“Judaism’s Unique View of Justice and the Judicial System”
(Revised and updated from Devarim 5760-2000)

by Rabbi Ephraim Z. Buchwald

 

This week, we begin reading the Book of Devarim–Deuteronomy, the last of the five books of the Torah. Deuteronomy is also known as מִשְׁנֶה תּוֹרָה —Mishneh Torah, a repetition of the Torah, since much of the book reviews the story of the Exodus from Egypt and the forty years that the Israelites wandered in the wilderness. However, the book also contains many new and novel laws and directives that were not included in the previous four books of the Torah.

In this week’s parasha, Moses delivers his valedictory admonition to the Jewish people, reviewing for them the events of the past forty years and strongly urging the people to remain loyal to G-d. Reminding the people how difficult it was for him to lead them, Moses recalls how he selected 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 Israelites to be judged fairly and equitably.

In Deuteronomy 1:16, Moses recalls: וָאֲצַוֶּה אֶת שֹׁפְטֵיכֶם בָּעֵת הַהִוא, לֵאמֹר , I 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 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, Moses lays out the foundations of Jewish jurisprudence, a legal system that was without parallel in the ancient world. It is a Jewish justice system established on the principle of צֶדֶק —Tzedek, a word that is related to the Hebrew word צַדִּיק —Tzadik–a righteous person. Clearly, the purpose of the Jewish justice system is to do the right thing, the correct thing.

The Hebrew legal system is significantly different from other secular and national systems. Western jurisprudence frequently invokes the well-known principle that a person is regarded as innocent until proven guilty. However, in Avot, Ethics of the Fathers (1:8) we learn that in Jewish courts of law 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 looked upon as mere metaphors, it does seem to underscore the fact that in Western civilization the purpose of the justice system is to prove a person guilty, whereas the purpose of Jewish jurisprudence is that even the guilty person shall eventually emerge innocent.

Moses’ admonition to the judges, Deuteronomy 1:16, begins with the words: שָׁמֹעַ בֵּין אֲחֵיכֶם וּשְׁפַטְתֶּם צֶדֶק , 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 litigant being present. Furthermore, שָׁמֹעַ —“Shamoa” means not only to “listen,” but also to “understand”–to 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 I should be heard, and it is for the people over whom I am appointed to listen. Says the Torah, שָׁמֹעַ בֵּין אֲחֵיכֶם , 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 and be in a position to assess their inner character. Even if their arguments are not truthful, listen!

Another instance that underscores Judaism’s remarkable insight in matters pertaining to justice is recorded in the verse in Deuteronomy 1:16, וּשְׁפַטְתֶּם צֶדֶק, בֵּין אִישׁ וּבֵין אָחִיו וּבֵין גֵּרוֹ , 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 a resident non-Jew in matters involving justice and equity. It is rather amazing that this highly progressive concept was pronounced thousands of years before any other judicial system granted equality to aliens or strangers.

Some legal systems argue that justice must be “blind.” Judaism sees it slightly differently. Our Torah declares, in Deuteronomy 1:17, לֹא תַכִּירוּ פָנִים בַּמִּשְׁפָּט , Do not show favoritism in judgment, small and great alike shall you hear. Judaism also instructs a judge not to judge according to what he/she sees, since sight is often misleading. Visual deception is difficult to detect, making it easy for a litigant to change forms and change facts. Don’t be deaf. Listen, says the Torah! Focus on human voice, which emanates from the inner parts of a person’s soul, making it much more difficult 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 often penetrate the inner recesses of the person who is standing before him/her.

The prescience of Torah law becomes especially apparent in the verse found in Deuteronomy 1:17, לֹא תָגוּרוּ מִפְּנֵי אִישׁ, כִּי הַמִּשְׁפָּט לֵא־לֹקִים הוּא , Do not be afraid of any person, for judgment is G-d’s. This verse is directed specifically to judges, warning them not to be afraid of any person, and is also intended to serve as an injunction against the corruption of judges. The verse “for judgment is G-d’s,” is intended to serve as an injunction against the hubris of judges. On the one hand, the fear of flesh and blood of other humans perverts the Divine image of the judge and lowers his/her stature. The fear of G-d, on the other hand, straightens the judge’s stature, and reinvigorates the image of G-d in the judge’s most inner being.

Rabbi Joseph Hertz, in his popular Bible commentary, tells of the wife of a Hassidic Rabbi who had quarreled with her maid, and had set out to take the maid 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! These very special legal insights reflect the remarkable 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 was lost on account of corruption, let us scrupulously follow G-d’s will and wisdom. For 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 Haftara, (Isaiah 1:27): צִיּוֹן, בְּמִשְׁפָּט תִּפָּדֶה , Zion shall be redeemed with justice, וְשָׁבֶיהָ, בִּצְדָקָה , and those who return to her shall be redeemed through righteousness.

May you be blessed.

The observance of the fast of Tisha b’Av, marking the destruction of both Jerusalem Temples, starts on Saturday night, August 10 and continues through Sunday night, August 11, 2019. Have a meaningful fast.