Devar
Torah – Va’etchanan
July
20, 2013
Cantor
Penny Kessler
I’m not going to teach about George Zimmerman and Trayvon Martin. Not about the wrongheaded “Stand Your Ground” gun laws that created the
environment for this tragedy. Not about the trial. Not about the jury’s
decision except to say that given the many imperfections of the American jury
system, we have to assume that they based their deliberations on the facts
presented as evidence and came to what they believed to be the only legal
conclusion available. Not about a teen’s swaggering bravado, typical for young
men of his age, that innocently exacerbated a bad situation. I won’t teach
about what would have happened had that teen chose to stand his own ground and
wound up killing the older man. And I won’t teach about the racial implications
of someone’s following a suspect based only on the color of his skin or about a
man who went out, armed with a deadly weapon, spoiling for a fight instead of
obeying the directions of the 911 dispatcher, setting up the inevitability of
the evening’s events.
No. I am going to teach about the difference between
justice and the law. In the aftermath of the jury’s decision, we heard a lot
about “justice was served.” We heard that – sort of – after the OJ and Casey
Anthony and Jodi Arias trials, too. “Justice was served.” Some people think it
means that the bad guy got his comeuppance. He did the crime, he got the time. Some people think it means an innocent party got off appropriately There is usually a measure of satisfaction in “justice was served;” you rarely hear
it from someone who is disappointed with a jury’s decision.
Sometimes you hear sentiment similar to the one expressed by
President Obama following the Florida jury’s acquittal of George Zimmerman: "We are a nation of laws, and a jury has spoken.” And that
is very true. Our jury system may not always proceed smoothly, and sometimes
juries have been known to fail spectacularly. To paraphrase Winston Churchill, it
has been said that the American form of justice is the worst, except all the
others that have been tried. As quirky as it sometimes is, it is truly a
remarkable legal system, declaring in theory if not always fact that all people
are treated equally under the law.
The question, however, is this: is
the legal jury system synonymous with justice? And how do and should Jews
approach that question?
Lloyd Duhaime, considered the authority on legalisms, defines justice
as, "In law, it more specifically refers to the paramount obligation to
ensure that all persons are treated fairly.” Interesting. But to quote one of
my great rabbinic teachers, “is it true? do you believe it?” One could argue
that in any American trial, it’s almost certainly the job of both the
prosecution and the defense to treat each others’ witnesses with anything but
fairness.
For Judaism, “justice” is something entirely different, and that
difference is spelled out explicitly in today’s parashah and confirmed by our Sages.
Parashat
Va’etchanan includes a repetition of the 10 Commandments as
well as the first verses of the Shema which declare the fundamentals of the
Jewish faith: the unity of God ; the mitzvot to love God,
to study God’s Torah, and to bind “these words” as tefillin on our arms and heads, and
inscribe them in the mezuzot affixed on the doorposts of our
homes.
Several times during the beginning
of the parashah we are warned to make
no changes to God’s laws, to follow the straight and narrow path, to allow no
substitutions, as it were. For example (page 772 of the Hertz Chumash), we read
Chapter 6, verses 16 and 17: Do not try the Lord your God, as you did at
Massah. Be sure to keep the commandments, decrees, and laws that the Lord your
God has enjoined upon you.
And then something fascinating comes in verse 18:
“Do what is right and good in the sight of the Lord, that it may go well with
you and that you may be able to possess the good land that the Lord your God
promised on oath to your fathers, and that all your enemies may be driven out
before you, as the Lord has spoken.”
At first glance we probably would have missed it. I
mean, it makes sense, right? Do this, this and this, and that, that and that,
follow ahead, no detours. But if we’ve just been told and retold to follow
directions exactly – and fairly specifically – what’s this doing here? Of
course if you follow God’s law scrupulously you’d be doing right and good in
God’s sight, no? At least that’s what Torah tells us repeatedly. So why do we
need to hear this?
To
understand this verse, we need to explore the Jewish perspective of “justice.”
The Hebrew for “justice” is Tzedek. Tzedek is always accompanied by compassion
and mercy. For our Sages, “justice” cannot be penned in by hard and fast rules.
Tzedek, as defined by Rabbi Jonathan Sacks, London’s Chief Rabbi, is the
combination of law plus compassion, and is the first precondition of a decent
society. Justice/tzedek is not the same as mishpat or din, the words the Torah
uses for strict legality. Judaism, Rabbi Sacks teaches, “…is also a religion of
compassion, for without compassion law itself can generate inequity.”
Here is the issue: Legal systems by their very
nature defy perfection. They exist within limited parameters, determined by
local and – in the case of the US – Federal laws. Jurors are charged with one
simple task: determine guilt or innocence based solely on “just the facts,
ma’am.” But life is sloppy. It presents legal systems with nooks and crannies
and oddities that require questioning and exploration. A legal system cannot
spell out every vagary or possibility nor can it take every twist and turn into
consideration.
To understand where Judaism stands on the issue of
“justice,” we can look to this parashah
with that one simple verse, learning from our Sages, and we need to read
“halacha” for “legal system.”
Rabbi Wendy Geffen discusses two of
the great Medieval Talmudic scholars and their commentaries on this profound
verse. Nachmanides, the 13th Century Spanish physician and Torah
scholar, taught that it is impossible to document and address every aspect of
human behavior through the mitzvot. He wrote that “...God included a general
injunction to do that which is good and upright in every matter, accepting
where necessary even a compromise in a legal dispute and going beyond the
letter of the law.” Compromise; not
something you hear frequently in discussions of halacha.
Rabbi Geffen goes on to present Maimonides’
argument: Agreeing that the letter of the law may take second place to the
spirit of the law, Maimonides comments on a Torah law permitting a Jew to have
his non-Jewish slave perform hard labor, while the Jew is forbidden to do so
for the Jewish slave. Maimonides frowns and teaches: “Although this is the law,
the attribute of piety and the way of wisdom is for a person to be merciful and
to pursue justice.” As such, Rambam not only reinforces the idea that there is
a greater good beyond the letter of the law, but he mandates that Jews must
apply the same principles of dignity and justice to our treatment of those
outside our community that we do when interacting with those within it.
Justice – in the Jewish world at
least – is far more nuanced than black-letter law.
In my studies to prepare this drash,
I learned that Gemara tells us that the Bet HaMikdash was destroyed because
people treated each other according to the strict letter of the law. The
Gemara specifically points to our verse in Va’etchanan.
“This teaches us of the necessity to
avoid being medakdek (exacting) in matters of law and to be mevater
(forgiving) what is rightfully ours in certain situations. One example of
this is; when a person finds a lost object that halachically is allowed to
keep, but he knows the identity of the original owner – Chazal (our Sages) tell
us that even though it is technically permitted to keep the object, he should
nonetheless give it back. Another example is when a piece of
property is for sale - the prospective buyers should give precedence to the
person who lives next to that property because he stands to gain the most by
buying this particular property.”
I could keep going, citing our Sages,
but you get the point.
So where does that leave us in the
wake of the Martin/Zimmerman tragedy? Just here: a man, fed up with vandalism
in his neighborhood, went out into the night armed with a righteous
indignation, rage, fear and a gun. He was a man on a mission, single-minded of
purpose, and he knew that he had on his side a law that does not take into
consideration potential innocence and incorrect assumptions, a law that foments
prejudice, emotion, misunderstanding and rash behavior. A young man, visiting
his father, perhaps rashly and emotionally also chose to stand his ground when
confronted by an unknown person. We know from his phone messages that he was
afraid and angry at being followed, but we don’t know more than that because he’s
dead. The other man, found not guilty by our legal system, potentially faces
life either as a pariah or a poster-child for vigilantism.
And our legal system could not –
maybe would not – allow for nuance; the letter of the law had to be followed.
This makes a reasonable legal system. Does it make justice, tzedek? You’ll have
to decide that for yourself.
Source Material:
http://www.globalyeshiva.com/profiles/blogs/the-three-weeks-beyond-the-letter-of-the-law
Thus, according to the biblical explanation, justice is
established when humankind acts in accordance with God's laws and imitates
God's attribute of justice
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