Machines and People

Art is the medium that allows an artist to communicate something profound and meaningful to his or her audience in a way that does not merely inform but truly inspires...and which also allows the artist to transcend the brevity of human life to speak not solely to contemporaries, but to countless future generations as well.  When put that way, the underlying concept sounds fairly abstruse. But when considered in the context of real life, it feels almost natural: when we sit in the audience and watch King Lear talking to his daughters on stage as the curtain goes up and the play begins, it's not at all difficult to understand that it's only him talking to them in a certain sense, but—and far more profoundly—it’s really the playwright talking to us. Indeed, the difference between a great artist and a hack lies precisely in his or her ability to communicate deeply and movingly with an audience in a way that merely telling them that same information would not even slightly accomplish: what we learn in a few minutes of King Lear about parent-child relations and the degree to which greed can poison even the most natural kind of love couldn’t possibly ever be conveyed as deeply or as effectively by even the most talented university lecturer giving a public talk about the ins and outs of childrearing. Or about the nature of love. Or about greed.

That all being the case, art requires three things (or feels as though it must): an artist, an audience, and an artistic medium of some sort. The first and the second absent the third is just two (or more) people standing in a room. The first and third absent the second is the artistic version of a tree falling in a forest with no ear drum present to vibrate sympathetically when the tree hits the earth. The second and third is, at best, unrealized potential, a batter at the plate and a ball resting on the pitcher’s mound…but no pitcher in sight actually to throw the ball and, as such, no game to watch and either to enjoy or not to enjoy. And, of course, also no winner or loser.

So that’s two living, breathing people and one artistic medium that feel requisite. But now that we live in a new world in which machines can think—if not quite in the way human begins do, then at least to an extent that even a quarter century ago would have been unimaginable—the time may have come to revisit that those requirements.

Take, for example, these eyes:

They are expressive, thoughtful, fully human. It is a man or a woman? Is that the hint of a moustache under his nose or just a shadow? These eyes suggest a certain sadness to me, a certain world-weariness born of insight into the way that people are so often their own worst enemies. Without being able to see the rest of the face, this person seems to exist outside of time. If the rest of the picture depicted him or her dressed like an Italian aristocrat of the sixteenth century, I could believe it. But if the rest of the picture portrayed him as a cowboy or her as an astronaut, I could believe that too.

Here’s the rest:

So, not a cowboy or a doge, but a Dutchman. And this, I can hear you thinking, must surely be a work of Rembrandt, the greatest of all portrait painters and (of course) a Dutchman himself. But this painting is neither a Rembrandt nor a work by any of his contemporaries or students. It was created by a 3-D Printer that was programed over the course of an eighteen-month experiment by a team of art historians, computer scientists, and engineers brought together by Microsoft, the Delft University of Technology in Holland, and two Dutch art museums, the Mauritshuis in The Hague and the Rembrandt House Museum in Amsterdam. Bringing together digital data culled from 346 of Rembrandt’s real paintings created between 1632 and 1642, the idea was to create a portrait of a man not only dressed in the style of the time and with facial features similar to the men in Rembrandt’s real paintings, but to use the finest gradations of shading, texture, perspective, brush usage, pigmentation, and lighting to create a new portrait, one of no one at all but that surely feels as though it could be of someone whom Rembrandt could easily have known.

Is that art? It’s hard to say. The work has an audience and it exists…but does it have an artist? Clearly, a 3-D printer is not an artist, just a machine that does its programmers’ bidding. But are its programmers then the artists? I want to say no, that this project was just some digital silliness dreamt up by people because they had the technical skill to pull it off. But then I look again at the man’s eyes…and I feel a certain sense of kinship with this non-man who never existed. Does that make me a crazy person? Or does that make this a work of art?

Christie’s is about to auction off a portrait called “Edmond de Belamy, from La Famille de Belamy,” a work created by an algorithm (whatever that means exactly) and thus a product solely of its machine-creator’s artificial intelligence. The bidding is going to start at $10,000. The creators, if that’s the right word (since they specifically did not create the painting), are a trio of French businessmen with degrees in business and computer technology who call themselves Obvious. No artistic implement was used to create the picture—no pencils, no paints, and no drawing tools of any sort. Nor was human creativity involved other than tangentially: what the members of Obvious did, almost simply, was to feed thousands of portraits from the 14^th to the 20^th centuries into a computer that had been programmed to analyze the images in a dozen different ways and then attempt to mimic them as best it could. And here is, so to speak, Edmond de Bellamy himself:

Is this art? Most of me still wants to say no. But I find myself unexpectedly unsure as I look carefully at the painting and allow it to speak to me in precisely the way great works of art communicate outside of language and without being themselves animate.

I saw Her, Spike Jonze’s 2013 movie, and came away unconvinced that a man could truly love a machine, even one possessed of as intelligent and enticing an operating system as the one whose voice in the movie is Scarlett Johansson’s. Machines are not people. They cannot love. They cannot reproduce. But can they create? That is the question the portraits pasted in above awakens in me.

These questions lead to others. Can machines make music? Can they write books? Can they make scientific discoveries other than by processing huge amounts of data that their human masters have programmed into them? All these views have their proponents. Listen, for example, to Drew Silverstein, the CEO and co-founder of Amper, a company eponymously named after its sole product, an artificial-intelligence music composer.  Touted as the ultimate in artificial creativity, the program, so claims its founder, can create “unique, professional music tailored to any context in seconds” once you’ve provided it with the style of music you wish it to create, the mood you’d like to convey, and the length of the piece of music you wish to end up with. It’s beyond impressive. (To hear the whole spiel, click here.) And the product is certainly something like music. Maybe even it is music…at least in the sense that what they market as “cheese food” is some version of cheese. But what it lacks is the inner quality that, at least for me, defines what music—and what art itself—is: the ability to transcend the temporal and physical boundaries of the universe to communicate deeply moving ideas and emotions through the medium of human creativity. And that is what is lacking in all of the above. If there is no human artist, then there simply is no one for me to commune with through the medium of his or her art, no one to speak to me either deeply or superficially. Or at all. And without that psychic bridge between one human heart and another, all that’s left is technique and content.

Coming closer to my own turf, I find myself wondering if machines can write books. You may recall reading in George Orwell’s 1984 about a world in which the “proles” of a dystopian future solely read books written by machines. You may also be aware that amazon.com features over 10,000 books by one Phillip Parker, each of which is computer-generated and so, at least in some sense, “written” by a machine—but those books are merely compendia of facts and data, so hardly literary works other than in the sense that tax returns are or that telephone books would be if there still was any such thing. But other efforts are more intriguing. A Russian computer scientist, Alexander Prokopovitch, programmed a computer to produce his (or do I mean, its) 2008 novel, TrueLove, an attempt to tell the story of Tolstoy’s Anna Karenina in the style of one of my own favorite authors, Haruki Murakami. It was, however, not deemed a particularly successful undertaking and is no longer in print. (For a fairly dismal appraisal of Prokopovich’s efforts, click here.) Others will do better, I’m sure: to teach a computer to produce a text that retells a story that it has been programmed to regurgitate on command using a specific set of literary quirks and tendencies it has also been programmed to bring to bear in its effort to recast the story in different words doesn’t sound anywhere near impossible. But we’re back to the tree in the forest: if there is no beating heart inside an actual human breast with which I am being invited personally to commune through the medium of that person’s art, then there is—at best—a document, a story, or a book…but not literature. An image but not a painting. Sound, but not music. 

The bottom line, at least for me, is that art should be defined first and foremost as a mode of communication, as a way for two souls to meet even if their possessors never will or even could. If there is no other person involved, then even the most sophisticated effort to mimic art is just so much unrealized potential. Art, like love, requires two.

The End of Privacy As We've Known It

I have been revised! The news came just the other day in an email from ancestry.com informing me that my DNA profile has been revised in light of serious amounts of new data that they have recently processed and which now allow them to refine my ancestral portrait based on the DNA sample I sent them last spring. And now for the results: instead of being of 96% European Ashkenazic heritage, 2% Sephardic, 1% South-East Asian (a true mystery) and 1% of indistinct origin (whatever that meant exactly), my DNA profile has now been revised to yield the completely un-startling result that, genetically speaking (as well as by disposition, worldview, and appearance), I am of 100% Ashkenazic/European origin. Was I surprised? Not very! And yet…I had come to like the idea of having some weirdly inexplicable Sri Lankan blood in me somewhere, something that, at the very least, could have turned into a good short story. I suppose I’ll get over it. I might as well! 

Joan took the test too and received similarly expected results. I suppose most people do. But, of course, not all do. I wrote to you last year about the remarkable way that a woman from Chicago discovered that her (apparently) 100% Irish Catholic father turned out to have started out in life as a 100% Jewish baby boy who was sent home with the wrong set of parents and whose real parents (i.e., the woman who gave birth to him and his biological father) took whom the (actually) Irish Catholic baby who grew up to be a Jewish man from the Bronx and the patriarch of a large, complicated Jewish family. (If you find that confusing, you can revisit that letter by clicking here.) There, I mused aloud about the malleable boundaries of identity, about what it means to be who we are—and what that means with respect to the ultimate definition of Jewishness or, for that matter, any kind of identity deemed to inhere in an individual at birth. To my great surprise, I actually received an email from the woman with the Jewish Irish Catholic father in response to what I wrote about her case and I was very gratified indeed by her very generous appraisal of what I had to say about her situation and her father’s.

You have to be a serious genealogist to take advantage of most of what these online DNA sites offer. When I visit the ancestry.com website, for example, I can see the names of more than a dozen people whom the site says are “almost definitely” my fourth or fifth cousins. (Fifth cousins are people, one of whose thirty-two great-great-great-grandparents was a sibling of one of the other person’s thirty-two great-great-great-grandparents.) I’ll have to upgrade my membership if I want actually to contact any of them, but I haven’t taken that step. Nor do I think I will in the future. (In all fairness, they’ve also dangled the names of two second cousins to see if I’ll take the bait. So far, I’ve resisted.) But it turns out that there is a lot more to all of this than learning the names of theoretical cousins possibly descended from theoretical siblings who lived in the eighteenth century.

One of the side developments of all this DNA testing is the discovery some men have made, not of distant cousins, but of children inadvertently fathered somewhere along the way and in any number of different ways. (This phenomenon, which will only become more common in the coming years, has touched one family in our congregation and it has touched my own family as well. Those two stories were different in detail, but identical in terms of result…and, although both appear to be having happy endings, it feels unlikely that there are not out there people whose entire lives have been or will be turned upside down by this kind of unanticipated revelation.) Another has to do with the forensic use of these data banks to solve crimes long consigned to the “cold case” bin and only now becoming solvable in the wake of the proliferation of these online DNA banks.  You may recall reading about the arrest of the man police accuse of being the so-called “Golden State Killer,” a violent criminal considered likely to be responsible for fifty rapes and a dozen murders committed between 1976 and 1986 whose identity was only revealed to the authorities after they uploaded DNA taken from the crime scenes to a site called GETmatch.com. (To read more about that specific case, click here. Making that specific case more interesting is the fact that although the suspect did not personally offer his DNA to any of the online testing sites, a few of his relatives did…and matching the crime-scene DNA to their profiles led to the arrest of the sole individual to whom they were all related.)

But the specific issue I want to write about this week has to do neither with the discovery of unknown offspring nor the solution of cold-case crimes. Instead, I’d like to write about an issue that feels as though it has the potential to dwarf both those issues in terms of the impact it could conceivably have on society.

To date, about fifteen million people have consciously and intentionally sent in samples of their DNA for analysis to sites like 23andme.com or ancestry.com. Another couple of million have signed up at a few less well-known sites. We are, therefore, talking about far less than 10% of American citizens, but the implications of this phenomenon are far greater than the numbers suggest. Just this week, a study co-written by Yaniv Erlich, Tal Shor, Itsik Pe’er, and Shai Carmi was published in the journal Science that suggested just how important this whole phenomenon is…and how it will soon affect the lives of millions of people who themselves have not sent in their DNA for analysis.

To date, about sixty percent of Americans of North European descent—Brits, Germans, Poles, Danes, Swedes, etc.—can be identified through these databases regardless of whether they have personally sent in their DNA for analysis. And that number is only the beginning: within two or three years, the authors of the Science essay imagine that a full ninety percent of Americans whose families originate in northern Europe will be identifiable through their DNA even if they themselves have not personally contributed any DNA sample.

To me, that sounded unbelievable. It’s one thing, after all, for my ancestry.com page to say that mitchKK (whoever he is) and I are “highly likely” to be second cousins. (I think we probably are cousins, by the way—the 2nd K matches the odd way my great-grandparents spelled their last name so I’m guessing one of his grandfathers must have been one of my grandmother’s brothers.) But that only sounds plausible because we both contributed samples of our DNA and so opened ourselves up to being identified as each other’s relative. But how could this possibly work with people who specifically have not contributed their DNA? That’s what I set myself to trying to figure out.

I’m not sure I understand the Science article entirely correctly. (To try for yourself, click here.) But as far as I can understand, the whole thing has to do with third cousins because, it turns out, the way the tests work is precisely to identify people whose DNA samples match closely enough for them to be third cousins, i.e., the great-grandchildren of siblings. Most of us apparently have about 800 people in the world whose DNA matches ours to that extent. And if just one of those people is in the data base, then someone who truly knows what he or she is doing can extrapolate information based on other public records to find a trail to a sought-after individual even if that person has not personally contributed DNA of his or her own.  This does not bode well for people who value their privacy.

The authors of the Science article chose thirty DNA test results at random from the GEDmatch database and then, by analyzing that data and using public information available to all, they were able to identify third cousins of about 60% the people whose DNA they had selected for study. (GEDmatch, with only a million customers, is significantly smaller than its competitors but was amenable to allowing the experiment to proceed.). In an article describing the experiment published in the New York Times this week (click here), Heather Murphy quoted Yaniv Erlich, one of the authors of the Science article, as saying that, “to identify an individual of any ancestry background, all that is needed is a database containing two percent of the target population.” That stopped me in my tracks.  

Is that really possible? Graham Coop, a genetics professor at the University of California Davis who is cited in the Times article, thinks so and is quoted as saying that “society is not far from being able to identify 90 percent of people through the DNA of their cousins in genealogical databases.” In my opinion, anyone who doesn’t find that both startling and seriously unsettling probably hasn’t thought the matter through carefully enough!

I’ve been sensitive for a long time to the slow erosion of personal privacy in our American culture. For most of us, that thought conjures up almost funny images of some drone at the NSA poring over trillions of emails that could not possibly be of interest to anyone other than the person to whom they were sent. But the thought that society seems to be blundering almost unawares into a future in which personal privacy is a thing of the past and the fullness of an individual’s genetic heritage is suddenly a matter of public record regardless of whether that individual has or hasn’t chosen to become part the digital quarry from which amateurs like myself presumed such data could only be mined—that seems to me to be far beyond something reasonably referenced as a quirky innovation of the digital age. The right to personal privacy in life—to live free without the oversight of others and without their interference—is one of the fundamental privileges of citizens in a democracy. That we appear to be on the verge of losing control over that foundational right is just another sign of just how out of control things are as we barrel into the future only vaguely aware of what we ourselves have wrought.

There's No Ark

I’m not quite old enough to remember when Dinah Washington won the Grammy for “Best Rhythm and Blues Performance” in 1959 with her hit single, “What a Difference a Day Makes,” but, man, what a difference a day really can make! Just a day or two ago, for example, I was thinking that the elevation of Brett Kavanaugh to the Supreme Court was going to be the long-term game-changer in the history of our American republic over these next few decades, the event that would, by replacing a swing voter with a reliably Conservative legist, would end up having the most lasting impact on my children’s generation and my grandchildren’s. But now, in the wake of the report issued earlier this week by the Intergovernmental Panel on Climate Change, a group of scientists brought together by the U.N. to advise the worlds’ leaders about the short- and long-term effects of climate change, things seem entirely different. Yes, the decisions of the Supreme Court will still matter. But the sudden realization that the consequences of failing to address the key environmental issue of our day will begin to manifest themselves dramatically and irreversibly within a quarter century—that is to say, within the lifetimes of many who are alive today and most of their children and almost all of their grandchildren—is clearly news in a whole different category of importance.

The report was written 91 scientists from 40 countries who analyzed more than 6000 earlier scientific studies, and their conclusions can be summed up easily: if the emission of greenhouse gases continues at the current rate, then the atmosphere will rise to about 2.7° F. (=1.5° Celsius) over preindustrial levels by 2040, which rise will bring about at least some of the effects formerly associated with a much more precipitous rise of 3.6° F. (=2° Celsius) rise. Like most people, I would once have thought that a half-degree difference would be negligible. This report effectively lays that fantasy to rest. (The 2040 date is an estimate, by the way; what the report found inevitable is that the 2.7° F. threshold will be passed some time between 2030 and 2052.) More to the chilling point, that specific threshold will only the beginning if we continue on our current path without serious effort on the part of all industrialized nations to reduce the amount of carbon dioxide in the atmosphere. Indeed, the report declared it more or less inevitable that the second threshold, the 3.6° F. one, will more or less inevitably be crossed later this century. Since children born today will be 82 in 2100, this is not just a dour picture of some distant version of our world that the scientists are painting, but one featuring the version of the world many of the children born this week will personally experience. And the effects of this kind of environmental catastrophe, needless to say, will not respect international borders or property values. In this specific matter, we will either all survive or, to quote Ben Franklin, we will all hang together.

And we really are talking serious horror-movie stuff here. Fifty million people, and not only in our own nation but in countries across the globe as well, will be exposed to serious coastal flooding by 2040 if the current rate of greenhouse gas emissions is not curbed. 350 million people worldwide will be exposed to drought-like situations in which there simply will not be enough water equitably and fairly to be shared by all. The coral reefs that protect countless miles of coastline will begin to disappear. If the ice that covers Greenland and Antarctica melts (which is a possibility by the time we cross the first threshold but a virtual certainty if we cross the second), the seas will rise by feet, not inches, and stay there not for years but for centuries. As a result of environmental havoc, the world’s economy will be altered in a way that, to quote the report, simply has “no documented historical precedent.” Are we having fun yet?

Our nation, once at the forefront of environmental activism, has turned its back—or at least our political leadership at the top has turned its back—on the whole issue, which political posturing has so far been most visibly manifested in the President’s announced intention of withdrawing the United States from the Paris Accord of 2015, something that cannot actually happen until 2020 but the initial preparations for which are already underway. (Brazil, the seventh-largest source of greenhouse gas emissions in the world, is likely to elect as its new president someone who has announced his own intention of withdrawing Brazil from the Paris Accord as well.) It is true that the American delegation formally accepted the conclusions of this new report. But the State Department responded to that development with an announcement to the effect that the delegation’s endorsement of the reports’ findings “does not imply endorsement by the United States of the specific findings or underlying contents of the report.” In other words, our expert scientists on the ground accept the report but the government simply won’t.

And that brings me to this week’s Torah portion.

Story Hour began earlier this week in our Early Childhood Center at Shelter Rock and that means that I have already begun spending time every Tuesday morning reading to the boys and girls enrolled in our program. Sometimes I read books of general interest and sometimes of more distinctly Jewish interest. But when I can I like to read books based on the weekly Torah portion. This is distinctly easier some weeks than others, but it was a piece of cake last Tuesday because the school owns, not one or two, but a dozen different books retelling the story of Noah and the flood.

Some are more inventive and cleverer than others. (My temporary favorite is the one about the extremely unfriendly reaction the pair of termites got when they attempted to take their place with the rest of the world’s fauna in Noah’s wooden ark.) But all have one thing in common, which is that—given that these books are all pitched at very young children—they all skip over the crucial background detail that sets the stage for the rest of the plot: that God, sickened by the apparently irreversible extent of human depravity, has determined to eradicate humanity from the face of the earth by drowning all living things (except the fish, I suppose) and then starting over with a new version of humankind that will have Noah and his wife as their progenitors rather than Adam and Eve. And, indeed, that is exactly what does happen: Humanity 2.0 gets off the ground precisely as the waters recede, Noah and his family exit the ark, and his sons and daughters-in-law set themselves to repopulating the globe.

All traces of any of the above are omitted in every single one of the books retelling Noah’s story that we have in our Nursery School.  There are depicted in those brightly illustrated pages no panic among the soon-to-be eradicated and no hysteria as people attempt to claw their way to safety. There are certainly no bloated corpses floating alongside the ark as it bobs up and down on the sea that covers the face of the earth, let alone millions of them. Nor, needless to say, is there ever any reference to the countless numbers of animals that must too have died or to the horrific way in which they must have drowned when the waters lifted them up and they at some point simply had no strength left to tread water any longer. Instead, the story, sanitized and ready for sale to pre-school audiences, is focused solely on the fun Noah and his family must surely have had on the ark as they got to know all the animals and enjoyed their time aboard as though the ark were some sort of primeval cruise ship.

I hardly have to explain that the reason the story is so drastically and irremediably truncated is precisely because we don’t want our children to be terrified. Not by a God who once chose to eradicate humankind because of the wickedness of its ways. Not by a world that feels safe enough most of the time but which can apparently turn into a death trap from which none may flee almost without anyone noticing. And least of all by the notion that some actions have ineluctable consequences…and that we sometimes simply cannot avoid the results of our own actions and have therefore no choice but to face the consequences of what we ourselves have wrought.

In Nursery School, that works well enough because we really don’t want to terrify the three- and four-year olds who look forward to Story Hour each week. But those of us who come to pay attention this Shabbat when the story of Noah is read aloud will hear an entirely different tale and, at that, one with a set of morals that sound not just ominous in light of this week’s report by the Intergovernmental Panel but terrifyingly and deeply chasteningly so: that not everything broken can be repaired, that there are consequences to actions that simply cannot be undone with regret or after-the-fact effort, that there are prices to be paid for failing to heed the words of people who know way more about the world than you do…and that wishing it weren’t so does not alter the situation at all.

The flood in Noah’s day could easily be described as the world’s first environmental catastrophe, but the story ends soothingly with God’s promise never to visit such a thing on humankind again. The possibility, on the other hand, that we ourselves might one day be the authors of a parallel kind of world-wide catastrophe is not raised in the text. Perhaps it should have been!

Kavanaugh: A Talmudic Response

I write today without the benefit of whatever added insight the FBI report regarding the charges against Brett Kavanaugh might already have provided the Senate. Nonetheless, it seems to me that there are really only two plausible explanations of all we have heard. Since Professor Ford and Judge Kavanaugh can't both be right about what happened, one of them may be intentionally lying. Or it could conceivably be the case that they both perceive themselves to be speaking the truth, but that one of them is wrong and has simply misremembered the past. The side issues—the reasonableness of feeling 100% certain about the accuracy of memories more than a quarter-century old, the specific role underage drinking plays in the narrative, the reliability of the specific character witnesses introduced by both sides—are part of the picture as well. As too are the issues represented by the various spectral personalities silently, almost ethereally, floating over the whole sordid drama like the Angel in Angels in America: Anita Hill, Merrick Garland, the Jane Roe of Roe vs. Wade (standing in here for the women of America whose access to abortion would be dramatically compromised if Roe vs. Wade were to be overturned), and any number of lesser spirits.

As the deliberations about Judge Kavanaugh’s nomination continue, those questions give way to broader ones. Should there be a statute of limitations for crimes involving sexual assault? (And, if so, then how should “sexual assault” be defined in this context?) Should the age of the parties involved be a factor? (And, if so, how old is old enough to be  considered responsible enough for one’s actions to face legal action for having committed them?) If there is no reasonable chance for an individual accused of a crime to be tried in a court of law, should his or her presumption of innocence preclude the publicization of his or her alleged crime…or should the accuser’s right to speak out freely and in public trump the accused individual’s right to privacy? And how exactly should we, the public, relate to individuals accused of abominable behavior yet who have specifically not even been arrested by the police, let alone actually convicted of a crime? Should the news media protect the identity of such individuals until they are actually charged with a crime? Or does the greater mitzvah lie in publicizing their names, thus shaming them in public, once it becomes clear that they will specifically not end up convicted in court, which consequence would automatically make their misdeeds part of the public record?

Back in 1982, this could have been a simple matter for the police to handle in the normal way: by investigating a complaint to determine its credibility, then by referring the matter to the District Attorney to determine whether to seek to have the accused individual indicted of an actual crime. And, indeed, if that had happened back in 1982, and the young Brett Kavanaugh had been tried and found guilty, we would surely not be having this specific national debate today about his worthiness to sit on the Supreme Court. (Nor would we, I think I hope, if he had been tried and found not guilty of the charges made against him.) But, of course, there was no arrest, no indictment, and no trial all those years ago. And so we are left discussing whether it is virtuous or morally wrong to hold potential leaders to a set of standards more rigorous than the ones that apply in courts of law. Should the mere intimation of wrongdoing ruin a nominee’s chances of getting the job in question? And, if so, then how exactly should the public evaluate such suggestions of scurrilous, yet unindictable, behavior?  And according to what—or, rather, whose—standard?

In the Talmud, there is a story that seems to shed light on that specific aspect of the question at hand…and particularly in light of the way it was interpreted by one of the greatest of all commentators on the Talmud, Rabbi Yom-Tov ben Avraham Asevilli, commonly called by his acronym, the Ritva. Born in Seville, Spain, around 1260, the Ritva was the student of two of the greatest talmudists of his (or any) day: Rabbi Solomon ben Adret (called the Rashba) and Rabbi Aaron Halevi of Barcelona. But what he has to teach us is a relevant today as any modern rabbi’s comments on the matter could be.

As is well known, Jewish law is rigorous in its exclusion of all testimony in court not offered by eye witnesses to an alleged crime. Feeling that it is always better to allow some guilty parties escape judgment than to punish, let alone execute, even one innocent soul, the exclusion both of circumstantial evidence and hearsay testimony simultaneously makes it extremely difficult for an individual to be convicted at all but also almost impossible for innocent people to be found guilty. (Whether that is actually true or not depends on the ultimate reliability of eye-witness testimony, a topic still being intensely debated among jurists today. But that is certainly how the system was understood to work by rabbis in ancient and medieval times.)

And so we come to the story, told briefly in the talmudic tractate called Moed Katan, of a certain rabbi whose reputation was, to use the Talmud’s expression, repulsive. Rashi, always the first commentator to consult, says merely that this was an individual about whom extremely negative gossip was widespread. But the Ritva is far more explicit and makes this about sexual assault, and specifically about the kind that cannot be “proven” in a court of law given the fact that it, like most sex crimes, occurred in private. The man the Talmud is discussing, the Ritva writes, “was widely known to behave poorly by exposing himself in public and [also] by repeatedly secluding himself with single women, both of which behaviors constituted a dark stain on the reputation of his fellow rabbis.” (The Ritva is entirely clear here: the expression I’ve translated as “a dark stain” is literally in Hebrew “a huge ugliness.” The part about him exposing himself in public is related to the end of the story, regarding which see below.)

So how should such a man be treated? Clearly, this cannot end up in a court of law since there are no witnesses to testify against him. But should we leave it at that? Rabbi Judah bar Ezekiel (d. 299 CE), one of the great lights of Babylonian Jewry, is reported to have wondered aloud whether or not to place him under a ban—a kind of extra-judicial distancing to which were subjected precisely people widely understood to be guilty, at least, of poor behavior yet who could not for one reason or another be tried in court. On the one hand, Rabbi Judah can imagine leaving him alone because of the worthy work he otherwise performs. (Is this starting to sound familiar? The Ritva explains clearly that although it is permitted to learn Torah from a rabbi who has been put under a certain low level of ban, pupils are still required to keep their distance—about six feet—from such a teacher, and that that can be a degrading experience for such students.) On the other, he can hardly allow the name of Heaven to be profaned. (This too the Ritva explains in a way that will be very resonant with Americans following the Kavanaugh affair: it can never be a good plan, he reports, to hear reports of people behaving poorly and appear not to care merely because prosecution in a court of law is not feasible. In other words, what about the moral standing of a society that appears not to care about misconduct merely because the offense in question is not deemed actionable in a court of law?)

And now we get down to it. Rabbi Judah asked a colleague if he had heard any precedent on the matter and the answer he got back was that Rabbi Yochanan (bar Nafcha, c. 180-c. 279 CE) once taught a lesson that spoke directly to the question at hand. He was specifically teaching about the verse from Malachi that declares that, because the priests of Israel were the teachers of Torah in his day, the “[priest] serves the nation as a messenger from the Lord of Hosts.” What the prophet meant, Rabbi Yochanan taught, was that people who put themselves in positions of authority have to answer to a higher standard that the people who seek learning or judgment from them. And so it is specifically not enough for public teachers of Torah to be unindicted and unconvicted of any crime, but they must also have reputations that makes them worthy of their status. And the Ritva has something to say about that too: that that lesson means that the man in question should be put under a ban because his behavior was shaming his profession and that the whole concept of the ban was meant in the first place to speak to the unindictable sexual offender, the one who brings shame to his profession even though he technically cannot be punished for his deeds.

The rest of the story is interesting, but less relevant. The man was put under a ban. Eventually Rav Yehudah died and the man sought to have the ban lifted. Different sages lined up on different sides of the issue, but in the end a wasp stung the man on his penis as a result of which he died—thereby proving (at least according to the canons of talmudic reasoning) both the truth of the charges leveled against him and the correctness of the ban under which he was placed. (The Ritva points out that the word for “penis” here, amah, also is used to denote the forearm, which makes it possible that it was on his arm that the man was stung. But, he notes, the weight of plausibility is with those who imagined him with his pants down in the privy—the Ritva was one of our earthier commentator—getting stung at the scene, so to speak, of the crime.) And then the Talmud wraps the whole story up with a brief account of where the man was finally buried.

What the Talmud is saying is that would-be leaders of society have to earn the trust of the public and that it is nowhere near enough for such people merely not ever to have been indicted of criminal activity. Positions of leadership and influence should be offered to people who embody the finest moral qualities, people who are exemplary in their behavior (and not solely in sexual contexts), and who deserve to serve as national role models. In my opinion, the question we should be asking about Brett Kavanaugh is not whether he did this or that thing long ago, but whether he meets the criteria listed just above for a position of supreme national influence and importance.