Issue Spotting: Vayeitzei’s Ten Commandments’ Moment

Issue Spotting is an essential legal skill. The Torah Portion Vayeitzei provides a target rich environment to employ it to address Decalogue and Decalogue-adjacent issues.

The Portion offers an opportunity to unleash one’s inner barrister! For those wanting to taste the legal profession or a Bar Exam, this Post invites you into an attorney’s mindset.

Legal Writing

Lawyers are writers. Litigation frequently requires briefing. The briefs often include a section Points and Authorities or P & As. The P & A section requires issue spotting.

Outside of the Points and Authorities, attorneys are expected to produce a Statement of Facts. It is a narrative section of the brief. It is meant to be a fair and accurate description of pertinent facts.

The brief’s Points and Authorities is the part in which advocacy takes place. After issue identification and authorities’ citations and references, the lawyer argues the facts. In essence, “how does the law apply to the facts?” Advocating on the applicability of the law is pure lawyering.

Issue Spotting

Issue Spotting is taught in classes. Regardless of what class subject, students are asked to issue spot. Since it is so integral, Law Schools go out of there way to assist their students in developing the skill.

At UC Berkeley Law School, they published a Guide to assist in issue spotting. The Guide provides directions concerning “issue-spotter” matters.

The Guide indicates: “‘Issue-spotter’ questions… provide you with a hypothetical … fact pattern…. You should always read the question or prompt at the end of fact pattern, but in general your job is to: (1) identify all of the potential legal issues in the fact pattern; (2) identify and state the relevant legal rule(s); and (3) apply those rules to the facts presented to resolve the legal issues.”

In law, this exercise is not about being correct. It is about accurately identifying the issues and working out whether or not the rules apply. Many times, matters are not black and white. As such, in test taking, making the arguments for both positions is the goal.

Just The Facts

Thus, before doing “issue spotting,” for this exercise, the facts must be laid out. In lawyerly fashion, I have prepared them.

Vayeitzei tells of Jacob’s confrontation with Laban, his father-in-law. The acrimonious relationship comes to a head after the Patriarch’s hurried departure from Laban’s house. Jacob takes off with his largess family unknowing that a posse member had pilfered away some unusual items.

Laban catches up to Jacob and crew. The Torah reports on the showdown between Jacob and his father-in-law Laban. Something had happened before this confrontation. Unknown to Jacob, before departing, his wife Rachel had stole her father’s teraphim. [Note: Friedman refers to them as icons. Commentary at P. 105.]

Laban, in his encounter with Jacob, queries: “Why did you steal my gods?” Genesis 31:30.

In response, “.. Jacob answered, and he said to Laban, ‘Because I was afraid. Because I said, ‘In case you’ll seize your daughters from me.’ Let the one with whom you’ll find your gods not live. In front of our brothers, recognize and take of yours is with me.'” And Jacob did not know that Rachel had stolen them.” Genesis 31:32

Note: This Statement of Facts was prepared for this exercise. In this instance, feel free to go back and reach the Torah’s text- the unfiltered facts. If you do, observe how this post’s rendition steers the facts into the issues.

The “Issue Spotting” Question

With Issue Spotting, a question or prompt is required. Thus, the question is “what potential Ten Commandments’ violations occurred surrounding Jacob and Laban’s encounter? Identify and discuss whether relevant?

The Exercise

Going through the fact pattern in chronological order, the first fact of import is “Rachel stealing her father’s idols.”

With this fact, there is a theft, a theft involving a parent, and of an idol. Thus, there are multiple commandments to address.

The second fact is Jacob’s statement “Let the one with whom you’ll find your gods not live.” This statement appears to be a swearing.

The Analysis

An analysis requires one to look at the facts and compare them to the “rule of law.” Are they applicable? “Rules of Law” can also include statutes. Thus, certain rules or laws are enacted at certain points in time. Thus, there are issues of retroactive application of laws.

Rachel’s Theft

Thus, Rachel’s theft will be analyzed.

The first issue would be to match up the legal rule with the particular facts. “You shall not steal” Exodus 20:15, would be the proper rule and citation initially. This law was enacted at Mt. Sinai, long after the theft.

As far as the Decalogue, this event occurred prior to the enactment of the Ten Commandments. Further, there is no provision within the Ten Commandments of retroactive application. Thus, a reasonable argument would be that the Decalogue was not applicable. Rather, the existing laws concerning theft would apply. Under the Ten Commandments, however, it was clearly an act of theft.

Similarly, stealing from one’s parent would likely fall within a violation of the Commandment to “Honor One’s Parents.” Thus, a reference to the rule is applicable. “Honor your father and mother, so that your days will be extended on the land that the Lord, your God, is giving you.” Exodus 20:12.

In this fact pattern, there is no mitigating reason as to why she stole the gods. To argue in her defense, perhaps she feared that her father would use them to curse Jacob and the family. The facts, however, unclear on this issue.

[Note: Rachel died shortly after the birth of her son Benjamin. See Genesis 35:19. Her tragic death eerily connects to the commandment.]

Rachel’s Possessing the Idols

The fact pattern is unclear as to the purpose of the theft. Did Rachel possess them for the purposes of praying to them? Did she consider those particular idols her gods? Is harboring idols some violation? Also, there is the issue of retroactive application. An issue that will not be reiterated.

With these notions, the rule is necessary for analysis. “You shall not have other gods before my face.” Exodus 20:3. Also, there is “You shall not make a statue or any form that is in the skies above or that is in the earth below or that is in the water below the earth. You shall not bow to them, and you shall not serve them.” Exodus 20: 4-5.

In this instance, Rachel’s intent comes into play. Did she believe in other gods? Does the statue, irrespective of that belief, require that these gods not be present? Is possessing a statue considered the same as making one?

In this instance, there are many issues as to how they can be addressed. For instance, Friedman, in his Commentary on the Torah indicated that “the issue was not making statues of the pagan gods but making statues of the Lord.” Commentary at P. 236. The reality of issue spotting is that the matter was brought attention. The machinations of solving the problem requires research and may include differing theological opinions.

Jacob’s Swearing

Swearing, in ancient times, was taken seriously. In the Ten Commandments, the swearing provision is as follows: “You shall not bring up the name of the Lord, your God, for a falsehood, because the Lord will not make one innocent who will bring up His name for a falsehood.” Exodus 20:7. Thus, the rule of law is that the Lord’s name is evoked.

In Jacob’s instance, the record does not indicate that the Lord’s name was in fact evoked. Thus, the Ten Commandments would not be applicable.

It should be noted, however, that the Israelite’s valued swearing. Most famously, the matter of Jepthath’s daughter is referenced. See Judges 11:29-40. [Note: Her father vowed to the Lord to sacrifice the first thing he met at his door upon his return.]

[Note: Rachel’s premature death shortly after childbirth brings an eerie connection to swearings’ seriousness within the Hebrew Bible.]

Conclusion

Congratulations!

If you have gotten this far in the Post, you have a knack or love of legal thought. With no doubt, my three decades of being a litigator has sharpened my abilities to extract meaning from scripture.

Likewise, I have frequently employed my understanding of scripture and its reasoning to tackle legal cases. Many years ago, in a Court of Appeals case, I cited the Torah in a brief. Leviticus’ provision for not placing a stumbling block in front of a blind person, in the matter, was relevant. Leviticus 19:13. It was offered to evidence a longstanding historical concern for the rights of the disabled.

Be well!!

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