Tuesday, December 7, 2010

Is Greed Godly

Is Greed Godly?

Jews may be well represented in the annals of white-collar fraud, but halacha explicitly requires us to be honest, taxpaying citizens.

Greed,” Jewish stock speculator Ivan Boesky declared in 1985, “is healthy,” a thought echoed by the fictional Gordon Gekko in the 1987 movie “Wall Street,” starring Michael Douglas. It was such a great line, that it was used again in the recent sequel: “Wall Street: Money Never Sleeps.”
Shylock, of course, is the paradigmatic greedy Jewish moneylender portrayed by Shakespeare in “Merchant of Venice.” The play was written about 1597 by someone who likely never met a Jew, as Jews were expelled from England in 1290 and weren’t allowed to return until 1640.
Read the rest here

Saturday, October 16, 2010

When Law and Morality Collide

In an  a post to Greedwatcher.com, I discussed the "Do As I say, Not as I Do" mentality uncovered by the Wall Street Journal's series about congressional staffers trading on inside information.
Jewish law has what to say on this subject, but first a little background:
The Journal's disclosures offend our collective conscious. The staffers' activities are an exception or loophole to the general prohibition against trading on inside information. The loophole is not available to others in possession of confidential insider information who may not trade until the information has been disseminated to the market. In effect, Congress is telling citizens, "do as I say, but not as I do," exempting them from the insider trading (and also, incidentally, from other laws, such as Obamacare).

The trades made by the staffers were apparently legal, and that is what mattered to them.

Rightly so, I would argue.

But "The Intelligent Investor" disagrees. That column argues in the Wall Street Journal that staffers, were wrong, but were not intending to be immoral; rather, they engaged in self-delusion. 

In support of that argument, the article quotes Daylian Cain, a psychologist at Yale University's School of Management."People are just not good at being objective about their own potential conflicts of interest. Whatever side of an issue we're on, we can easily convince ourselves that we're on the right side," he says. In the same piece, Professor Adam Galinsky, is quoted saying, "Power makes people feel both psychologically invincible and psychologically invisible." "Socrates invokes the myth of the ring of Gyges, which conferred upon its wearer the power of being invisible to others. If we wear such a ring at will, Socrates says, 'No man would keep his hands off what was not his own when he could safely take what he liked.'"

So in substance, the argument goes, it's wrong, but people do it anyway, because they delude themselves into believing that it is OK to be greedy.

I'm a student of greed, author of "History of Greed," and quick to criticize financial wrongdoers, but I respectfully disagree. 
I don't think that  self-delusion has much to do with it. And I don't think what the staffers did was wrong.

Much as I abhor the loophole that the Wall Street Journal discovered, and wish for it to be closed, I cannot criticize those who did what was legal.

The whole point of laws is to  clarify and crystallize the application of general moral principles to specific circumstances. 

Laws are dry and proscriptive, or prescriptive, as the case may be, but they need to be followed. As such, they willy-nilly preempt moral considerations.
Laws often begin, "No person shall" or "Any person who shall" to regulate behavior. Whenever an activity is heavily regulated, and especially when not all of the regulations makes sense, but are mindlessly enforced nonetheless, it is normal and proper for people to test a contemplated action only against the applicable body of law in order to ascertain whether the contemplated action is legal.

It is unreasonable, and probably dangerous in American law to also impose a "morality test" because doing so would only serve to cloud the legal questions.

Only in the realm of generally unregulated behaviors should we demand that actions be guided by moral principles.

This reality, of course, produces from time to time, the unexpected consequences of an activity being legal but immoral, or being moral but illegal.

Society  and Judaism have long grappled with this problem. 

The Rabbis long ago noted the anomalies created when statutory justice mishpat conflicts with "righteousness" or tzedek, i.e., with morality. The Talmud in Sanhdrin 6b observed, "Surely where there is strict justice there is no righteousness, and where there is righteousness, there is no justice!  והלא כל מקום שיש משפט - אין צדקה, וצדקה - אין משפט
סנהדרין דף ו עמוד ב) ").
In Jewish law, the goal is always to achieve משפט צדק "righteous justice" rather than the "blind justice" - the blind (mechanical) application of the law which forms the basis for Roman law. The rule is based on Deuteronomy 16:18
יח  שֹׁפְטִים וְשֹׁטְרִים, תִּתֶּן-לְךָ בְּכָל-שְׁעָרֶיךָ, אֲשֶׁר יְהוָה אֱלֹהֶיךָ נֹתֵן לְךָ, לִשְׁבָטֶיךָ; וְשָׁפְטוּ אֶת-הָעָם, מִשְׁפַּט-צֶדֶק
18 Judges and officers shalt thou make thee in all thy gates, which the LORD thy God giveth thee, tribe by tribe; and they shall judge the people with righteous judgment.

Lady Justice is often depicted wearing a blindfold. The blindfold represents objectivity, in that justice is (or should be) meted out objectively, without fear or favor, regardless of identity, money, power, or weakness;  and with blind impartiality. All these are indeed desiderata. But to avoid injustice, "blind justice" as commanded in the Torah, and as understood by the Rabbis, must be tempered with a "fairness test" in order to achieve "righteous justice."

In the rule of law, that isn't easy, and it requires Judges to use their own judgment and be given wide discretion. In the Talmud (B. Bava Batra 131a), this is stated as ein ladayan ela mah she`einav ro’ot (the judge can only decide according to what his eyes see).

American law, the quest for the "blind justice" is exemplified by the near-universal application of the mindless and irrational "Federal sentencing guidelines," a product of bureaucracy run amok (Booker, which confirmed that the Guidelines are supposedly discretionary, notwithstanding). 
Sadly, American Law is not too good and tempering Justice with fairness so as to achieve a fair and just result. Even defendants ask the judge for mercy, and not for fairness. Federal Judges, especially,  have little latitude, and are afraid to use what they have, for fear of being overturned on appeal.

So I propose two obvious fixes: Close the loophole that exempts congressional staffers from trading on inside information, and sunset the United States Sentencing Commission, which was created by the Sentencing Reform Act of 1984. Make it a private non-profit organization, and prohibit its Guidelines from carrying any legal weight in support of or in opposition to any sentence.

Both reforms will get us a little closer to the achieving the Torah's goal of "righteous justice."

Friday, October 15, 2010

NY Times at it Again with Misleading, One-sided Reporting

October 15, 2010

Mr. Arthur S. Brisbane
Public Editor
The New York Times

Dear Mr. Brisbane,

When you took up your post as Public Editor, I wrote you an Open Letter.

In the letter, I said, "I am guessing but I would not be surprised if it turns out that one of the more vexatious ongoing issues you will have to deal with is the New York Times' relationship with Israel and Jews, and coverage of stories related to these matters."

Well, it didn't take long for me to confirm that Vis-à-vis
Israel, nothing is new under the sun for The New York Times.

A recent article headlined  Israel Plan to Build Clouds Peace Talks is biased, one-sided, and misleading reportage on the part of the NY Times. Of course, when reporting on Israel that is all too often the case.

A fair headline would have been, "Palestinians Still Refuse to Recognize Israel as a Jewish State." Palestinian Authority President Mahmoud Abbas said on Friday that "Palestine will never sign an agreement  recognizing Israel as a Jewish State or one regarding a land swap."  That was the news.

A minor footnote to the article might have been that "a temporary freeze, issued at the strong urging  (meaning arm-twisting) of President Obama expired on its terms."

Quite properly, upon the expiration of the ill-conceived freeze that was imposed on Israel as one more effort to boost President Obama's flagging presidency, Israel resumed normal home building in Ramot and Pisgat Ze’ev, two heavily built-up Jewish area that Arabs claim as part of East Jerusalem but which have been settled by Jews for decades (since the early 1970s), and prior to that were barren hills."

That would have been honest reportage.

I look forward to learning what corrective actions you plan to take to provide factual, accurate, even-handed and unbiased coverage about Israel.

David E Y Sarna

Sunday, September 5, 2010

Labor Day Reading: Essays on Matters Jewish Published by David Sarna

A number of my essays on matters Jewish have been published in diverse places, including The Jerusalem Post, The Washington Post, The Jewish Voice and Opinion and Tablet Magazine. 
You are invited to check out the links in advance of Labor Day.
Happy Reading.

Saturday, September 4, 2010

Why Federal Inmates Who Ask are Required to Get Kosher Food

Tablet Magazine had a terrific piece by Peter Lance proving that Meir Kahane was killed by Al Qaida operatives.

It brought back memories, and reminded me of an interesting historical footnote about Rabbi Kahane and his impact in a very different sphere. In the 1970s, Kahane had been arrested by the US and was placed on probation. He was alleged to have violated the terms of his probation, and was sentenced to serve a year and a day. When Kahane was incarcerated by the US government, the Bureau of Prisons refused him kosher food. He sued, and the case came before Judge Jack B. Weinstein, the sentencing Judge. The issue was whether kosher was an essential part of Judaism.

Judge Weinstein, in his 1975 decision granting Kahane's request quoted from my late father’s Understanding Genesis (among other sources). My father had pointed out that following Jacob’s battle with the Angel, and from that day forth Jews do not eat from the sciatic nerve, and that this was the origin of the laws of Kashrut, a fundamental tenet of the Jewish faith (which was the main point being litigated).

From the decision:
"A theological concept central to Judaism, recognized
by Jewish and non-Jewish scholars alike, is that of a
"covenant" [*693] between God and man. The
covenantal theme -- that God loves his people and will
favor them in generations to come and lead them to a
promised land, and in return men shall walk in God's way
-- is repeated again and again in the [**14] Genesis
stories of Noah, Abraham, Isaac, Jacob, and Joseph. See
N. Sarna, Understanding Genesis 120-133 (1967). The
covenant theme is the essence of stories of the exodus
and of Moses, and becomes the crucible of the messages
of the Prophets and essential to an understanding of the
relation between God and man. See, e. g., G. von Rad,
Old Testament Theology 129-135 (D. Stalker trans.
1962). Individual responsibility is not submerged in the
covenant with a people. As Sarna notes:
"this biblical 'doctrine of merit,' . . . has
profound consequences for man, for it
implies that the individual is of supreme
importance and that from his actions may
flow beneficial consequences for all
N. Sarna, supra, at 151."

The decision is fascinating and well worth reading.

The government appealed and lost.

Kosher meals were mandated top be provided by the BOP  to Jewish inmates pursuant to a ruling by the Second Circuit in 1975 in  527 F.2d 492 Meir Kahane, Plaintiff-Petitioner-Appellee, v. Norman Carlson, Director of the Federal Bureau of Prisons, et al., Defendants-Respondents-Appellants (http://ftp.resource.org/courts.gov/c/F2/527/527.F2d.492.75--2088.274.html)

Ever since that Appellate court ruling, the BOP has been required to provide kosher food for all Jewish inmates who request it.

(Hat tip to Melvin Weinberg, a partner at Trautman Sanders, who retrieved a copy of the decision for me).

Sunday, August 29, 2010

God is in the Details

The Creation Museum, a  $27 million, state-of-the-art 70,000 square foot museum opened in 2007 is devoted to the “young earth” movement, which holds that the Book of Genesis is a literally accurate historical record. The museum, which rejects evolutionary theory, maintains that the earth is 6,000 years old and that humans coexisted with dinosaurs. Jennifer Siegel headlined her review  in the Forward "God Is in the Details at Creation Museum." 

What is the origin of this saying?

“God is in the details” is famously attributed to Ludwig Mies van der Rohe
(1886-1969), a German born American architect. The Random House Dictionary of Popular Proverbs and Sayings by Gregory Y. Titelman (Random House, New York, 1996) shows this phrase as a variation of “God is in the details— Whatever one does should be done thoroughly; details are important.” The saying is also generally
attributed to Gustave Flaubert (1821–1880), who is often quoted as saying,
“Le bon Dieu est dans le detail” (God is in the details). Other attributions
include Michelangelo and the art historian Aby Warburg.

“The Devil is in the details” is a variant of this proverb, referring to a catch hidden
in the details. ”Governing is in the details’’and “The truth, if it exists,
is in the details” are recent variants. The quotation is listed as an anonymous
saying in the 16th edition of Barlett’s Familiar Quotations, edited by
Justin Kaplan.

Judaism is certainly "detail-oriented," as observance of commandments holds central position.

So as the Jewish world prepares to inaugurate the year 5771 anno mundi with many detailed practices and observances, let us hope that God is, indeed, in the details.

Jews, Israel and the New York Times - An Open Letter to The Times' New Public Editor

August 29, 2010

Mr. Arthur S. Brisbane
Public Editor
The New York Times

Dear Mr. Brisbane,

Welcome and much success in your new position as Public Editor of The New York Times (NYT).

As you noted, yours in an interesting position, and I am sure you will, at least at the outset, get tons of unsolicited advice, in addition to the complaints and vitriol that obviously come with the territory.

I write to respectfully add my two-cents' worth in the advice department.

It was heartwarming and refreshing to learn that you believe that it is a reporter's and editor's job to leave his or her personal prejudices at home when coming to work. It was also gratifying to learn that you yourself are able to back both Democratic and Republican candidates, as you see fit, which is welcome evidence of open-mindedness.

I am guessing but I would not be surprised if it turns out that one of the more vexatious ongoing issues you will have to deal with is the New York Times' relationship with Israel and Jews, and coverage of stories related to these matters. There is a well-documented history, going back to the waves of immigration of Jews of Eastern-European descent and continuing with the rise of Nazism, and the establishment of the State of Israel and continuing on to present practice of the NYT's evident bias in matters Jewish- or Israel-related. Among large swathes of the Jewish community, it is an article of faith that the NYT is and has been for a large part of its history controlled and run by left-leaning, assimilated, anti-Zionist and (say many) self-hating Jews and that there is a pervasive atmosphere surrounding these topics that is dictated from the top and is totally alien and antithetical to fair and balanced reporting. There is abundant evidence that reportorial coverage on such matters routinely lacks balance and crosses the line demarcating the boundary between reporting and editorial opinion. Quality watchdogs like C.A.M.E.R.A. frequently take the NYT to task for its lapses, few of which are ever acknowledged or corrected by NYT. There is over-reporting of scandal and under-reporting of achievement as related to Jews (especially of the Orthodox variety) and Israel especially as relates to more Zionistic elements, routinely portrayed as "hard-line" or worse. In short, many of us believe that the NYT has a deeply-ingrained cultural bias that mars the quality of its reporting on these matters.

Institutional culture is notoriously difficult to change.

Change, if it is to happen,  must first begin with an acknowledgement of the problem and of past mistakes.

As you take up your many new challenges, and many vie for your attention, I hope you can find time for some focus on this long-festering sore, so that it may begin to heal.

David E Y Sarna
www.hshco.com  historyofgreedbook.com

Thursday, August 5, 2010

Elena Kagan, Jewish law, and the principle of binding precedent

Tablet Magazine published this author's views on how controversies in American law have their genesis in Jewish law.
Notes and acknowledgements are available here.

Friday, April 16, 2010

Jewish Law and the SEC’s Suit Against Goldman Sachs

The SEC sued Goldman Sachs and Fabrice Tourre on April 16, 2010 and charged them with fraud in connection with the structuring and marketing of a synthetic collateralized debt obligation (CDO). Goldman Sachs ended up settling the charges by agreeing to pay $550 million. See here.

Unless you have been living in a cave and have been completely cut off from outside society, you know that in the space of a few months, at least $11,000,000,000,000 ($11 trillion) was lost from the U.S. economy in 2008, and that the world was turned upside down and plunged into a deep recession, if not depression.1

What happened?

Fraud and greed had a lot to do with it.

Savvy investor George Soros said in mid-February 2009 that the world financial system has effectively disintegrated, and that there is as yet no prospect of a near-term resolution to the crisis. Soros said the turbulence is actually more severe than during the Great Depression, comparing the current situation to the demise of the Soviet Union. He said the bankruptcy of Lehman Brothers in September marked a turning point in the functioning of the market system.

"We witnessed the collapse of the financial system," Soros said at a Columbia University dinner. "It was placed on life support, and it's still on life support. There's no sign that we are anywhere near a bottom."

Could the current fiscal crisis confronting the United States have been avoided if Wall Street firms abided by Halacha (Jewish law)?.

Prof. Aaron Levine, formerly an Associate Professor of Economics at New York University and currently the Samson and Halina Bitensky Professor of Economics and Chairman of the department at Yeshiva University thinks so. He deals with this issue in an article "The Recession of 2008: The Moral Factor — A Jewish Analysis" in a forthcoming book to be published by the Oxford University Press. The same article, summarized here, appeared in the prestigious journal, The American Economist in April 2009.

Prof. Levine asserts that "The current downturn is the first post World War II recession that has its roots in widespread moral failure." Prof. Levine marshals in his article numerous Halachic authorities from the Talmud, the work of medieval jurists like Maimonides and a host of Responsa to support his argument.

He begins by locating the failures of the various players in the current crisis in terms of Jewish law.

(1) Some borrowers were guilty of taking on mortgage debt that they knew would eventuate in default. Taking on debt payment that one knows or even is not sure he can meet violates Jewish law's good faith imperative (Bava Metzia 42a and Ein Mishpat onTosafot Betzah 15b).

(2) Some mortgage brokers mislead their clients regarding the risks they were undertaking. Proffering ill-suited advice and/or misleading someone violates Jewish business ethics. Moreover, the duty devolves on the lender to disclose the hidden flaws of his mortgage product. Unless the borrower agrees upfront to discover these hidden debits on his own, the seller may not shift the burden of discovery of the hidden flaws to the borrower.

(3) Lenders gave out mortgage loans based on the borrower's stated income without requiring verification. Insofar as empirical studies overwhelmingly show that not asking the borrower to verify his stated income encourages him to lie about his income, loans without documentation effectively tempt the borrower to do so. (See Bava Metzia 75b).

(4) In the securitization process that ensued, the originator of the loan typically sold the loan to loan aggregators, who also bought loans from many other originators. The loan aggregator, in turn, sold the loans to a securitizer, who sold tranches of the income from the mortgage-backed securities he issued to investors. The securitizers failed to disclose to investors the hidden flaws in his mortgaged backed security products. Doing so would have made it clear to them that buying the securities involved great risk because the securitizer was relying on the originator for the quality of the loan.

(5) The credit rating agencies gave a triple A rating to the vast majority of tranches of the mortgaged backed securities. Since the mortgage pool consists of borrowers of impaired credit, the triple A rating makes the defect of impaired credit inherent in any one of the mortgages of the pool disappear when an investor buys a bond that entitles him to a slice of income from the entire pool. In accordance with the moral obligation to disclose hidden flaws, the credit rating agencies should have explained why the mortgage-backed securities make this flaw disappear.

Levine points out those Jewish medieval jurists like Maimonides directly linked the obligation for fiscal disclosure to these hidden flaws. Almost the entire chain of transactors in the mortgage crisis were guilty: predatory brokers for not alerting working-class borrowers to the fine print; middle-men selling mortgage debt to investment banks sliced and diced them into "tranches" that obscured their riskiness; and bankers who used hard-to-fathom financial instruments that left ultimate responsibility for the loan a mystery, even to experts.

He also notes that no amount of wrongdoing by the primary players in the subprime market could have expanded into a global recession without a mechanism that continuously replenishes the capital of the mortgage originators. That mechanism was the securitization process described above.

Additional information about Professor Levine is available here.

As noted in an earlier post, prosperity is good, as emphasized by Rabbi Daniel Lapin in Thou Shall Prosper: Ten Commandments for Making Money. As Rabbi Lapin notes, making money honestly is not a morally reprehensible activity. Indeed, it is viewed as a Divine gift, and therefore carries with it a responsibility – an obligation - to help others less fortunate through giving.

But cheating and deceiving to achieve prosperity is simply not allowed.
(A version of this post was published as "What If Goldman Sachs and Morgan Stanley Had Followed Jewish Law?"  that just appeared in the Jewish Voice and Opinion, It is available on the Internet at http://bit.ly/bZ7nbi )

Sunday, March 28, 2010

Conscious Capitalism, Tikkun Olam and the Jewish Tradition

Conscious capitalism describes the premise that an organization (government, nonprofit, or business) has an obligation to act not only in its own best interests but also in the interests of all its stakeholders (customers, employees, suppliers, investors, and society).

The concept was well-described in Patricia Aburdene’s book, Megatrends 2010: The Rise of Conscious Capitalism (published in 2007) that has been termed a “must read” by Patrick T. Parenty, Senior Vice President L’Oreal USA. Christiane Northrup, M.D., author of Mother-Daughter Wisdom gushes that “Megatrends 2010 provides incontrovertible proof that doing good and giving back pays off for everyone.” “This book,” she says, “is thrilling."

Megatrends 2010 takes its name from John Naisbitt’s Megatrends: Ten New Directions Transforming Our Lives (1982), a book about the birth of the Information Economy. Ms. Aburdene says she was a “collaborator” on the earlier work. Her new one, she tells us, describes the social, economic, and spiritual trends transforming free enterprise into a new, more holistic version of itself.

Three years after the book’s publication, the term conscious capitalism is catching on.
Writing in Business Week recently about the Catalyzing Conscious Capitalism conference in Austin, Tx, in October 2009,  G. Michael Maddock and Raphael Louis Vitón, argue that “[m]aybe if members of the social responsibility movement were to spend less time hectoring companies about climate change, worker exploitation, and the like, and more time pointing out the greater profits these businesses could produce by implementing socially responsible ideas, they would be more effective.” Another major conference, Conceptualizing Conscious Capitalism - Issues, Insights and Implementation will be held May 24 and 25, 2010 at Bentley University, hosted by the University and the Conscious Capitalism Institute.

Conscious Capitalism is one of the hottest new ideas in business.

But is it really new?

Maybe the term is still new in English. On the other hand, “Tikkun Olam” (perfecting the world) the Jewish term for conscious capitalism, was coined long ago. It too has begun to enter the English language. My friend Dr. Eugene Korn pointed out that Governor Mario Cuomo used the term a number of years ago when speaking before the New York State Legislature.” Tikkun Olam, Dr. Korn rightly notes, “means taking responsibility for the material, moral and spiritual welfare of society-at-large.”

Conscious capitalism is a good idea, and hopefully, amid the detritus of the financial melt-down it is an idea whose time has come.

But it’s not a new idea.

The concept (and obligation) of Tikkun Olam has evolved over the millennia. As used in the Mishnah, redacted in the year 200 by Rabbi Judah haNasi (the Prince), the phrase is used legalistically. For example in the Talmud (Gittin 5:2),  we read that “indemnification…  and payment of maintenance [by a man’s heirs] to his widow and daughters  is not enforced from liened (encumbered) property, mip'nei tikkun ha-olam "for the sake of tikkun of the world" or “for the good order of the world.” In modern legalese, we might say that the secured party (the mortgage holder) has perfected his lien, and it would be unjust if to disturb it for the benefit of unsecured creditors.
The term Tikkun Olam originally referred to a practice that while not Biblically mandated, was decreed by the Rabbis as being necessary in the public interest, or in their idiom, to make the world a better place.

A further usage developed a bit later on. In an ancient prayer, Oleinu,  still recited today, the phrase used is l'takken olam b'malkhut Shaddai, "to perfect the world under God's sovereignty." The theocentricity of the thought expressed in the prayer is, in fact, a key element of the Jewish point of view. But as the Neurologist, Dr. Julian Ungar noted, it’s still a universal thought. Former US President George W Bush’s second inaugural address in 2005, (drafted for him by Michael Gerson), quoted from another part of this same prayer. The President contended in his address that the "great objective of ending tyranny is the concentrated work of generations, with the "ultimate goal of ending tyranny in our world." Whether he knew it or not, the President was quoting from the form of this ancient Jewish liturgical prayer that is recited on the High Holy Days ("ta'avir memshelet zadon min ha'aretz").

In the Biblical book of Lamentations traditionally ascribed to the prophet Jeremiah, we read (1:3) that "Judah was exiled through poverty (oni),”referring to the forced Jewish exile to Babylonia after the destruction of the temple in 586 BCE. Rabbi Akiva explains in the Talmud (Pesachim 36a) that this means that exile came about because the people of Judea didn't fulfill the commandment of "Lechem `Oni,"giving bread to the poor (Deut.6:3) They did not give tzedaka (charity)  to those in need preferring to enrich themselves instead. In contrast, on Passover, Jews point to the matzah (unleavened bread) and declare in Aramaic, the lingua franca of the time, "This is bread for the poor (Ha Lachma `Anya)... Everyone who is hungry can come and eat" This proclamation fulfills the duty of giving tzedaka, a Hebrew word usually translated as charity, but which is derived from the Hebrew tzedek, which means justice or righteousness, an important difference.
For our discussion on conscious capitalism it is noteworthy that giving tzedaka  is not optional good works in Jewish law; it is mandated. Indeed, even one who is himself supported by the community is obligated to give tzedaka. Thus, conscious capitalism (tikkun olam) is required by Jewish law. At a minimum, the prescribed rate is 10% of after-tax income; 20% is considered “praise-worthy.” Sometimes (particularly among the Orthodox), the Hebrew term hesed (loving-kindness) is used to describe outreach to the less fortunate that is subsumed as part of tikkun olam.

The concept of tikkun olam continued to evolve during the first millennium of the common era, and in the Zohar ("Book of Splendor"), the foundational work  of Kabbalah (received wisdom) as Jewish mystical thought, is best known, tikkun olam takes center-stage. The Zohar  first appeared in the 13th century, and was published by Moses de Leon, who ascribed it to Shimon ben Yochai, the famous second century Rabbi.  It begins with God's creation of the universe. Lurianic Kabbalah, identified with its most famous expounder, my wife’s illustrious lineal ancestor, Rabbi Isaac (Yitzhak) ben Shlomo Ashkenazi Luria (1534 – 1572), particularly emphasizes this belief in our power to perfect the Divine creation. In Lurianic Kabbalah, God needed to contract, in order to create a space, in which to create the world. God then pours sparks of light into clay containers. But the containers are imperfect and shatter. The shards of broken pottery fall to earth, along with the newly liberated sparks of divine light. Creation gives way to calamity, as the world’s building blocks lie shattered and broken across the landscape. The role of human beings, Rabbi Luria concluded, was to do tikkun Olam, to fix the broken world by picking up the broken shards of pottery and liberating the divine sparks of light underneath. The Kabbalah teaches that God did not finish creating the world by the time He rested for the Sabbath. Rather, He left a corner of the world unfinished. He left disease and poverty, drought, starvation and injustice. The cosmos is unfinished, and perfecting God's universe is our task.

Rabbi Dr. Joseph B. Soloveitchik affirms this insight, saying, “The peak of religious ethical perfection to which Judaism aspires is man as creator. When God created the world, He provided an opportunity for the object of His creation—man—to participate in creation. The Creator, as it were, “impaired reality in order that mortal man repair its flaws and perfect it.”(Halakhic Man p. 101).

In the 1950s, the phrase tikkun olam was used by Shlomo Bardin, the founder of the Brandeis Camp Institute (BCI) to emphasize the universality of the obligation to improve the world through acts of humanity. It sparked a whole new movement.

Rabbi Michael Lerner, editor of Tikkun magazine, head of Beyt Tikkun synagogue in San Francisco, and leader of the Tikkun Community, an organization that claims 50,000 members nationally, has built his career around his passion for this form of tikkun olam. "The world can be fundamentally transformed and healed," Rabbi Lerner said. "Our whole religion is based on that insight ... that there will be a time when human beings are no longer facing the radical inequality and unnecessary suffering generated by war and poverty and political oppression."

This secular version of tikkun olam has been embraced by Madonna, who has studied Kabbalah but says she retains her belief in Jesus, as well as by Britney Spears, Demi Moore, and Gwyneth Paltrow (who is the daughter of an Jewish father and a Quaker mother, as noted in The Half-Jewish Book: A Celebration, by Daniel Klein and Freke Vuijst) and others. Reportedly, Madonna has enlisted Rabbi Phillip Berg of New York's Kabbalah Centre, a former insurance agent formerly known as Feivel Gruberger to "tweak her tikkun." (Rick A. Ross, founder of The Ross Institute views Berg’s Kabbalah Center as a cult.)

Lurianic Kabbalah also inspired Bee Season, a highly praised first novel by Myla Goldberg, later made into a movie of the same name. Ms. Goldberg says, “For modern-day Jews who aren't so into the traditional and deistic elements of religion, tikkun olam provides a philosophy of volunteerism. This is the idea that the world is flawed, and the only way it's going to get better is if each individual does something to try to make it a better place. That's always had a lot of resonance for me.” Recently, Danijel Majcen, a Coatian, released a musical video called Tikkun Olam (http://www.tikkun-olam-music.com) advocating perfecting the world and it was nominated for a Grammy.

Shai Agassi, originally from Israel, when he named his low-emission electric car infrastructure company Better Place, was undoubtedly as much informed  by tikkun olam, making the world a better place, as he was by the ideas advocated in Van Jones’ “Green Collar Economy” a book that highlighted the opportunities inherent in the “investment” wave of environmentalism and was a guiding light to him in planning his company. Mr. Agassi says his vision was inspired by a profound question posed at the World Economic Forum in 2005, “How do you make the world a better place by 2020?” He’s garnered so much interest that TIME Magazine named him to the 2009 TIME 100, the world’s 100 most influential people, and one of Time’s “Heroes of the Environment 2008.”

The essence of Tikkun Olam is that it’s mandatory. "We must dedicate at least part of our time, energy, resources to improving the lot of others," writes Rabbi Elliot N. Dorff, in his book, The Way Into Tikkun Olam (Jewish Lights Publishing, 2007)

This imperative is not in conflict with the thought that prosperity is good, as emphasized by Rabbi Daniel Lapin in Thou Shall Prosper: Ten Commandments for Making Money. As Rabbi Lapin notes, making money honestly is not a morally reprehensible activity. Indeed, it is viewed as a Divine gift, and therefore carries with it a responsibility – an obligation - to help others less fortunate through giving.

Perfecting the world through selfless acts is a far cry, however, from living an ascetic life style. Judaism has always stressed the importance of a balance between spiritual and temporal needs. While Judaism certainly has had its ascetics, and some believed that asceticism was a route to redemption, asceticism was never a main-stream Jewish goal. In fact, the Nazir, or Nazerite, who took upon himself vows of abstention (in accordance with Numbers 6:1-21) had to bring a sin offering upon conclusion of his period of abstinence).

As Rabbi Louis Jacobs noted, in the Jerusalem Talmud it is said (Kiddushin 4:12 ) that a person will be obliged to give an account before God for every legitimate pleasure he has denied himself. 

Furthermore. we read in the Babylonian Talmud (Berakhot 57b) that “three things give a foretaste of the world to come: Sabbath, sunlight, and Tashmish (intercourse). Tashmish of what? Shall I say in the bed?  [But] this weakens. It must be then stimulation of the orifices. Three things restore a man's good spirits: [beautiful] sounds, sights, and smells. Three things increase a man's self-esteem:  a beautiful dwelling, a beautiful wife, and beautiful clothes.”

No sign of asceticism in this quotation.

Giving tzedaka, however, certainly is a mainstream Jewish imperative. And in Jewish law, it is graded according to a definite  hierarchy. As codified by Maimonides in his monumental Mishneh Torah, in the Laws of Gifts [that Belong to] the Poor (my emphasis), there are eight levels of charity. The levels of tzedaka range from the lowest level (one who gives unwillingly) to the highest, “giving him a present or loan, or making a partnership with him, or finding him a job in order to strengthen his hand until he no longer needs [help from other] people. For it is said, "You shall strengthen the stranger and the dweller in your midst and live with him" (Leviticus 25:35). That is to say, strengthen him until he is no longer in need or at the mercy of the community.” Importantly, making a loan, entering into a partnership or finding someone a job are right up there with outright giving as the highest level of tzedaka. As noted in the Wall Street Journal, in its review of Philantrocapitalism, Maimonides got it right.

Lo and behold. Not only do we see the mandate for conscious capitalism itself, but all of the recent "inventions" and “innovations” relating to the mechanisms for practicing conscious capitalism, (including microloans, job creation, job training, venture lending, and so on) have all been presaged, widely practiced and codified in Jewish law for nearly two millennia.

While Jews comprise perhaps 2.2% of the US population, and the world Jewish population of about 13.2 million is much less than a fraction of 1% of the world’s population of 6.7 billion, we can only hope that Tikkun Olam, in its secular form of conscious capitalism becomes in time a universal desideratum irrespective of religion or belief system.

(Thanks to my brother, Professor Jonathan D. Sarna and to my long-time friend, Professor Lawrence Schiffman for their assistance)

(A version of this article was published as an OpEd in the Jerusalem Post

Friday, March 19, 2010

Stare Decisis and Jewish Law

Recently, in a 5 – 4 decision, in  Citizens United v. Federal Elections Commission the Supreme Court of the United States, overturning two precedents, struck down portions of the McCain-Feingold Act and held that corporate funding of independent political broadcasts in candidate elections cannot be limited under the First Amendment, potentially opening the flood gates for corporate campaign finance expenditures.

The Supremes’ decision shined a bright spotlight on an ongoing tension between stare decisis ("to stand by things decided," i.e., binding precedent) and “advisory precedent” in American, British (common) and Israeli law , among other legal systems. The decision has been much vilified and to a lesser extent praised by advocates of different points of view.
The tension between precedent and innovation is not new, and in fact goes back thousands of years.

It may be useful to consider the Talmud. Talmudic study has always been a marketplace of competing ideas and sometimes hairsplitting distinctions. Not only is the Talmud itself replete with controversy, but in the standard editions of the Talmud, the text is surrounded by commentaries and super-commentaries, and thousands more glosses have been written over the generations, many flatly contradicting each other.

What emerges out of all this seeming chaos is like the results of a spectroscopic analysis, with bands of different colors whose width represents the degree of consensus. On some issues, there is a wide band of a single color signifying broad agreement, while on others there is a colorful rainbow of narrow bands reflecting an enduring lack of consensus. Of course, the range of opinion is ultimately constrained by the Torah, which functions somewhat like the US constitution in establishing immutable boundaries.

Over the years, in a lengthy process, Jewish law, which was Rabbi- (judge) made) based on Torah mandates, became codified. Given the Talmud’s preference for inclusion and respect for multiple opinions, such codification was, to say the least, not without criticism. The principle objection was that codifications inherently violate the ancient precept that halakha (Jewish law) must be decided according to the later sages; a precept known as hilkheta ke-vatra'ei (the halakha follows the later decisors). This doctrine is essentially oppositional to the position of stare decisis which codification represents.

Menachem Elon, a Rabbi and Professor who was from 1977 to 1993 a Justice on the Israeli Supreme Court, and its Deputy President from 1988 to 1993 commented in his major work, Jewish Law: History, Sources, Principles: “This rule (that the halakha follows the later decisors) dates from the Geonic period (589 to 1038). It laid down that until the time of Rabbis Abbaye and Rava (4th century) the Halakha was to be decided according to the views of the earlier scholars, but from that time onward, the halakhic opinions of post-talmudic scholars would prevail over the contrary opinions of a previous generation[1].
Elon goes on to quote Rabbi Asher ben Yechiel (1259 – 1327), known as the Asheri or Rabbenu Asher, “our teacher, Rabbi Asher” known as the ROSH. He famously said, “If one does not find their [earlier] statements correct and sustains his own views with evidence that is acceptable to his contemporaries...he may contradict the earlier statements, since all matters that are not clarified in the Babylonian Talmud may be questioned and restated by any person, and even the statements of the Geonim may differ from his...just as the statements of the Amoraim (rabbis living from 200 to 500 CE) differed from the earlier ones. On the contrary, we regard the statements of later scholars to be more authoritative because they knew the reasoning of the earlier scholars as well as their own, and took it into consideration in making their decisions[2].” My teacher, the late Professor Isadore Twersky of Harvard has extensively written on the tensions associated with codification.[3]
The basis for controversy about writing down laws rather than merely memorializing legal principles is because legislative law is inherently less flexible than Judge-made law. For this reason, other than the Bible, Jewish law was maintained as oral instruction until political instability prompted Rabbi Judah Ha-Nasi and his rabbinic colleagues to redact the Mishnah, the older portion of the “oral law” in the late second century CE.
Of course, judges and litigants alike all crave certainty, which well-written codes provide.
As a result, and after a length evolutionary process, normative practice was codified by the Shulchan Aruch, (“the set table”) written by Rabbi Yosef Karo (1488-1575) in Safed (Tzfat), in the north of Israel in 1555 - 1558, and first printed in Venice in 1565. It was adapted to the customs of Ashkenazi (German and Eastern European Jewry) with glosses written by Rabbi Moshe Isserles, known as the Rema, who was the Maimonides of Polish Jewry) in a work known as haMappah (the tablecloth, first published with the Shulchan Aruch in 1569.

The Rema himself cautioned against over-reliance by judges on his own code, saying, “in any case, a judge must be guided only by what his own eyes can see.[4]”[11]. Many others voiced even stronger objections to codification.

Common law jurisprudence tends to follow the rule of hilkheta ke-vatra'ei. Decisions are based on case law, which need not be decisive. Cases are granted more or less weight in the deliberations of a court according to a number of factors, the most important of which is whether the precedent is "on point," that is, does it deal with a circumstance identical or very similar to the circumstance in the instant case? Also, when and where was the precedent decided? A recent decision in the same jurisdiction as the instant case will be given great weight. Next in descending order would be recent precedent in jurisdictions whose law is the same as local law. Least weight would be given to precedent which stems from dissimilar circumstances, older cases which have since been contradicted, or cases in jurisdictions which have dissimilar law.

Perhaps it is the inherent elasticity, flexibility, and somewhat controlled chaos of the Talmudic study that has enabled Judaism to renew itself and remain relevant after thousands of years, and it might well work in American law as well.

(My wife, Dr. Rachel C. Sarna, my brother, Professor Jonathan D. Sarna,Professor Lawrence H. Schiffman, Rabbi Franklin Breslau, Rabbi StevenPruzansky, Esq., and Rabbi Emanuel Adler, Esq. assisted in the preparation of this  article. To all of them, my thanks.)

[1] Piskei Ha'Rosh [by Rabbi Asher ben Jehiel], BT Bava Metzia 3:10, 4:21, BT Shabbat 23:1
[2] Piskei Ha'Rosh, BT Sanhedrin 4:6, responsa of the Rosh 55:9
[3] Isadore Twersky, “The Shulhan ‘Aruk: Enduring Code of Jewish Law” in The Jewish Expression by Judah Goldin (ISBN-13: 978-0300019759), Rabad of Posquieres: A Twelfth-Century Talmudist (ISBN-13: 978-1590452752) and Introduction to the Code of Maimonides (Mishneh Torah), (ISBN-13: 978-0300028461)
[4] Quoted by Elon, p.1356.

Saturday, March 13, 2010

Can Google Translate the Bible?

Machine translation dates back to the earliest days of computing. “The Georgetown Experiment” in 1954 involved the translation of sixty Russian sentences into English. In an IBM Press Release issued back in the day, Prof. Leon Dostert hopefully predicted “that five, perhaps three years hence, interlingual meaning conversion by electronic process in important functional areas of several languages may well be an accomplished fact. (whatever he meant by that).
Recently, Google has been offering Google Translate, a free service, that provides immediate bi-directional translation in 55 languages, Hebrew Arabic, and Yiddish included.
It does a pretty good job with this blog, a result that is readily apparent if you pull down your language of choice and press translate.  But could it handle the Bible?
The Tanach, of course, has been translated many times.
Most probably, it was first translated (by hand, of course) into Greek for the Jewish community in Alexandria, Egypt, around 250 B.C.E. This translation is known as the Septuagint, for the seventy scholars who labored over it. The Gemara in Tractate Berakhot 8a says,  Rav Huna bar Yehuda in the name of Rabbi Ammi: "one should always complete the reading of one's weekly Torah portion with the congregation.” This statement was interpreted to require the ritual of Shnayim mikra ve-echad targum, referring to twice reciting the Hebrew text and once reciting Targum Onkelos, an Aramaic  translation and commentary on the Pentatuch. Aramaic was the language of the Jews of Babylonia. Other early Jewish translations include the Targum Yonatan on the Prophets, and Targum Yerushalmi, both into dialects of Aramaic. Two other translations, composed at the beginning of the common era were the Peshitta into Syriac, and the Vulgate into Latin.
Over the years, the Bible  has since has been translated into at least 2,400 of the 6,900  languages listed by the “Summer Institute of Linguistics,” a not-for-profit organization whose mission is to study, develop and document languages.
A website called BibleGateway.com has 22 searchable translations into English, and 54 languages sport at least one searchable translation.
But Biblical translation is a treacherous business, and it’s not for the faint of heart.
The Talmud records (B. Talmud Megilla, 3a) that when Jonathan ben Uziel translated the Prophets into Aramaic that “the land of Israel quaked over an area of 400 parasangs by 400 parasangs.” Moreover, the Tosefta warns (Megillah 4:41 )that “he who translates a verse literally is a falsifier, and whomever makes additions to it is a blasphemer.” Damned if you do, and damned if you don’t.
Undeterred by these dire warnings I fed the Masoretic text of the ten verses of Psalm 8, which the late Biblical Scholar, Professor Nahum M. Sarna called “unique in the Psalter” into Google Translate. After all, I wasn’t the one doing the translation, so the risks seemed manageable.
No. dice. The translation was unintelligible.
A few examples amply make the point.
The Jewish Publication Society’s translation of 1985 (NJPS) renders verse 3 as “3From the mouths of infants and sucklings You have founded strength on account of Your foes, to put an end to enemy and avenger.” Google came up with: “from infants, links - I founded - a goat: John   For Tzorrich; disable enemy, revenge.” NJPS renders verse 5  as “4When I behold Your heavens, the work of Your fingers, the moon and stars that You set in place;” the best Google could do was “that - see Shmich, act Azvatich  D- Moon and stars, which shank.”
A side-by-side comparison of the Hebrew, NJPS, and Google’s translation is available at http://goo.gl/hv4x.
56 years after Dr. Dostert’s  prediction, human study and effort is still as indispensible as ever for understanding and appreciating the Tanach. 

Judaism, the Bazaar, Chaos, and the Internet

The Cathedral, the Bazaar, Chaos, the Internet and Judaism
 By David E. Y. Sarna
In Googled: The End of the World as We Know It[1], the fascinating insider’s tale of Google’s successes and challenges deftly written by Ken Auletta, we are reminded of The Cathedral and the Bazaar, a seminal paper by Eric Steven Raymond, first delivered at a Linux developers conference in 1997; It’s also available in book form[2]. The paper expounds on the merits of “bazaar-style” software development in contrast to the top-down, centrally controlled management style used in most corporation.
I happened to be reading Auletta’s book on a recent Friday night, after our Sabbath dinner. It suddenly dawned on me. Raymond could just as well have been describing Judaism as the community of Linux users. (For those who have been asleep, like Honi the Circle-drawer  whom the Talmud says [3] fell asleep and awoke after 70 years, or Washington Irving’s character Rip Van Winkle, who similarly fell asleep for twenty years), Raymond is referring to Linux, the Unix-like free and open source operating system software  originally written in 1991 by Linus Torvalds and now used on about 60% of the world’s computer servers, according to Steve Ballmer, CEO of Microsoft[4], who said about the statistic,  “I don't like it. ... We have some work to do."
While a bazaar may not be the first descriptor of Judaism that comes to mind, it is apt. Walk into most any decent-sized Yeshiva, or even into a synagogue, during most parts of the service, and you confront a cacophony of voices. As Raymond says, “No quiet, reverent cathedral-building here.”
In comparison, in most cathedrals, silence is golden.  
In a Yeshiva, you usually study together with a study-buddy, a “havruta.” Kent Beck's “extreme programming” technique for rapid, more bug-free development is similar. He suggests deploying coders in pairs each one looking over the other’s shoulders[5].
The Talmud has been likened to hypertext, as is it full of internal links, as Jonathan Rosen observed[6].
Like the Internet, Judaism is highly decentralized, a property which provides for inherent fault-tolerance. While some countries, such as the United Kingdom have chief rabbis, others, like the United States, do not. There is no supreme ecclesiastical body. No one person or group is “in charge.” Each synagogue has its own customs and rituals, based on a common core. Just as the Internet has some major paths and core routers (the Internet Backbone), so too Judaism has its major strands, often called Orthodox, Conservative, and Reform.  But actually, it has many more strands than Howard Johnson’s 28 flavors of ice cream.
There are (self-described) fervently Orthodox, (haredi), Hassidic Orthodox, plain old Orthodox, “Modern Orthodox,” (also self-described), right wing, left wing (no Blue dogs that I’m aware of). There are groups who consider themselves  “Yeshivish,” “Litvish” (based on the study methods popular in pre-War Lithuania), feminist, anti-feminist, and so on. And that’s just among the Orthodox, who comprise perhaps 11% of the total, according to the late professor Daniel J. Elazar who founded the Jerusalem Center for Public Affairs, which keeps track of such things. He also said that at the very least the Orthodox represent 20 percent of the affiliated American Jewish community.
There are similar divisions among the more “liberal,” “progressive,” and reconstructionist strands.
Judaism has its core principles, but even these, other than monotheism, and a belief that God is a “unity unlike any other possible unity” (Maimonides) are much debated.
The Rabbi in Judaism is primarily a teacher, and a decisor. He is by no means an intermediary between man and God. It’s not so well known, but a Rabbi is not needed even to solemnize a Jewish wedding; a thing of value (such as a ring), a marriage contract and the attestation of two valid witnesses suffice.
Reynolds says that “the developer who uses only his or her own brain in a closed project is going to fall behind the developer who knows how to create an open, evolutionary context in which feedback exploring the design space, code contributions, bug-spotting, and other improvements come from hundreds (perhaps thousands) of people.
So it is with Talmudic study, and it has always been so for nearly two millennia. It is a marketplace of competing ideas. Not only is the Talmud itself replete with controversy, but in the standard editions of the Talmud, the text is surrounded by commentaries and super-commentaries, and thousands more glosses have been written over the generations, many flatly contradicting each other. What emerges out of all this seeming chaos, is like the results of a spectroscopic analysis, with bands of different colors whose width represents the degree of consensus.  On some issues, there is a wide band signifying broad agreement, while on others there is a colorful rainbow of narrow bands reflecting an enduring lack of consensus. Of course, the range of opinion is ultimately constrained by the Torah, which functions like a constitution in establishing boundaries.
This healthy tension between authority and opinion is nowhere more evident than on the Internet.  Google uses its famous (and secret) PageRank methodology, named after Larry Page, the co-founder of Google[7], to give great weight to authority and frequency of citation in its rankings. Yet, by attempting to index all of the pages in the Internet, it doesn’t totally disregard minority opinion or comments by individual bloggers; it just pushes their pages further down in the rankings of the search results that it presents.
The bazaar appears to operate on the edge of chaos, as does the Yeshiva. But there is order in chaos, as the famous French polymath Henri Poincaré (1854 – 1912) first identified. And this near chaos is not a bad thing, as Madhu M. Kurup pointed out: “From elementary chaos theory and evolutionary biology, we know that the most adaptive, dynamic and successful systems operate at the edge of chaos. Too much rigidity and the system dies as it cannot evolve. Too much chaos and the system is destroyed.”[8] Chaos Theory was popularized by James Gleick in his 1987 best seller, Chaos: Making a New Science[9].
Rabbi Abraham Issac HaCohen Kook (1865–1935), the first Ashkenazi chief rabbi of the British Mandate for Palestine was notable for building bridges among the various factions in Judaism. He famously called for and envisioned a spiritual renaissance where "the ancient would be renewed and the new would be sanctified."
While a patent examiner in 1871 (the year that Mark Twain was granted his first patent) is reported to have resigned, believing that everything possible had already been invented, the US Patent Office denies this as a myth, and we know that innovation in both technology and Talmudic study are free-wheeling, ongoing, and never-ending processes.
Perhaps it is the inherent elasticity, flexibility, and somewhat controlled chaos of the bazaar that has enabled Judaism to renew itself and remain relevant after thousands of years, and it bodes well for the future of the Internet as well.

[1] ISBN-13: 978-1594202353
[2] ISBN-13: 978-0596001087
[3] BT Taanit 23a
[5] see Extreme Programming Explained: Embrace Change, ISBN-13: 978-0321278654
[6] The Talmud and the Internet by Jonathan Rose (ISBN-13: 978-0826455345). See also http://english.ttu.edu/kairos/3.1/coverweb/porush/contra4.html
[9] ISBN-13: 978-0747404132