Shoftim: Seeking Justice

By: Rabbi Jay Kelman |

Almost always, wrongdoing requires that people work together to perpetrate such. As has been accepted in the legal systems of Western countries, it is the enablers, more than the perpetrators themselves, who are viewed with greater opprobrium. Those who enable sin violate the biblical prohibition against lifnei iver, placing a stumbling block before the blind. According to Tosafot (Avodah Zara 22a, s.v. teipuk), even if one only aids and abets a rabbinic violation of the law, one nonetheless violates lifnei iver on a biblical level. This is a most insightful assertion, attesting to the serious role of the enabler. It is a biblical prohibition to enable someone to do a wrong. And whether by Divine decree or rabbinic enactment, a wrong is a wrong.

“Do not take a bribe because the bribe will blind the eyes of the wise and pervert the words of the righteous” (Devarim 16:19). The Torah does not specifically prohibit the giving of a bribe (though in reality that, too, is biblically forbidden); it is the taking of a bribe that is specifically prohibited. The Torah understood that one offers a bribe only when one knows that it will be accepted. The same person who might try to bribe some Third World bureaucrat would never think of doing such in a country where the rule of law is respected and honoured. And yet, at the same time, we know that those who take bribes exist not only in backwaters, but in the halls of the First World, and that they are taken by otherwise respectable, intelligent, and even religious people. They are usually smart enough not to take outright cash to pervert justice, and their bribes will be of a more nuanced, but no less sinister, variety.

Rashi, quoting the rabbinic midrash Sifri, notes that the Torah, in addressing “the wise and righteous”—they, too, can be bribed—is referring to a bribe “even to judge righteously”. Well aware of the many biases that affect us all, even against our will, our Sages understood that there really is no such thing as a bribe that ensures justice will prevail. Such is beyond the human ability of even the greatest of sages, and we find many a talmudic rabbi recusing himself from judgment in cases that seem far from bribes (see Ketubot 105 a-b).

While we cannot help but be affected by bribes that are often most subtle, we can train ourselves to realize our limitations, to “smell” them and run away from such.

There is another area of law where even the wisest and most righteous are prone to error. “And you shall come to the kohanim, the levi’im, and the judge who will be in those days, and they will seek out and tell you the ways of justice” (Devarim 17:9). Rashi, again quoting the Sifri, notes that “in those days” is an imperative to follow the judges of your generation, even if they are of lesser stature (don’t we always feel the past was better?) than those of today.

However, one may also understand the verse as an admonition to the judges themselves. They must rule according to the days in which they live, with a full understanding of the workings of contemporary society. One can be most knowledgeable of the law and be truly righteous, but if one does not understand the world of those litigating, one’s judgment is likely to be correct in theory, but dead wrong in practice.

The Netziv (Devarim 17:9) notes that which all students of halacha instinctively know, that applying the same halachic methodology will yield different results in different times. As halacha is the interface between theoretical law and real life, failure to master both will likely yield an incorrect judgment. Such errors are inevitable and an entire (short!) tractate, Horayot, deals with the consequences of a mistake made by a beit din, including and especially the beit din hagadol, the Sanhedrin.

Being a member of a Jewish court requires men of great learning. Even more so, it requires men of great character and self-assessment. Finding those who combine both is no simple task, but one we must continually pursue. Tzedek tzedek tirdof, “justice, justice you shall pursue, so that you can live and inherit the land that G-d, your Lord, is giving you” (Devarim 16:20).