August 13th: Shoftim
THIS WEEK IN THE TORAH
Rabbi David E. Ostrich
Sometimes, seemingly benign passages or words in the Torah can hold deeper wisdom. Take, for example, the opening verses in this week’s Sedra:
“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. You shall not judge unfairly: you shall show no partiality; you shall not take bribes, for brides blind the eyes of the discerning and upset the plea of the just. Justice, justice shall you pursue, that you may thrive and occupy the land that the Lord your God is giving you.” (Deuteronomy 16.18-20)
Usually, when I read this paragraph, I sort of skip the first sentence as simply a prologue and jump to the part about not judging unfairly and not taking bribes, landing full footed on the phrase, Justice, justice shall you pursue.” This is the most important part of the passage, and yet, there is also something in the prologue that is worth considering on its own. What we translate as “You shall appoint” has an interesting construction in the Hebrew. “Titen-lecha,” literally give to/for yourself, suggests a process whereby the community does the appointing itself and for its own benefit. As opposed to the many prescriptions given by God—who is a prophet, who is a priest, who gets to participate in worship rituals and when, the instruction here calls for the Israelites as a body to appoint judges and to do so in a way that reflects their own interests and values. This is not talking about slanting the justice system to benefit anyone in particular but rather speaking to the importance of a justice system that reflects communal values and mores.
What we have here is an early instance of combining legal principles with the community context in which the principles are to be applied. Such a combination or synthesis is not always easy. There can be tension between laws and the ways things are done in a particular place—especially if the laws come from a larger or far-away governmental entity. This tension can be seen in American history in the various “States’ Rights” controversies as well as in the Supreme Court’s rulings on the definition of “obscenity” (national standard or contemporary community standards?). One can also sense this kind of thinking in the doctrine of stare decisis where the stability of customary interpretations and the ways things have been done are seen as valuable and worth preserving, even if there are legal objections—which, after all, are subject to individual judicial opinion and the latest fashions in interpretation.
This dynamic between competing value systems is addressed in the Talmudic principle of dina malchuta dina—that the law of the state is Halachically incumbent on Jews. While Halachah (Jewish Law) is certainly the basis of Jewish life, and while there are situations in which Jews are expected to deviate from secular laws, the presumption is that Jews will follow the local or national laws: that is the default position. (By the way, this Rabbinic principle is also referenced in the Christian Bible, in Matthew 22.21, Mark 12.17, and Luke 20.25, where Jesus says: “Render unto Caesar what is Caesar’s and unto God what is God’s.” )
An attempt to resolve the tension between high-level rulings (which, as stated above, are always subject to the latest interpretation) and the way things are done can be found in the Jewish legal concept of minchag hamakom: the custom of a locality has an integrity and validity all its own—regardless of what an outside authority may decree is the proper way. For example, though we are no longer dependent on mountain-top signal fires announcing the New Moon in Jerusalem to Babylonia, the custom of observing two days of Biblical holidays has its own integrity and is to be continued. Or, even if one could identify a Talmudic passage or Rabbinic ruling specifying the proper size of a Kiddush cup, cups used in families or villages for generations have a validity of their own—even if they differ from the size the legal authority instructs.
In other words, the judges are to apply the rules to the community, making it fit into the context of the community in which they are judging. “You should appoint judges for yourselves.”
There is also a personal application. Compare this Deuteronomy passage to the proverb in Pirke Avot 1.6, where Joshua ben Perachiah teaches: “Make for yourself a teacher. (Aseh l’cha rav).” He does not tell us to find a teacher but rather to put effort into developing a relationship in which we can learn from a teacher. This does not mean that the teacher is off the hook in terms of techniques and efforts. There are plenty of other Pirke Avot proverbs telling the teachers about their responsibilities. However, this proverb speaks to the work students often need to do to learn how to learn from a particular teacher.
Applying this Pirke Avot thinking to the Deuteronomy passage about appointing judges “lecha / for yourself” leads me to consider how I look for and work on relationships in which I get feedback. Whose opinions do I trust? Upon what bases do I accept other people’s evaluations or reactions to me? Of course, we cannot be dependent upon the opinions of everyone we meet, but there are some people whose insights are valuable—whose vision of us is true. They are, in a sense, the judges we appoint for ourselves.
As we begin the self-evaluations of this season of Teshuvah / Repentance, let us pay attention to the voices—both internal and external—which help us identity both our strengths and our weaknesses, both our good deeds and our moral failures. There is, presumably, much about which we should feel pride, and there is, most assuredly, much for which we should repent.