A project in memory of Baruch Leib HaKohen b. Mordechai Yidel ve-Dobba Chaya.
How Discrimination Hurts
The Torah reading opens with the command to establish a court system, with judges and officers of the court to enforce their decisions. As part of that, the Torah warns the judges, 16;19, לא תכיר פנים, you may not show partiality. Rashi to those words applies this prohibition even during the evidentiary phase, when the two sides are offering arguments to support their claim. A judge cannot be gentler with one litigant, nor have one sit and one stand.
We might think the Torah prohibits that’s because it’s wrong, but Rashi adds a psychological element. He says that when the lesser-treated litigant sees the disparity, his claims will be closed off. That is, he will be unable to state his case as forcefully or convincingly as otherwise, will forget or neglect to bring up points that support his view, because his sense that the judge has it in for him (even if the judge doesn’t, even if the disparity in treatment was for completely unrelated reasons) will get in his head, as it were.
On the flip side, Rashi reads the Torah’s comment, in that same verse, כי השחד יעור חכמים, that bribery blinds the wise, as being a warning against even bribes given explicitly (and, possibly, sincerely) so that the judge will judge the case correctly and accurately. Assume, for example, that there are financial pressures on the judge to go one way, so that either litigant gives him money and says, “here, this will help you not worry about that financial issue, so you can judge truthfully.”
Rashi says the Torah is telling us that once he accepts that bribe, he will necessarily favor that litigant. Again, he explicitly extends that beyond the conscious and nefarious misdeed of perverting justice. It’s not that the judge will wrongly find in favor of that litigant, it’s that he will see the merit in that litigant’s arguments, and will find himself reviewing the case with an eye for finding all possible ways to see it in favor of that litigant.
Especially in cases where two passionate sides see an issue their way, finding the way to the truth—and there often is a truth, even if neither side can see it, too caught up as they are in their pieces of the truth—can be a delicate process. Anything that affects the judge’s ability to dispassionately and objectively seek that truth is a problem.
As the Torah tells us elsewhere, what is true for courts and judges is often true more broadly. If we treat others as inferior, the wrong in doing that is not only the actual mistreatment but the messages communicated to that person or people, the ways they become stunted and will be led to underperform by being treated that way
And, when we are the ones called upon to discover and announce certain truths, we need to remember how easy it is to become distracted by irrelevancies. Just accepting favors or goods from others can reshape our perspective, enough that we might no longer be able to judge, because we will be unable to refrain from always seeking the merit in that person or people.
Justice as an Object Lesson
Twice in this week’s parasha, the Torah speaks of the people “hearing and seeing” the execution of wrongdoers. In 17;13, where the Torah refers to וכל העם, the entire nation, Rashi understands the court to wait for a major holiday before executing a convicted rebellious elder, since that was when the largest group of the people would see it. 19;20 refers only to והנשארים, the remaining people, seeing and hearing, telling us, according to Rashi, that courts should announce when people are going to be executed for having been convicted of being עדים זוממים, having claimed to witness an event they couldn’t possibly have seen.
Public executions can become a spectacle or even, God forbid, entertainment. Here, the Torah is telling us that some such executions need to be done publicly, as a statement of society’s values. Whether or not it’s also a deterrent, the execution of these convicted wrongdoers is to be used to remind the nation of what the Torah has deemed so evil as to require the death penalty.
Death is the ultimate sanction, the way society expresses that which it finds intolerable. The hope is that it will never have to use it, because members of that society will know and remember the seriousness of those crimes. But when someone does flout that law, it’s an opportunity to restate that society’s basic value, that this—here, our examples are that even the wisest of society must accept the Sanhedrin’s rulings and that bearing false witness is intolerably damaging to society, especially if that testimony could have led a court to put someone to death wrongly—cannot be part of a functioning Torah society.
Trusting God, Trusting the Future
I think 18;13 is well known, the command that Jews be תמים, whole, with their God. After a series of prohibitions of all forms of divination, Rashi understands it to be telling us not to look too much into the future, to accept what comes our way.
It is an attitude that can be taken to excessive or even absurd lengths. Worry about the future is quite understandably endemic to the human condition, since relatively slight changes in our environment, physical, economic, social, can wreak havoc in our lives. More, Jews are supposed to worry about the future in the sense of doing all that is permitted—religious and otherwise—to bring about the best possible future.
Rashi’s comment, I believe, doesn’t mean we should just wait and take what Hashem gives us. He means that once we’ve done what we can, once we’ve done our best in all the ways we are allowed, we are to trust God. The temptation is to keep looking, to always try to find more ways to know and/or shape the future. Sometimes those are permissible, but some of those ways are not. It’s there that we have to learn to refrain, to trust God and the future coming our way.
Sometimes Two Wrongs Do Make a Right
That’s not quite true, but Rashi to 19;13—where the Torah warns לא תחוס עינך, not to have compassion on a premeditated murderer, but to hand him over to the blood avenger for his death penalty—thinks the Torah was warning against thinking that a second wrong will do nothing to rectify the first. Once one person’s been killed, Rashi imagines people saying, what’s the point in killing another? Will it bring the victim back to life? It will just give us two dead people.
It’s not an example of two wrongs because killing a convicted murderer isn’t wrong, it’s justice. But the Torah recognizes, in Rashi’s reading, that people don’t always see that distinction. Putting someone to death seems extraordinarily final, and we see today how much people resist it (today, of course, we have the added problem that our justice system is not so ironclad that we can trust that those sentenced to death deserve it, or even committed the crime of which they’ve been convicted).
The Torah is telling us that once we’ve determined that a person deserves this penalty, the ordinarily proper urge to avoid death has to be put aside.
Knowing Your Enemy
In both the first and third verses of chapter 20, the Torah speaks of going to war against אויבים, enemies. Each time, Rashi reads the Torah as reminding us that these are not our brethren, not people we can treat gently, because they would not do the same for us. In the first verse, he says just that, but in verse three—where the kohen is encouraging the people before the war, and reminds them they are going to war על איביכם, against your enemies—Rashi contrasts that to Jewish civil wars where, once the war is done, the combatants treat each other as brethren. He gives an example from Divrei haYamim where, after a war, the winners clothed, fed, and returned the losers to their homes.
It’s two points in one: Jews are family, a fact we need to remember even if we argue vigorously, even if we see no option other than arguing, fighting, or even going to war. When that’s done, we have to return to our familial interest in each other’s’ welfare.
On the other hand, when we go to war against strangers, those are enemies, where we cannot expect any particular reciprocal conduct (even the Geneva convention, today, comes with many complications, so that even those who claim to adhere to it find ways to circumvent it). When we go to war against enemies, we have to be realistic about who they are, and conduct the war in that fashion, not fooling ourselves about their humaneness.
Knowing others accurately, for the good and for the bad, and treating them as is appropriate for that reality, is one recurring theme in the five Rashis for Parashat Shofetim.