Shoftim (Archives)

“Justice Justice shall thou pursue”

This portion, in general, is concerned with the basic social institutions of a Torah-governed state: the monarchy; a system of courts, with judges and magistrates, and a high court located in the Temple precincts; the priesthood, with its prerogatives; prophets. Thus, the various realms: religious, judicial, prophetic-charismatic, and executive, while functioning independently, interact and reinforce one another in various ways. Thus far, the first half of the portion (16:18-18:22).

The latter half of the portion details miscellaneous institutions and laws relating to special situations: the cities of refuge for inadvertent manslaughter; laws of testimony and conniving witnesses; laws of warfare: the mustering, and opportunity for those with some unfinished business in civilian life to go home (there was no standing army; rather, the entire populace was marshalled in times of need), the procedure involved in attacking an enemy city; the rule against cutting down fruit trees (the phrase in 20:19, ki ha-adam etz ha-sadeh, “for is the tree a man?”, often misunderstood as drawing a poetic analogy between the man and tree, means the exact opposite); and the case of a slain corpse found in an open spot, and the concomitant ceremony of expiation.

The phrase appearing in the third verse, tzedek tzedek tirdof, “Justice justice shall you pursue, that you may live and inherit the land…” (16:20), has been considered by some as a kind of byword of Judaism. Some years ago a French Jewish thinker (I think his name was Henri Baruch) wrote a book entitled Zedeq, presenting his philosophy of Judaism as being based upon this principle. But, precisely because its truth is so self-evident and obvious, justice can easily be seen as a banal cliche.

Perhaps one might best read these three verses in reverse order: the pursuit of justice as the broad, overriding principle; “Do not slant or bias justice / do not favor persons / do not take a bribe”—the practical application of justice; “magistrates and officers you shall set up in all your gates”—i.e., the institutional measures needed to accomplish this axiom. The middle verse, “do not slant justice,” is the heart of the matter. Justice is first and foremost directed towards the other: the more alien, the more bizarre, weird, peculiar, different the other seems, the more imperative the call for justice. For that reason it is so difficult. It is easy to demand justice for oneself, for those similar to oneself, for those you can identify with. The sense of “us” and “them” can function as a bribe, as something blinding one to seeing the other, as surely as a thick wad of bills.

Israeli society is being rent apart today, by each camp demonizing the other. Two weeks ago the Friday supplement of Ha’aretz newspaper featured a lead story about the “hatred of Shas” as a unifying factor among the secular, educated, Ashkenazic, generally successful elites. On the other side, there is no need to elaborate on the demonizing, hate-filled language found among the Shas cadres, in Rav Ovadiah’s sermons, nor of the ugly, sometimes lethal violence that it can unleash. What is somewhat surprising is that the “enlightened “ secularists, who supposedly know something about sociology and history and anthropology and psychology, seem to be equally close-minded about the newly-found religious fervor and ethnic pride of Shas—or, indeed, about much of the revival of interest in religion these days. Seeing the humanity of the other—unless he happens to belong to one of the minorities which the “bon-ton” and socio-political orthodoxy of the liberals designate as worthy of respect and caring—is a little bit more difficult.

“According to the Torah which they teach you”

When I was a child we were taught in grammar school about the “elastic clause” in the American Constitution: that clause that stated that, in addition to the specific authorities Congress was given to make laws in specific areas, it was entitled to make any other “laws that shall be necessary and proper for carrying into execution the foregoing powers….” (Article I, §8.18). We were taught that this, in effect, gave Congress to right to make any laws that might be required for unforeseen, future circumstances.

Deut 17:8-13 is, so to speak, the “elastic clause” of the Torah. It stipulates that any matter that is “too difficult for you” shall be brought to the “Levite priests or the judge who shall be in those days” (read: Sanhedrin; great talmidei hakhamim of each generation; etc.) and that “according to the Torah/teaching which they tell you… you shall do; do not turn from the thing they shall tell you, neither right nor left” (v. 11). This verse is taken by the tradition (together with such a verse as Exod 24:12) as providing the basis for the concept of Oral Torah.

The notion of Oral Torah is a central one in Judaism, whose importance it is impossible to exaggerate. Judaism as we know it is in effect the Oral Torah: the Mishnah, the two Talmuds, Midrashim, the rishonim (classical Medieval authorities), and aharonim (authorities from about 1500 on), in all their voluminous works of commentary, codification, responsa, etc. are the many faces of the Oral Torah. Acceptance of the Oral Torah, however this may be understood precisely, is a sine qua non of Jewish religious and halakhic commitment. Criticism is often lodged against traditional Jewish practice by assorted outsiders to the tradition—neophytes to Judaism, Christians, Reformers of various types—that one or another halakhic institution or practice is distant from the written word of the Torah.

But the truth is that the major institutions of Jewish law stand virtually on their own. Entire tractates of the Talmud are based upon brief paragraphs in the written Torah (e.g., in next week’s portion, Gittin and Yevamot, divorce and levirite marriage, are based upon 24:1-2 and 25:5-9), a single verse (as in the case of the laws of the Sukkah); or even a few words. Thus, the entire institution of shehitah—the ritual slaughter of livestock in a particular manner—is derived from the three words “ve-zavahta… ka’asher tzivitikha, “and you shall offer / slaughter as I commanded you” in last weeks portion (Deut 12:21). The related subject of terafot, with its numerous categories of organic defects that render an animal unfit for consumption, is based upon a single verse in Exod 22:30. Still other subject areas are characterized by the Talmud as “mountains hanging by a thread” or even as “suspended in midair.”

Indeed, the late Yeshayahu Leibovitz celebrated this fact, commenting that the Written Torah is itself a function of Oral Torah; that is, that the Bible as such derives its sanctity from the Oral Torah (and indeed, several border-line books are admitted on the basis of m. Yadayim 3.5, while the order of the canon as a whole is discussed and fixed in b. Baba Batra 14b).

On another level, one of the major functions of Rabbinic literature, and especially of the midrash (whether the tannaitic midrashim, or the snipets of exegetical discussion included here, there and everywhere throughout the length and breadth of the Talmud), is to bridge the gap between Written and Oral Torah. Rabbinic midrash, using various hermeneutic tools that form part of the tradition, demonstrates that the roots of the Oral Law lie in the written text (see on this David Halivni Weiss’s book Midrash, Mishnah, Gemara).

There is much misunderstanding as to just what is meant by this. Traditional Judaism contains two main schools of thought regarding this point. One view maintains that virtually everything in the Oral tradition was given to Moses at Sinai, and that the vast oral tradition was passed down through the generations from teacher to disciple, until it was ultimately set down in writing over a century after the destruction of the Second Temple. This view, which finds its definitive expression in the Iggeret (Epistle) of Rabbenu Sherira Gaon, takes literally the dictum that “everything a veteran student/disciple (talmid vatik) shall innovate in the future, was given to Moses at Sinai.”

An alternative view is that of Maimonides, for whom those things passed down directly by tradition is but one of several components of the Oral Law; much of its creation is attributed to later generations. He maintains that a relatively small number of traditions were specifically given to Moses at Sinai (Halakha le-Moshe mi-Sinai) alongside the written Torah, together with certain interpretations of the verses of the Torah; much of the Oral Torah was essentially created by the Sages, through a combination of application of hermeneutics, and the own legislative and juridical authority vested in them. He describes the Great Court in Jerusalem as “the root of the Oral Law and the pillar of teaching, from whom law and statutes issue forth to all Israel” (Mamrim 1.1; cf. Talmud Torah 1.12; and his general introduction to the Mishnah—Hakdamah le-Seder Zera’im). This latter approach seems to coincide more with common sense and the historical evidence, besides putting far less strain on the credulity of the believer. (See Yaakov Blidstein’s excellent article on the differing approaches of the Rambam and Rav Sherira Gaon.)

Interestingly, this concept of Oral Torah as essentially a field for human creativity is one that appears in numerous passages in the Sefat Emet. He constantly speaks of the task of Hiddushei Torah, of new and creative insights into Torah resulting from human spiritual and intellectual input. He often draws an analogy between the dynamic of Written and Oral Torah, to that between Shabbat and week days.

In any event, one might designate this legal theory as “legal traditionalism”—that is, it really doesn’t matter whether a given point in Jewish law was literally given by God to Moses at Sinai or not. Rather, Sinai represents the starting point for the legal tradition, which was developed, elaborated, refined, added to, etc., etc. by the Jewish people throughout the generations—what the Rav called the Masorah community. Such approach is diametrically opposed to that of the school of Kelson et al, which places strong emphasis on the “positive source” of a given legal system, being much concerned by the precise formal status of each law.

Paradoxically, this approach, which more frankly acknowledges the central role of human initiative in creating the halakhah, actually leads to a very traditional approach to halakhah. One often hears the criticism, among many religious people, that “we don’t need to observe such-and-such a law because it’s only a minhag.” (Interestingly, this approach was first propounded in modern times by Rabbi Samson Raphael Hirsch, the father of German Neo-Orthodoxy, of separatism as an Orthodox communal ideology (austritzgemeinde), and of modern style Orthodox ideological polemics. Hirsch wished to draw a sharp line between the requirements of halakhah as defined in strictly legal terms, and the “accretion” of custom that was added over the centuries.) If, however, the Oral Law is seen as an ongoing creative process, whose authority ultimately rests within the Jewish people itself, then custom too, while of lesser formal stature than Torah or Rabbinic law, is nevertheless a valid source of law, and must be treated with all due seriousness. This is conveyed in the Talmudic dictum, “Israel, if they are not prophets, are at least the sons of prophets” (Pesahim 66a). That is to say, there is a certain healthy religious intuition implanted in the people as a whole, that assures that customs adopted by the Jewish community at large are in line with the spirit of the tradition.

The second issue related to Oral Torah is the nature of Rabbinic authority. It is in this connection that the phrase from our portion, lo tasur yamin usmol, “you shall not turn deviate to the right or to the left,” is most often invoked, being used to justify the yeshiva ideology of implicit obedience to da’at Torah (“the opinion of Torah”) and gedolei hador (“the [Torah] giants of the generation”). But this verse is in fact given two diametrically opposed interpretations, in the Sifrei and in the Palestinian Talmud. The former, indeed, reads the verse as implying “even if they tell you that right is left and left is right, you must heed them.” In short, something tantamount to a Jewish counterpart to papal infallibility (lehavdil). On the other hand, the Yerushalmi in tractate Horayot reads it “if they tell you that right is right and left is left.” But—and here one is left to draw the obvious conclusion—if they teach something that is patently, self-evidently absurd, at a certain point the individual may and indeed must exert his own God-given intelligence and common sense.

A similar tension exists between the laws of the zaken mamreh (Sanhedrin Ch. 6), stipulating that an elder who openly defies the authority of the Bet Din is subject to the death penalty (based on 17:12-13 here); and the concept articulated in Horayot, that a hakham she-higi’a lahora’ah, a sage who relies on his own understanding and knowledge, cannot blindly follow what he knows to be a wrong ruling of the Sanhedrin.

These are highly complex and sensitive issues, and in this context I can barely touch their surface. A vast literature, much of it quite polemical on one side or another, has been produced on this subject in recent years. It is this issue that lies at the center of the ideological battles within contemporary Orthodoxy. Needless to say, the problem is much exacerbated by the fact that the so-called gedolim also issue pronouncements on issues of Jewish public policy and, in Israel, are deeply involved in political parties, elevating to the level of Torah obedience mundane tactical partisan decisions.

Prophecy and Charisma

In 18:9-22, a contrast is drawn between prophecy and various kinds of magic and other pagan practices. What is the difference between the two? As we mentioned in our discussion of Balaam, a magician or wizard is essentially concerned with control over the cosmos, by manipulating unseen forces. Prophetic charisma comes from a sense of submission to God, to a higher force—he acts as a mouthpiece for the Almighty and, ideally, has long since completely transcended his own ego. Prophecy, according to the Rambam, does not suddenly set on an ordinary person, but requires years of discipline and training: the prerequisites include a high level of Torah knowledge, intellectual and ethical perfection, years of meditation and withdrawal from society, etc. Only then, should God choose, does He cause His spirit to rest on that person (see Yesodei Hatorah, Ch. 7).

Moses’ position, which is invoked here as archetypal for future prophets (vv. 15, 18) involves a double aspect. He was avi hanevi’im, “the father of the prophets,” and Moshe Rabbenu, “Moses our teacher.” He embodied within his own personality the two types of hakham and navi, sage and prophet. On the one hand, he fulfilled a charismatic, perhaps even ecstatic role, as a sort of conduit for the divine energy; as one who was somehow more than human. Mysterious, removed, remote from ordinary human concerns—as is perhaps symbolized by the light shining from his face. On the other hand, he was the first teacher of Torah: sobre, balanced, judicial, performing a quintessentially rational role—understanding, teaching, elucidating an exoteric teaching, which was in principle available to all.

This duality has to a certain measure followed the Jewish people down through the ages. What, after all, was the essence of the polemic between Hasidism and Mitnaggedism, if not the old debate between hakham and navi: between the charismatic, ecstatic leaders who stormed the heavens, as against sobre, learned, text-centered teachers. The difference is embodied in their celebration of Shabbat: the Hasidic tisch, filled with Kabbalistic ceremony pregnant with mystical meaning, and the spare Shabbat ritual of the Litvak, who may barely sing Zemirot, and will sit down with his students straight after Friday night dinner to study intricate halakhic texts like Ketzot ha-Hoshen or Shav Shematta. Or, as Rav Soloveitchik once expressed it, it may be summed up in the difference between Bameh Madlikin and Kegavna (a chapter from Mishnah, as against a passage from the Zohar, used to conclude Kabbalat Shabbat in the two different traditions).