Building fences around the law – Bill 26 (Alberta)
While pondering the genius or idiocy behind the passing of Bill 26: Traffic Safety Amendment Act, 2011 (Danyluk) in Alberta, it struck me, the Alberta government could learn something from Jewish law and the origin of gezeirah (גְּזֵרַת), or fence laws.
In order to follow my logic, and understand, a little better, my thought processes on this topic, a crash course on Jewish law is in order. Jewish law is broken down into categories and sub-categories. The two most obvious categories are, and I will try to stick to English here, The Written Law, and the Oral Law. The Written Law, Mitzvot d’Oraita, refers to the laws written down by Moses at the command of YHWH, or the laws contained in the Torah, better known as the Pentatuch, or the first five books of the Old Testament of the Bible or the Tanukh. The Oral Law, Mitzvot D’Rabbananon, on the other hand, are the laws passed orally, through the generations of Pharisees and their modern day counterparts, the Rabbis. These laws were finally written down in volumes known today as the Talmud, starting in about the 3rd century C.E. (Common Era).
Since Bill 26: Traffic Safety Amendment Act 2011 adds to the penalties for driving with a blood alcohol level over 0.08% imposed under federal law, and goes so far as to add penalties for the non-criminal act of driving with a blood alcohol level of 0.05% to 0.08%, we can draw a similarity to Rabbis expanding laws around G-d’s law. Hopefully I will show how these fence laws are more of an hindrance than a benefit to society.
The oral law, or Mitzvot D’Rabbananon is further broken down into subsets:
- The Minhag (מִנְהָג): Laws born out of tradition, i.e. wearing the kippah or arranging marriages.
- The Takkanot Shum (תקנות שו”ם): Laws with no scriptural basis, enacted at the whim of the Rabbis. The Takkanot even include laws which suspend the laws of the Torah where such action is for the preservation of Israel. Unfortunately, G-d specifically forbade this action in the Mitzvot d’Oraita. Deuteronomy 12:32 reads: “Whatever I command you, you shall be careful to do; you shall not add to nor take away from it.”1 To Orthodox Jews there is no differentiation between Written and Oral law. That is, unless a Takkanot suspends a Written law.
- The Gezeirah (גְּזֵרַת) are laws better known as “Fence” laws, created by the Rabbis to remove people’s ability to break Torah laws. For example, though nothing is mentioned in the Torah about picking up a rake, or carrying a bushel of apples, in order that no Jew would accidentally do work on the Sabbath, the Rabbis created laws protecting us from inadvertantly breaking Torah laws. For instance, you may not intend to hammer a nail, do work, on the Sabbath, but, if you are even forbidden to pick up a tool on the Sabbath, you are less likely to be tempted to work. So the Talmud forbids even touching tools on the Sabbath.
Bill 26 is Alberta’s version of a fence law. Premier Redford’s government is taking the federal criminal code Section 253 (1) (a) and (b) regarding care and control of an automobile or vessel while having a Blood Alcohol Concentration over 0.08% and building there own version of a gezeirah, or fence around it. The fence is simple, while you are not charged criminally, indeed, you will not be charged at all, if you have a BAC of between 0.05 and 0.08% you will face punishment of varying degrees, based upon whether this is your first, second, third, etc etc offense. Nevermind the fact you will be punished without benefit of a trial or the ability to challenge the outcome of the breathalyzer test.
Rabbinical councils, small groups of Rabbis have been able to create their gezeirah with virtual non-interference of the people for centuries. They claim this license based upon Genesis 2:16 wherein YHWH gave Adam all of the vegetation in the Garden of Eden to eat, save the Tree of Knowledge of Good and Evil. YHWH states that “but you must not eat from the tree of the knowledge of good and evil, for when you eat from it you will certainly die.” (Gen 2:17).2
Although G-d never speaks to Eve, Adam passes on His rules to his companion. Adam, using the thought process the Rabbi’s use, builds a fence around the law with regards to the Tree of Knowledge of Good and Evil. Eve tells the serpent, “We may eat fruit from the trees in the garden, 3but God did say, ‘You must not eat fruit from the tree that is in the middle of the garden, and you must not touch it, or you will die.’”(Gen 3:2-3).3 Not only are they not to eat from the tree, as YHWH commanded, Adam has told Eve neither shall they touch it. The Rabbis use this portion of the Torah to justify building fences around the law, putting themselves in the place of Adam. Unfortunately, nowhere prior to this did YHWH grant Adam permission to add to or take away from His laws.
Premier Redford and her cabinet, without mandate from the people of Alberta, have enacted Bill 26 without serious studies, without data to show this law will save lives. Indeed, all available data shows this law will do very little to curb instances of traffic fatalities. While 2% of fatalities occur when a driver has 0.05-0.08% BAC, 22% of fatalities occur when the driver is well over the 0.08% mark. The statistic that is most terrifying is more than 60% of fatalities occur when no alcohol is involved, the highest percentage being caused by drivers driving beyond their abilities and speeding.4
So what is this government going to achieve? They are going to turn responsible, good, law abiding citizens into criminals. Of course, since there is no court, no criminal charge, and no way of fighting the punishment, the government is doing nothing more than making money for tow truck operators, impound yards, and any organizations involved in handling of the seized vehicles. All this, and no law has been broken.
Jesus accused the scribes and pharisees of creating their own laws without mandate from G-d and, by doing so, making it impossible for Jews to join YHWH in His kingdom. As our government is doing, the pharisees were making criminals where none existed, all in the name of guaranteeing their own power and importance. Are we in Israel in the 1st century, or are we in Alberta in the 21st century?
Instead of building fences around existing laws, may I suggest the government do more to ensure the existing laws are better enforced? Would it not be much better optics for the government to devise enforcement plans, punishments, and educational programs to the end that impaired driving becomes less and less attractive to those who break the LAW? Instead of punishing those who obey the law, make life difficult for those who don’t.
For more on the legal ramifications of Bill 26 see this post