Mistaken relevance of the Kilikov Trial parable
Lubomyr Prytulak to Ed Morgan    Letter 12    10-Oct-2005

Shmuel Yosef Agnon
Shmuel Yosef Agnon
CJC National President Ed Morgan
Ed Morgan
"The judges reconvened and said: instead of the blacksmith we shall hang one tailor and we shall let the blacksmith live, for the city cannot manage without a blacksmith but one tailor will suffice." — Shmuel Yosef Agnon

10 October 2005

Ed Morgan
National President, Canadian Jewish Congress
Faculty of Law, University of Toronto
84 Queen's Park
Toronto ON  M5S 2C5

Ed Morgan:

Your "New Year's Greeting for a Just Society" on the Canadian Jewish Congress web site relates Shmuel Yosef Agnon's Kilikov Trial parable:

One of S.Y. Agnon’s most insightful tales, The Kilikov Trial, is also one of his shortest.  In fact, it is so concise that I will reproduce it here in full before drawing on its lessons:

I have still not concluded all my praise for Kilikov, for not for its worldly qualities alone is Kilikov to be extolled, but it is to be praised for the judicial decisions of its judges.  What are the decisions of its judges?  It is told that once, during the Polish wars, a gentile killed his friend in Kilikov.  Maliciously or accidentally?  From the judgment it emerges that he was killed with malice.  He was put in jail and convicted of killing, as a man is convicted when murdering another with malice.

When the murderer was taken out to be hanged it was remembered that he was a blacksmith by profession and that in all Kilikov there was no other blacksmith.  And indeed a city cannot cope without a blacksmith, who serves the needs of many.

They investigated and found that in the city there were two tailors but that they could make do with one.  The judges reconvened and said: instead of the blacksmith we shall hang one tailor and we shall let the blacksmith live, for the city cannot manage without a blacksmith but one tailor will suffice.

They acquitted the blacksmith and brought him back from the hangman’s house and in his stead they hanged one of the two tailors living in the city.  [...]

[...]  Although it has the feel of a period piece about pre-war Europe, it contains a timeless lesson for all of us in the business of advocating for a better society.

Ed Morgan, New Year’s Greeting for a Just Society, Canadian Jewish Congress, 06-Oct-2005  www.cjc.ca/template.php?action=news&story=751#

However, your claim that the Kilikov parable is "insightful" or that it "contains a timeless lesson for all of us" requires a demonstration of contemporary relevance, which you fall short of providing.  If the Kilikov parable were read to a class of law students, or to a gathering of lawyers, not one in a hundred of them would come up with the contemporary instance of relevance that you came up with.  Your answer was that the Kilikov parable parallels Ontario's recent withdrawing of legal recognition from Sharia law, and that it teaches that the Canadian justice system should move to embrace theocracy!

The premier of Ontario has recently announced his government’s intention to withdraw legal recognition from all religiously arbitrated family law disputes.  The announcement comes on the heals of a campaign by the Muslim community to bring Sharia-based family law tribunals to Ontario, and a counter-campaign by Muslim women to ban the use of Islamic law in such a gender-sensitive context.  The Beit Din, which has for many years provided family adjudications for the Orthodox sector of our community, has been sacrificed for the sake of gender equality across all sectors of society.

Creating a just society, as Agnon’s characters learned in Kilikov, is indeed a complicated affair.  That which the government sees as serving the collective good may be entirely unjust to the individual or to the smaller community, while that which is fair to the individual or smaller community may be contrary to what the government sees as benefiting the society overall.  The trick for Jewish advocacy is to argue for the right combination of both.

Ed Morgan, New Year’s Greeting for a Just Society, Canadian Jewish Congress, 06-Oct-2005  www.cjc.ca/template.php?action=news&story=751#  "Heals" instead of "heels" is in the original.

But it is impossible to keep from objecting that Sharia tribunals have nothing to do with a guilty man being set free for extraneous reasons, or with an innocent man being punished for extraneous reasons.  Sharia tribunals have nothing to do with public expectations that punishment be inflicted, together with a selection of a sacrificial victim based on considerations other than guilt.  Sharia tribunals have nothing to do with setting a quota on the number of prosecutions, then picking the wrong people to prosecute.  The Kilikov parable seems to argue neither for theocracy being included in the justice system, nor against — it seems irrelevant.  Your interpretation that the Kilikov parable illustrates bad jurisprudence, as does opposition to a theocratic invasion of the justice system, is too inapt to be persuasive.  Your talk of balancing collective good and individual good makes no sense, as it does not explain what benefit the government, or the collectivity, derived from executing the wrong person.

On the other hand, there is a contemporary parallel which you have overlooked, and which does reveal Kilikov parable relevance to contemporary events.  That parallel is Justice Minister Irwin Cotler setting a minumum quota on war crimes prosecutions, then picking the wrong people to prosecute.  For example, Canada might harbor a thousand Israelis, or even ten thousand, more guilty of war crimes than any Ukrainian, and yet Ukrainians are Irwin Cotler's preferred targets, while Israelis are granted de facto immunity from prosecution.  Similarly, Canada might harbor more Communist war criminals than Nazi war criminals, but Communists too are granted de facto immunity because they tend to be Jewish.  Or, Canada might harbor more Nazi collaborators that are Jewish than that are Ukrainian, with Justice Minister Irwin Cotler again practicing his same religious discrimination.

For Irwin Cotler, the propaganda value of "striking a blow against the Holocaust-deniers" comes first, and is followed by a search that does not end until victims are found to receive that blow, just as in Agnon's parable the search did not end until a redundant member of society could be found to receive the punishment:

Cotler said that the hoax issue links up with that of individual prosecution.  The reasoning goes like this: If there was no Holocaust — there were no crimes.  If there were no crimes — there are no criminals and no one can be prosecuted.

"My reply to that one," Cotler said, "is that unless we prosecute individuals, some people will say that since there are no criminals, there were no crimes, and therefore no Holocaust.  Every time we bring a Nazi war criminal to justice we strike a blow against the Holocaust-deniers."

Ernie Meyer, Human Rights Activist: 'Set Up A Nazi War Crimes Unit', Jerusalem Post, 02-Jan-1989, p. 11.

For Cotler, the absence of a tailor deserving punishment is unacceptable, as this would deprive Cotler of a teaching tool serving to satisfy the populace that the blacksmith's crime had incurred punishment:

To combat a Holocaust-denial movement, Cotler urges prosecution of former Nazis to prove its lies.  "If we don't bring criminals to justice, Zundel and others will say it's proof there were no crimes committed."

Ellie Tesher, Nazi hunters press on in race against time, Toronto Star, 11-Nov-1985.

Taking advantage of Canadians' sense that the world abounds in war criminals, and that Canada should do its share to punish them, Irwin Cotler proceeds by granting immunity from prosecution to guilty Israelis and other Jews, and by targetting for prosecution innocent Ukrainians, Germans, Lithuanians, and others.  Irwin Cotler sets a punishment target which he is able to satisfy by persecuting the innocent more than by prosecuting the guilty.  Irwin Cotler ventures off on his enemies-of-Canada hunting expedition, and refuses to come home until his game bag bulges with enemies of Zionism.

Irwin Cotler's war crimes agenda, then, provides a closer analogue to the Kilikov Trial parable than does Ontario's interdiction of encroaching theocracy.

I hope you will not be offended by my ending by pointing out the irony that as Shmuel Yosef Agnon had been born in Buchach, Ukraine, and had spent the first nineteen years of his life there, the villagers whose moronic justice he derides in his fiction are in all likelihood Ukrainian, whereas the real-world instance that we find at hand of a perpetrator inflicting this same moronic justice happens to be the Minister of Justice of Canada, and a past president of the Canadian Jewish Congress, and the real victims of his real moronic justice are most often the same people against whom that Justice Minister's national literature incites hatred — Ukrainian villagers.

Perhaps the most important moral that we are able to extract from Agnon's Kilikov Trial parable, then, is that Jewish writers understand that Jewish leadership can be brought to recognize its real faults only if it is first taught to identify hyperbolized manifestations of those faults in fictional Ukrainians.

Lubomyr Prytulak

Irving ABELLA, National Honourary President, CJC, Department of History, York University, 4700 Keele Street, Toronto ON  M3J 1P3
Hon. Irwin COTLER, Minister of Justice and Attorney General of Canada, 284 Wellington Street, Ottawa ON  K1A 0H8
Rt. Hon. Paul MARTIN, Prime Minister, Office of the Prime Minister, 80 Wellington Street, Ottawa ON  K1A 0A2