Tzedek, tzedek, tirdof, Justice, Justice Shall you pursue (Deut. 16:20): This well-known phrase appears near the beginning of Parashat Shoftim. and much of the parashah is devoted to this major Torah principle. Attesting to its importance, is this quotation from Rabbi Bradley Artson that seeking justice “is an eternal religious obligation, at the very core of what it means to be a Jew.”
I think of Linda Kurtz, whenever I read or hear the phrase “Justice, justice shall you pursue” because she has pointed out many times that pursuing social justice is the essence of Judaism. And now, after preparing for this drash, I have a deeper understanding of just how wise, innovative and radical – by the standards of Biblical times – the Torah text is. Indeed, this parashah is devoted almost entirely to the theme of justice, from the obligations of judges, witnesses, and prophets to the limitations on the power of kings, and to communal responsibility.
Audience participation: Inviting everyone to at an iconic picture of Lady Justice and asking, “what is being communicated about justice?” (Wait for audience responses) Thank you for your responses. Let’s see how many of these qualities that you’ve identified are found in our reading of Parashat Shoftim.
First, a brief summary of the complete Parashah: In Shoftim (which means judges), Moses reviews the justice system for the Israelites, specifically the role and duties of judges and magistrates. Moses also describes limits on future kings and their possessions. He explains that the priests and Levites do not own land and should survive on donations from the people. And we read again about the obligation to establish in their new homeland, three more asylum towns for manslaughterers. The rules of war are presented with the admonition to always first offer peace to a town before attacking it, and if war against a town is necessary, not to destroy its fruit trees. The parashah ends with a description of purging blood guilt by offering a sacrifice of a heifer when an unknown murdered person was found in the vicinity of a town.
I have titled my drash “The Two Faces of Justice” in part because of the repetition of the word tzedek, tzedek and the phrase mishpat tzedek. As you will hear later, the other reason for my title relates to the Torah’s description of justice, which is broader and represents another meaning of tzedek. My drash explores the various aspects of justice as presented in this Parashah, drawing heavily on the essay, “Justice,” by Rabbi Elliot N. Dorff at the back of our Etz Hayim.
Let’s first see how your earlier comments compare to today’s Parasha:
Earlier in today’s Parashah Moses said, “you shall appoint magistrates and officials for your tribes, in all the settlements that the Lord your God is giving you, and they shall govern the people with due justice (mishpat tzedek). You shall not judge unfairly: you shall show no partiality; you shall not take bribes, for bribes blind the eyes of the discerning and upset the plea of the just. Justice, justice shall you pursue (tzedek tzedek tirdof) that you may thrive and occupy the land that the Lord your God is giving you” (Deut. 16:18-20).
It’s clear to me that our American judicial system owes a tremendous debt to the Torah. The concept of presuming innocence until proven guilty finds its roots in the Torah and later Rabbinic texts. We have read in other sections of the Torah and here about the distinction between intentional and non-intentional killing, which has evolved into our legal system’s distinction bet. manslaughter and murder, as well as focusing on not only the deed but also the motivation behind it. As we read also in Leviticus, the cities of refuge to protect those whose crimes were accidental from blood vengeance are described. Once inside an asylum city, the killer is protected until a court of law determines whether or not the act was intentional.
Moreover, what is described about how judges should act has informed later judicial systems, such as showing no partiality, not taking bribes, using testimony of two or more witnesses, consulting with the levitical priests of a high court if a case is “too baffling for a judge to decide. Okay, we don’t have this last procedural rule, but think of our hierarchy of courts as similar.
Recognizing the importance of witnesses to ascertain guilt or innocence, we find these words: “Witnesses must not testify maliciously, nor give false testimony.” Perhaps, this is the source of our requirement in previous time periods and countries of having witnesses swear, or affirm, “the truth and nothing but the truth” on the Bible or another acceptable substitute book.
Rabbi Dorff elaborates in his essay on justice about procedural rules established by the sages of the Talmud and Middle Ages. “For example, one litigant may not be required to stand while the other is sitting, both parties to the case must wear clothing of similar quality; judges must understand the languages spoken by the people before them, and witnesses may not be related to each other or to the litigants.” Procedural justice was strengthened by rules such as these, Rabbi Dorff believes.
So, all the procedural rules I’ve just described is one face of justice, the face that our judicial system has drawn from. The other face is a religious/spiritual one, much broader. The Etz Hayim calls this broader aspect, distributive justice, and in a footnote on p. 1089 we read that distributive justice implies that everyone gets at least the minimum of what is necessary to live.
Rabbi Dorff makes a similar distinction between procedural and what he calls “substantive justice.” He explains that the biblical view of substantive justice was radically different from other cultures of the time because it stressed the equality of all human beings and their right to equal protection of the law. All members of society must be treated justly. He writes, “Indeed, the mistreatment of the defenseless, such as widows, orphans and aliens, and the failure to protect them in court was denounced by the prophets as a sign of the decadence of the Israelite society of their time.
Another commentator, Hanna Perlberger, points out that the word tzedek, also means “righteousness.” She writes that “Perhaps the dual use of the word “tzedek” means that we cannot pursue “justice” without also being “righteous.” Think of the Nuremberg Laws that legitimized the Nazi regime. They were “codes of law,” but utterly lacking righteousness and in no way aligned with heaven.” She goes on to write that “In Shoftim, “justice” is not a single word because it is not a single concept…That’s the alignment to strive for: justice that is righteous, and righteousness that is just—that is, rooted in kindness, caring and giving.”
Rabbi Corey Helfand also writes about this dual aspect and agrees that “due justice mishpat tzedek” can be translated as justice righteousness. He gives an example 16th century Polish commentator Rabbi Shlomo Ephraim of Luntschitz, known as the Kli Yakar, who taught that the goal of the judicial system is not only to ensure that people are judged fairly. But also, that, as a consequence of the judgment handed down, a person will change their ways and begin living a life of righteousness.”
We all understand that there is often a disconnect between the ideal of both faces of justice and the daily administration of it. In fact, Rabbi Dorff states, “Although the Torah and the later Sages went about as far as any society could go in translating its moral and spiritual commitments into legal terms, Rabbinic authorities recognized that justice never can be captured totally in law.” He gives the example we’ve probably heard of, which is a Jew can behave as a scoundrel within the limits of the law. Thus, he explains the Torah requires more: doing “what is right and good in the sight of the Lord.” (Deut 6:8). The sages of the Talmud take that verse and others as the basis for declaring that people are obliged to act “beyond the letter of the law… The Jewish tradition thus recognizes both that the legal framework is indispensable in making justice a reality AND that the demands of justice extend beyond the law.”
We might all ask ourselves which face of justice would we pay more attention to in certain situations: the laws and judicial rules or an ethical code that guides us to do what is right and good, even if that behavior might be technically outside the law. For example, would you feel it’s just to potentially break a law, such as some of the “laws”/exec. orders/policies related to our southern border in order to give asylum to the undocumented parents of children who were born in the U.S and have lived here for many years?
In conclusion, and risking stating the obvious, the theme of pursuing justice is particularly appropriate in these few weeks before the High Holy Days. One of the greatest challenges of judgment is remaining impartial, to see and hear all sides of a case before ruling, to put stereotypes and prejudices aside, and to always give a person the benefit of the doubt. In a way, the High Holy Day season reminds us that we are all judges — not only of others, but first and foremost, of ourselves.