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Devarim 5760-2000

“Judaism’s Unique Views on Justice and the Justice System”

by Rabbi Ephraim Z. Buchwald

This coming week, we begin reading Deuteronomy, the final book of the five books of the Torah. Deuteronomy is known as Mishneh Torah, a repetition of the Torah, since much of the book reviews the story of the Exodus from Egypt and the forty years of wandering in the wilderness. However, the book also contains many new and novel laws and directives that were not included in the previous four books.

In this week’s parasha, Moshe gives his valedictory admonition to the Jewish people, reviewing for them the events of the past forty years and urging them to remain loyal to G-d. Recalling how difficult it was for him to lead the people, Moshe reminds the people how he chose 70 elders to help him judge the nation, and how he established, on the basis of his father-in-law Jethro’s advice, a judicial system that would allow the people to be judged fairly and equitably.

In Chapter 1, verse 16 of Deuteronomy, Moshe tells the people: “Va’a’tzaveh et shof’tay’chem ba’ayt ha’hee lay’mor.” Moshe recalls that he instructed the judges at that time saying: Listen among your brethren and judge righteously between the man and his brother or a resident alien. You shall not show favoritism in judgment, small and great alike shall you hear; you shall not tremble before any man, for the judgment is G-d’s; any matter that is too difficult for you, you shall bring to me and I shall hear it.

In this first chapter of Deuteronomy, Moshe lays out the foundations of Jewish jurisprudence, a legal system that was unparalleled in the ancient world. The Jewish justice system is based on the principle of Tzedek, which is related to the Hebrew word Tzadik – a righteous person. The purpose of the Jewish justice system is to do the right thing, the correct thing. It is interesting to note that Western civilization frequently invokes the famous principle that a person is considered innocent until proven guilty. However, in Ethics of the Fathers (1:8) we learn that litigants should be considered guilty before they are judged, but when they leave and accept the judge’s decision, they should be considered righteous. Although these statements are often considered mere metaphor, it does seem to underscore the fact that in Western civilization the purpose of the justice system is to prove the person guilty, whereas the purpose of the Jewish jurisprudence system is that even the guilty person shall eventually emerge innocent.

Moshe’s admonition to the judges begins with (Deut 1:16): “Shamoa bein achay’chem ush’fa’titem tzedak.” Hear the causes between your brethren and judge righteously between one another. In this verse, the Torah lays down a fundamental principle of Jewish law, positing that a judge may not listen to one side of the argument without the other side being present. Furthermore, “Shamoa” means not only to “listen,” but rather “understand” — find out the truth, so that one may judge faithfully and truthfully. A judge might say, since I am so wise, and so insightful I don’t need to listen. In fact, I am so wise that, to the contrary, I should be heard, and it is for the people over whom I am appointed to listen. Says the Torah, “Sha’moa bayn achay’chem, it makes no difference whether large or small, important or insignificant, listen! You don’t necessarily have to believe what you hear from the people, or the voices of the significant or insignificant, but listen! Listen to what they say, so that you will know them. Even if their arguments are not truthful, listen!

Another instance underscoring Judaism’s remarkable foresight in justice is recorded in verse 16, “U’sh’fatitem zedek bayn ish u’vayn a’chiv, u’vayn gayro,” And you should judge righteously between a person and his brother and the stranger that lives with him. There is to be no difference between an Israelite and the resident non-Jew in matters involving equity. It was thousands of years before any other judicial system granted equality to aliens or strangers.

Some legal systems argue that justice should be “blind.” Judaism sees it from a slightly different perspective. Our Torah says (verse 17), “Lo ta’kiru panim ba’mish’pat.” Do not show favoritism in judgment, small and great alike shall you hear. Judaism also says not to judge according to what you see, since sight is often misleading. Visual deception is difficult to detect, making it easy for litigant to change forms and change matters. But don’t be deaf. Listen, says the Torah! A voice is from the inner parts of a person, from the soul, making it much harder to deceive. Remember, Jacob was able to visually deceive his father by putting on lamb skins, but his voice gave him away. Through the voice, a judge can penetrate the soul of the person who is standing before him.

The prescience of Jewish law in the Torah continues: Verse 17, “Lo ta’gu’ru mipnay ish, ki ha’mishpat l’ay’lokim hu.” Do not be afraid of any person, for judgment is G-d’s. “Do not be afraid of any person” is an injunction against the corruption of judges. “Because judgment is G-d’s” is an injunction against the hubris of judges. The fear of flesh and blood of other humans perverts the Divine image of the judge and lowers his stature. The fear of G-d, on the other hand, straightens his stature and reinvigorates the image of G-d in the judge.

Chief Rabbi Joseph Hertz in his Bible commentary tells of the wife of a Hassidic Rabbi who had quarreled with her maid and had set out to take her to court. As she was leaving the house, she noticed that her husband was apparently accompanying her and asked him where he was going. “To the judge,” he said. The wife said that it was beneath her husband’s dignity for him to take any part in her quarrel with a servant and that she could deal with the matter well enough herself. The Holy man replied, “That may be, but I intend to represent your maid, who when accused by you, will find no one willing to take her part.”

This is Jewish law. This is another remarkable piece of the heritage which G-d has given us. May we embrace it so that it strengthens us. In these days of mourning for the Temple, which we lost as a result of corruption, let us scrupulously follow G-d’s dictates, and if we do so, we shall surely merit to see the rebuilding of the Temple in our times. May we soon see the fulfillment of the prophecy of Isaiah as recorded in the final verse of this week’s Haftorah, (Isaiah 1:27): “Tzion b’mishpat tee’padeh,” Zion shall be redeemed with justice, “v’shaveha bitz’daka,” and those who return to her shall be redeemed through righteousness.

May you be blessed.