Psychology and Jewish Law

Psychology andJewish Law PSYCHOLOGY AND JEWISH IAWl by Solomon Schimmel Dr. Solomon Schimmel is Professor of Jewish Education and Psychology at Hebrew College, Brookline, MA. He is the author of The Seven Deadly Sins:Jewish, Christian and Classical Reflections on Human Nature (The Free Pr~ss, 1992) and has published widely on psychology and religion. Dr. Schimmel moderates the JEWISH-PSY list on SHAMASH on the Internet and has offered distance-learning courses on Judaism and Psychology over the Internet. He is currentlywriting a book dealing with Jewish perspectives on communal service/social work/social welfare. 1 It is difficult to imagine any legal system, secular or religious, in which assumptions or predictions about human thought, feeling, and behavior do not playa major role in establishing, interpreting, and applying the law. Jewish law, too, in all its spheres-civil, criminal, family, and ritual-is replete with assumptions about how people think, feel, and behave in various life situations. Many halakhic Oewish legal) terms and concepts are ofa psychological character or include significant psychological dimensions. Among them are "migo" (an individual making a false claim would use a more rather than a less plausible lie), "umdena" (assumption or assessment), "hazaka" (presumption), "ones" (duress or coercion), "ratzon" (will or desire), "daat" (knowledge, consent, understanding), "kavanah" (intent), "meyzid" (premeditation), and "shoteh" (insane). In establishing and using these concepts, Jewish legislators, judges, and rabbinic decisors, like lAn earlier version of this paper was presented at the Fifth Biennial International Conference of the Jewish Law Association at Boston University School of Law. 2 SHOFAR Winter 1996 Vol. 14, No.2 their counterparts in other legal systems, function as common sense, intuitive psychologists. Modern psychology, however, attempts to go beyond common sense, intuition, and cumulative but informal experience. It is an empirically based social science that employs a variety of experimental and statistical methodologies to gather and interpret data about human behavior, thought, and feeling and to predict future behavior. One would expect that legal systems will use the resources and findings of psychology where psychological information and insight are relevant to legislation and adjudication. And indeed, in the twentieth century the American legal system has increasingly turned to psychologists to assist it in ascertaining questions of fact and in formulating legislation. This has been the case notwithstanding an understandable and sometimes a justifiable skepticism of many judges with respect to the findings and interpretations of psychologists. The judicial skepticism is based on at least two reasons. For one, contemporary psychology includes different schools ofthought, of method, and of interpretation. Second, there are fundamental differences between certain philosophical assumptions of the most influential psychological theories and the philosophical assumptions of legal theory. For example, both Freudian psychoanalytic and Skinnerian radical behaviorist theories postulate a strict determinism with respect to human behavior. legal theory, however, both American and Jewish, is premised, to a considerable if not an exclusive degree, upon the assumption that people can freely choose how to act. Concepts such as insanity, duress, volition, knowledge, responsibility, and guilt are understood quite differently from a determinist perspective thah from a perspective of free will. It is therefore frequently difficult for members of the legal profession and for halakhists to incorporate psychological thinking and inSight into their deliberations, because of the different conceptual frames ofreference of the two systems. However, notwithstanding these judicial reservations, the influence of psychology on the American legal system continues to grow in many different areas of the law. Among them are establishing the accuracy of eyewitnesses, assessing the reliability of recall and recognition memory, diagnosing insanity, ascertaining the probable effects of different custody placements in determining the best interests of the child, studying the effects of prior attitudes and of group dynamics on jury deliberations, and using survey techniques to establish facts. In this paper I examine a few of the psychological dimensions of halakha, reflect upon how modern psychologists might critically evaluate halakha's use of psychology, and conclude with two questions that might Psychology andjewish Law 3 guide research on halakhic responsiveness to psychological findings and theories that differ from Talmudic psychology.2 In halakha a widely used concept is the "hazaka"-the legal presumption. Among these presumptions are some...