A D’var Torah for Parashat Devarim, 5769
This week’s commentary will be in written form (back to videos next week, I hope). We begin the Book of Deuteronomy (Devarim) this week, a book chiefly concerned with legislation. The Book of Deuteronomy envisions an Israelite society governed in accordance with the laws given here by God, to Moses, communicated in compelling rhetoric to the Isr
aelite people. Within Deuteronomy we find laws that have been understood over the millennia as instrumental in the daily life and practice of the Jewish people. Civil law, cultic law (i.e., laws pertaining, for example, to Festivals and ritual observances), and laws governing ethical conduct all fall under the purview of the Book of Deuteronomy.
So I thought it a good idea to reflect briefly on the nature of law in Jewish tradition, as informed by this week’s portion, Devarim. The word Devarim, the namesake of this portion and this Book, can mean many things. Often translated as “words,” an equally accurate translation could be, “laws” or “legal principles.” The word d’var is frequently applied to a legal matter.
The chief question I’d like us to consider this week is: “How strictly doe
s Judaism intend for us to interpret and apply the laws of the Torah?” It turns out that some commentary to a short selection from this week’s portion provides ample guidance.
In Deuteronomy 1:16-17, Moses recapitulates the way in which the juridical authorities are to adjudicate legal cases. “I charged your magistrates at that time as follows, ‘Hear out your fellow Israelites, and decide justly between anyone and a fellow Israelite or stranger. You shall not be partial in judgment: hear out low and high alike. Fear no one, for judgment is God’s. Any matter that is too difficult for you, you shall bring to me and I will hear it.’”
Moses’ insistence, “hear out low and high alike” intrigued the great Medieval commentators. RaSHI understands this to mean that cases affecting the wealthy, or in which a hefty sum is at stake, should not be privileged over cases over a meager sum, cases affecting the poor (RaSHI to Deut. 1:17). He evenhandedly demands that cases involving the poor should not be given priority over those affecting the rich (even though genuinely noble motives might incline a judge or a court to try to avoid humiliating the poor person). Cases, RaSHI concludes, should be adjudicated in the order in which they come before the magistrate. RaSHI calls for strict justice, absolute impartiality.
His view is echoed in the Talmudic literature. “Rabbi Eliezer son of Rabbi Yosi the Galilean said: ‘It is forbidden to arbitrate…., and he who arbitrates commits a sin. The law must prevail, even if it involves cutting through a mountain, for it is said, “Judgment is God’s” (Deut. 1:17). Thus, Moses used to say, “Let the law cut through the mountain”’” (Sanhedrin 6b).
“Let the law cut through the mountain.” These are important words in a Jewish tradition that has always prized and privileged the rule of law. Indeed, the very same Talmud famously declared that “the law of the land is the law,” a guiding principle for the Jewish people throughout our history in foreign lands and under foreign regimes. “Let the law cut through the mountain” and “The law of the land is the law” are Jewish ways of saying that the rule of law is a value consonant with Jewish self-interest, preferable even to Jewish self-determination. We would rather live as law-abiding citizens in a land where the law of the land is fairly and faithfully upheld among all than insist on living lives apart, governed by our own set of mores.
And yet strict adherence to the law as written is not where the conversation ends. The very same passage of the Talmud that insisted, “Let the law cut through the mountain,” goes on to recall that “Aaron, however, who loved peace and pursued peace, made peace between a man and his fellow” (Sanhedrin 6b). Shalom, or peace, with all that shalom implies--negotiation, arbitration, interpretation, compromise--must also guide us in our interpretation and application of the law. Swordlike, strict justice cuts through the intractable realities of a legal dispute. But shalom acts like water, gently eroding the mineral hardness away and making room for a new path.
So when it comes to a dispute between seemingly implacable parties in whose aid the law is invoked, which avenue shall we pursue? Strict justice? Or shalom through arbitration? The Talmud resolves our confusion by allowing appropriate measures of each, and by offering the determining factors one should consider in working out negotiations between conflicting parties with competing claims.
“We have been taught: ‘Justice, justice shalt thou follow’ (Deut. 16:20). One mention of justice refers to decisions based on strict law [which should be just]; the other, to compromises [which should be just]. How are compromises worked out? Say, two boats sailing in the same direction meet at [a narrow channel of] a river. If both attempt to pass side by side, both will sink; but if one is willing to proceed behind the other, both can sail safely. Likewise, two camels meet as they go up the ascent to Beth-horon. If both attempt to go up at the same time, both will fall [into the valley below]; but if one follows the other, both will go up [safely]. How should a compromise be worked out? If one is laden and the other not laden, the unladen should give way to the laden. If one is near [its destination] and the other not near, the one near its destination should give way to the one not near. If both are [equally] near or equally far [from their destination], a compromise should be made between them, the one [who is to go first] compensating the other [who is asked to give way] (Sanhedrin, 23b, as quoted in Bialik and Ravnitsky, trans. Braude, The Book of Legends: Sefer Ha-Aggadah, 741:199).
It is so important for us to remember that pure “strict justice” under the law as written thousands of years ago will come up insufficient, unable to respond to changing circumstances and the evolution of our interpretive tradition.
This isn’t just a good message for us Reform Jews who prize our sacred history of laws that have evolved over thousands of years in tandem with changing circumstances. It should also inspire anyone who gives consideration to the parallel conversations taking place all across the United States of America with regard to our own Constitution, itself a body of laws whose interpreters range the gamut from self-professed strict “originalists” or “constructionists” (“Let the law cut through the mountain!”) to those who see in the Constitution built-in mechanisms for flexibility, negotiation, and evolution. (Call them “Disciples of Aaron,” “lovers of shalom.”)
A final caution. Remember these words from the Talmud (Bava Metzia 30b): “Rabbi Jochanan said: ‘Jerusalem was destroyed only because they [the Priestly authorities] gave judgments in [strict] accordance with the Torah.’ Is that because the judgments were made by those untrained to judge? [No]; it is rather because they imposed their judgments based on the strict law of the Torah, and did not go beyond the letter of the law.”
As we celebrate the privilege of beginning a new book of Torah, I hope these thoughts will provide you with a window into the complexity and creativity of Jewish law, from the Bible’s day to our own. As always, I welcome your comments and questions here on our Torah Study blog.
Rabbi Jonathan Blake
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