Shoftim (Rashi)

For more teachings on this parasha, and on Elul, see the archives of this blog below, at August 2006.

The Merit of Righteous Courts

The verse near the beginning of this week’s parasha, “Justice justice shall you pursue” (Deut 16:20), is seen as something of a motto among Jews who advocate social action. The pursuit of justice is one of the central motifs and imperatives of the Torah; perhaps the central one in the social realm. The French Jewish psychiatrist and philosopher, Henri Baruch, wrote a book entitled Zedeq in which he identified this idea as the central motif in Judaism. Yet Rashi, in his commentary on this verse, gives the verse a considerably narrower interpretation:

Deut 16:20. “Justice, justice shall you pursue; that you may live and inherit the land that the Lord your God gives you.” Rashi: “Justice justice shall you pursue.” Seek a righteous court (Sifre). “That you may live and inherit…” The appointment of fit judges is sufficient to give Israel life and to [entitle them] to settle on their land.

One could explain this seemingly narrow reading by Rashi on the basis of textual arguments: the immediate context here is that of courts and judges, who are to be appointed everywhere (“in all your gates”—which the halakhic tradition reads as: “in every city and every tribe”). This is immediately followed by a promise of Divine blessings, suggesting that they too relate to the same subject.

But there is more to it than that. Courts and the mechanism of justice play a central role in Judaism and in Jewish law. The central figure in the Rabbinic tradition, the talmid hakham, is both teacher and authority on halakhic matters for his community, and judge. In certain towns in Eastern Europe the rabbi was known as the Matz or Datz—Moreh Tzedek or Dayan Tzedek. Ordination was couched in the formula, Yoreh yoreh (“he shall teach”) and/or Yadin Yadin (“he shall judge”). Many of the epigrams in Pirkei Avot are addressed to judges and to the proper performance of their function. Rav Soloveitchik, in his famous essay Halakhic Man, quoted his grandfather, Rav Hayyim of Brisk, as saying that the role of the rabbi is “to redress the grievances of those who are abandoned and alone, to protect the dignity of the poor, and to save the oppressed from the hands of his oppressor.”

Moreover, the establishment of courts of law plays a central role in the seven Noahide mitzvot, which I believe ought to be read as a kind of codex or counterpart to what is known in Christianity as natural law: that is, those laws incumbent upon every human being as such, which (according to what the late Rav Joseph Kapah rather convincingly argues to be the correct reading in Rambam Melakhim 8.11) may be derived or inferred through one’s own intellect or conscience (see Eugene Korn’s illuminating study in Modern Judaism 14 [1994], 265-287; and cf. my own discussion in HY V: Noah = Noah [Rambam]). Interestingly, the seven mitzvot consists of six negative proscriptions which apply to individuals—the prohibitions against murder, sexual licentiousness, idolatry, cursing God’s name, theft, and wanton cruelty to living creatures (“eating the limb of the living”); plus a seventh: the injunction to each society to set up courts of law to enforce, administer and judge violations of the other six laws (“they are required to place judges and magistrates in every city to judge these six mitzvot and to admonish the people”—Rambam, ibid., 9.14).

The underlying idea is quite clear: the establishment of courts and a system of justice are essential to the existence of a decent society. Judaism does not believe in anarchism, nor in the Rousseauvian vision of “the noble savage”—namely, that left to their own devices without the corrupting influence of civilization, human beings will be naturally good. The alternative to courts, to a system of administering and enforcing law, is chaos—the war of all against all. In a state of nature, the strong will lord it over the weak. כל דאלים גבר “Whoever is more violent shall overcome.”

Unfortunately, observing contemporary society, one too often sees abuses of justice itself—and examples from the front page of any day’s newspaper are too familiar to even require mention. Law has become an elite profession which, more than it attracts idealistic young people who strive to correct injustice, perfect society, and help the poor, tends to attract those who want to make a lot of money. Too often, the individual who is able to hire the more expensive, and thus “better,” more skilled or clever lawyer, has a decisive advantage over the poor and weak, in the face of principles of true ethics and justice.

But all this is not to argue against the validity of law and institutions of justice per se, but rather of the universal tendency towards violence and power: the tendency of the strong to exploit the weak is so powerful, so deeply rooted in human nature, that even within a system dedicated to the pursuit of objective justice and righteousness, it can often become predominant. The challenge is to assure, as Rashi puts it, that the courts are filled with honest, decent, competent and wise people, who can make them at very least a minimum focus of decency and justice for all of society.

Jury or Beit Din?

This past winter, while thinking about Parshat Mishpatim, an interesting question occurred to me. While in Western countries criminal cases and certain large-scale civil cases are tried before a jury of one’s peers, with a requirement of unanimity, in Jewish law all civil and criminal cases are tried before judges, in forums of various sizes and levels, and decided by majority vote of the judges. What underlies this difference?

Before considering this question per se, I would like to briefly survey some of the basic rules and procedural principles that operate in Jewish law, as to how the courts are to operate and arrive at their rulings and decisions.

1. בית דין נוטה, the “slanted court.” The court system is set up in such a way as to always yield a definitive result one way or another; there can never be a tie. The halakhah knows of three kinds of courts: an ordinary tribunal of three for regular civil cases (דיני ממונות); a “small Sanhedrin” of 23 for capital cases (דיני נפשות) and for certain other particularly serious matters (NB: there is no imprisonment as such in halakhah); and the Great Court (בית דין הגדול) of 71, the Great Sanhedrin that sat in the Chamber of Hewn Stone (לשכת הגזית) on the Temple Mount for decisions relating to the entire Jewish nation. (Interestingly, this is modeled after Moses and the seventy elders, who are first mentioned as such, by number, in Exod 24:1 ff.). What is striking is that all three of these courts are composed of an odd number of members.

2. Two vote margin. To convict a person in criminal cases, where the issue may be one of capital punishment and not merely awarding monetary payment to one side or another, there must be a margin of two votes, and it may not turn on a single vote: לא כהטייתך לטובה הטייתך לרעה. הטייתך לטובה על פי אחד. הטייתך לרעה על פי שנים. (סנהדרין ב,א). “Your ‘leaning’ towards good is not like your ‘leaning’ towards evil. ‘Leaning’ towards good [i.e., acquittal] is [even] by one vote; ‘leaning’ towards evil [i.e., conviction] must be by two votes.” (Sanhedrin 2a)

3. Multiple judges. In principle, all court rulings must be made by several people: אל תהיה דן יחידי, שאין דן יחידי אלא אחד. “Do not be a lone judge, for there is no lone judge but the One” (Avot 4.10). The objection to an individual sitting by himself on the bench is ultimately theological: human beings are imperfect, and prone to error; only God is omniscient and perfect in His judgment.

But, in practice, the Talmud makes a certain allowance for this, recognizing that an individual of outstanding intellectual accomplishment and expertise in the legal tradition, and who enjoys a public reputation as such, is as fit to judge as a tribunal of three ordinary people: ואם היה מומחה לרבים דן אפילו יחידי (סנהדרין ה,א) “And if he was a ‘public expert’ he judges, even by himself” (Sanhedrin 5a). And indeed, it was common practice in many places for the local rabbi of a town to serve as judge in various kinds of disputes. Isaac Bashevis Singer In My Father’s Court, describes his own father’s activity as rabbinic judge in their neighborhood in Warsaw; my mother had similar memories of her own father. In the secular court system in Israel today, too, a single judge sits on many levels.

4. No jury trial. Most important: Jewish law does not have the concept of a jury trial, of the ultimate decision of a person’s fate being made, not by a professional judge (whose function in the West is rather like that of an umpire), but by twelve peers, voting unanimously to convict or acquit. In fact, not only is there no requirement of unanimity in the halakhah; halakhah is suspicious of unanimity.

A Sanhedrin who began to consider a capital case, and all of them said “he is guilty,” he is exempt [from punishment; i.e., treated as innocent], until some of them support acquittal, so that they may consider his innocence. If those convicting are more numerous, then they may execute him. (Maimonides, Hilkhot Sanhedrin 9.1)

The idea here—as articulated by Rav Kahana in a Talmudic statement (Sanhedrin 17a)—is that consideration of the possibility of the persons’ innocence, as represented by at least one of the discussants, is an integral part of the judicial procedure.

Between the lines, too, there is the feeling that something is suspicious if twenty-three wise, learned judges all have the same opinion: that they must have been under the sway of demagoguery, or perhaps the junior members who thought differently were afraid to open their mouths before their elders. I’ve never been present at a jury trial in the United States or Britain, so I don’t know what it’s like in reality, but from the representations I’ve seen in TV and movie dramas, the lawyers’ rhetoric and ability to move the jurors’ emotions is often a major component in their decision.

To return our original question: The institution of the jury, as far as I can tell, originated in the days of Magna Carta, with the emergence of the bourgeoisie, a “middle class” between the peasantry and the titled, landed aristocracy, as a major element in society. The basic idea was that a person ought to be tried by his peers, rather than by the arbitrary fiat of king, who was supreme authority in all matters. The requirement of unanimity, at least in some cases—certainly for the death penalty, the one punishment that is irrevocable, but also for imprisonment, and even in cases where a major fine or large monetary settlement is imposed—presumably derives from the quest for an element of certainty in the court ruling.

It seems to me that the basic concept underlying the option taken by the halakhah is that while, on the one hand, Judaism sees human beings as fallible, on the other, we are charged with running our world (under the Torah as a codex); we are not commanded to achieve perfection. Ultimately, “The Heavens belong to God and the earth is given to human beings” (Psalm 115:15). In other words: we must judge according to the best of our ability; no certainty is possible; that there will be disagreements among the judges is only human, and society must somehow live with this. Perhaps one might say that Judaism, precisely because of its deep faith in God and in His perfection, accepts the fallibility of human beings, the imperfect nature of a trial, and lays down rule of majority decision.

The concept of safek, of doubt, is a central one in halakhah. One of the central problems in halakhic literature generally is: how does one cope with doubt? Doubt may be based on inadequate knowledge of the facts (e.g., is a given piece of meat treif or kosher? does a given object or sum of money belong to A or B?); it may be based on a disagreement among the Sages themselves as to what the law is, or how to interpret the Torah (an unresolved mahloket between equally great authorities); or it may be intrinsic in reality itself (does the twilight period belong to day or night, to Shabbat or weekday? How does one classify an androgynous, a person of ambiguous sexuality?). But this is precisely the point: in all these cases there are rules for resolving the doubt or, better, for conducting ourselves in light of doubt—because the Torah is a Torat Hayyim, a Torah of Life, given to live by in a real world in which we do not always enjoy the luxury of absolute certainty.

But secondly: there is a certain skepticism, or even elitism, in the halakhic system. It tends to mistrust the ordinary person to have sufficient knowledge, or the kind of disciplined thinking and informed judgment, to rule on another’s fate. Thus, the deciding body must be a court of trained sages, whether a tribunal or a larger forum.

Another drawback to the jury system is the possibility of a “hung jury.” Where differences of opinion do emerge in a jury trial, they are required to remain cloistered until they reach a unanimous decision, or until they realize that neither side will ever succeed in convincing the other, and move for a mistrial. (In Sidney Lumet’s famous 1957 film, Twelve Angry Men, one is shown a murder trial in which one juror who holds out for acquittal gradually convinces all eleven others of his point-of-view, of the element of doubt and the gravity of executing the accused should they prove to have been wrong. But I wonder how often such things happen in real life.)

POSTSCRIPT: A Digression on Buddhism

A few short comments in wake of my passing reference to Buddhism in Ekev, where we discussed the idea that the love of God must include acceptance of all that befalls us in life. While classical Buddhism articulates this point very well, as one of the Four Great Truths, I am wary of those today who attempt to create a kind of synthesis between Judaism and Buddhism (an example is a book I recently read, Sylvia Boorstein’s That’s Funny, You Don’t Look Buddhist). While clarity of mind is clearly an important and valuable thing, my own instinctive reaction is that the great investment of time and the intensive effort put into meditation, sitting, retreats, etc., could be better spent on learning Torah, doing mitzvot, helping others, etc. On the other hand, one of my pet peeves is that too many Jews completely ignore the meditative, quiet aspects of prayer. The depth of tefillah in our synagogues, on weekdays and often, sadly, even on Shabbat in many places, could certainly benefit from a period of silent preparation, however brief—and this, in the spirit of the Hasidim rishonim, as we’ve discussed on other occasions. I find it dismaying when I see a shaliah tzibbur (Prayer Leader) who begins to rattle off Ashrei or Hodu while still walking to his place. Even one or two minutes of sitting quietly, even taking a few deep breaths, could make a profound difference in the atmosphere of seriousness and inner calm required for tefillah. If we need to learn meditation from the Far East, so be it; but these ideas are basically part and parcel of our own tradition.

On the negative side, there are profound problems for Jews in what I would call folk Buddhism, with its imagery of the Buddha as a deity. There is also a tendency of many “Buh-Jews” to gloss over other profound differences between Judaism and Buddhism; the simplistic idea that “All religions basically teach the same thing” is one of the great bugbears of our day.

POSTSCRIPT: On Pornography

A few weeks ago, my friend Shaya Kelter sent out a piece on Parshat Pinhas, that, taking off from the figures of Zimri and Kozbi, discussed the contemporary issue of pornography. Inter alia, he states that:

In the Western world today, and very much so in Israel, sex is promoted openly and ubiquitously, in seemingly every media. Cars are sold by using sexual imagery as are ice cream and soft drinks and sports events. Sexual imagery and fantasy sells…. Pinhas understood the danger of licentiousness to our mission to be a holy people. He had the guts to rise up from the silent majority and to halt thsee social mores that threatened to destroy everything that God aspired for in Israel and, through Israel, for all humankind.

This story is not anti-sex. It is about the holiness of human love…. If God is everywhere, how could there be room for creation?, thinkers asked many years ago. The Kabbalah, answers that God contracted Himself (in Hebrew the word is Tzimtzum) to make room for creation, to make room for The Other. According to this theory, the act of Creation was an act of Divine Love… To paraphrase Pirkei Avot, I would add: “Who is a lover? One who makes room for the other.”

In human love, we make room for the other. We recognize the uniqueness of the other as a full human being also created in the image of God. Sex as part of human love is so beautiful and so holy. Sex as selfish self-gratification is just a pleasurable physical act, a far cry from holiness…. In pornography, people are conditioned to think of other human beings as objects for their own selfish satisfaction, with no hint of love. There can even be mutual selfish satisfaction but no holiness. Not only are people turned into objects, but human body-parts become defined as sex objects instead of aspects of whole holistic loving human beings. From an early age and during adolescence, impressionable minds and souls are deeply damaged by distorted images of what to aspire for in sexuality, of particular types of bodies for which to lust.

Pornography is terribly destructive to the human soul. It is promoted commercially and subliminally. It is not holy. As I emerge from my American adolescence I am beginning to understand the damage that pornography has wreaked on my own soul. I used to think that Pinchas was a bloodthirsty zealot. I now understand that Pinchas was zealously protecting not only God's holy mission but my own holy soul.

In my response, I wrote:

Your piece evoked some further reflections on pornography (a subject on which I once started writing a piece, in response to a rather sad query from a friend of mine who was seeking a heter, and never completed—ve’od hazon lamo’ed).

In any event, your piece evoked the following insight, suitable to Vaethanan and Sefer Devarim generally: that pornography stands in relation to love-making as idolatry does to the sense of immanent Divinity within the world. By this, I mean that love-making can be one of the most precious gifts in life—or it can be no more than a banal act, an exchange of purely physical pleasure. What animates it and makes it special, in emotional and human terms (as well as in terms of the potential for physical ecstasy) is that which is hidden: the thoughts and emotions of each person, the currents of feeling that flow between them during their bodily union, the memories of everything that went into the relationship up until that point. Pornography—say, a film clip showing two people engaged in intercourse—by its nature cannot show any of this; all it can show is the purely physical side, the two bodies interjoined. That which is most vital is missing.

The reason Judaism is so strict about imagery, and specifically prohibits making images of that which may be considered divine, while being far more tolerant of the spoken word, sound, etc., is because imagery by its nature flattens out these subtleties and complexities (see HY I: Yitro).

I would also draw an analogy, in part, to books and movies. Almost inevitably, whenever I have enjoyed reading a certain book, and then see the movie, I am disappointed. No matter how skillfully made, the movie cannot begin to capture the depth of characterization, the background writing, the opportunity to let one's own imagination portray the protagonists, etc., of the book.

This is a broader cultural problem as well. Our modern culture is so much based on visual images—movie, TV, even the notion of “photo opportunities” in politics as a substitute for serious diplomacy, real discussion of issues and genuine peace making, etc. Then, people have far less patience than in earlier days for non-instant forms of communication; they are less educated to relish subtleties and complexities. All this is a very serious problem, which in my more pessimistic moments I see as heralding a new Dark Ages.