Judging in 3-D

Judging in 3-D
D’var Torah for Parashat Shoftim (Deut. 16:18—21:9)
By Rabbi Boaz D. Heilman


Whenever I read this week’s Torah portion, Shoftim, I am invariably struck by the irony in being told almost immediately, “Justice, justice shall you pursue” (Deut. 16:20) and, just a few verses later (17:2-5), being commanded to put to death anyone who strays from God’s path and worships other deities.

Granted, the people are warned to “investigate thoroughly” the matter. Still, is that justice? Sounds more like the kind of fury and zealotry that some people associate with the “Old Testament God.”

Yet isn’t it so? How else are we to read these passages?

When I think of the kind of “thorough investigations” that the Inquisition carried out in unmasking secret Jews during its reign of terror, I can practically see the bony finger of the Grand Inquisitor pointing to this chapter and verse as proof for permission to exercise cruelty and abuse. Under the guidance of the Inquisition (as in other totalitarian regimes), children were taught to inform on their parents, neighbors on neighbors. The property of the convicted “criminal” would then be divided between the Crown and the Church, with some smaller tip given to the informer.

Was that justice?

Yet, here it is, in the Bible’s own words.

Reconciling the irony was not easy, but by the beginning of the Common Era, the ancient Rabbis who constructed the Judaism we know and practice today came to a much different conclusion. They eliminated the death penalty altogether.

Fundamentalists who see the Bible as God’s own words, rigid, invariable and definitive, fail to understand the process of evolution that one can discern through the Bible. Often a stated law is meant not as a commandment, but rather to launch a whole discussion; the conclusion might be very different from the starting point. In the case of the death penalty, the discussion begins very early on. After all, how can a people who sanctify life also sanction taking a life?

This paradox occupied Jewish minds for centuries. One side cited the fundamentalist view. The other, more liberal, expressed the opinion that, if all life is sacred, any killing—even for a good reason—is immoral. The Talmudic Rabbis (1st—6th century) ordained that for a capital crime, a court must be comprised of 23 judges (and never less than two witnesses). After hearing the evidence, the judges must then part into two groups, one arguing for conviction, the other, for acquittal. A majority of one was sufficient to acquit, while a majority of two was needed to condemn.

The need to find some—any—extenuating circumstance was compelling. The Talmud rules that even in a case where all the evidence points to the guilt of the accused; even where all 23 judges agree among themselves on the guilt of the accused; yet, says the Talmud, in such a case, a miscarriage of justice had to be declared.

That is not to say that the accused is found innocent and acquitted. Rather, the inability of the court to find any—any at all—explanation for the actions of the accused means that this is “a court that obviously has very little understanding of who he is and what he has done. Such a court has disqualified itself from passing judgment on him.”

This explanation, offered by the Lubavitcher Rebbe, holds the key to understanding the cornerstone of Jewish Law, found in this week’s parasha: “Justice, justice shall you pursue” (Deut. 16:20). The course of justice is not always a straight line. It meanders through cause and effect, through the vicissitudes and inconsistencies of human experience. Similarly, the course of judgment is also complex. So many factors influence our perception, that something that may seem crystal clear at one moment may be clouded the next.

Hence the doubling of the word “justice.” It isn’t there for emphasis alone. It is also meant to show the difficulty and complexity of pursuing true justice. Depth vision is always a function of two or more angles and the way our brain reconciles the differences in perception.

Justice that is achieved without a measure of struggle is not possible for us humans. Pirkei Avot, the Mishanic tractate known as “Chapters of the Fathers,” teaches: “Do not judge alone, for no one can judge alone but the One.” Nor may we subvert justice by forcing our view on others, or by taking or giving bribes. Whereas the Torah and the rest of the Bible show argument and discussion (see Abraham’s argument with God in the story of Sodom and Gomorrah, Genesis 18:22-33), whereas the Talmud includes in its law discussions both the arguments of the winning side and those of the losing, no such process can be found in the vast records the Inquisition kept.

To point at any verse in the Torah and say, “So it is and so it must remain” is to ignore the progression and progress that characterize human nature. In fact, such a dim view of humanity barely recognizes that presence of God’s image in us.

Parashat Shoftim (“judges”) teaches us not only to follow laws blindly, but to understand them and let them evolve with us. It also teaches us to develop understanding of one another, of our own foibles as well as those of others; to be more accepting; to temper judgment with compassion. Thus Shoftim creates a more compelling image of God: a loving and just God, not a zealous, passionate and murderous one.


©2011 by Boaz D. Heilman