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.
http://www.globalyeshiva.com/profiles/blogs/the-three-weeks-beyond-the-letter-of-the-lawThus, according to the biblical explanation, justice is established when humankind acts in accordance with God's laws and imitates God's attribute of justice