Thoughts on Parashat Shoftim
Menachem Mirski
Is it possible to eliminate crime from our societies completely? Or is it possible only to eliminate one type of crime, let’s say the worst – murder? It probably is possible. What about locking all the people down in prison cells, separately. Let’s construct our societies like that. It would require three social castes: prisoners (let’s say 90% of the society), guards (9%) and various administrators and rulers (1% or less than that). If any murder would happen then it would mainly happen between the rulers fighting for power between each other, who would be the only free people in this society. Murder would be a phenomenon affecting up to 1% of the population, so the murder rate would be probably much lower than in our contemporary societies. And who would care about them killing each other. They, this 1% of the population, would be probably the most hated group in the entire society.
Or maybe let’s create a better system. In the US, for example, 93% of people in prison are men. The vast majority of murderers were involved in some sort of criminal activity before. So let’s introduce a penal code according to which even the smallest crime will be punished with a life imprisonment. Let’s be generous and create a different penal code for women who are a tiny minority of all criminals, use less alcohol and drugs which directly cause a lot of violent crimes and who are less likely to be recidivists. They also do better at school, on average, and are less often homeless. There is a lot of arguments that they shouldn’t be treated as harshly as men regarding crimes.
Let’s create a social system like that. Not only murder would basically disappear but also many smaller crimes. So what’s the problem, why can’t we do that?
This week’s Torah portion starts with a call for establishing law enforcement institutions: judges (chieftains, Hebrew shoftim) and officials (Hebr. shotrim):
[perfectpullquote align=”full” bordertop=”false” cite=”” link=”” color=”” class=”” size=””]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. (Deut. 16:18)[/perfectpullquote]
Immediately after this, the Torah points to the fundamental principles of the rule of law:
[perfectpullquote align=”full” bordertop=”false” cite=”” link=”” color=”” class=”” size=””]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. (Deut. 16:19)[/perfectpullquote]
Here, the Torah prohibits bribery, but the principles of a fair trial are discussed elsewhere in the Torah:
[perfectpullquote align=”full” bordertop=”false” cite=”” link=”” color=”” class=”” size=””]You shall not render an unfair decision: do not favor the poor or show deference to the rich; judge your kinsman fairly. (Lev. 19:15)[/perfectpullquote]
or at the beginning of the Book of Deuteronomy:
[perfectpullquote align=”full” bordertop=”false” cite=”” link=”” color=”” class=”” size=””]I charged your magistrates at that time as follows, “Hear out your fellow men, and decide justly between any man and a fellow Israelite or a stranger. You shall not be partial in judgment: hear out low and high alike. Fear no man, for judgment is God’s. And any matter that is too difficult for you, you shall bring to me and I will hear it.” (Deut. 1:16-17)[/perfectpullquote]
Our Torah portion for this week concludes its call for fairness with another call:
[perfectpullquote align=”full” bordertop=”false” cite=”” link=”” color=”” class=”” size=””]Justice, justice shall you pursue, that you may thrive and occupy the land that the LORD your God is giving you. (Deut. 16:20)[/perfectpullquote]
Tzedek, tzedek tidrof… The Hebrew verb lidrof used here means to be behind, follow after, pursue, persecute, run after. Exactly, justice is something you shall pursue. Not ‘establish’. The Torah is aware of the answer I suggested implicitly at the beginning: that it’s impossible to eliminate injustice completely from the world because it would require to eliminate mercy, love, compassion and put tremendous restrictions on human freedom. God, according to the Torah, has never intended to create a world like that. Probably nobody would want to live in that kind of world except some psychopaths.
Justice is not something that can be decreed by some decree. It’s a never ending process. Injustice then is not a problem that can be fixed the way we can fix a car or airplane: by fixing a system that is working improperly. Justice in society, while being no less complex than an airplane, contains another crucial and incalculable element: freedom of human decision. This element cannot be eliminated.
Yes, some forms of injustice have been eliminated in the course of history, like slavery for example. But it hasn’t been eliminated completely – there are slave auctions in Libya, there are other forms of human enslavement that can be considered slavery – in China, for instance. Let alone North Korea where the entire society is held hostage by a group of insane despots. Nor has slavery been eliminated permanently in places where it was eliminated: there is no guarantee that when things get really bad in the world some of old practices based purely on domination and power will be reestablished, even with the acceptance of entire nations. Thus we should never take for granted what we – as humanity – have achieved.
For the same reasons – freedom of human decision and its fundamental value – neither evil nor the human inclination towards evil has ever disappeared. To get rid of (moral) evil in the world we would have to fix the so-called human nature, as the prophets believed. The Rabbinical view of yetzer hatov – the inclination for good – and yetzer harah – the inclination for evil – is more developed and more useful practically: it doesn’t claim that yetzer hara should be eliminated. According to the rabbinic view on the problem the goal is to employ those bad, impossible to eradicate inclinations, to work towards good purposes. This philosophy is not only positive; it’s also easier to put into practice, when understood properly: it can take a form of rewiring your brain in which you modify your impulses and processes they cause to work for desirable outcomes.
It’s a better approach than hating the evil and injustice in my opinion. Hating evil and injustice is ultimately about hating something in human nature. Thus it is very important to strictly define this thing that supposedly causes all the evil we fight with. It’s very important to define it precisely and make sure that this element is not something that is, in fact, essentially good, like desire for freedom, ambition or even something that is relatively good like rivalry or competitiveness. If something is relatively good it basically belongs to the realm beyond good and evil. It is more of a tool and tools tend to be useful.
We should keep all the above in mind when debating other negative social phenomena we deal with and want to eradicate, like corruption, theft, racism or prejudice. To completely eliminate them we would have to employ similar measures like those we would need to eliminate murder (but because they are lighter offenses, we probably wouldn’t have to implement them in all the realms of human life.) We cannot eliminate erroneous thinking and speaking by law not suppressing freedom of speech and thought. We can minimize it and its negative impact through proper education but only to some extent and to the extent the education we offer is correct – we also cannot completely eliminate errors from our teachings.
As I showed at the beginning, eliminating one kind of evil, one kind of injustice, here and now, would require totalitarian measures. That’s probably one of the reasons for which people obsessed with only one or two particular forms of evil or who very narrowly define what is the worst evil in the world (which often is not the worst, sometimes it is not evil at all) develop tendencies to totalitarian thinking. I believe that part of the proper attitude towards evil and injustice is be able to perceive many different kinds of evil and injustice, and to put them in some sort of hierarchy, as we do with things we consider good and just It doesn’t mean that different people shouldn’t be specialized in fighting particular forms of injustice or evil. They should. But it is also very good and healthy to see the evil, suffering and injustice you are fighting within the context of the evil, suffering and injustice other people are fighting with.
Shabbat shalom!
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