The following sermon was delivered by partner, Edward Prutschi, on Saturday Feb. 2, 2019, Parshat Mishpatim at the Song Shul in Toronto.
Parshat Mishpatim – Torah Portion “Laws”
Feb. 2, 2019
The Importance of Dissent: What the Supreme Court of Canada Learned from this Week’s Torah Portion
Almost exactly 22 years ago this month I had a job interview.
It was a pretty exciting job interview – so exciting that my kvelling (Yiddish for “overwhelmingly proud”) father felt the need to accompany me on the flight to Ottawa so that he could stand outside of the Supreme Court of Canada and shep some nachas (extract some joy) from the fact that his son was being considered for an articling position as clerk to one of the top court’s justices.
Each Judge has the opportunity to hire three clerks from across Canada’s law schools. The competition is incredibly stiff and I was thrilled to have been offered interviews with five of the nine judges on the court.
The morning started off with me settling into a deep leather armchair across from Mr. Justice LaForest. It was a cold snowy Ottawa day and Justice LaForest had a crackling fire roaring in one of the two fireplaces that lined the walls of his ornate office. I remember thinking I’d be very happy if I could one day own a house with a single fireplace, much less an office that sported a matching pair!
I was shepherded on to Mr. Justice Sopinka who plunked down a copy of a lawyers trade newspaper with my smiling face on the cover. The picture showed me accepting an award I had won the week before and I couldn’t help but feel like things were going remarkably well. My day took a turn when Justice McLaughlin grilled me for thirty minutes on US gun control legislation. I had tried to prepare for all manner of legal quizzing but had restricted my cramming to Canadian law. This did not bode well.
By the time I walked into Justice L’Heureux-Dubé’s office I was already feeling a touch dizzy when she started the interview in French. I speak French the way most Ontario-raised kids speak French – meaning, I don’t. Relying largely on a year of French immersion kindergarten in Montreal, I battled through twenty awkward uncomfortable minutes trying – and failing – to converse intelligently about the nuances of Canadian constitutional law using a vocabulary limited to the French equivalent of “See spot run”.
At the end of the interview, Her Honour asked me if I had any questions. I resisted the urge to blurt out “What the heck have we been talking about this whole time??” and instead asked her how it felt to have nearly always been on the losing side of the argument. You see, L’Heureux-Dubé was famously known as “The Great Dissenter”. A large body of her judgments were written on behalf of the minority – sometimes with her voice as the lone dissent – in which she explained why the law should not be what the majority of the highest court in the land had just declared it to be. She smiled at me and said, in English, “Today’s dissent is tomorrow’s majority.” File that away for a moment – we’ll come back to it.
My final interview was with Mr. Justice Iacobucci. Not a ‘member of the tribe’ in case the name wasn’t a give-away for you. Which is why I was visibly shocked when he opened with this question: “If an ox falls from a height on the roof injuring a passerby below, who pays damages – the owner of the ox or the owner of the property?”
Cue me picking my jaw up off the floor of his ornately carpeted office.
If that question sounds vaguely familiar to you, that’s because it should. The genesis of the question is in today’s Torah portion. The bulk of parshat Mishpatim is spent setting out the foundational framework for both criminal and tort law. The critical importance of intent in distinguishing between murder and manslaughter; reparations for injured slaves; liability for harm inflicted on an unborn fetus; all of these fascinating legal debates upon which modern law has been built we just read today from the Torah.
Starting in Chapter 21, verse 28, the Torah speaks of an ox who gores a man or a woman. The ox is to be stoned for its misdeed, but the owner of the ox is held innocent of wrongdoing. However, if the ox had a history of dangerous behaviour prior to injuring another, both the ox and its owner are sentenced to death.
Justice Iacobucci’s question in fact went further as he was asking me not about the short example cited in this week’s Torah portion but about the much more intricate and lengthy debate that appears in the Talmud which itself is an expansion on the debate in the Mishna that all had its genesis here in Chapter 21.
And so there I was, 23 years old, sitting in an office in Ottawa debating Talmud with my chavruta (study partner) – a judge of the Supreme Court of Canada. Justice Iacobucci made it clear to me that he didn’t care about the ultimate answer in our mini debate. He cared about the debate itself.
Why would you find fault in the ox-owner – is not the property owner obligated to erect a fence? Why should the property owner be put to expense to protect against the negligent actions of another’s roaming ox? Would it matter if the ox had a troublesome history of wandering and causing injury? What if the property had been the site of multiple repeated accidents?
It was the most enjoyable thirty minutes I’ve ever had in a courthouse to this day – and I’ve spent a lot of time in courthouses.
Which brings me back to the words of Justice L’Hereux-Dubé – the great dissenter. Debate and dissent are as Jewish as cholent and herring. The most famous example of our people’s ‘dissent DNA’ can be seen in the epic intellectual struggle between the two great Talmudic schools of Beit Hillel and Beit Shamai.
The students of each school frequently clashed intellectually taking opposite sides on a halachic (legal) question. In the over 300 debates recorded between these two schools, the Talmud nearly always concluded by saying, ha halacha k’beit hillel – the law follows the ruling of Hillel, even though the Talmud relates that at the conclusion of the debate, a Divine voice proclaimed, “Eilu v’eilu divrei shamayim” – both opinions are the word of God.
The students of Beit Shamai took comfort in the 6th century teachings of Rabbi Isaac Luria (the “Ari”) who stated that Hillel’s halachic dominance was temporary and only for this world; Beit Shamai’s interpretations would govern after the coming of the messiah. Or, as Madame Justice L’Heureux-Dubé put it, today’s dissent is tomorrow’s majority.
But the question remained: if both Shamai and Hillel’s interpretations are “the word of God”, on what basis do the sages choose Hillel as the opinion which governs in halachic rulings?
The Talmud explains: when the students of Beit Shamai taught on these controversial subjects, they taught exclusively the opinion of Shamai. In contrast, Beit Hillel’s practice was to teach BOTH opinions. Moreover, in deference to the importance of debate, Beit Hillel always presented the arguments of Beit Shamai first, only afterwards providing their own contradictory opinion. The practice of including dissenting opinions continues to this day in Canadian appellate law, even at the highest level. Although there is no appeal from a decision of the majority of the Supreme Court of Canada, the dissenting reasons are always included in the written judgment.
So, in reading the litany of laws outlined in today’s parsha, it is obviously important to study and understand the law as it must be applied. However, in keeping with the traditions of Beit Hillel, the greatest contribution of Judaism to our modern legal systems is not the judgment at the end of the day, but the tradition of vigorous, opinionated debate that at all times respects the dissenting minority opinion.
Incidentally, despite landing five coveted interview I did not get the job. But the words of Justice L’Heruex-Dubé and the future of Beit Shamai in the world to come give me hope.
Today’s dissent is tomorrow’s majority. Maybe I’ll still make it to the Supreme Court of Canada, if not to write a judgment, then to have the great honour and privilege of making the argument and enjoying the debate.
Thank you so much for inviting my wife and I to this beautiful service. Shabbat shalom.