“And Justice for All” Parashat Shofetim 5779

Parashat Shofetim begins with directions on how to set up courts of law. The Torah’s goal can be summarized as “Justice for all”. In the first verse of the Parasha [Devarim 16:18], the Jewish People are commanded to appoint magistrates and officials who “shall govern the people with due justice (tzedek)”. After prohibiting a judge from taking bribes, the Torah reiterates [Devarim 16:20] “Justice, justice (tzedek tzedek) shall you pursue, that you may thrive and occupy the land that G-d is giving you”. Two questions must be asked: [1] Why does the Torah repeat the commandment to rule justly and [2] why is the word “justice” repeated in the second verse?

The Talmud in Tractate Sanhedrin [32b] offers three alternate solutions but one of them in particular stands out: “When the verse states: ‘Justice, justice, shall you pursue,’ one mention of ‘justice’ is stated with regard to judgment and one is stated with regard to compromise. How so? Where there are two boats traveling on the river and they encounter each other, if both of them attempt to pass, both of them sink, as the river is not wide enough for both to pass. If they pass one after the other, both of them pass. And similarly, where there are two camels who were ascending the ascent of Beit Ḥoron[1], where there is a narrow steep path, and they encounter each other, if both of them attempt to ascend, both of them fall. If they ascend one after the other, both of them ascend. How does one decide which of them should go first? If there is one boat that is laden and one boat that is not laden, the needs of the one that is not laden should be overridden due to the needs of the one that is laden. If there is one boat that is close to its destination and one boat that is not close to its destination, the needs of the one that is close should be overridden due to the needs of the one that is not close. If both of them were close to their destinations, or both of them were far from their destinations, impose a compromise between them to decide which goes first and the owners of the boats pay a fee to one other, i.e., the owners of the first boat compensate the owner of the boat that waits for any loss incurred.” The Talmud answers that there are two types of justice: the first type of justice is meted out when one of the sides is obviously in the right and the other is obviously not. In this case, the just thing to do is to rule in favour of the righteous side. The second type of justice is implemented in cases where it is unclear which side has the stronger claim. In this case, binary justice is replaced by compromise. The first time the Torah uses the word “justice”, it is referring to both classes of justice. The second instance (verse 20) is simply a clarification that there are indeed two classes of justice and that compromise is not only the right thing to do, but it is also the just thing to do[2].

Rabbi Enoch Joseph ben Zundel Luntschitz, who lived about two hundred years ago in Bialystok, Poland, writes in “Anaf Joseph” that the Talmud in Tractate Sanhedrin seemingly does not make sense. Does the Talmud really believe that compromise is such a difficult concept to understand that it has to illustrate the idea using two trivial examples? In both cases, compromise is the only viable solution. It is clear that there are certain situations in which there can be only one winner. According to NFL rules, only one team can win a division. If two teams finish the season with identical records, then the NFL implements a tiebreaking procedure. First, head-to-head matches between the two teams are compared and the winner of the most head-to-head matches wins the division. If this parameter does not break the tie, the next parameter is the best won-lost-tied percentage in games played within the conference. There are twelve parameters that can be used to break a tie. The final one is a coin toss, essentially a “Doomsday Solution”, because only one team can win the division. But in the case of two boats or two camels, one person can say “I’ll wait and you can reimburse me for my lost time”. Both sides win. What’s the big deal? Rabbi Luntschitz answers that the innovation of the Talmud is that in cases like two boats or two camels, it is incumbent upon the judges to seek out compromise and to force the litigants to settle their differences. A judge cannot sit back and wait for the litigants to sort things out themselves.

I’d like to take Rabbi Luntschitz’s explanation in a different direction, but first we require a bit of scientific background. Imagine that two ships are vying to pass through a narrow canal that they can traverse only one at a time. The Talmud rules that if both ships arrive at the canal at precisely the same time, both are carrying precisely the same amount of cargo, and both are equally close to their destination, then the judge must resort to compromise. How would a judge in the year 5779 determine which of the two ships arrived first at the canal? He would most likely compare the recorded GPS position of the two ships. This data is readily available on the internet. The problem is that GPS data is imprecise and, even worse, its imprecision is a direct result of how GPS works. A constellation of GPS satellites orbits the earth and, once a second, each satellite tells the world what time it thinks it is. By knowing the position of the satellite[3] and by comparing the time broadcasted by the satellite with the time on the clock of our GPS receiver, we can calculate how far we are from the satellite[4]. By using data from four satellites, we can use triangulation techniques to determine our position and altitude. The problem is that GPS measurements are imprecise and incur a measurement error of about four metres (Root Mean Square). For instance, GPS signals traverse the upper atmosphere where they are delayed and deflected. They bounce off of buildings and trees, creating “multipath”. Another source of error stems from the fact that the clock on the GPS receiver is not as accurate as the clock on the GPS satellite, making it difficult to translate time into distance. All of these sources of error are built into the system. This is true not only for GPS, but it is true for any and every system of measurement. Every measurement contains some component of error. And so no matter how hard we try, sometimes there is no clear winner. Some times, as far as we can tell, both boats, both camels, arrive at the same time.

Wait a minute: If the boats or camels are located such that there is a clear winner, then compromise is not required. On the other hand, if they are so close that it is physically impossible to determine a winner, then there is no alternative other than compromise. So what is the Talmud teaching us? I suggest that the Talmud is teaching us that compromise is required not only to adjudicate in cases that are “too close to call”. Because our knowledge is inherently limited, compromise of some sort will always be necessary. The truth does not belong to one of the sides. “Binary judgement” and “compromise” are not two different types of justice. The Talmud is teaching us that justice must be based on compromise. “Binary justice” is simply a limiting case in which our knowledge is sufficient to declare a winner. When the Torah says “Justice, justice, shall you pursue”, it is not teaching us that compromise is just as valid as binary justice.  It is telling us, “If you want justice, then you must pursue compromise.” We must strive not to defeat our neighbour, but to accommodate him.

This message is quite timely as Rosh Hashanah – the Day of Judgement – lies just around the corner. Pure binary justice lies only in the Hands of the Al-mighty. A nation that willingly bends for one another will never break[5].

Shabbat Shalom,

Ari Sacher, Moreshet, 5779

Please daven for a Refu’a Shelema for Yechiel ben Shprintza.

[1] The “ascent of Beit Horon” is also mentioned in Tractate Rosh Hashanah [1:2] regarding how G-d judges each individual. That narrow and treacherous road near Beit Horon still exists today. It noteworthy that the ailing grandmother of Congresswoman Rashida Tlaib, a BDS activist who was recently refused and then granted entry into Israel but then chose to stay in the U.S., lives in Beit Ur al Fuqua, or “Upper Beit Horon”. While this has all the makings of a really piquant lesson, we’ll save it for another time.

[2] The Sages in the Talmud argue whether a judge is even permitted to seek compromise, or whether “yikov ha’din et ha’har” – “Let justice pierce the mountain”. It is obvious that the author of this particular explanation held that compromise is just as acceptable as binary judgement.

[3] GPS satellites traverse the sky in well-defined trajectories. We know where they are. The bigger problem is figuring out where we are.

[4] This is possible because radio signals travel at the speed of light, a velocity that is universally constant. As the bumper sticker says, “3×10⁸ meters per second: It’s not just a good idea – it’s the law”.

[5] In a limited number of cases in which the uncertainty is exceptionally large, the Talmud in Tractate Bava Batra [35a] directs judges to use “Shuda’d’Daynei”, essentially to rule by whim.