Parshat Shoftim (Deuteronomy 16:18–21:9)
Efrat, Israel – Judges and Executors of Justice shall you establish for yourselves in all of your gates…. Justice, justice shall you pursue in order that you may live and inherit the land which the Lord your God is giving to you. (Deuteronomy 16:18–20)
In this opening passage of our weekly portion, the Bible conditions our ability to remain as inhabitants of the Land of Israel upon the appointment of righteous judges, who will not prevent justice, or show favoritism before the law or take bribes of any kind (Deut. 16:19). The Bible also reiterates, “Justice, justice shall you pursue,” a commandment with a number of important interpretations. First of all, seek or appoint another judicial court if the local court is not deemed adequate for the needs of the litigants (Rashi, ad loc.). Secondly, in the words of Rabbi Menaĥem Mendel of Kotzk, make certain that you pursue justice by means of justice, that your goals as well as your means are just. I would add to this the stipulation that the “administration” aspect of court-room management be just: begin on time without keeping the litigants waiting, conclude each case with as much dispatch as possible, and listen sympathetically to the claims of each party, so that everyone feels that he/she has received a fair hearing.
Further on in our portion, the Bible adds another critical criterion for true justice: “When there will arise a matter for judgment, which is hidden from you [a case which is not cut-and-dry, which involves changing conditions and therefore requires extra consideration on the part of the judges]…you shall come to…the judge who shall be in those days” (Deut. 17:8–9). Rashi makes it clear, basing himself on the words of our talmudic sages, that we must rely on the Sages of the particular era of the problem for the judgment at hand, that “Yiftaĥ in his generation is as good as Samuel in his generation.” This notion is further elucidated by Rabbi Levi Yitzhak of Berditchev in his masterful Kedushat Levi, under the rubric “teiku,”: t-y-k-u – Tishbi Yetaretz Kushyot Veba’abayot, or “Elijah the Prophet will answer questions and ponderings” in the Messianic Age. “Why Elijah?” asks Rabbi Levi Yitzhak. After all, there will be a resurrection of the dead in the Messianic Age, wherein Moses will be resurrected; since Moses was a greater halakhic authority than Elijah, since Moses studied directly with God Himself, why not have him answer the questions rather than Elijah?
Rabbi Levi Yitzhak answers his seemingly naïve question with a most sophisticated response. Moses died close to four thousand years ago; Elijah, according to the biblical account, was “translated” live into heaven, and says the midrash regularly returns to earth, appearing at important moments to help certain individuals as well as at every circumcision and at every Passover Seder. And since Elijah will be involved with people and will therefore understand the travail and the angst, the hopes and the complexities, of the generation of the redemption, only he can answer the questions for that generation; a judge must be sensitive to the specific needs and cries of his particular generation!
Then what are the most important criteria for a righteous judge? We have seen that he must clearly be a scholar in Jewish legal literature and must be an aware, intelligent, and sensitive observer of the times and places in which he lives, a judge of and for the period and place of adjudication.
But there is more. In the book of Exodus, when Yitro, the Midianite priest, first suggests to his son-in-law Moses that he set up a judicial court system of district judges, we find more qualifications for our judges: “You shall choose from the entire nation men of valor (ĥayil), God fearers, men of probity who hate dishonest profit” (Ex. 18:21).
Our great twelfth-century legalist-theologian, Maimonides, defines men of valor (ĥayil), a Hebrew word which connotes the courage of a soldier in battle as follows:
“Men of valor” refers to those who are valiantly mighty with regard to the commandments, punctilious in their own observance…. And under the rubric of “men and valor” is the stipulation that they have a courageous heart to rescue the oppressed from the hands of the oppressor, as in the matter of which it is scripturally written, “And Moses rose up, and saved [the shepherdesses] from the hands of the more powerful shepherds”…. And just as Moses was humble, so must every judge be humble. (Mishneh Torah, Laws of Sanhedrin 2:7)
Rabbi Shlomo Daichovsky, one of the most learned and incisive judges who ever occupied a seat on the Religious High Court in Jerusalem queries (in an “Epistle to my Fellow Judges,” dated 25 Shevat 5768, and published in Teĥumin, Winter 5768) as to how it is possible for a judge to be a valiant fighter on behalf of the oppressed, which requires the recognition of one’s power to exercise one’s strength against the guilty party, and at the same time for him to be humble, which requires self-abnegation and nullification before every person? These seem to be two conflicting and contrasting characteristics!
Rabbi Daichovsky concludes that humility is an important characteristic only when the judge is not sitting in judgment; when the judge is seated on the throne of judgment, he must be a valiant and self-conscious fighter, fearlessly struggling against injustice as though “a sword is resting against his neck and hell is opened up under his feet” (Sanhedrin 7). “The Judge must be ready to enter Gehenna and to face a murderous sword in defense of his legal decision…. He must take responsibility and take risks, just like a soldier at war, who dare not worry about saving his own skin” (Maimonides, Mishneh Torah, Laws of Sanhedrin 23:8). The chief concern of a judge must be for the justice and well-being of the litigants before him and not for his own security and reputation in walking on the “safe” (and more stringent) halakhic ground.