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Courting Justice

parshat shoftim – deuteronomy 16

Join Geoffrey Stern and Rabbi Adam Mintz recorded on Clubhouse. As the State of Israel is polarized by the role and authority of the Supreme Court we read the Biblical injunction to provide Judges. We study the primary sources and the writings of Orthodox Supreme Court Justice Menachem Elon and we wonder ….. why both sides are claiming the mantle of Democracy but no one in the Jewish State is discussing Judaism!

Sefaria Source Sheet: https://www.sefaria.org/sheets/505087


Welcome to Madlik.  My name is Geoffrey Stern and at Madlik we light a spark or shed some light on a Jewish Text or Tradition.  Along with Rabbi Adam Mintz we host Madlik Disruptive Torah on clubhouse every Thursday and share it as the Madlik podcast on your favorite platform. This week’s parsha is Shoftim. As the State of Israel is polarized by the role and authority of the Supreme Court we read the Biblical injunction to provide Judges and pursue Justice. We will study the primary sources and we wonder ….. why both sides are claiming the mantle of Democracy but no one in the Jewish State is discussing Judaism! So join us for Courting Justice.


Well, welcome back, Rabbi. We’re doing it early today because you are off to the west coast. The Traveling Rabbi lives up to his name. How are you today? I’m great. How are you? Hope everybody hear how they had a good week. And we’re looking forward to talking about justice, Shoftim v’Shotrim. So you know, a week or two ago, if you recall, I quoted a Facebook post from my friend, Joe Schwartz. And he was commenting that not many signs amongst the demonstrators had Jewish references. There was a lot of references to DE-MO-KRAT_-EE-AH, and things like that, but not that much that is Jewish. So I’m kind of turning the tables on that observation because I’ve heard it a lot. And I’d like to say that those who you’d really expect to have Jewish references the Right who are made up of the Haredim (Ultra-Orthodox)  and are made up of religious Zionists, they’re basically claiming that they have the right to do it because they won an election and that’s how democracy works. They too, do not reference Judaism. So I think it’s about time we have Parshat Shoftim, which as I said in the introduction, is all about appointing judges and doing justice that we go to the sources and find some answers and also ask some questions like, Why is no one discussing Parshat Shoftim? And our Torah and its sense of what we need in a Supreme Court. Why is this whole Jewish state acting as if they were a bunch of Greeks in Athens? Can you believe it, Rabbi? No, it’s your 100% Right, and let’s, let’s let’s dive right into it. So we’re in Deuteronomy 16: 18. And it says, You shall appoint magistrates and officials for your tribes in all the settlements. So right here it says שֹׁפְטִ֣ים וְשֹֽׁטְרִ֗ים תִּֽתֶּן־לְךָ֙ בְּכׇל־שְׁעָרֶ֔יךָ . This is a positive commandment, just as every Jewish community is defined by a mikvah by a beit knesset, a house of study, a Gemach (Free-Loan Society) , it is also determined and defined by a Bet Din; by starting a court by having someone to adjudicate, so it contains both the positive commandment and the fact that it is such an integral part of Jewish life, that it has to be in every settlement wherever you are. And then it says in 19, you shall not judge unfairly, you shall show no partiality. You shall not take bribes for bribes blind the eyes of the discerning and upset the plea of the just so rather than focus on what the justices are supposed to do, what legal codes they’re supposed to reference, the argument here is make sure that they are fair, that they see things with equanimity. And then it says the most powerful phrase one of the most powerful phrases in the whole torah, justice, justice, shall you pursue צֶ֥דֶק צֶ֖דֶק תִּרְדֹּ֑ף  Terdoff is almost it is, is it’s as close to something that is a absolute flaming passion, a Rodeph is someone who’s chasing somebody. That’s how you have to chase justice. And that’s been ingrained in the DNA of the Jewish people, that you may thrive and occupy the land that your God is giving you. And again to it is in this general sense of Deuteronomy, that this is a contingency. Based on this, you will be able to remain in the land in those three verses rabbi, it really says it all, doesn’t it? It sure does. These are arguably the most powerful verses of the entire Torah. And okay, let’s go and of course the word you know, you talk about the word Terdoff and you know the passion in the word terdof. What about the fact that the word Tzedek is repeated twice? They said that you’ll never have that in the Torah. Right? But here says it twice. Okay, so I looked at a lot of sources, I just want to give the kind of the general view, the Tor Choshen Mispat (Choshen Mishpat (“Breastplate of Judgment,” a reference to Exodus 28:15) is the last of four sections of the Shulchan Orach. It discusses financial disputes, damages, courts, and witnesses.) This is the codification of Jewish laws. And he quotes a less common על ג’ דברים העולם קיים  on three things the world rests. And his version is it is על הדין ועל האמת ועל השלום  on judgment, on truth and on peace. And basically he says that the world was a created, but it is sustained. Because there are judges that judge between people. And that is why the world continues. For if it were not for the law, the more powerful would conquer. And he also said, because if you recall, it says Peace, one should pray for the peace of the government? בשלומה של מלכות . So I would hazard to guess that when I would ask people, why are we not discussing the parsha when it comes to due to judicial reform? My guess is a lot of people would say, well, the Supreme Court isn’t really a Bet Din. A Bet Din has to be a religious institution. The Supreme Court is part of the State of Israel. It’s part of alien law. It doesn’t really confer on Jewish biblical law and all that. So it’s a tool that we have to play with. And I will argue that in all of the verses that we are discussing the emphasis not on the code of law that these judges follow. Because what they’re doing is they’re creating peace there. They’re almost you could almost say in many contracts today, rather than go to the law of New York, it says we will agree to mediation, we’re really looking at creating judges who have the utmost integrity, that will provide mediation and make Shalom, and that the fact that it says בשלומה של מלכות  when it’s referring to the land of Israel, again, it always assumed there was a government  מלכות . And it always assumed that if you don’t have judges that can help guide people and do the right thing, then you cannot have a sustainable society. But to me, we’re not talking about a bet din in your local shtetl, we’re talking about judicial courts that enable people to resolve their conflicts and legal questions. Am I right? I think you’re 100%. Right. I mean, I think that’s an important distinction to be made. So right, if you get to the commentaries and some of the stuff, they already say, for instance, the Kli Yakar when it says our judges and offices, is that you have to have authority to appoint judges, that they shall appoint them, and that the judges shall no show no favoritism. This is the meaning of the phrase appoint for yourself as if to say over yourself, it follows a fitori a Kal V’Chomer, that the judges should judge all the people justly. It’s kind of like love your neighbor at yourself, you should appoint a judge as though that judge was going to judge you. But again, the key emphasis and all of this has nothing to do with the legal codes that these judges are going to refer to. It has to do with the integrity of the judges. It has to do with the integrity of the process of appointing judges in Leviticus 24: 22 It says you shall have one standard for stranger and citizen or like, for I am your god מִשְׁפַּ֤ט אֶחָד֙ יִהְיֶ֣ה לָכֶ֔ם . Again, it’s not referring to any particular code of law. It’s talking about fairness amongst all your citizens. It’s so obvious to me and I’m not I’m not westernizing and I don’t think I’m projecting on to to the verses No, I mean, that that is an interesting verse מִשְׁפַּ֤ט אֶחָד֙ יִהְיֶ֣ה לָכֶ֔ם כַּגֵּ֥ר כָּאֶזְרָ֖ח יִהְיֶ֑ה , you know  I think the Torah read 26 times tells you that you have to be nice to the Ger, to the stranger, you know, we use the word gear as convert, as we know but that’s not what the Torah means by Ger. Ger means that you know the person who’s kind of marginal to society who’s not really part of society and the Torah here says מִשְׁפַּ֤ט אֶחָד֙ יִהְיֶ֣ה לָכֶ֔ם כַּגֵּ֥ר כָּאֶזְרָ֖ח יִהְיֶ֑ה  means that you have to treat the person on the margins, the way you treat the citizen. That’s a very striking verse. And again, It’s not part of the current discussion. But here’s the kicker that’s not part of the current discussion. In Exodus 23: 2 it says, You shall neither side with a multitude to do wrong. לֹֽא־תִהְיֶ֥ה אַחֲרֵֽי־רַבִּ֖ים לְרָעֹ֑ת , it says don’t go after the many to do bad. Again, I’m not saying that this is what it appears to be on face value, meaning to say that it’s saying particularly that even if you have a democratically elected government, they can’t override certain standards that you have to drill down to and we’re going to discuss hopefully, we’ll have time to look at the Supreme Court Justice Menachem Elon that I mentioned, but at least it should be part of the discussion. Why would you have the elected government today which is not only the most radical but the most religious and all it refers to us we won we won the popular vote and not refer or even address לֹֽא־תִהְיֶ֥ה אַחֲרֵֽי־רַבִּ֖ים לְרָעֹ֑ת . To me it’s total hypocrisy and more to say it’s missing a moment we could be having an amazing learning moment a learning discussion for all of us to determine what is a democratic Jewish state and we’re not. I think that’s right, it’s by the way, לֹֽא־תִהְיֶ֥ה אַחֲרֵֽי־רַבִּ֖ים לְרָעֹ֑ת , don’t follow the majority the mighty when it comes to doing wrong, that’s a very, very interesting verse, because usually we follow the majority. But don’t let the majority sway us to do bad. There’s an ultimate morality and ultimate right that you have to do. Even if you are in the minority. It’s also an amazing verse. So that that’s going to take us to the Supreme Court Justice that I want to dedicate a little bit of time to today. So his name was Menachem Elon. And he I actually know him because on my bookcase, I have a two volume set called Mishpat Ha’Ivri Jewish law. He was a totally not only committed Orthodox Jew, but an absolutely erudite Orthodox, Jew… he had Smicha (Rabbinic ordination). And he was on the Supreme Court. And he wrote a fascinating article, which I have quoted extensively in the notes. And he really addresses the issue of what exactly is a Jewish democratic state with regard to law and the Supreme Court. So he talks about the principle of the majority rule. And he actually says that the verse that we just described, is interpreted and probably affects more a case of a court case, maybe even a capital court case, where you can’t just have a simple majority, where there is a question of you might be doing the wrong thing. So he says that the question of majority rule is not found in the teachings of the Talmudic sages. He says the connection for democracy arose with the rise of the Kehillah in the 10th century. And he explains that prior to that they were kings later, there was the Nasi there was the Reish Galuta (Exilarch) in Babylonia. It wasn’t till the 10th century and the Emancipation that Jewish communities like other closely knit communities, were given permission to set up their own corts and basically to adjudicate themselves. The halakhic authorities of the time debated the question of majority rule in community affairs, one great scholar Rabbeinu Tam held that the majority could not bind the minority. This was in fact the view accepted by European corporate law in the Middle Ages. So here you have Menachem Elon, who not only knows Jewish law to the level of the Rabbeinu Tam and the Tosephot and all that, but he also knew a European law. He says, However, the view of most halachic authorities was that the biblical command to follow the majority also applied to public affairs. And this view prevailed. And then he goes on to give some tax some cases, he gives one of taxes. But the quote that the the teshuvot,  the responsa to literature brings is, in fact, brought from the Talmud, and it says, Does the fact that they are the majority give them a license to be robbers. Now the case in the Talmud has to do more with what we would call eminent domain, which is they’re building a road and it’s going through someone’s field, and it’s in the good of the majority, but maybe there’s an alternative way that could solve the problem of going through this person’s property. And it comes up with this rule. Just because you have a majority need, the doesn’t give you permissions to license us to be robbers. And based on that Talmudic dictum in the 10th century, they began to build a law of the majority definitely has power, the power of the kehillah. But you have to recognize the rights of the individual. And what Menachem Elon is doing is what he did for the 10 odd years that he was on the Supreme Court, which is when a question came up, that had to be addressed, he addressed it not only from common law, but he went back to our sources and saw how we addressed it as well. He didn’t bifurcate and I think we need more of that. And he absolutely is a scholar that we need more scholars such as him, don’t you agree?  

Adam Mintz  16:03 I mean, it’s so interesting, you say that, because Mishpat Ivir is a code-word for an approach to the legal system in Israel, which says that the legal system in Israel determines law, not just based on secular rules, but also on religious rules. So he actually created a movement called mishpat Ivri.

Geoffrey Stern  16:28 I think that’s amazing. But in my reading of him, he didn’t refer and I think he says this a little bit later, when you say Jewish law, all of a sudden, everybody says, Okay, so now you’re going to start bringing in rules of kashrut and now you’re going to start bringing in rules of forbidden relationships. When he thought of Jewish law, he thought of 2,000 years of creative (civil) legislation and peer published policy statements, he was referring to our law, the law that we developed over 2,000 years, it didn’t all walk around with a keepa on it, it just meant that it was the law that was developed by the Jewish people over time. And I think that can be lost a little bit, because everybody, and I’m sure there are those that argue against Mishpat HaIvri for a bunch of reasons. But the reason that it is quote unquote, a Jewish law, I think is it can be Miss Miss directing, because it really is the law corpus that the Jews developed over time, that we should not just ditch but we can benefit from because it came from a community dedicated to justice, justice shall pursue.   Adam Mintz  17:55 Right. Good. I mean, I think that point you thank you very much. That point is an important point. Menachem Elon you see, the intersection between Israeli law and Jewish law is an intersection of Israeli law as part of the law that Jews have developed over the centuries. I think maybe we want to say it that way.   Geoffrey Stern  18:19 So this is how he says it. He says, An examination of the creative devices of Jewish law in developing the existing law to respond to the needs of the time and the social climate is indeed enlightening. Such adjustments were accomplished in various ways interpretation of existing sources, reliance on basic legal principle. He quotes a beautiful verse in the Torah, which is דְּרָכֶ֥יהָ דַרְכֵי־נֹ֑עַם וְֽכׇל־נְתִ֖יבוֹתֶ֣יהָ שָׁלֽוֹם , that the Torah’s ways are pleasant, her paths are peaceful meaning to say that’s not descriptive, its prescriptive. And that our Torah commands us to make laws that benefit all of the citizens. He says reliance on custom minhag and legislation, as well as turning to Aggadah and legal philosophy. This last method was especially instrumental in solving many difficult legal problems. So when he says Mishpat HaIvri; Jewish law, and he is really looking at the widest scope of Jewish law, I mean, it’s amazing as I was just about finished making the notes, I came across a Tablet magazine article that literally came out two days ago. And it talks about an argument that Menachem Elon had with the more famous Barak and it was over a simple law. It had to do with a lot of whether the government would pay for a car for to drive a handicapped person. And it says only if the The person who would drive the car was not only a relative but lived in the same house. And the article shows that Elon comes back and says that is unreasonable. He uses the unreasonable clause. And he says, because what happens if the relative doesn’t live in the house, maybe he lives somewhere else. And he quotes a verse from the Midrash, that talks about Sodom, where they made beds that people couldn’t fit into. And the point of the Tablet article was that literally in that minority opinion, Elon was, was demonstrating what he writes about here, that we have to bring up the richness of Jewish law and lore. We have to go to our midrashic sources, we also have to do what is right and fair, it just really, you know, I think what I’m trying to argue for today is not for one justice, as opposed to another, certainly Menachem elon believed in some issues that we should not have an activist court. And that’s a whole other discussion. But what I am arguing for years, why, for God’s sake, aren’t we having this discussion? And why aren’t we discussing it in the terms that we are discussing in this week’s parsha? And that takes advantage of the richness of our Jewish jurisprudence and learning for 2,000 years?   Adam Mintz  21:33 Yeah, I mean, that that point is a very important point, and it comes up especially in this week’s parsha because Tzedek Tzedek Tirdof what’s the place of Tzedek Tirdof in the conversations that we have today? I think that’s kind of in one sentence. That’s a question we have to ask.   Geoffrey Stern  21:50 Yeah. I mean, as you as you raised, it’s definitely emphatic, you know, it’s like, stop, stop. But the commentaries, you know, clearly there were many that say it means justice with justice. You know, it’s not enough to do the right thing. You have to do it in the right way. But I am going to quote what Menahem Elon writes about Tzedek Tzedek Tirdof. In the article that I quote, I mean, he really it could be in the galley of the commentary to our parsha. He says, The double mention of the word justice in the biblical verse Tzedek Tzedek you shall pursue was interpreted in the Talmud as follows. one mention of justice refers to a decision based on the law, the other to compromise. The Talmud continues with an example. But before he gets there, if you recall, Rabbi, when we did our episode on Tisha B’av, we quoted one of the rabbis who said that the temple was destroyed, because they didn’t go Lifnim M’shurat Hadin, because they left to the letter of the law. He quotes a similar authority that says that the temple was destroyed, because Tzedek by itself, Justice doing what the Halacha says is not enough, you also have to have this element of, of compromise. And what he does is he brings also a story that we have quoted before, of the two, the two camels of the two boats, I’ll get to, in a few minutes, why we quoted it, and in what context, but if you have basically two camels going in opposite directions, in a very narrow road, one has to give right of way to the other, it’s called compromise. And so, in this particular situation, the Talmud gives us some direction, it says, If one is carrying a load and the other is that the one without the load should give way, but the point that monogamy alone is making is that it is literally this level of compromise that is necessary for law and you might not find this compromise and this is gets back to what I was saying before, written in a particular place in the Torah. But when we say Jewish law, baked into it is this need for compromise. He quotes the Nitziv and the netziv. These are very traditional commentaries. If the law cannot bring about peace, there must be compromised. That is what taught in Tractate Sanhedrin. Justice justice shall you pursue. The verse refers to a situation where a compromise is imposed and is impossible to decide the case on the basis of law. Under the law, both may proceed and both will perish, or one of them will overcome the other and be saved at the other’s expense. But this is not a judgment of peace. This is why there is a mandate not to apply strict law, but to force a compromise. Law that does not bring about peace is not proper and desirable law for the very definition and essence of law is to produce judgment that resolves a dispute peacefully. mishpat Shalom pursuit of justice in such a case requires the compulsion of a peaceful result by way of compromise, since the result of insisting on legal rights is strife and contentiousness between the parties a peaceful compromise is compelled. This is an excellent example of the application of law and justice in a way that brings peace. And the Netziv goes ahead then and references that the temple was destroyed, because these suggestions of compromise were not followed. And he finishes by saying, whenever my eyes observe a dispute among the Jewish communities, a fire burns within me accordingly, I cannot be silent until I have spoken on the subject. So number one, what is happening in Israel is not new. That’s the good news. The other good news is that if we look back into Jewish texts, there are guidelines for forcing compromise. And maybe the signs of those who are against the legal reform, who are mostly secular should start bringing up Tzedek Tzedek Tirdof and should start quoting the Netziv, to bring the other side who seems to have forgotten all of their Jewish learning back to the table to discuss these texts. It’s, it’s, it’s really amazing, isn’t it?   Adam Mintz  26:38 It really is amazing. And it is interesting that this really hasn’t been brought up. This isn’t the issue. You know, on either side, they’re not going back to these texts, and Menachem Elon, it’s so interesting that you found this article, because Menachem Elon doesn’t seem to be a factor, really in Israel right now. You don’t see Menachem Elon right? in Haaretz, you don’t see they don’t quote Menachem Elon as someone who needs to be someone to be considered. That’s also interesting, that whole approach that whole idea of Mishpat HaIvri doesn’t seem to have the same power that it once had.

Sefaria Source Sheet:

Courting Justice | Sefaria

Parshat Shoftim – As the State of Israel is polarized by the role and authority of the Supreme Court, we read the Biblical injunction to provide Judges. We study the primary sources and the writings of Orthodox Supreme Court Justice Menachem Elon and wonder why both sides are making claim to Democracy but no one in the Jewish State is discussing Judaism.

Listen to last year’s episode: Restore Our judges

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