Shofetim: What is justice, and how do we pursue it?

Shofetim has two very famous verses. They are both concerned with justice.

Deut 16:20 “Justice, justice shall you pursue, that you may thrive and occupy the land that the Lord your God is giving you.”

And 19:21 “Nor must you show pity: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.”

I have two not-particularly-related things to say about these verses, and if I were disciplined and professional and all that, I'd pick just one. But I'm going to say them both. First: Yes, you must show pity, and no, we don't take an eye for an eye. The rabbis made sure of that. Second: To pursue justice is to accept the burden of free will. This is the essence of being commanded. This is what it's all about. So those are my two big ideas, here's how I get to them:


The Rabbis of old read read the eye for eye bit and said, in effect, “Screw that!” They were fundamentally anti-fundamentalist. They built a practical religion out of the ashes of a failed state and years of failed rebellions and an antiquated, strange scripture full of irrelevant details and of judicial practices that seemed barbaric even by the rabbis’ time, not to mention our own.

They were not fundamentalists but they didn’t want to be religious revolutionaries either. If they’d wanted a revolution in their religion, they could have joined the followers of Jesus. But the followers of Jesus overturned the Law, and the Rabbis did not want to overturn. They wanted to be more creative; to work within the form they’d been given. The 613 laws like the shape of a sonnet, and the rabbis like poets, cleverly finding meanings within meanings within meanings, sparking an endless conversation.

The Rabbis said “Oh, but that’s just the written torah. We have the oral torah, and it’s been handed down generation after generation from Moses and Aaron themselves, given to the Jewish people by God along with the scrolls. Of course you can’t understand the written torah without the oral torah too!” And the Rabbis went ahead and made sure that no Jew ever thought that when the Torah said “eye for eye” it actually meant “eye for eye”.

One recent week, one of my own rabbis spoke approvingly of the Rabbis of old. We don’t have any truly great rabbinical leaders who are willing to make bold judgments anymore, she said sadly. And so halacha has stagnated. The world has changed, and the law has changed too, but only to push the world further away. This rabbi’s husband, though, himself a rabbi, gave a dvar on shofetim, and he said that “it is the awareness of contradiction of values that is the driving force of Jewish life.” We pursue justice, but we must also practice mercy. How can this be? How do we decide? These are the questions of halacha, of law. The answers provided are comprehensive and erudite; argumentative but respectful; humane but oriented toward God. The minority report is never suppressed.

I have two books by Rabbi Joseph Telushkin, English-language compendia of Jewish ethical law. He devotes chapters to the halacha regarding, for example, lying. The Law is mostly against lying, but there are exceptions. If someone asks your opinion, will be hurt by the truth, and is not in a position to change as a result of the information, then you may tell what is often called a ‘white lie’ to protect the feelings of the person involved. But say if you tell the truth, the person could fix the issue. (“Yes, your breath does stink.”) Then it is a mitzvah to tell the truth when asked. Maybe I’ve got all that wrong; I’m not an expert. But he covers all this stuff, in detail, and it’s not just him. He’s reporting on two thousand years of the opinions of the best minds in Jewish culture. How to give charity to someone. How one should behave as a host. How to be a good guest. Under what circumstances can you withdraw life support from a dying person? What kinds of speech are harmful and should be avoided? How exactly do you honor your mother and your father, anyway?

Well, the best male minds, anyway. The best male, straight minds.

But anyway, so it is with justice. Justice, justice shall we pursue, but we must temper it with mercy, as God does.

Here's my second point about shofetim, and really it is the more important one, because it's not about the rabbis and the bible, it's about us, and it's about God, about us and God right now, this minute.

And forgive me, I didn’t take Michael Sandel’s course in college, and I didn’t even read the book. My philosophy is all bolloxed up, and somehow what I want to say is all tangled up with a lot of ideas I got while reading G.K. Chesterton’s Orthodoxy on my iphone while standing up in a crowded, shuddering green line trolley. Good ole G.K. says “Christianity” and “The Christian” a lot, and makes a lot of special claims for the culture that Christianity made. Maybe he is even right about some of them. But a lot of what he says about Christianity seems more generic than that; seems applicable at least to monotheism in general. But then again, perhaps not. Perhaps I just want somehow to agree with him and love what he says and believe him and yet not be a Christian.

What GK says, and like I said above, no doubt a billion other people have said it too, and I’m sure a billion have poked holes, nothing new under the sun and all that, is that there is no justice without free will.

If we are to pursue justice, then what people do actually matters. Why do we care if the world is just? Because some aspects of that caring, or something similar to that caring, or something that comes along with that kind of caring, helped some of us survive a little bit better in the past. Yes, I’m down with all that. You won’t hear me going up against evolutionary psychology. Hell, I like a little armchair evolutionary psychology just as much as the next person, I reckon.

But why do I not throw that to the winds now? Why do I not take my cue from Nietzsche and from Gordon Gekko and jettison my sense of justice?

Look, Darwin did not invent determinism, did not invent materialism, did not invent a world full of emptiness and despair and meaninglessness . Darwin did not invent the notion that free will is an illusion, that our consciousness, our morality, our desire for the beautiful and the good are illusions, that our selves are illusions, that this world is an illusion, that choice is an illusion. He did not say that life is “a tale told by an idiot, full of sound and fury, signifying nothing.” That was someone else, hundreds of years before Darwin. And before that man, the Stoics. And the Epicurians. And the Buddha. It’s an old problem.

But here we are, Shofetim, commanded to pursue justice. By whom? We do not know. The name, if ever there could be a name for such, is lost to us. And how? It’s not always easy, that how. We don’t always get it right. Most of the time we don’t, probably. We’re only human.

Who wants to be commanded so? Why should we tolerate it? Why pay attention to a commandment written down in an old, old scroll, from an old place, a war-torn desert land, from people who stoned adulterers and slaughtered the children of their enemies?

Shh. Listen.

We pay attention because we feel ourselves commanded thus, even without the words, even without the scroll. Against all evidence to the contrary, we feel ourselves to be commanded and if we are commanded to pursue justice it must be something we can do, however imperfectly, and if we are able to pursue justice that is because we have free will, truly, in some way we cannot understand. Along with and beside and intertwined with everything we are through a hundred thousand years of evolution.

Think about what a commandment means! We are not asked politely; we are commanded. Yet somehow, having been commanded, we are made free. We may choose to obey or to disobey.

Chesterton writes:

The whole secret of mysticism is this: that man can understand everything by the help of what he does not understand. The morbid logician seeks to make everything lucid, and succeeds in making everything mysterious. The mystic allows one thing to be mysterious, and everything else becomes lucid. The determinist makes the theory of causation quite clear, and then finds that he cannot say ‘if you please’ to the housemaid. The Christian permits free will to remain a sacred mystery; but because of this his relations with the housemaid become of a sparkling and crystal clearness.

He did not say much about Judaism; he didn’t think much about it, I imagine. But the Christians did not invent free will. The Jews didn’t either. Free will was given to us, but we have to accept the gift. A strange gift, that comes in the form of an order. “Do this!” It is a beautiful but difficult gift. Chesterton talks about ‘the man at the crossroads’; in Mussar we speak of bechirah points: the times and places we are given a choice. Our lives are not always at crossroads; not every moment is a bechirah point. But those are the most interesting times. Here is Chesterton again (ignore his insistence on the Christian):

All Christianity concentrates on the man at the cross-roads. The vast and shallow philosophies, the huge syntheses of humbug, all talk about ages and evolution and ultimate developments. The true philosophy is concerned with the instant. Will a man take this road or that?--that is the only thing to think about, if you enjoy thinking. The aeons are easy enough to think about, any one can think about them. The instant is really awful: and it is because our religion has intensely felt the instant, that it has in literature dealt much with battle and in theology dealt much with hell. It is full of DANGER, like a boys book: it is at an immortal crisis. There is a great deal of real similarity between popular fiction and the religion of the western people. If you say that popular fiction is vulgar and tawdry, you only say what the dreary and well-informed say also about the images in the Catholic churches. Life (according to the faith) is very like a serial story in a magazine: life ends with the promise (or menace) ‘to be continued in our next.’ Also, with a noble vulgarity, life imitates the serial and leaves off at the exciting moment. For death is distinctly an exciting moment.

But the point is that a story is exciting because it has in it so strong an element of will, of what theology calls free-will. You cannot finish a sum how you like. But you can finish a story how you like.

We are commanded to pursue justice, like a white whale, like a fox, like a criminal or a lover. We do not have to obey the command, and obeying the command doesn’t tell us how the story will come out, or guarantee that we will catch justice, that justice will be done. But in obeying we paradoxically become free. We declare we are not bound by our genes or our environments or our culture or our history or our parents or our mistakes or our personalities or our astrological signs or our RNA or our diseases or our early childhoods or our ethnicity or our race or our nationality or our economic system or our handicaps. We are free to choose, to struggle, to make mistakes, and to repent. We are free to change ourselves, to become better than we were. We are free to draw closer to God, and we are free to walk away. We can pretend we didn’t hear. We can pretend that our choices don’t ultimately matter. But that way lies death, and bondage, and a world emptied of meaning.

Here’s a quote from an actual Jew,  Rabbi Bradley Shavit Artson, same point:

You already know in your heart what your best choice is at this moment. Yet,e even now, you are free to demur, free to indulge your anger, your pettiness, your horniness, your hunger, your exhaustion - whatever it is that makes you deviate from the mitzvah that awaits, and your truest, best self, the tzelem Elohim within. But God loves you with an ahavat olam, an abiding love. God bids you to make the best choice and gives you the capacity to make it. "See," says God, "I have set before you life and death, blessing and curse; therefore choose life, that you and your children may live.”

Pursue justice, so that we may live as free beings.