Thursday, August 24, 2017

Parashat Shoftim - Justice, Justice

Justice, Justice
Rabbi Ari Kahn

Judges and officers shall you appoint in all your gates, which the Lord your God gives you, throughout your tribes; and they shall judge the people with just judgment. You shall not pervert judgment; you shall not respect persons, nor take a bribe; for a bribe blinds the eyes of the wise, and perverts the words of the righteous. Justice, justice shall you pursue, that you may live, and inherit the land which the Lord your God gives you. (Deut. 16:18-20)

This week's Torah portion begins with broad social concerns, namely the establishment of justice. In a sense, one may view these concerns as transcending the "religious" realm, but clearly a nation that will live in their own land requires what Rousseau called a "social contract."

As we have seen in other instances, the Torah's way of life is exceedingly broad; consequently, the Torah does not limit its legislation to "religious" issues. Torts and damages make up a significant part of the legal sections of the Torah.

Now, as the Children of Israel find themselves at the threshold of the Land of Israel, and social ideals will hopefully be translated into a utopian society on earth, Moses returns to the principles laid out in other sections of the Torah.

When it comes time to translate the theory into practice, judges will be needed to apply the law, and police will be needed to enforce the law, thus the Torah, in the verses quoted above, exhorts the people to refine social justice to unprecedented levels. Justice must not be perverted as such behavior would circumvent the entire judicial system.

There is one verse, though, that is most challenging:

Justice, justice shall you pursue, that you may live, and inherit the land which the Lord your God gives you.

Why is the term justice repeated?

* * *

One may posit that the repetition is a literary device employed for emphasis. Such usage is common. (See this week's Haftorah for four examples of such usage: Isaiah 51:12,17 52:1,11). However, the word "pursue" implies an ongoing endeavor, a striving to succeed. Why would the repetition be necessary in addition to this very strong term?

The Talmud addresses both parts of the phrase:

Our Rabbis taught: Justice, justice shall you pursue means, "You shall follow an eminent Court of Justice." (Sanhedrin 32b)

The word which the Talmud is focusing on is "pursue." How does one pursue justice? By finding a superior tribunal. The Talmud adds a proactive prescription:

Our Rabbis taught: Justice, justice shall you pursue, means, "Follow the scholars to their academies." (Sanhedrin 32b)

The message here is that the best way to avoid the necessity for justice to be meted out by the courts is to obtain a quality education. Both of these Talmudic comments expound on the word "pursue." This tradition is mirrored in the words of Rashi (based on the Sifri):

Go after a good court. (Rashi 16:20)

However, we are still mystified regarding the meaning of the doubling of the word "justice." The explanations which we have seen up to this point would still apply had the verse read, "Justice pursue" or, "Pursue justice." On the same page the Talmud cites another teaching, which directly addresses this point:

R. Ashi said: "Justice, justice you shall pursue, the first [mention of justice] refers to a decision based on strict law; the second, to a compromise."(Sanhedrin 32b)

Here we find the Talmud directly discussing the repetition of "justice." The suggestion of the Talmud is fascinating: there are, in fact, two types of justice: strict law, and compromise.

* * *

The Talmud further illustrates the principle with the following example:
How so? For example:

Where two boats sailing on a river meet, if both attempt to pass simultaneously, both will sink, whereas, if one makes way for the other, both can pass [without mishap]. Likewise, if two camels meet each other while on the ascent to Beth-Horon; if they both ascend [at the same time] both may tumble down [into the valley]; but if [they ascend] after each other, both can go up [safely]. How then should they act? If one is laden and the other unladen, the latter should give way to the former. If one is nearer [to its destination] than the other, the former should give way to the latter. If both are [equally] near or far [from their destination], make a compromise between them, the one [which is to go forward] compensating the other [which has to give way]. (Sanhedrin 32b)

The "justice" described here is situational, subjective. The locale is not the pristine courts of law but the mundane rivers and streets. Here, too, justice must be pursued. Finding equitable solutions to complex practical situations is part and parcel of the pursuit of justice.

When the modern State of Israel was established, the first Prime Minister, David Ben Gurion, posed the following question to various rabbis: "How does a modern secular state coexist with the religious community, which bases its existence on different values and laws?"

The Chazon Ish, arguably the most eminent rabbi of his age, responded that points of conflict could be resolved based on the Talmudic passage cited above. "When two camels meet at a narrow ledge, we must look, which of the two have been traveling longer and bearing a greater burden." The Chazon Ish concluded that this analogy certainly applies to the religious community, and that the State should therefore "step aside and respect those values carried for millennia."

We have seen the opinion that the repetition of "justice" point to different types of justice, "strict law" and "compromise." There is an alternative approach to the two types of justice, found in the writings of Rabbenu Nissim of Gerondi. In order to understand his position, let us consider a passage of Talmud he cited:

Rabbi Eliezer ben Ya'akov said: "I have heard that the court may ... pronounce sentences even where not [warranted] by the Torah; yet not with the intention of disregarding the Torah but [on the contrary] in order to safeguard it." (Sanhedrin 46a)

The teaching in the Talmud is most surprising -- how can the court punish in a manner contrary to its own rules? The mandate of the court is to judge according to the rules laid down in the Torah, and there can be no extenuating considerations for a court, which must uphold the law. Or could there be?

* * *


In Biblical times, there was, according to Rabbenu Nissim, a system of checks and balances revolving around the king. The monarch in ancient Israel had a mandate to impose sentences outside of the normal legal establishment.

The reason for empowering the king in this way was to safeguard the spirit of the law from being trampled by strict adherence to the letter of the law. The mandate of the courts was to uphold the letter of the law, while the mandate of the king was to uphold the spirit of the law.

This dichotomy created a wonderful, balanced whole. When the courts functioned as an autonomous arm of the legal system, adhering to and enforcing every law, the danger still existed that things might "fall between the cracks." In such cases, the king would act, guaranteeing that the spirit of the law remained intact.

This system, though, has a built-in danger. By definition, the role of the king was antinomian. What prevented the king from abusing this awesome power?

Rabbenu Nissim presents a beautiful image in answer to this question. We know that there is a law that the king must carry a Torah scroll with him at all times. Rabbenu Nissim explains that the very person empowered to break the law must hold the Torah near and dear. The kings of Israel were therefore commanded to hold the Torah with them at all times, as a reminder of what was at stake.

This analysis, interesting as it may be, does not seem to provide any insight into the passage cited above in the name of Rabbi Eliezer ben Ya'akov concerning unusual measures taken by the courts.

Rabbenu Nissim explains that the Talmud is describing the situation after the abolishment of the monarchy. In the absence of the king, the role of the king reverted to the courts. Then the courts wore two hats, of upholders of the letter of the law and of safeguarders of the spirit of the law.

When a case ended according to the normative, prescribed process, the judges had to ask themselves a new question: "Was justice served?" If the answer was negative, the judges assumed the role of the king, and sought out the spirit of the law.

Again, the people entrusted with this task were those with the greatest affinity for the Torah and its values.

* * *


There are times where the law must be set aside in order to upkeep the law:

It is time to work for the Lord; they have made void your Torah
(Psalms 119:126).

The Talmud uses this verse as scriptural license to adjudicate and legislate against explicit Torah laws in order to uphold the Torah:

Raba said: "The first clause of this verse can be taken as explaining the second, and the second can be taken as explaining the first ... thus: It is time to work for the Lord. Why? Because they have made void your Torah. [And] thus: They have made void your Torah. Why? Because it is time to work for the Lord." (Brachot 63)

The upkeep of a system of law, where justice thrives, is one of the goals of Torah. The Talmud goes so far as to declare that:

Every judge who judges a true judgment according to its truth even for a single hour, the Writ gives him credit as though he had become a partner to the Holy One, blessed be He, in the Creation. (Shabbat 10a)

Utilizing the Torah, and bringing its lofty ideas into this world, makes one a partner with God. But this will only be the case when the law is judged according to "truth." Using the proper tools but arriving at the wrong conclusion is not "a true judgment according to its truth."

The strict letter of the law arrived at via the judicial process may be lacking. The Sh"la haKadosh similarly explains the verse:

Justice, justice shall you pursue. It says "Justice" twice. The first is directed to the judges who judge in accordance with Torah law. There is a second "justice" for compromise or emergency decrees, which are done occasionally by a prophet or king, in order for the world to exist. Therefore, the verse concludes that you may live, and inherit the land which the Lord your God gives you. As the Sages said "Jerusalem was destroyed only because they gave judgments therein in accordance with Biblical law." (Shnay Luchot HaBrit, Shoftim 101a)

The first part of the teaching is the same as the idea we saw expressed by Rabbenu Nissim. The concluding remarks are based on a passage in the Talmud:

For Rabbi Johanan said: "Jerusalem was destroyed only because they gave judgments therein in accordance with Biblical law ... they based their judgments [strictly] upon Biblical law, and did not go beyond the letter of the law." (Bava Metzia 30b)

Strict adherence to law can be destructive. Jerusalem, the center of the Torah world, the place from which Torah is to flow forth, was destroyed because the Torah, as it was lived there, did not bring about a merger with God. Somehow, the partnership did not develop, and Jerusalem became rubble.

* * *

Nachmanides' understanding of the verse is that one "justice" refers to earthly courts, while the other "justice" refers to the heavenly tribunal. If man does not succeed in bringing about a just world, real judgment awaits him above. Nachmanides bases his teaching on the Sefer Bahir, one of the most obscure mystical tracts:

The first justice is literal justice. This is the Divine presence ... The second justice "frightens the righteous." (Bahir section 75)

If man succeeds in attaining justice, the Divine presence, the Shechina flows. On the other hand, if man does not create a just world, Divine judgment is applied.

Justice must be strived for, not only on a national level but on an individual level, for there is a Divine reaction to man's handiwork on the individual level as well. And just as a nation may lose focus of the spirit of the law, so may the individual. This may be illustrated by the following passage:

The Halacha is always in agreement with the House of Hillel, but he who wishes to act in agreement with the ruling of the House of Shammai may do so, and he who wishes to act according to the view of the House of Hillel may do so. [He, however, who adopts] the more lenient rulings of the House of Shammai and the more lenient rulings of the House of Hillel is a wicked man. [While of the man who adopts] the restrictions of the House of Shammai and the restrictions of the House of Hillel, the Scripture says: But the fool walks in darkness (Ecclesiastes 2:14). A man should rather act either in agreement with the House of Shammai both in their lenient and their restrictive rulings or in agreement with the House of Hillel in both their lenient and their restrictive rulings. (Eruvin 6b)

We can understand why the person who religiously adheres to the lenient opinion is considered wicked: He consistently avoids developing his relationship with God by performing the minimum required of him. But wherein lies the foolishness of the person who picks the strict opinion of each side? Should he not be applauded for his zeal?

The answer is subtle yet profound: This person is no longer using law in order to relate to God, rather, he is worshiping the law itself. The letter of the law becomes his god. His sensibilities have caused him to obscure his relationship with God, which becomes dysfunctional as a result. The individual must seek truth, whether it is lenient or strict, and those who are unable to do so alone, the textually challenged, should find a spiritual master, and follow him consistently.

The Imrei Emet from the Gur dynasty brings down a teaching which relates this idea back to our Torah portion:

We [generally] do not find the Torah legislating distancing from prohibitions, for all the fences and limitations are rabbinic, only regarding falsehood is the distancing a Torah law. The Sfat Emet explained that the same idea is found regarding truth; pursing truth is a Torah law. "Go after a good court" is in actuality the mitzvah to seek truth ... Searching for the truth is dependent on the individual, and he will receive assistance from heaven ... (Imrei Emet Shmot 5688)

When man seeks truth, help comes from heaven, but the search must be sincere. When we succeed we become partners with God, for we have found truth -- which is God's seal.

Loving kindness and truth meet together;righteousness and peace kiss each other.Truth shall spring from the earth;and righteousness shall look down from heaven.Also, the Lord shall give that which is good;and our land shall yield her produce.        --  (Psalms 85:11-13)

* * *


When man seeks and finds truth here on earth, God's righteousness flows from heaven. The Sages explain these verses in a celebrated passage of Midrash:

Rabbi Simon said: "When the Holy One, blessed be He, came to create Adam, the ministering angels formed themselves into groups and parties, some of them saying, 'Let him be created,' whilst others urged, 'Let him not be created.' Thus it is written, Love and truth fought together, righteousness and peace combatted each other. Love said, 'Let him be created, because he will dispense acts of love'; Truth said, 'Let him not be created, because he is compounded of falsehood'; Righteousness said, 'Let him be created, because he will perform righteous deeds'; Peace said, 'Let him not be created, because he is full of strife.' What did the Lord do? He took Truth and cast it to the ground. Said the ministering angels before the Holy One, blessed be He, 'Sovereign of the Universe! Why do You despise Your seal? Let Truth arise from the earth!' Hence it is written, Let truth spring up from the earth (Psalms 85:12)."

Rabbi Huna the Elder of Sepphoris said: "While the ministering angels were arguing with each other and disputing with each other, the Holy One, blessed be He, created him. Said He to them: 'What can ye avail? Man has already been made!'" (Midrash Rabbah Breishit 8:5)

Man seeks truth in his own domain, which is not always a simple task. But when he succeeds, he becomes partners with God, which is something which even escapes the understanding of the angels. The pursuit of justice is the pursuit of truth. Both the individual and the society must seek justice and truth, for when we succeed the Shechina dwells among us, we become partners with God. When we seek truth, we are aided from Heaven.

But the Midrash in this week's portion teaches that there is even more at stake:
God said to Israel:

'My children, by your life, as a result of your respecting justice, I am exalted.' Whence this? As it is said, But the Lord of hosts is exalted through justice (Isaiah 5:16) 'and because you exalt Me through justice I too will act righteously and will cause My holiness to dwell amongst you.' Whence this? As it is said, And God the Holy One is sanctified through righteousness (Isaiah 5:16). 'And if you will respect both righteousness and justice I will immediately redeem you with a complete redemption.' Whence this? As it is said, Thus says the Lord: Keep justice, and do righteousness, for My salvation is near to come, and My favor to be revealed (Isaiah 66:1). (Midrash Rabbah 5:7)

In order to bring redemption we must adhere to the law -- both the letter of the law and the spirit of the law. We must find the balance between justice and righteousness.

Only someone who has a profound knowledge of law can dare overstep the letter of the law in pursuit of righteousness. Unapologetic, rigorous pursuit of truth, which will be aided from heaven, will allow us to create a society which is just and righteous. Such a society will be redeemed.

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