There is no doubt that the issue of judgement and its implementation is paramount to the biblical story. For us it may seem at times illogical or inconsistent. A sentence like “Justice, and only justice, you shall pursue, that you may live and possess the land which the Lord your God is giving you.” However immediately after that we read, “You shall not plant for yourself an Asherah of any kind of tree beside the altar of the Lord your God, which you shall make for yourself. You shall not set up for yourself a sacred pillar which the Lord your God hates.” This seems totally disconnected – what kind of connection has worship have with justice? The Torah, so it seems, takes a different point of view on this issue. The case where a person slips towards a standing where it is easy to prove that has no foundation to it, is bothering because of the concern that with its crumbling the values that keep the laws and the rules may disappear. Having the notion of a more powerful force may help keep things in place, even in an environment where this is not a common belief, for example equal justice to all.
In order to maintain justice there is a demand, “You shall appoint for yourself judges and officers in all your towns which the Lord your God is giving you, according to your tribes, and they shall judge the people with righteous judgment.” Sometimes though it does not really work, things may be too complicated, and then there are additional options. “If any case is too difficult for you to decide, between one kind of homicide or another, between one kind of lawsuit or another, and between one kind of assault or another, being cases of dispute in your courts, then you shall arise and go up to the place which the Lord your God chooses. So you shall come to the Levitical priest or the judge who is in office in those days, and you shall inquire of them and they will declare to you the verdict in the case. You shall do according to the terms of the verdict which they declare to you from that place which the Lord chooses; and you shall be careful to observe according to all that they teach you.”
The Torah accepts the fact that it is possible that the dispute is deep, complicated and entwined. It may be necessary to decide what is right and what is wrong. It is interesting to note that the people have to go to the persons who are chartered with the interpretation of the law, the judges, not those who enact the law. We are required to go to an existing judge, someone who lives at the same times, and who lives within the context of the dispute. This makes it possible for the judge to decide the case based on the present state of affairs and not based merely on what has happened or has been decided in the past. Someone who litigates today does not have the opportunity to bring his case before a judge that predates his time. Justice can be reached only if the sides to the dispute get their fair chance of presenting to the judge their case. A case which they always feel is unique, that has never happened before, and possibly will never happen again. Not that it is necessarily so but this is the subjective perception that must be addressed.
From the Torah’s perspective the lawmaker, God, is not part of this discussion of the interpretation of the law and its way of implementation. The Babylonian Talmud discuss a case of an oven where rabbi Eliezer tries to convince his fellow rabbis that his arguments are correct however they were unconvinced. He told them that if he is right a tree will move a significant distance and that happened. They calmly responded that one cannot bring proof from a tree. He then says that the water flowing in an aqueduct would change direction if he is right and that happens. But the rabbis insist that he cannot bring proof from the water flow. He does that again arguing that if he is right then the bricks of the wall of the building which they are studying at will fall. The bricks actually are about to fall when rabbi Yehoshua castigates them that they take sides on a debate between learned rabbis and as a result the bricks neither fall not are they stable in place. Rabbi Eliezer still insists and says that if he is right the heavens will prove it and a divine voice says that the law is on rabbi Eliezer’s side. Rabbi Yehoshua stood up and proclaimed, it is not in the heavens. Rabbi Yirmiah said that as the Torah was already given at Sinai one cannot accept a divine voice as everything was already written there.
I think this also applies to us. Once the laws and the statutes where given the interpretation is taken away from their creators and is passed to those who are experienced in such interpretation of the law. That is, if the Knesset enacts a law it is the duty of the judges, not the Knesset, to interpret the law and reach conclusions based on it. Enacting laws wisely will allow them to have a long term impact as they can be adapted and interpreted also based on the changing times. When this is not done by the legislator the price paid is lack of justice. One can almost replace the judge by a computer that received data as an input and provide a predictable result at the output. This may be “correct” but not necessarily “just”. We must be the creators of justice. That is never a simple task, it is always demanding, then and now. It is therefore so important that the legislator will do its job wisely and that every judge will do their work in a just manner.
Reuven Marko, 6 September 2019, 7 Elul, 5779