"See, this day, I set before you blessing and curse: blessing, if you obey the commandments of the Lord your God that I enjoin upon you this day; and curse, if you do not obey the commandments of the Lord your God..."
(Deuteronomy 11:26-28)
Here, as in many other places, both the Torah and the later Jewish tradition presume free will and the responsibility that comes with it. In fact, the whole system of mitzvot assumes that we can both understand God's commandments and comply - or choose not to do so and suffer the consequences. This is very different from both Christianity, with its doctrine of Original Sin, [1] according to which nobody can overcome the sinfulness with which we are born as inherited from Adam and Eve through anything we do except through belief in a supernatural intercessor (there is no salvation by works, says Paul in the New Testament, but only by faith [2]). It is also very different from Islam, where determinism and even fatalism are common, although not universal, philosophies. (To my knowledge, only one serious Jewish thinker, Gersonides, argued for fatalism.)
That said, Jewish sources recognize the limits of our free will. Children, for example are not held responsible for their actions in law. Similarly, insane people lack both legal agency and culpability, and the Talmud tries to define insanity through specific acts ("He who goes out alone at night, and he who spends the night in a cemetery, and he who tears his garments" [3]) in order to determine who fits into this category. As Maimonides later says, these behaviors are to be considered as symptoms of insanity, not a definition of it. [4] The Talmud also recognizes that sometimes people can have both sane and insane moments, and it depends on that fact to permit a man in his sane moments to, for example, appoint an agent to divorce his wife so that she may marry someone else and to act in other legal capacities as well. [5]
Along with the insane person, the deaf mute and minor were not seen as legally competent, thus lacking in total free will. In fact, the phrase "deaf mute, insane, and minor" (heresh shoteh v'katan) appears as a grouping fully twenty times in the Mishnah. [6] In general their acts are not legally binding nor are they legally liable for injuries or damage to property that they cause, but adult, sane people who interact with them are fully liable for any injury[7] or damage[8] they cause them. In a few places, their acts are legally binding, as, for example, when they write a writ of divorce (get) [9]
The Torah makes the validity of a woman's oaths depend on whether the man of her house - her father or husband - accepted the oath, for in the patriarchal society of the times women could not control financial affairs. [10] The Mishnah establishes a principle that women are the equal of men with respect to all civil laws of the Torah, [11] but her legal position was clearly inferior to his. She was generally incompetent to act as a witness [12] and could not hold judicial office.[13]
On the other hand, the Mishnah asserts that "an [adult] person is always [construed legally to be] forewarned" and therefore fully liable for any damage or injuries he or she causes, whether intentionally or not, whether awake or asleep. [14] If a man is temporarily deranged, delirious, or intoxicated, he cannot perform the necessary acts to divorce his wife. [15] Conversely, a person under the influence of alcohol is legally responsible for his actions unless he has reached the state of oblivion attributed to Lot. [16]Exactly why the Rabbis made this exception, especially when they hold sleeping people liable, is not clear, nor is it clear whether or how such an exception would apply to people on hallucinatory drugs. Thus the presumption of free will and the responsibility that comes with it is, especially in the case of someone asleep, broader than it is in most other legal systems.
On a broader scale, nobody, of course, can be held accountable to do what human beings are not usually able to do. So even if you will that someone seriously ill be healed, it is often not in your power to make that happen, and nobody bears responsibility for people dying of natural causes. Similarly, as much as Jewish law requires us to aid the poor, the Torah recognizes that "the poor shall not disappear from the earth" (Deuteronomy 15:11), and so while we have the duty to alleviate poverty to the extent that we can, we cannot be expected to eliminate it altogether. There are physical and financial limits to our free will.
Recent discoveries in genetics and neuroscience have complicated this traditional Jewish picture of free will and responsibility. We now know that the genetic structure of some people make them more susceptible to specific diseases and behaviors than is true for most of us. That may just mean that people born with a propensity for alcoholism, for example, have a special duty to find ways to avoid alcohol, not only for their health but also so that they can act responsibly.
What if, though, we discover, as scientists have, that there is a far higher propensity for violence in men born with an extra Y gene (XYY instead of the normal XY)? If they commit crimes, society clearly has to incarcerate them to preserve its safety, but is such a man equally free to avoid violence as the rest of us and thus equally responsible for his violent acts as any of the rest of us, either legally or morally? We presumably would not incarcerate such an individual until and unless he committed a crime, but the Mishnah asserts that a stubborn and rebellious son is executed "for what he will do in the future so that he might die innocent and not guilty, for the death of the wicked is a benefit for them and a benefit for the world, while [the death] of the righteous is bad for them and bad for the world." [17] That really undermines a presumption of free will, for it says that our character is determined by the time we are an early adolescent to the extent that the legal authorities can take a young man's life if he is stubborn and rebellious even before he acts on those traits. Granted that the Rabbis narrowed that category severely so that even they say that such a person, as defined by them, never existed and never will exist; [18] but the very fact that they even entertained the idea that he might be executed for something that he would do in the future raises major problems for their underlying presumption that people have free will. It also at least seems to undermine their confidence that people can change, that they can go through the process of teshuvah, as demanding as that is, and thereby be welcomed back into the good graces of God and the community - to the extent that it is a violation of the laws against oppressive speech for anyone to remind the culprit or anyone else of his or her former misdeeds. [19] So the strong assertion of free will and responsibility built into the entire system of the Torah's commandments and into the Rabbis' legal system, including the system of return (teshuvah) that the Rabbis developed for those who do misdeeds, does have some significant limits and rather puzzling exceptions.
On a broader scale, we are now discovering that levels of serotonin in the brain are responsible for some people being depressed or even suicidal. Can we really say that they are free to perk up and get actively involved in life? Interestingly, although Jewish law asserts that someone who commits suicide should be buried outside the walls of a Jewish cemetery, the overwhelming practice is to presume that the moment the person committed suicide he or she was insane and therefore not liable for the suicide and eligible to be buried alongside other Jews. [20] This is an early recognition that some things that most people decide freely to do or avoid are really not free decisions made by others.
This comes to mind with regard to two recent events. The suicide of Robin Williams, that wonderful man who made us all laugh and devoted much of his life to aiding important causes, reminds us depression and other forms of mental illness do indeed affect what one is able to choose and do. We need to support mental health efforts in our nation just as much as we support efforts to maintain or restore physical health, for the effects of mental illness on our ability to choose what will happen in our lives are deep and all-encompassing.
Second, Attorney General Holder is, in my view, correctly objecting to the use of "evidence based sentencing," in which a defendant is sentenced not only according to what he or she has been convicted of doing, but also based on a series of factors out of that person's control but that are predictive of future crimes - factors like unemployment, marital status, age, finances, education, neighborhood, and family background, including family members' criminal history. Shades of the stubborn and rebellious son! This is now used in at least twenty states, and Congress is considering using it in sentencing for federal crimes as well. Even if those factors do indeed predict that a person is more likely than others to commit future crimes, it is simply unfair to determine a sentence based on what is beyond a person's control. Furthermore, taking into account such factors will inevitably lead to longer sentences for just being poor, which the U.S. Supreme Court unanimously ruled is unconstitutional in its 1983 decision, Bearden v. Georgia.
At the moment, then, the Jewish assertion of free will and the responsibility that comes with it, at least for a broad swath of our activities and for the vast majority of us, remains both scientifically plausible and legally and morally significant. One way I like to put that is that Judaism spells "responsibility" with a capital R. We not only have the free will and ability to live according to the commandments, to judge fairly according to what a defendant has done, and to repair the world by paying attention to mental illness as well as physical illness; we have the duty to do so.
Shabbat shalom.
[1] Paul, Letter to the Romans 5:12-21.
[2] Ibid., 3:20, 7:7-25; Paul, Letter to the Ephesians 2:8-9; Paul, Letter to the Galatians 2:19-21. But note that the New Testament assumes that once one has faith in Jesus, that faith should produce righteous actions; it is just that actions alone cannot redeem a person because of the sinful nature of humans. So, for example, James 2:14-26 asserts that "faith divorced from deed is lifeless as a corpse," and see Galatians 5:13-25.
[3] B. Hagigah 3b-4a; see also T. Terumot 1:3; B. Shabbat 105b; B. Sanhedrin 65b; and B. Niddah 17a.
[4] M.T. Laws of Testimony 9:9-11, and see the commentary of the Kesef Mishnah there.
[5] T. Terumot 1:3; B. Rosh Hashanah 28a; B. Yevamot 31a, 113b; B. Ketubbot 20a.
[6] E.g., M. Eruvin 3:2; M. Rosh Hashanah 3:8; etc.
[7] M. Bava Kamma 8:4.
[8] M. Bava Kamma 4:4.
[9] M. Gittin 2:5.
[10] Numbers 30:2-17.
[11] M. Kiddushin 1:7; cf. B. Kiddushin 35a-b.
[12] M. Rosh Hashanah 1:8; B. Shevu'ot 30a.
[13] B. Bava Kamma 15a.
[14] M. Bava Kamma 2:6; cf. also 1:4.
[15] M. Yevamot 14:1; M. Gittin 7:1; B. Gittin 67b.
[16] Lot: Genesis 19:31-36. That oblivion erases responsibility: B. Eruvin 65a.
[17] M. Sanhedrin 8:5.
[18] B. Sanhedrin 71a.
[19] M. Bava Metzia 4:10.
[20] That a suicide should not be buried as a Jew: M.T. Laws of Mourning 1:11; S.A. Yoreh De'ah 345:1-2. That someone who commits suicide "under duress like King Saul" is buried with full Jewish rites in a Jewish cemetery: S.A. Yoreh De'ah 345:3.