Shavua Tov. “Alexis de Tocqueville slept here.” I was thrilled to see this plaque in my home town of Erie, PA. I talk to my children a lot about de Tocqueville, his warnings in Democracy In America (1835, 1840) about the “tyranny of the masses” and that in democracy there must also be an understanding of what the majority is forbidden to do. The majority can always “democratically” trample the rights of the minority.
There must be a delicate balance between honoring and limiting the will of the majority. It is extremely dangerous when we hear demagogic accusations about an “out of touch” court system not carrying out popular opinion.
Today’s/last week’s Torah portion described the beginning of the Jewish judicial system. We also know that setting up a system of law is one of the seven Noachide laws that the Jewish tradition says are incumbent on non-Jews.
Before the parasha recounts the revelation of the 10 commandments, we read that Moses’ father in law Jethro arrives with Moses’ family. (It seems that Moses pays much more attention to Jethro than his wife and children.) The next day Jethro observes Moses sitting as the sole judge from morning to night, and warns him that he will exhaust himself that way. He suggests a system in which there are judges of thousands, hundreds, fifties and tens, and only the major disputes would get to Moses.
I recall once speaking to a fundamentalist Christian who argued that Jethro’s suggestion was the root of much evil because it lead to the creation of the Sanhedrin, that condemned Jesus.
On the one hand, Jethro’s suggestion created a system with a large number of judges, who presumably at least sometimes had differing opinions. On the other hand, it is clear that God’s Law is what is important, not the personal opinion of the judges, or even of Moses. On the third hand, how do we, who do not speak personally to God as did Moses, know what God’s Will is? In the famous Talmudic story of Akhnai’s oven, the rabbis make a decision contrary to God’s. A lawyer who once worked for me told me that on her first day of law school the dean said, “If you came here looking for justice, you came to the wrong place.” Given that we can’t even agree on what is God’s Will, or what is just, law is our default attempt to come as close as we can to an agreed upon system for governing our society.
To create that social contract in a democracy, there does need to be a connection between the will of the majority and the law. At the same time, the promulgation and interpretation of law must have some distance from the mood swings of popular opinion, be independent of self-interest, and must ensure that the majority cannot oppress minorities.
In Israel, every time the Israeli High Court makes an unpopular decision, such as striking down efforts to imprison or expel African asylum seekers, a we hear a demagogic hue and cry about the left wing cabal controlling the High Court and calling both for the ability to override the Court (the Knesset already can) and for judges more representative of popular sentiment (There must be checks on the judiciary, but the judiciary must be the check to the tyranny of the masses.) Our Justice Minister Ayelet Shaked’s clearly stated goal has been to create a “revolution” in the judiciary system, making in more pliable to her political will. To do this, she has been proud of her close cooperation with the Effie Naveh, and to make deals with him. While the case may be crumbling against Naveh who recently resigned from his position as the head of the Israeli Bar Association, after being arrested on suspicion of asking for sexual favors in return for promoting judicial candidacies, Shaked’s accusation that this was all a plot against her is another example of demagogy. Our judicial system is also being undermined by insinuations by Shaked, Prime Minister Netanyahu and others that any suspicion of wrongdoing, or investigation by law enforcement authorities, is the work of unnamed leftist elements seeking to bring down the government in this way because they can’t win an election. The courts are without a doubt more cautious because of these attacks, even though they are more respected by the public than the Knesset or the Government.
Judges are human, and must be held accountable. They can’t be an unassailable law onto themselves. Ibn Ezra writes that the Torah particularly warns about situations in which a judge errs in judgment regarding the widow, orphan or non-Jew living among us, because they do not have the ability of the powerful and well connected to appeal or be heard when they try to explain that they have been wronged in judgment.
Whereas the nomination of U.S. Supreme Court justices has become a baldly political circus and our current Israeli Justice Minister Ayelet Shaked has been very clear that she is enacting a revolution, judges must at least make the effort to separate their personal opinions from what they do as judges, Ironically, it was former Israeli Supreme Court President Aharon Barak, seen by many on the right as a primary instigator of everything they find objectionable, who stated that he upheld the demolitions of Palestinian homes for lack of permit, even though it went against his conscience. I believe that demolishing home when their owners have no fair chance of building legally is unconscionable and a violation of international law, but Barak felt that the Israeli law we have imposed on Palestinians who can’t vote for the Knesset gave him no choice.
I have never systematically examined how often the Israeli courts have ruled against human rights, and how often they have upheld human rights. But the number of decisions recall antithetical to my understanding of human rights and international law arguably has been greater than the ones backing my understanding.
Rabbi Shimshon Raphael Hirsch comments that, according to his reckoning, Jethro’s system required 78,600 judges. He sees this as a testament to the fact that Moses managed to pass down God’s word, create a vast population educated in God’s Ways. I might add, a vast population with the honesty and fear of God that Jethro stipulates as requirements for judges. Hirsch also contrasts the system of appeals according to Jethro, versus most systems of appeals today. In Jethro’s system, it is not those coming before the judge that appeal to a higher court, but rather the judges who appeal when they feel that the decision is beyond them. This requires a level of maturity and humility.
After all the philosophizing about how we determine the law, it is important to remember that law alone doesn’t create a decent society. Although our sages created a tremendous edifice of law, they also undermined it by determining that they could force somebody to do something they had no legal requirement to do, if somebody was not doing that something that could help another person without causing harm to him/herself (kofin al midat sdom). They realized that sort of unwillingness to help others would lead us down the slippery slope to Sodom. Hirsch quotes a baraita brought by Rav Yosef in the Talmud (Baba Metzia 30b), on the line from our parsasha, “and enjoin upon them the laws and the teachings, and make known to them the way they are to go and the practices they are to follow.”(Exodus 18:20). “The way” is that of acts of loving kindness. “they are to go” is visiting the sick and burying the dead , “the practices” is law and “they are to follow” is lifnim meshurat hadin– going beyond the letter of the law to observe the intent of the law.” Rabbi Yokhanan states that Jerusalem was destroyed because people demanded their rights according to the strict letter of the Torah and were not willing to cede anything lifnim meshurat hadin. Hirsch says that Jethro told Moses, a society can’t exist when people only think of themselves. There also must be loving kindness, the morality which is the true intent of the laws of the Torah, and solidarity and concern for fellow human beings. Rather than thinking than defining our personal welfare as zealously insisting on everything we are owed, we could internalize a feeling that our welfare is enhanced when we contribute to the welfare of others.