By Russell Cohen, August 19, 2023
Shabbat shalom! I want to thank Rabbi Susan Laemmle and Rachel Berwald for their invaluable help in preparation for this drash. Here we are, Parshat Shofetim, with the end of the journey in sight. In these chapters, Moses transmits as much wisdom as he can before he must let the people go on their own, presenting forty-two commandments, by Rambam’s count. Early on, we encounter the parsha’s most famous line, D’varim 16:20, “Tzedek, Tzedek tirdof” – “Justice, justice shall you pursue,” which perhaps serves as a thesis for the many societal instructions that follow and the source of countless drashes. “Justice, justice” – the word is repeated for emphasis, reminding us of the importance of pursuing justice through just methods. But reading the laws in Shofetim, another pair of justices appears, as they do throughout the Torah, that stand in stark contrast. Chapter to chapter, paragraph to paragraph, even within the same paragraph, we see the tension between two moral frameworks: one that can be called more primal, more instinctive, the other that feels more progressive, more deliberate.
To try to define things more clearly, when I refer to a primal framework of justice, I mean an instinctive, straightforward idea of right and wrong: show no mercy on this wrongdoer, avenge this loss, wipe out this enemy people. In contrast, by a more progressive framework, I mean an approach to justice that is intentional, considers nuance and ambiguity, and demonstrates real deliberation. Think Inspector Javert vs. Lieutenant Colombo. Again, these dual impulses can be felt throughout the Torah, but here in Shofetim, with its laws for creating a just society, we can really see them in action. There are multiple spots in the parsha I could parse to demonstrate them, and I recommend examining chapter 20 sometime for the juxtapositions within its instructions of how to wage war, but the laws regarding witnesses provide a great example.
In D’varim 19:15-19, paraphrasing for brevity, we read, “A single witness may not validate against an [accused] party any guilt or blame for any offense that may be committed; a case can be valid only on the testimony of two witnesses or more. If someone appears against another party to testify maliciously and gives incriminating yet false testimony… you shall do to the one as they schemed to do to the other.” We see here a sophisticated series of safeguards in place meant to protect the innocent and minimize the possibility of false witnesses. A single person’s testimony cannot be enough to incriminate his or her fellow, multiple witnesses are required. Interestingly, the literal translation of the passage does not read “two witnesses or more” but “shnayim eidim o shlosha eidim”, “two witnesses or three witnesses”, which various commentators argue means that a court must call in as many witnesses as possible, whether it be two, three or a hundred or that if any witness in a group provides false testimony, all the rest are automatically disqualified, however many there are. Furthermore, if someone does testify falsely and is caught, they are punished the way the victim of their false testimony would have been punished, a strong deterrent. Through these commandments, we see a system that is deliberate, that is meant to avoid writing off accused criminals too quickly and to maximize the odds of catching any inconsistencies before they are punished, and that treats testimony as sacred speech. It demonstrates progressive values that continue to guide justice systems today.
One interesting note on these verses, though: many commentators gravitate towards the phrase “you shall do to the one as they schemed to do to the other” in verse 19 regarding false witnesses, with Rashi, among others, pointing out that this law only applies if the punishment has not yet been carried out. As Nachmanides justifies it, writing in 13th century Spain, G-d would not permit judges to spill innocent blood by executing someone who was not guilty. Perhaps this interpretation would have been harder to make in Spain a couple hundred years later when Jews were suffering under the Inquisition; it certainly doesn’t land quite as smoothly upon our 21st century ears.
Indeed, just after offering us this progressive, intentional system of justice, Shofetim presents us with a more primal approach to justice that proves troubling even to the rabbis, let alone contemporary sensibilities. D’varim 19:21 provides one of the Torah’s three commandments that, in this case for false witnesses, “Nor must you show pity: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.” Rabbis and commentators galore, from Rashi to the JPS, argue that this commandment is meant to be taken figuratively, advocating for simply proportional punishment, not a literal law of retaliation. The editors of the 1960 Soncino translation of the Torah even state in their commentary that “there is no instance in Jewish history of its literal application ever having been carried out”. Even if that is the case, it seems to all be the result of general discomfort with how harsh the law is, the brutal instinctiveness with which it operates. But here in Shofetim, the mandate comes in tandem with the requirement that false witnesses should be punished as the intended victim of their slander would have been, and the law’s appearance in Sh’mot stands in direct contrast to a different case when only a fine is imposed. There is something clean and satisfying about an eye for eye approach to justice. It feels even, it doesn’t require a lot of thought, it appeals to an instinct for a straightforward solution. And it sure makes for a deterrent for those false witnesses. Our bothered progressive sensibilities may try to soften this law, but it’s part of the Torah as much as the rules about requiring multiple witnesses, so we continue to grapple with it century after century.
The Torah demonstrates an awareness of the tension between its two approaches to justice and often tries to bridge the gap between them. One clear example of this effort is the idea of cities of refuge. Commandments about these cities appear in several places in the Torah, including Sh’mot 21, B’midbar 35, and finally here in Shofetim, D’varim 19. G-d commands that the people demarcate three cities spread out across the land of Israel to which an accidental manslayer may flee to avoid a blood avenger’s wrath. If the killing was indeed accidental, no one may go into the city to harm them in revenge. The Torah knows basic human nature, it understands that the instinct of a victim’s relative is to take justice into their own hands and seek retribution for the life lost, regardless of the details of the circumstances. So instead of requiring the elimination of this instinct, the Torah offers protection for the accidental killer, a place where they cannot be touched. It creates a boundary against the primal desire for revenge, even while allowing that desire to endure. And, as Nehama Leibowitz points out in her Studies in Devarim, perhaps the Torah even managed to achieve the goal of reducing the instinct towards vengeance in the long run. While all three references to the cities of refuge in the Torah describe the manslayer as “fleeing”, references in Mishnah instead refer to “they who are exiled”, implying that by that time the law had become such a natural part of society that the idea of personal vendetta had been eliminated. The Torah acknowledges people’s primal instincts and, at least in some cases, presents laws that offer a more creative, progressive solution.
So what can we take away from the radically different elements of justice found in Shofetim, the ones that remind us of the importance of deliberate, fair trials and the ones that call for strict retribution and methodical bloodshed? Perhaps it can remind us that such underlying tensions live within all traditions and all people. We live in a country that was dedicated to the ideas of “life, liberty, and the pursuit of happiness” even as it was built on the backs of slave labor and over the graves of the land’s native inhabitants. Many of us struggle with how to respond to ongoing events in Israel, where the dream of a Jewish, democratic state is facing the challenging realities of reconciling those two core identities. We all want to pursue justice, but what instincts must we control to achieve it? Must we mandate brutal punishments to deter false witnesses? Must we annihilate Canaanites to reach our promised land? How do we avoid becoming those very Canaanites we seek to destroy? The Torah tries to strike a balance, often restraining primal instincts, sometimes finding ways to acknowledge them while still containing them, and sometimes urging actions that have shocked Jews for centuries. But if we can always remember that such a side lives in all of us, in our history, perhaps even our biology, we can find inspiration from the Torah to control it, to channel it, to gain empathy and self-awareness from it. Justice, justice we shall pursue. Justice that feels natural and straightforward, and justice that feels hard, contrary to our instincts. But that’s part of the responsibility we take on as Jews. As we approach the new year, and it’s now Elul, so I can really say that, may we all have the humility to think hard about ourselves, our instincts, and our assumptions, and may we renew our efforts towards justice for all.