Shoftim (Midrash)

Righteousness and Justice

The opening phrase of this week’s portion, concerned with the pursuit of justice, leads quite naturally to a comparison of the relative merit of sacrifices as against the ethical values of righteousness and justice. Deuteronomy Rabbah 5.3:

This is what scripture says: “To do righteousness and justice is preferred by the Lord above sacrifice” [Proverbs 21:3]. It is not written here “like sacrifice,” but “above sacrifice.”

The superiority of ethics over ritual is of course much emphasized by the liberal or progressive streams in Judaism, which speak of the “prophetic ethic.” The interesting thing about out midrash is that it does not suffice with generalities, but conducts a precise, point-by-point comparison between the two, beginning with the nuances expressed in our verse by the choice of prepositional letter: not ke-zevah, “like sacrifice,” but mi-zevah, “above than” or “more than sacrifice.”

How so? The sacrifices were not offered or practiced except in the time of the Temple, while righteousness and justice are practiced both in the time of the Temple and when the Temple no longer existed.

Another thing: Sacrifices only atone for unintentional transgression, while righteousness and justice atone for both unintentional and intentional sins.

We shall return to this theme during the coming weeks in our discussions of Maimonides’ Laws of Teshuvah in preparation for the coming Days of Awe. Let us suffice for now by saying that the Rabbis saw propitiatory sacrifices (i.e., sin offerings) as being extremely limited: being no more than a pro forma gesture of contrition, they cannot atone for deliberate, premeditated sins without true turning. By contrast, the practice of justice, of both honest and generous behavior, is in itself the strongest proof that a person has in fact abandoned his evil ways—and thus earns him atonement.

Another thing: Sacrifices are only practiced in the lower realms, while righteousness and justice are practiced in both the upper and the lower realms. Another thing: Sacrifices are only practiced in this world, while righteousness and justice are practiced both in this world and in the World to Come.

The difference between these two is that the one refers to different spiritual realms or dimensions, i.e., the heavenly and the earthly, while the other refers to a temporal distinction, to different stages in the human journey, viz. during life and after death. Yet both claims are highly problematical. Justice and righteousness are concerned, in the final analysis, with arranging the practical affairs of human beings, and first and foremost their economic life, in a fair, just and equitable way: not allowing the poor to starve; assuring that people are fairly paid for their work; that such obligations as loans, guardianship, bailiffship, contracts, are honored; that commerce is conducted with fairness and equity; etc., etc.—in brief, the subject matter of the three Bavot and Hoshen Mishpat, which play such a central role in the traditional curriculum. What have all these to do with the celestial realms or with the Afterlife? Indeed, the aggadah in Shabbat 89a portrays Moses as storming heaven and receiving the Torah over the protests of the angels for precisely these reasons. He challenges them (in rough paraphrase): Do you eat and drink? Do you own property? Do you feel sexual desire? That is, the Torah, and the concept of justice which is one of its central pillars, are concerned with concrete issues of life on this earth. Hence, I find the above passage very puzzling. Some of the traditional commentators such as Matnot Kehunah explain that this refers to the reward for practicing justice, but this answer seems forced: a) because the reward for a thing is not ordinarily called its “practice,” and b) there is in any event reward for offering sacrifices and for all other mitzvot as well. An alternative explanation that occurred to me is that perhaps “justice,“ much like “Wisdom” (in the Book of Proverbs and elsewhere), “Logos” (in Hellenistic, Christian and Gnostic thought), or the “Torah” itself (in many places in Hazal), is here apotheosized into a kind of Platonic, cosmic entity. But I am not convinced by this either. In brief, I am puzzled and have no real answer. Any suggestions?

Said R. Shmuel b. Nahmani: When the Holy One blessed be He said to Nathan: “Go and tell David my servant: Thus says the Lord: you shall not build me a Temple to dwell in, for I have not dwelt in a house from the day I took Israel up [from Egypt] until this day, but I have gone from tent to tent and from sanctuary [to sanctuary]” [1 Chr 17:4-5]

An aside: this seems to imply that God was opposed in principle to building a Temple, and much preferred His humble, temporary, wilderness homes. Yet shortly thereafter He says that his son shall build it, and that the restriction is a strictly personal one applying to David. A bit further on, David even tells Solomon that God told him that this was a punishment for his violent life: “you have shed much blood; you shall not build a house to My Name” (1 Chr 22:8; but compare 2 Sam 7:1-17).

[Thus] whoever wished to curse David, what would he do? He said to him: It would be nice were the Temple to be built. But David said: “I rejoiced when they said to me, let us go to the house of the Lord” [Ps 122:1]. They want me to say, that you shall not build.

The Holy One blessed be He said to him: By your life, I shall not take away a single hour from your life. From whence? From what is said, “When your days are filled and you shall lie with your fathers: Then I shall raise up [one] from your seed after you who shall come from your loins, and I shall establish his kingdom…” [2 Sam 7:12]. The Holy One blessed be He said to him: The righteousness and justice that you do are more precise to me than the Temple. From whence? From what is said: “and David did justice and righteousness” [ibid 8:15].

This is a touching little story. Mean-hearted people tried to taunt David, hinting that they were anxiously awaiting his death so that the Temple could be built (Incidentally, this part of the midrash picks up on the anachronism in the Psalmist David speaking of the Temple as it already exists, providing a novel and unexpected explanation as to why people might say to him, “Let us go up to the house of the Lord”). But David did not rise to the bait, but instead reacted in good spirits, declaring his joy in the idea of the Temple being built. Moreover, God Himself promised not to hasten David’s demise, but to give him his full allotment of years.

This is reminiscent of Moses, who was not allowed to cross over into the Promised Land; there is a sense in which failure to see their dreams fulfilled is a tragic, almost inevitable part of the lives of great leaders. (Americans will doubtless flash on Abraham Lincoln’s assassination just five days after the end of the Civil War, or FDR’s death just before VE Day; or, perhaps, most tragically, Yitzhak Rabin’s assassination leaving a rally celebrating the beginnings of hopes for peace—hopes that were cruelly quashed inter alia by that very act.) It also calls to mind the High Priest, who knew that unintentional manslayers were waiting for him to die so they could leave the city of refuge (as per Num 35:28). In some primitive cultures the king or chief functioned as a kind of expatiatory figure for the entire tribe, being elected for a certain term at whose end they were offered as human sacrifice.

What is meant by “justice and righteousness to all his people”? R. Judah and R. Nehemiah. One said: He would pass judgment, free the innocent and hold the guilty accountable. If the one who was accountable could not pay [the fine or payment], David would give of his own. That is “justice and righteousness.”

Justice and righteousness (mishpat and tzedakah) are interpreted here as almost diametrically opposed poles; thus, in doing both David encompassed two very different approaches. Justice is the principle of absolute objectivity, of Law as something immutable, stern, a-personal. Righteousness is more situational, taking account of human frailty and limitations. Here, it required David to act with generosity, making up from his own pocket what the poor person was unable to pay. Conceptually, mishpat is concerned with the Law itself, as an unbending, absolute standard. “The law shall drill through [even] a mountain.” Tzedakah is concerned with human results—that the poor person not be broken financially. Even if he was highly negligent, lived beyond his means and ran up debts, or caused great damages or losses to others through his own irresponsibility or incompetence, the community and its leaders must also care for him as a human being, created in the Divine Image. Today’s “neo-liberal” capitalist ethic would probably say, “that’s his problem,” and let him bear the consequences.

This notion is closely related to the notion of lifnim mishurat hadin, going “beyond the letter of the law.” Perhaps the classic illustration of this principle, certainly in the social realm, is the story of Rabbah bar bar Hanna, told in Baba Metzia 83a, who hired a team of workmen to carry a batch of wine barrels to a certain place. On the way, they broke every last one of them, causing considerable financial loss. He went to Rav for a ruling as to what to do. He was told that he could not hold them accountable, because they were poor and could not possibly make good, and instructed him to return the garments he had held in surety. To Rabbah bar bar Hanna’s astonished question, “Is that really the law?” Rav answered in the affirmative, quoting the verse, “that you shall walk in the way of the good” (Prov 2:20). Moreover, as otherwise they would have nothing to eat, he even had to pay them their day’s wages as if they had performed the task properly, on the basis of “and keep the path of the righteous” (ibid.).

Said R. Nehemiah: If so, you find that he brings led Israel to dishonesty. What then is “justice and righteousness?” He would judge the judgment, free the innocent and hod the guilt accountable. That he would remove the theft from his hand. Said the Holy One blessed be He, My son, since all the judgments are precious to me, you should be careful in them.

R. Nehemiah objects that R. Judah’s “social work” mentality, which would in effect exempt those below the poverty line from all responsibility for their actions, would ultimately lead to the breakdown of all social norms, and of social order generally. Does R. Nehemiah have the last word here? The issue of the proper balance between norms and limits, as against kindness, human empathy, and “bending the rules” for hardship cases, is a perennial conflict. What are the proper parameters? Are there dangers entailed also in doing too much, in being “too” righteous? Why should Rabbah bar bar Hanna be out of pocket because the shlemiels he hired also happened to be impoverished?

Perhaps, in the end, both are right, and the Torah is simultaneously two quite different things: a normative legal system, which cannot require people to forego that which is theirs by right; and a spiritual handbook, a guide to religious perfection, which strives to educate, to train people, to hold up a model or ideal of pietism in which people go beyond themselves and their own narrow interests, to relate to others with generosity and to see reneging to the unfortunate as a mitzvah. And here, as in so many other places, there is much more to be said.

An Elul Thought

As we are now in the month of Elul, the month of forgiveness and mercy, the month of repentance and personal stock-taking, I plan to continue my translation-commentary of Maimonides’ “Laws of Teshuvah,” possibly before Shabbat, in the early or middle part pf next week. Meanwhile, a brief thought for Elul.

Preachers are fond of word play on the name of this month. The best known is the acrostic, in which Elul forms the initials of the verse Ani le-dodi ve-dodi li (“I am my beloved and my beloved is mine”; Song of Songs 7:10), expressing, in line with its midrashic interpretation, the sense of intimacy between God and the Jewish people felt with greater intensity at this season. I would suggest another reading: Elul spelled backwards is the Hebrew word lulei: “would that…” or “had it not been that…” This word is the motto of all those people who live their lives filled with regrets about the past. “If only I had [or hadn’t] done that thing, then everything would have been different…” The task of Elul is, quite simply, to turn the word “lulei” around and, instead of living life with regrets, to simply begin living life in a straightforward manner.