Outlawing Jewish Law

Apparently Tennessee lawmakers do not want to be left out of the anti-Sharia movement inspiring bills and ballot initiatives directed against Islamic law in a number of other states. (Click here for an earlier post on this topic.) However, the bill recently introduced in Tennessee’s state senate would go farther than other suggested legislation. It would in fact make following Sharia law a felony, punishable with at least 15 years in prison. (Click here for the bill.)

While this website dedicated to Jewish law, not Islamic law, the Tennessee bill is significant because it raises the following question: What would happen if (God forbid) American states would outlaw the practice of Jewish law? This is not merely a hypothetical question. Currently, there is an attempt in San Francisco to implement a voter initiative that would ban circumcision of minors, including religious circumcision. Violations would be punishable with a one-year prison sentence and a $1,000 fine. (Click here for more information.)

Though the aforementioned proposed legislation is unlikely to be successful, there have certainly been times throughout history when governments enacted laws forbidding Jews from practicing their beliefs (e.g. the Spanish Inquisition). Often those decrees implicated the halachos of Kiddush Hashem (sanctifying God’s name by sacrificing one’s life). The laws of Kiddush Hashem are complex, but I would like to point out one interesting issue.

The Rambam (Hilchos Yesodei Hatorah, ch. 5, §§1-2) states that general rule is that if a Jew is threatened with death unless he commits an action prohibited by the Torah, he must commit the sin and not surrender his life. If, however, the act in question violates one of the three “severe sins” (i.e. idolatry, illicit relations, and murder), then one must sacrifice himself and not commit the sin. The Rambam continues (ch. 5, § 3) with the following:

All of the above only applies when there is no specific decree (against the Jews). However, when there is a decree, meaning that an evil ruler such as Nebuchadnezzar will make a decree against the Jewish nation in an attempt to annul their faith or a specific commandment, then a Jew must give up his life in order not to violate any commandment.

The Lechem Mishna infers from the words of the Rambam that only a decree that is directed solely against the Jewish nation would require self-sacrifice. However, if a decree does not single out the Jews, but applies to all citizens, then self-sacrifice would not be necessary (except for the “severe sins”). (See also, Nimukei Yosef to Sanhedrin 74b; Shulchan Aruch, Yoreh De’ah 157:1; Shach 157:6.)

Thus, theoretically, if a government would prohibit the Jewish nation from fulfilling their religious obligation to circumcise every male and threaten a punishment of death, then a Jew would be required to continue to perform circumcision and face the penalty. However, if, as in San Francisco, the ban on circumcision would not single out Jews, but would apply to all citizens, then, if it was punishable by death, one would seemingly be permitted to comply with the ban.

Thankfully, though, the potential punishment for the San Francisco circumcision ban would not be death. Consequently, another question is raised: Must a person sacrifice his freedom (by going to jail) or his money (by being fined) in order to fulfill a positive commandment? The answer to the second question is apparently “yes”––one must spend at least 1/10 (but no more than 1/5) of his wealth in order to fulfill a positive commandment. (In order not to violate a negative commandment, a Jew must give up his entire wealth.) See Shulchan Aruch, Orach Chaim § 656; Mishna Berurah 656:8. I have not, as of yet, found any sources answering the first question (regarding prison). Any suggestions would be greatly appreciated.



Filed under American Law, Halacha / Jewish Law, News

4 responses to “Outlawing Jewish Law

  1. Not to defend the proposed bill in any way, I noticed that “Sharia” is not defined broadly as Islamic law, but rather as the “set of rules, precepts, instructions, or edicts…which include directly or indirectly the encouragement of any person to support the abrogation, destruction, or violation of the United States or Tennessee Constitutions, or the destruction of the national existence of the United States or the sovereignty of this state, and which includes among other methods to achieve these ends, the likely use of imminent violence.” I’m not sure what was wrong with plain old conspiracy.

  2. Avraham Keslinger

    In many prisons, certainly in many state prisons (where the vast majority of violent criminals are incarcerated), one’s life is constantly in danger, especially if he is not the type who is used to dealing with such characters.

  3. Alex the Jailbird

    Mr Keslinger, have you actually been incarcerated? It sounds as if you probably haven’t been. To begin with, the greatest danger in a prison comes from the guards, who are far more depraved than your average murderer. And if one keeps one’s nose clean and stays away from such fine things as the drug trade (of which the guards are great patrons), one is very likely to survive unscathed. And a crime such as this is more likely to land one in a minimum or medium security prison amongst petty thieves, harmless junkies, fraudsters and drunk drivers. So as long as you don’t try to make any investments or cross any busy motorways while you’re inside, your fellow inmates shouldn’t pose too great a danger.

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