argument to authority” is the because-I-said-so of logic, the reliance on a listener’s respect of the speaker in order to prove that what the speaker says is accurate.
Law, in contrast, is not capable of because-I-said-so. Law is not capable of the argument from authority at all. Law relies on ration – law relies on logic. Where authority describes individuals’ positions in a hierarchy, law describes individuals’ behaviors and expectations in a society of equals. Law is not the imposition of order – law is the absence of tyranny.
Again, as I do daily, I think about my great-grandmother. I was named after her. As a result, when I hear her spoken about, it’s not quite like hearing other family members spoken about. At Passover it is commanded that we should each speak as if we, personally, were freed from Egypt; as a result, all of Jewish history feels like a memory to me, but especially her story, as if I myself was tortured by the Inquisition, as if I myself lived in the ghettos of Venice, and as if I myself left Russia.
So though I was born and raised in America, I ask myself, Why did I choose to come to America? And this is part of it: that my great-great-grandfather was shot in schul by the Russian Army, without justification, without justice. That the German army came to Ukraine with their guns over their shoulders, just following orders, and the letters from the old country stopped coming. That Ukraine starved in the famine Stalin made. That the tsar and the Fuhrer and the General Secretary said the Jews ought to die, and we died, because he said so.
Because this is what it means, to live without law. It means order without justice. It means obedience without rationality. It means that reality does not matter, and what is sensical and sensible does not matter, and the capacity of human beings to think and reason does not matter, and the only thing that matters is who can kill most and fastest and best.
The rule of law is fragile. It’s arbitrary. But it existed, on Tuesday night, and for a few hours, truth mattered, and logic mattered, and nothing was allowed to occur which did not make sense.
And Trump (a hiltsener tsung zol er bakumn), the head of the executive branch, the authority of America, the man who can kill more and faster and better than anyone else in the world, said he disagreed – but the Torah was not in Heaven, and he didn’t own the law, and he had to do better. He had to think, not scream and wail and hit blindly. That’s how things happen in this country. That’s how things work.
The Talmud says, when the angel returned to Heaven, he told God what had happened in the study. And then, the Talmud says, God laughed and laughed, and said, My children have defeated me; My children have defeated me.