10,000 Lawyers for Shavuot

Tomorrow evening marks Shavuot. Among many Jews, Shavuot is called z’man mattan torateinu, the traditional reckoning of the day when the Torah was given to the Israelites at Sinai (literally the time of the giving of our Torah).

In some respects, the biblical story tied to Shavuot is more foundational to Judaism’s self-understanding for much of the past 2000 years than is Passover: engagement with the text and the rules laid out in the Torah is in large part what gave Judaism its shape after the destruction of the Second Temple. Many Jews mark Shavuot with some amount of Torah study, including the notable practice of Tikkun Leil Shavuot, which is more or less an all-nighter of Torah study.

Finding special meaning in the rules of the Torah on account of the idea of revelation – which is what Shavuot essentially celebrates – isn’t much of a Humanistic Jewish pastime, and so the traditional understanding of Shavuot doesn’t fit easily for many Humanistic Jews. There’s a historical foundation underneath Shavuot that connects to the first fruits of the harvest in the land of Israel, and that connection to nature moves many Humanistic Jews. Others take the idea of study and broaden it out, so that Shavuot ties to the broader ideas of Jewish learning and the vast expanse that is Jewish literary history.

This year, however, I’ve found myself centering the ideas of Torah and covenant – though not revelation – in my own understanding of Shavuot. And I promise that, by the time we’re done, you’ll understand the title of this post.

In its mythic framing, Passover celebrates the beginning of the fulfillment of a promise to make Abraham’s descendants into a great nation. It is only at Sinai that, according to the Torah, the Israelites bound themselves to a covenant that required obedience to a (mostly) cohesive set of laws, in exchange for special status.

If Passover is Judaism’s Fourth of July, Shavuot is its Constitution Day: one day is when the people set themselves free, and the other is when the people bound themselves to an idea and to rules for being.

What is it that the covenant made at Sinai demands of the Israelites? Their adherence to the Torah – the laying out of which occupies much of the Torah’s attention from Exodus 20 until the end of Deuteronomy. The Torah portrays the Israelites as failing in this over and over again, and they are punished over and over again. The text of the Torah lays out the stakes: obey the rules and prosper, disobey them and be punished. And since obeying the rules requires knowing the rules, Shavuot’s ideas of study are pretty important in this traditional framing.

But let’s look at the constant failure of the Israelites to follow the rules. What does it mean to follow the rules – whether that’s the Torah, modern secular laws, or any other particular set of rules?

It often means forcing oneself to internalize certain standards of conduct so that one can act according to those standards. It means stopping ourselves from acting in order to consciously consider what we must do. It means not doing what we want, or whatever act we feel immediately drawn to engage in.

Following a set of rules means engaging our reason in assessing the rules and assessing our options in order to determine how to act. And if we were to measure the success of a group of people relative to their ability or willingness to reason against the rules, we’d have to acknowledge that the Israelites in the Torah’s narrative are basically disastrously bad at this.

I’ve been thinking about this a fair bit since writing a d’var Torah for T’ruah: The Rabbinic Call for Human Rights. My d’var Torah was really an effort to encourage support for public interest lawyers, whose work is often the only thing that actually ensures that constitutional guarantees of civil and human rights are anything other than words on a page. In researching for that piece, I encountered a fact about Nazi Germany that I hadn’t heard before, or that I had forgotten: in October 1933, 10,000 German lawyers assembled in front of Germany’s Supreme Court building and swore allegiance to Hitler and the Nazi state.

This episode has stuck with me because I’m an attorney (presently I have no clients and don’t live in the state where I’m licensed to practice, so I don’t practice) and a fair amount of my legal education emphasized that part of the attorney’s role in society is, in one way or another, to ensure that the law is respected and complied with. Even criminal punishment has a set of rules. Different attorneys have different roles in ensuring compliance with the law: civil rights attorneys challenge government actors’ violations of civil rights laws, and attorneys who provide business advice explain how a course of action might violate one or another legal principle and how to avoid violating that principle. Litigators and judges are involved in understanding the application and use of rules that govern how court procedures should apply. Appellate judges determine whether lower courts’ judges’ decisions are within the bounds of the information in front of the court and within the bounds of the rules governing the court’s decision-making authority. (This all sets aside whether the laws that have been enacted are just laws – nevertheless, they are still rules that lawyers are supposed to ensure are followed in some way.)

Underneath all of this is a set of guiding principles about how the legal system should work, and, more importantly, what it might look like to have a just outcome. I think it’s fair to say that there are many, many situations in which the just outcome isn’t the one we really get from a court or a negotiation. But there are principles at work in American law, and in many other Western legal systems, that are supposed to guide the thinking of judges and lawyers in the process of interpreting and applying the law to the world.

So what does it say about a society’s self-understanding when 10,000 lawyers gather in front of the highest court in the land and swear an oath not to the law, but to a man and to a regime whose expressed purpose is to harm and kill the lawyers’ fellow citizens? That’s the proposition of 10,000 attorneys pledging an oath to Hitler and Nazi Germany.

That episode demonstrated that, in some basic way, the foundation that supported the secular Western understanding of what the law is had crumbled. The basic covenant of law is that the well-being of the state and the citizen are bound one to another, and that the trade-off for that is the requirement that people and organizations and the government must all measure their actions against the law – they must, or should, know the rules and moderate their actions to comport with the rules.

Let’s not be Pollyannish about this: people, organizations, and governments constantly fail to meet the expectation. They act without thinking, or they think and then do something else anyway, and there are often consequences for that. But the assumption underlying all of this is that there is a covenant between the state on the one hand and its citizens and other constituent bodies on the other, and that the principles underlying the covenant will guide how the consequences are imposed.

What does it mean when government, and those charged with keeping government honest, reject the covenant?

When 10,000 lawyers pledge allegiance to the Fuhrer?

When government says in response to Langston Hughes’s “Let America Be America Again”: “America was never America to you – but that’s what America is“? When government says, “Only Christians”?

When that happens, there’s something fundamental that has been broken and must be repaired.

There’s a moment in the Torah that provides an example for us to consider on Shavuot. The Israelites have violated the covenant – which they already agreed to and some of the contents of which they have already been taught – failing in this instance by building the golden calf. Yahweh, having had enough, says to Moses, “I have seen this people – they are a stiff-necked nation. And now, leave me be: my anger will burn against them, and I will consume them. And then I will make a great nation of you” (Ex. 32:9-10).

Moses’s response? Not, “This is a great advantage for me.” Rather, we read that Moses reminds Yahweh of a central premise of the covenant at Sinai: the promise was made to make Abraham’s descendants a great nation, and to give them a homeland. You have to stick with this, because to do otherwise is to break the covenant. And Moses reminds Yahweh that the Egyptians will see what has happened, as if to say, “You must keep the covenant, even when they will not – because people will see that you can’t be trusted. I, Moses, will know you can’t be trusted.”

The Washington Post‘s motto is “Democracy dies in the dark.” But that’s not true: democracy dies in the open, while we’re all watching – though we might not know democracy’s demise for what it is. We might not see 10,000 lawyers taking a new oath. But the episode of Yahweh and Moses disputing whether to destroy the Israelites is suggestive of what it will take to keep democracy from truly dying: we must stand before power and say, “Stop.” We must remind power not only of the principles it claims, but that we will know what it has done and that we will remind everyone of it.

So, on this Shavuot, by all means, study. Have some cheese blintzes or cheesecake. Study.

But remember that study is important because we learn how to act. Consider whether it is now time to act. Consider whether it is time to speak, to remind those in power of what you’ve seen.

Your society’s covenant may depend upon it.