Chapter 22 of the book of Exodus has a long list of weaker and marginalized members of society. This list includes the slave, the indigent, the stranger, the widow and the orphan. One could include older parents in this list. Exodus 21:16 states, “He who hits his father and mother shall surely die.” Logic dictates that this means older and weaker parents who can no longer defend themselves against grown children.
The Hebrew Bible mandates high standards of fairness and compassion regarding members of these groups. A Hebrew slave must be freed after six years of bonded servitude. If a slave owner damages a male or female slave’s eye or tooth, he must set them free. One cannot oppress a stranger with insulting language or exploitive business practices. The same goes for the widow and orphan.
Regarding the widow and orphan, Jewish commentary states that when doing business with an orphan or widow, one must structure the deal such that they always benefit from the bargain, no matter which way the market goes. The following hypothetical in the Talmud illustrates this: Widows or orphans sell cows and the buyer takes out a mortgage to pay for them. Afterwards, the market price for cows rises. If the buyer has not yet paid for the cows, the widow and orphan have a right to revoke the deal, take back the animals, and resell them at a higher price. But, if widows or orphans are the buyers, and take out a mortgage to finance the purchase, and the market price rises, the seller cannot revoke the deal and take back the livestock to resell at a higher price. The orphan and widow must benefit from the market’s upward movement.
Indeed, the sages have observed that the judicial establishment has special fiduciary duties toward the orphan and widow. The court must appoint a guardian for their property before using it to discharge a debt. The Talmud goes so far as to say the court is the “father to the orphan”.
Nevertheless, if we read the next chapter of Exodus, we find verses that seem to contradict this sentiment. The Torah commands the judiciary as follows: “Do not glorify a destitute person in his grievance” (Exodus 23:3). “Do not pervert the judgment of a destitute person in his grievance. Distance yourself from a false word…” (Exodus 23:6-7). Leviticus 19:15 commands, “You shall not pervert justice, you shall not favor the poor and you shall not honor the great; with justice shall you judge your fellow.” (Emphasis added) How can a judge be a “father to the orphan” on the one hand, yet remain aloof and impartial to an indigent?
Regarding the marginalized groups of the Hebrew Bible, the verses stress that God himself resents their oppressors. “For if you oppress him and he cries out to me and I hear his cry. Then I will be very angry and kill you by sword and your wives will be widows, and your sons will be orphans.” (Exodus 22:22-23)Regarding an indigent person, whose garment is taken as a surety, the verses also show God’s extreme displeasure at this high handed dealing. “If you take your friend’s garment as a surety you may only do so until sunset and then return it to him. This is his only covering, the garment for his skin, what will he sleep in? When he cries out to me [God] I will hear because I am merciful.” (Exodus 22:25-26) God himself takes up the cause for these voiceless members of society.
This sounds like social justice, but is it? The devil lies in definitions and enforcement. The dictionary defines justice as fairness or lawful treatment. Other definitions also include notions of impartiality and proportionate punishment. The burning question is; who should have the burden and consequent power of enforcing these values?
Modern legal scholarship posits 4 types of justice, procedural justice, retributive justice, restorative justice and distributive justice. Procedural justice creates systemic procedures that ensure equal judicial results to all parties facing similar facts. Retributive justice concerns implementing punishments that fit the crime and deterrence of undesirable activity. Restorative justice helps one party recover from the wrongs others have inflicted on her. Distributive justice is a philosophical brainchild of the academy that has been brewing for the last 100 years. This notion, also called economic justice, decides the question of how do we distribute the scarce resources of the society. How do we protect the weaker groups in our culture?
Chapters 22 and 23 of the book of Exodus posit that the judicial and legislative systems should enforce the first 3 types of justice, but the 4th should be undertaken voluntarily by a virtuous citizenry who believes in a transcendent God.
This solves the contradiction in the two groups of verses. When a judge is hearing litigants, truth seeking is the supreme value. The judge must conduct this hearing while enforcing procedural, retributive and restorative justice as mandated by the evidence before her.
The verses that speak about helping the marginalized groups of the culture are addressing the individual and private sectors. They are the ones charged with keeping an eye out for the widow, orphan, stranger, indigent, or elderly parent. Families, private charities, community clubs, houses of worship, and citizen’s groups should attend to the business of distributive justice, not an authoritarian nanny state.
A judge or bureaucrat should not compel one citizen to act kindly and generously toward another under threat of state sanction. If you give the state that kind of power, you are inviting totalitarianism. Therefore the verses on compassion for weak groups stress that God himself is the “big enforcer”. Belief in a transcendent God reduces the need to depend on a bully state to enforce ethical norms.
Thus, according to the Torah, social justice is not justice, for it favors the poor over the rich, the weak over the strong. Justice should not favor anyone that the objective evidence does not. The Hebrew Bible mandates that we help the poor and weak through fear of God and imitation of his merciful ways, not by the judicial compulsion or bureaucratic diktat. This is far preferable to a self-righteous runaway state enforcing whatever compassion is trending at the moment using whichever method it deems fit for the moment.
One of the many lessons of the Purim story is that broad state power in the hands of unelected, unaccountable advisors is hazardous. Such power can be manipulated under the guise of a concocted good. Haman framed his genocidal proposal to the Persian monarch in terms of its benefit to the Persian Empire. The king’s corruption and greed sealed the deal. A limited government and a larger role for the private sector role in economic justice can avoid this danger. The Purim custom of voluntary gifts to the poor motivated by compassion and faith, not government fiat, is a great example.