Daniel Sayani

Parshat Shoftim: On Judges and the Aesthetic

We live in a world that is increasingly superficial and shallow, caught up in appearances and externalities. Our idea of the beautiful captivates advertising, entertainment, business, and even education. People swipe left or right on numerous dating apps purely based on what they see; potential mates are rejected after mere seconds of glancing at a photo. Good looks can make or break a career or a political campaign; gorgeous people simply get preferential treatment in our society.

Psychologists have identified a halo effect at play, a cognitive bias in which our impression of a person dictates the assumptions we make about that person.  We assume that people who are physically attractive also possess other socially desirable personality traits. We all heard growing up, “Don’t judge a book by its cover,” exhorted by our parents and elders to look beyond the physical. Yet, despite this old adage, facial cues, our penchant for the external, often guide first impressions and these first impressions guide our decisions. We are driven by appearances, beauty and aesthetics. The literature suggests there are valid facial cues that assist us in assessing someone’s health or intelligence, but such cues are overshadowed by an ‘attractiveness halo’ whereby desirable attributions are preferentially ascribed to attractive people. Our schools are not even immune; a meta-analysis, conducted in 1983 by Dusek and Joseph, of fourteen research studies found that perceived facial attractiveness is significantly correlated with teacher expectations of academic performance and positive personality attributes. Teachers judged children rated as more attractive as more social, confident, popular, academically strong, and more likely to become leaders than students who were rated as less attractive. Likewise, a more recent study conducted in 2016 at the University of Lincoln found no relationship between attractiveness and actual academic performance, but a strong positive correlation between attractiveness and perceived intelligence, attractiveness and perceived academic performance, and attractiveness and perceived conscientiousness.

People perceived as beautiful even enjoy economic advantages throughout their careers- Daniel Hamermesh, an economist at the University of Texas in Austin, reviews multiple studies on this phenomenon in his 2011 book Beauty Pays: Why Attractive People Are More Successful. The research reviewed by Hamermesh shows that attractive people, both men and women, earn an average of 3-4% more than people with below average looks, which adds up to a significant amount of money over a lifetime. Beautiful people are also hired sooner, more quickly promoted, are higher-ranking in their companies (a study found the CEOs of larger and more successful companies are rated as being more physically attractive than the CEOs of smaller companies) and get all kinds of fringe benefits on the job. More attractive people often bring more revenue to their companies and therefore are more valuable employees. For example, a good-looking insurance salesperson will sell more insurance than one with below average looks. Hamermesh thinks that good-looking insurance salespeople sell more insurance because customers are biased against bad-looking insurance sellers.

Other studies find that even babies seem to prefer physically attractive faces to physically unattractive ones- two studies, one with 2- to 3-month-olds and one with 6- to 8-month-olds, were conducted to examine infant preferences for attractive faces. A standard visual preference technique was used in which infants were shown pairs of color slides of the faces of adult women previously rated by other adults for attractiveness. The results showed that both the older and younger infants looked longer at attractive faces when the faces were presented in contrasting pairs of attractiveness (attractive/unattractive). When the faces were presented in pairs of similar levels of attractiveness (attractive/attractive vs. unattractive/unattractive) the older, but not the younger, infants looked longer at attractive faces. One can say that we are even hard-wired to judge others and behave on the basis of appearances and attractiveness, to make decisions and appoint leaders on the basis of perceived attractiveness in others.

Our parsha this week, Shoftim, condemns this superficial proclivity in human nature and behavior, in its juxtaposition of seemingly disparate verses concerning the appointment of judges, planting an Asherah tree (or any tree) near the mizbeach, offering a blemished sacrifice (baal mum), and constructing a matzeivah (a one-stoned altar). Verses 18-20 command us to establish a justice system; we are to appoint judges and magistrates who will judge the people with “mishpat tzedek,” we are forbidden from perverting justice, bribery and favoritism, and are told to pursue justice. The following pasuk makes a radical shift, prohibiting planting an Asherah, or other trees near the altar of HaShem, Lo-titta lecha asherah, kol-‘etz. etzel, mizbach Hashem Elokeicha–‘asher ta’aseh-lach (Rashi notes that this prohibition applies to those who would plant a tree or build a house on the Temple mount- Azharah lenotea ilan ulevoneh bayit beHar haBayit).Top of Form The subsequent pasuk continues on the topic of altars, Velo-takim lecha, matzevah, asher sane, Hashem Elokeicha, And neither shall you raise a monument, which HaShem hates- Matzevet even achat lehakriv aleiha afilu lashamayim, a monument of one stone (as opposed to a mizbeach of many stones), not even in order to sacrifice on it to Heaven (to God). Rashi comments that this is detestable to G-d because it is profoundly idolatrous; Ve’et zo sane, ki chok hayetah lakena’anim, v’af al pi shehayetah ahuvah lo bimei ha’avot, achshav sene’ah me’achar she’asa’uha ellu chok la’avodah zarah. He hates, because it was a religious ordinance amongst the Canaanites. And although it was pleasing to Him in the days of our Patriarchs, now He hates it because the Canaanites made it an ordinance of an idolatrous character.  The next pasuk, the first of the next perek, forbids sacrificing animals with blemishes, which are abominable to HaShem- Lo-tizbach l’HaShem Elokeicha shor vaseh, asher yihyeh bo mum–kol, davar ra. Ki to’avat Hashem Elokeicha, hu. (Thou shalt not sacrifice unto the LORD thy God an ox, or a sheep, wherein is a blemish, even any evil thing; for that is an abomination unto the LORD thy God).

Our commentators have long been perplexed by the relationship between these seemingly disparate inyanim of Asherah, matzeiva, baal mum, and mishpat.

A relatively simple explanation is provided by the Chizkuni, who explains: Lo tita lecha Asherah: Nismechah lekan lomar ki hadin noten sheyatchil hashofet ledakdek techilah al avodat kochavim hamefursemet. Kan perush Rashi azharah lenotea ilan vechulei, kelomar malei tita nafka lan notea ilan. Umikol etz nafeka lan boneh beit kelomar mikol etz appi’ talush ulevasof chavero. “Do not plant for yourself an Asherah; even if that Asherah was not meant to be used as a place of worship. When conflicting claims face a judge, and he has to decide with which claims to deal with first, he is to deal with any matter that involves idolatry first. The term describes trees at the entrance to house of worship. Rashi understands the verse as prohibiting the planting of a tree or house on the Temple Mount. The words: lo tita, would refer to the former, and the words: ko etz, would refer to someone building a house, i.e. even from wood that is not fit to become a tree, having been cut and then reassembled.”

The Midrash, Devarim Rabbah, Shoftim 5:6, explains more profoundly the relationship between the six issurim in our parsha (Asherah, Matzeivah, baal mum,  shochad, favoritism, and the perversion of justice), of which three deal with justice: “ The Midrash explains that these six mitzvos correspond to the shesh ma’alot l’kisei, the six steps to the throne of Shlomo haMelech (Melachim Alef 10:19): Amar Rav Acha, Bo ure’eh shesh ma’alot hayah lakisei shel Shlomo, minayin, shene’emar: Shesh ma’alot lakiseh, u’beparashah zo ketuvim shishah devarim belo ta’aseh, ve’ellu hen. Lo tatteh mishpat, velo takir panim, velo tikach shochad, lo tita lecha asherah, velo takim lecha matzevah, velo tizbach lah Elokeicha shor vaseh. Harei shishah. (Rav Acha said: Come and see. Shlomo (Solomon)’s throne had six steps (levels). How do we know? It says (Melachim [Kings] I 10:19), “There were six steps to the throne.” In our parshah (Devarim 16:18-17:1) there are six prohibitions listed, and these are they – 1. Do not cause justice to stray. 2. Do not show favoritism [in judgment]. 3. Do not take a bribe. 4. Do not plant an asheirah tree. 5. Do not put up a matzeivah, a one-stone altar. 6. Do not offer to Hashem your God an ox or sheep [that has a blemish].)

Vehayah hakaroz omed lifnei kis’o shel Shlomo, keivan shehayah oleh ma’alah harishonah hayah korez. Lo tateh mishpat, ma’alah hasheniyah hayah korez Lo takkir panim, shelishit hayah korez. Velo tikach shochad, revi’it. Lo titta lecha asherah, chamishit. Lo takim lecha matzevah, shishit. Lo tizbach lah Elokeicha. The Midrash says, “And there was an announcer standing before Shlomo’s throne. When Shlomo would go up to the first level he would announce, “Do not cause justice to stray.” On the second level he would announce, “Do not show favoritism.” On the third he would announce, “Do not take a bribe,” on the fourth, “Do not plant an asheirah,” on the fifth “Do not put up a matzeivah,” and on the sixth, “Do not offer to Hashem your God …”

The parsha presents a difficulty- What do the last three mitzvos have to do with establishing a justice system for society? The purpose of the first three announcements is clear: as Shlomo haMelech ascends his throne, he must be reminded to judge justly, to not engage in bribery, show favoritism, or pervert justice, but why, as he ascends his throne, must he be reminded about not planting an Asherah, making a matzeivah, or offering a sacrifice with a blemish? This same difficulty presents itself in the beginning of our parshah. As the Midrash itself notes, the Torah lists these six prohibitions one after another. But what is the purpose of interjecting three verses about the rules of the Temple and sacrifices in the middle of a discussion of the legal system?

In attempting to explain the relevance of the issur of Asherah to the judicial context in which it appears, Chazal assert that the Torah seeks to draw an equation of sorts between these displays and imprudent judicial appointments. The gemara, Sanhedrin daf zayin, amud beis, provides one solution to our question, drawing a parallel between appointing an unfit judge and planting an Asherah by the mizbeach: Amar Reish Lakish, kol ha ma’amid dayan al hatzibbur she’eino hagun, k’ilu notea Asherah b’yisrael, shene’emar “Shoftim v’shotrim titen lecha, v’samich leih, “Lo tita lecha Asherah kol eitz.” Reish Lakish says that if one appoints an unqualified judge over the community, it is as if he planted an Asherah tree in Israel, as our parsha says, “Judges and magistrates you shall appoint for yourself, and close to that it is written, “You shall not plant for yourself an Asherah or any tree.” The gemara continues, “Amar Rav Ashi, u’bimkom she’yesh talmidei chachamim, k’ilu n’tao etzel mizbeach, shene’emar, etzel mizbach HaShem Elokeicha;” Rav Ashi says that if one appoints an unqualified dayan in a place where there are Torah scholars, it is as if he planted an Asherah near the mizbeach, as it is written, “near the altar of HaShem your G-d.”

Rashi here, DH Kol Etz, comments, “Mashma dayan dichtiv (Devarim 20), Ki Ha’adam etz hasadeh umokeminan leih betalmid.” Rashi explains that the gemara derives from the juxtaposition of the pesukim concerning appointing judges and planting an Asherah that appointing an unfit judge is analogous to planting an Asherah by the mizbeach. Since the word “tree” is often used as a metaphor for a talmid chacham, as the Torah says that “man is like the tree of the field,” Rashi says that the pasuk can be understood as “Do not plant for yourself an Asherah by appointing any (an unfit) judge.”  The Gemara in Ta’anit (7a) learns that the words “any tree” refer to a student who is possibly a “bad tree,” as a person is called a tree in the verse, “Ki ha’Adam Etz ha’Sadeh” (Devarim 20:19). It seems that Rashi understands that the Gemara means that one should not plant a tree of this kind as a judge, lest he spread his bad “fruit” (mistaken ideas).

The Maharsha (Chiddushei Aggados), writes, “Ke’illu notea Asherah, v’chulei. Hadimyon bezeh ki haddayan mumcheh nikra beshittuf sam Elohim k’mo shekatuv b’parsha arbah mitot elohim lo tekallel tartei mashma kodesh vechol vehu sechel haddan din emet na’aseh shuttaf l’HaKadosh Baruch Hu ulezeh hanotea Asherah etzel mizbeach hu noten makom chas v’shalom la’elohim acherim etzel elohim kedoshim kach ham’amed dayan she’eino hagun bemakom sheyesh dayan hagun hu noten makom le’elahei kesef vezahav hamitmanin bechaspah etzel elohim shehu dayan hamumcheh.”

The Maharsha notes that when the pasuk (Shemot 22:27) says “Elohim Lo Tekalel,” it refers both to HaShem and to judges. The analogy to avodah zarah is based on the comparison between judges and G-d Himself, as seen in the use of the term “elohim” for both G-d and dayanim. The significance of a judge being called by a name of G-d shows that a Dayan’s responsibility is to become a symbolic partner with HaShem through honest judgment, as the Gemara states, “Anyone who judges honestly becomes a partner with HaShem in creation.” (Shabbat 10a). Therefore, one who appoints a judge even though he knows that the appointee cannot judge accurately is symbolically showing that there is a different entity present in judgment, especially if there is a capable judge available. He sets up a foreign code of law next to the Torah’s law. This is akin to idol worship and a rejection of HaShem, the Maharsha explains, and is the meaning of the metaphor of planting an Asheirah next to the Mizbeach.

In a similar vein, Rav Yosef Dov Soloveitchik, in a shiur given at the Summer Yarchei Kallah in Tav Shin Lamed Hes, stated that one who judges righteously is given extraordinary authority to act in lieu of the Divine Judge, “For in reality, no human being is capable or has the right to decide the fate of another, for he never knows the absolute truth.” Thus, a dayan is called “elohim” because of necessity he is granted a divine prerogative. Consequently, if a human judge is incompetent, he, in effect usurps Divine authority and desecrates it- that is akin to idolatry. Figuratively, he has planted an idolatrous shrine in the very place which was imbued with Divine Justice- near the altar of the Holy Temple. (Saul Weiss, Insights of Rabbi Joseph B. Soloveitchik: Discourses on Fundamental Theological Issues in Judaism, Rowman & Littlefield Publishers, 2005, pp. 72-73).

The Aruch LaNer to our gemara, quoting the Sifrei, notes that the very act of planting an Asherah is forbidden, even if no one worships the tree. Here, too, the Gemara teaches that the mere act of appointing someone who is not worthy to be a judge is a sin, even if he never judges.

Similarly, the gemara, Avodah Zarah, daf Nun Beis, amud aleph, says: V’idach hahu mibaei leih l’kidResh Lakish, d’amar Resh Lakish, kol hama’amid dayan she’eino hagun, ke’ilu notea Asherah b’yisrael, shoftim b’shotrim titen lecha b’kol shearecha, usmich leih lo tita lecha Asherah kol etz. Amar Rav Ashi: u’vimkom talmidei chachamim, k’ilu n’tao etzel mizbeach, shene’emar, etzel mizbach HaShem Elokeicha.”

Rashi here, DH Etzel Mizbeach, says: “Talmidei chachamim. Da’Asherah okeminan bedayan she’eino hagun hallechech mizbeach nami begavrei;” if the Asherah is a metaphor for an unqualified judge, then the mizbach ought to be a metaphor for a person as well, in our case, a talmid chacham.

The Chiddushei haRitva here (s.v. Kol HaMa’amid) writes, “Perush shekeshem she’ein Shechinah shoreh bimkom avodah zarah kach ein Elohim nitzav ba’adat dayan she’eino hagun.” The Ritva explains the connection between an unsuitable dayan and idolatry in that the Shechinah is present in a beis din, as we are told: “HaShem is present in a congregation of the Lord, in the midst of judges” (Tehillim 82:1). An unsuitable dayan drives away the Shechinah and is thus like an idol. A talmid chacham is like the altar, which atones sins, and appointing an unsuitable dayan among talmidei chachamim is like erecting an idol next to the altar. The Shechinah is not manifest in the company of unworthy judges, just as it is not present among avodah zarah.

(The Baal HaTurim on our pasuk notes that dayan she’eino hagun, unfit judge, and Asherah, share the same gematria- “V’gematria dayan she’eino hagun sechel hama’amid dayan she’eino hagun ke’ilu notea Asherah etzel hamizbeach.” The gematria of Asherah is 506, the same as an unfit judge, for anyone who appoints a judge who is not fitting is considered as if he planted an Asherah tree near the altar. Likewise, the Baal HaTurim notes regarding the phrase “Asherah kol etz etzel mizbeach,” “B’gematria rasha etzel tzaddik;” the gematria (894) of “Asherah or any tree planted near the altar” is the same as “righteous near the wicked.”)

The Targum Yonoson on our pasuk goes beyond the connection of Asherah and appointing a dayan, and provides a more expansive understanding, encompassing also the construction of a one-stoned altar: “Heichema deleiteichon rasha’in lemintzov asheirata listar madbecha dayeya heichedein leiteichon rasha’in limzavevga bedina gavra tipsha im dayainaya chakimaya lemalifa lechon yat deta’abbedun lechon;” As it is forbidden to plant an Asherah by the side of the altar, so is it forbidden to associate in judgment a fool with a wise judge to teach that which you are to do. “Veheichema deleiteichon resha’in lemikma kama heichedein leiteichon rasha’in lemana’ah lefarnasa gavra zidena derachakeih HaShem Elahachon;” As it is not for you to erect a statue, so are you not to appoint to be a governor a proud man, whom HaShem hates. The Targum equates these idolatrous practices with appointing judges and leaders who lack the inner attributes of humility and wisdom that we ought to truly value.

The Rambam offers one explanation for the relationship between our mitzvos of “tzedek” and the issurim of Asherah, Matzeivah, and a blemished korban in our parsha. The Rambam writes: “Kol Sanhedrin o melech o rosh galut shehi’midu lahen leyisra’el dayan she’einu hagun, ve’einu chacham bechochmat hatorah, vera’ui lihyot dayan–‘af al pi shehu kulo machmadim, veyesh bo tovot acherot–harei zeh shehi’mido over velo ta’aseh. shene’emar “lo-takiru fanim bamishpat”- mipi hashemu’ah lamedu, shezeh medaber keneged hamemaneh lehoshiv hadayanin.” (Whenever a Sanhedrin, a king, or an exilarch appoints a judge who is not fitting and/or is not learned in the wisdom of the Torah and is not suitable to be a judge – even if he is entirely a delight and possesses other positive qualities – the person who appoints him violates a negative commandment, as Deuteronomy 1:17 states: “Do not show favoritism in judgment.” According to the Oral Tradition, we learned that this command is addressed to those who appoint judges- Rav Soloveitchik noted (Weiss, p. 73) that the above Targum Yonoson is the source for the Rambam’s psak that the dictum of Reish Lakish  brought above is actually a Torah prohibition and not an asmachta (a scriptural text invoked as support for a gezera d’rabbanan, a rabbinic enactment. The Sifrei Devarim, paragraph 17 (commenting on Devarim 1:17), learns that “Lo takiru” is addressed to those who appoint judges, admonishing them not to appoint those judges who satisfy superficial criteria of comeliness, physical attractiveness, physical ability, nepotism, who impress with an exotic tongue, or who lent the appointing authorities money, the syndrome of “one hand washes the other” (Lo takiru fanim bamishpat – zeh hamemuneh lehoshiv dayanim. Shema tomar. Ish eloni na’eh, oshivenu dayan. V’ish ploni gibor, oshivenu dayan! Ish ploni kerovei, oshivenu dayan! Ish peloni halvuni mamon, oshivenu dayan! Ish ploni yodea bechol lashon, oshivenu dayan. Based on the Sifrei’s novel reading of this pasuk, the Rambam cites Lo takiru panim bamishpat as the Torah source for the issur against appointing unqualified judges. In his Sefer HaMitzvot, the Rambam lists this prohibition as the 284th lo ta’aseh.)

The Rambam continues, incorporating our parsha’s other components of matzeivah: “Ameru chachamim, shemei tomar ish ploni na’eh oshivenu dayan, ish peloni kerovi oshivennu dayan, ish peloni yodea bechol lashon oshivenu dayan; venimtza mezakkeh et hachayav, umechayev et hazaka–lo mienei shehu rasha’, ela mipnei she’einu yodea. Lekach ne’emar “lo-takiru fanim bamishpat.”

(Our Sages declare: “Perhaps a person will say: ‘So and so is attractive, I will appoint him as a judge,’ ‘So and so is strong, I will appoint him as a judge,’ ‘So and so is my relative, I will appoint him as a judge,’ or “So and so knows all the languages, I will appoint him as a judge.’ This will lead to those who are liable being vindicated and those who should be vindicated held liable, not because the judge is wicked, but because he does not know Torah law. Therefore, the Torah states: “Do not show favoritism in judgment.”)

Ve’od ameru chachamim, kol hama’mid lahem leyisra’el dayan she’einu hagun–ke’illu hekim matzevah, shene’emar “velo-takim lecha, matzevah, asher sane, HaShem Eloheicha, uvimkom talmidei chachamim ke’illu nata asherah, shene’emar “lo-titta lecha asherah, kol-‘etz. etzel, mizbach HaShem Elokeicha–‘asher ta’aseh-lach.” (Our Sages also declare: “Whoever appoints a judge who is not appropriate for the Jewish people is considered as if he erected a monument, as implied by Deuteronomy 16:22: “Do not erect a monument which is hated by God, your Lord.” If he is appointed instead of a Torah scholar, it is as if one planted an Asherah, as Ibid.:21 states: “Do not plant an asherah or any other tree next to G-d’s altar.”)

In the next perek, the Rambam incorporates the blemished korban into his analysis of unfit judges (Sanhedrin perek daled, halakha tes vav): “Mi she’einu ra’ui ladun mipnei she’einu yodea’, o mipnei she’einu hagun, she’avar rosh galut venatan lo reshut, o shetta’u beit din venatenu lo reshut–‘ein hareshut mo’elet lo kelum, ad sheyihyeh ra’ui. Shehamakdish ba’al mum lamizbeach, ein kedushah chalah alav.” (When a person is not fit to act as a judge because he is not knowledgeable or because he lacks proper character and an exiliarch transgressed and granted him authority or the court erred and granted him authority, the authority granted him is of no consequence unless he is fit. To cite a parallel: When a person consecrates an animal with a physical blemish to be sacrificed on the altar, the holiness does not encompass it.)

The Rambam writes that appointing a judge who is not God-fearing or, despite other good qualities, lacks the necessary knowledge of Torah to judge – will lead to perverting justice. He compares appointing the judge to all three sins: planting an asheirah, putting up a matzeivah, and offering a sacrifice with a blemish. The Rambam’s version of the Gemara seems to be slightly different than ours; the Maharik in his Teshuvot, shoresh kuf yud zayin, explains the Rambam’s connections among these elements from our parsha further. The Maharik is brought by the Kesef Mishneh, Lechem Mishneh and Ohr haYashar  to our Rambam, as well as the Chiddushei Radal to our Midrash, he’arah yud gimel: “Lo titta vechulei, lo takim vechulei, lo tizbach vechulei. Shekol eilu nidrashim bedayanim she’einam hagunim u’chmo shekatavnu Maharik b’teshuvot shoresh kuf yud zayin, iyun sham; Don’t plant … don’t put up … don’t sacrifice …: For all of these are explained in drashot as referring to improper judges, as the Maharik explained in section 117.”

The Maharik notes that the passage cited by the Rambam does not actually appear in any Talmudic source. Our gemara says that one who appoints an unqualified judge is akin to having planted an Asherah, but nowhere does it draw an equation to erecting a sacrificial monument, a mizbeach, or sacrificing a baal mum. (The Kesef Mishneh speculates that the Rambam had an alternative girsa or access to some other source that has been since lost). According to the Maharik, if we examine the Rambam in perek gimmel of Sanhedrin, we find that he compares appointing an unsuitable dayan to the prohibition of “you shall not erect a matzeivah (monument)” whereas he only compares appointing an unsuitable person among talmidei chachamim to planting an asheirah next to the altar. Maharik explains that both prohibitions hint at appointing an unsuitable dayan. Sometimes a person is appointed who doesn’t know right from left and sits in the beis din like a stone monument. Other times a person is wanted for his knowledge, though he does not fear Hashem and may be swayed by bribery. Such a person is wanted for the fruit of his wisdom and resembles an asheirah, which bears iniquitous fruit. He says that the asherah, matzevah, and the baal mum allude to the following three types of invalid judges. An evil judge is like an asherah tree; an unlearned judge is like a matzevah; and a judge with a bad reputation is like a sacrifice with a blemish. An Asherah tree can be a beautiful tree with many branches. However, the purpose for which it was planted — idol worship — defines its essence and renders it forbidden. Similarly, even if a person possesses wisdom and insight, he is not fit to be a Dayan if his actions are inappropriate. Certainly, one who is attractive but lacking in the proper qualities and midot befitting a judge is abominable, if he is appointed. Maharik says that a judge must possess three qualities: he must have sterling character; he must not stray after bribery and favoritism; and he must have the wisdom and knowledge to judge properly. If he has blemishes in his character he is compared to a sacrifice with a physical blemish, and unacceptable as a judge (Rambam, Sanhedrin 4:15). If he is drawn after bribery, he is like an Asherah tree, which is referred to as a to’evah, an abomination, an expression used in conjunction with a corrupt judge. And appointing a judge that lacks the necessary knowledge is likened to putting up a matzeivah, that the Torah describes as sanui, “hated by Hashem your God,” an expression used for a judge who renders incorrect decisions.

The Sforno explains, “Hevi sheloshah domim me’inyan devarim shehem na’im kefi hachush venim’asim mipnei mumam haruchani;” our parsha here brings three similar topics: things that are aesthetically beautiful (literally, “according to the sense”) but abominable because of their spiritual flaws.

The Sforno continues, “Rishonah hi ha’asherah shehi lenoy heichalot u’mikol makom HaShem nim’eset lekadesh mipnei shehaytah tachsis la’avodat gilulim.” First is the asherah [or any tree at all], which is an adornment to temples. Nevertheless, it is abominable for holiness because it was part of idolatrous ceremonies. Vechen nakdim ha’adafat hatzedek haruchani lishlemut guf hadayan shehu choshai vegashmi. Similarly, writes the Sforno, we are to prefer spiritual justice over the judge’s physical perfection, which is merely of the [external] senses and physical. According to the Sforno, each one of these laws – the asherah, the matzevah, and the blemish (mum) – is also a metaphor for an unacceptable judge. This explains why the Torah places them here. For the Sforno, beauty and aesthetics are secondary to inner, moral and spiritual attributes, an articulation of the Jewish philosophy of beauty.

Lord Rabbi Jonathan Sacks notes, rather matter-of-factly, that “Judaism is skeptical about appearances. Judaism has emphasized inner attributes and qualities over beauty and aesthetics. Shaul haMelech, the first king of Israel, had the “right” appearance. Shmuel Aleph, perek tet, pasuk beit, seems to equate goodliness with physical appearances, as Shaul is described as, Mishichmo vama’lah, gavoah mikkol-ha’am. From his shoulders and upward he was higher than any of the people. He was the most handsome among the young men of Israel. Yet, morally, he was a dwarf, a follower rather than a leader, insecure, temperamental, and devoid of moral stature. When HaShem told Shmuel that He had rejected Shaul, and that Shmuel should anoint a son of Yishai as melech, Shmuel went to Yishai and saw that one of his sons, Eliav, looked the part. He thought he was the one HaShem had chosen, yet he was mistaken, as we read in Shmuel Alef, perek tet vav, pasuk zayin: “Vayomer Hashem el-Shmuel, al-tabet el-marehu ve’el-gevoah komato–ki me’astihu. ki lo, asher yir’eh ha’adam–ki ha’adam yir’eh la’einayim, v’HaShem yir’eh lallevav.” HaShem says to Shmuel, ‘Look not on his countenance, or on the height of his stature; because I have rejected him; for it is not as man seeth: for man looketh on the outward appearance, but the LORD looketh on the heart.’ Like the Sforno’s dandy judge, exemplified in the mum, the asherah and the matzevah, Shaul was aesthetically beautiful but morally and spiritually flawed.

Likewise, clothing, the aesthetic, outer garments, are associated with deception and shame, in six episodes in Sefer Bereshit. Adam and Eve are clothed to hide shame and upon leaving the Garden of Eden as a sign of their permanently altered state and broken relationship with G-d (the Torah’s very first mention of clothing is connected with lying, punishment, disobedience, banishment from paradise, and betrayal of trust). There are Esav’s bigdei chamudot, “best clothes,” that Yaakov puts on to take Yitzchak’s blessing. There is the ketonet pasim, the “richly embroidered cloak” that Yaakov has made for his favorite son, Yosef. There are the clothes and veil of a prostitute that Tamar puts on when she removes her “widow’s garments” [bigdei almenutah] in order to attract Judah. There is the beged, cloak or robe, that Yosef leaves in the hand of Potiphar’s wife when he flees from her attempt to seduce him. And there are, as mentioned above, the special robes [bigdei shesh] and insignia of office that Joseph wears as second-in-command to Pharaoh. In all these episodes, clothing, external appearances, are used to deceive. Yaakov wears Esav’s clothes to deceive his blind father Yitzchak when he puts out his hand to feel him. The brothers stain Yosef’s cloak with goat’s blood to persuade their father Yaakov that he has been killed by a wild animal. Tamar changes her clothes and puts on a veil to hide her identity from Yehuda. Eshet Potiphar uses the robe Yosef has abandoned to bolster her claim that he tried to rape her, and Yosef uses his new-found appearance as an Egyptian viceroy to hide his identity from his brothers. Indeed, the word for clothing, beged, shares the same root as bagadnu, as in “We have Betrayed,” the second sin we confess to in our Viddui confessional.

Beauty does has its place within halakha; we do have a concept of hiddur mitzvah, requiring us to ensure that tashmishei mitzvah are not only valid but also beautiful (whereas Western civilization emphasizes the holiness of beauty, Judaism stresses the beauty of holiness, hadrat kodesh, as we learn from “Zeh Keli v’Anvehu,” this is my G-d and I will glorify Him, that we should beautify our mitzvot); a kohen with a blemish, a baal mum, may not participate in the Temple avodah; a blemished animal may not be brought for a sacrifice. A man should wed a woman who is attractive in his eyes (Ketubot 72a, Yevamot 63b, Ta’anit 31a) . So too, the Torah in Parshat Tetzaveh commands that special vestments be worn by the kohanim during the avodah. But even then, this seems distant from the Jewish ideal; the Rambam, in Moreh Nevuchim, chelek gimel, perek mem hei, says that the vestments and pomp of the Beit haMikdash are a concession to the superficialities of the human condition, the human fixation on appearances, as salient in ancient times as the present day. Our weakness for the superficial and for the aesthetically attractive is not anything new in the course of human behavior, nothing new under the sun:

“Ul’hagdil habayit od – higdil ma’alat ovedav venivdelo hakohanim vehalevi’im vetzivah lehalbish ha’kohanim begadim na’im umalbushim yafim vetovim “bigdei kodesh lichvod uletif’aret ” veshello yeshamesh ba’avodah ‘ba’al mum velo ba’al mum levad ella hakki’urim gam ken poselim b’kohanim – kemo shehitba’arah battalmud zot hamitzvah – mipnei shehehamon lo yegadel adam etzlam betzurato ha’amittit ela bishlemut eivarav vifi begadav; vehamechaven – shetihyeh lebayit gedolah vetif’eret etzel hakhel. In order to raise the estimation of the Temple, those who ministered therein received great honor: and the priests and Levites were therefore distinguished from the rest. It was commanded that the priests should be clothed properly with beautiful and good garments, “holy garments for glory and for beauty” (Exodus 28:2). A priest that had a blemish was not allowed to officiate; and not only those that had a blemish were excluded from the service, but also–according to the Talmudic interpretation of this precept–those that had an abnormal appearance; for the multitude does not estimate man by his true form but by the perfection of his bodily limbs and the beauty of his garments, and the temple was to be held in great reverence by all. In other words, for those who really understand the nature of the religious life, appearances should not matter at all, but “the multitude,” the masses, the hoi polloi, are not like that. They are impressed by spectacle, visible grandeur, the glitter of gold, the jewels of the breastplate, the rich pageantry of scarlet and purple and the pristine purity of white linen robes.

When the Torah does expect beauty, such as in the issur of bringing a baal mum, a blemished korban, perhaps we can understand this in light of the Moreh Nevuchim- such standards exist for the benefit and edification of us mortal humans. G-d does not need our offerings or our finest possessions. Korbanos primarily benefit us; the Meshech Chochmah cites the Emunot ve’Deot of R’ Saadia Gaon (maamar gimel), who states that the person bringing the korban becomes elevated as a result, as well as the statement of Ben Azzai in Menachos 110a that in the parsha of korbanos, we see “HaShem” and not “Elohim” or “El,” so that the Torah would not give the impression that sacrifices strengthen G-d in any way. Like the bigdei kahuna, an unblemished korban increases the joy and spirituality of the human who offers it, and not the benefit of the Deity to whom it is addressed.

Just as the masses are impacted by unblemished sacrifices and priestly vestments, externalities, they too are easily swayed by a handsome and tall king or judge. They may end up being the type of teacher identified in the above-cited research studies who would resign an ugly student to a future of failure, the type of person who would vote for a politician because of his swagger and wardrobe, or who would buy insurance from an attractive salesperson.

The ikkar, the main point, though, is “l’kavod u’l’tifaret,” for the honor and glory of G-d, in the Jewish approach towards the aesthetic. HaShem is never referred to yafeh, beautiful, but He is referred to as adir, splendid, and His voice as hadar, majestic. Rav Aharon Lichtenstein notes, “The verse says (Tehillim 29:4), “Kol Hashem ba-ko’ach; kol Hashem be-hadar—The voice of God is power; the voice of God is splendor.” We perceive God in one sense as boundless, unbridled power. In another sense, we perceive Him in terms of values, of truth and goodness. … Hadar is presumably some kind of objective beauty, a moral beauty, a beauty of truth.”(Rabbi Reuven Ziegler, By His Light: Character and Values in the Service of God, Based on the Addresses of Rabbi Aharon Lichtenstein, Jersey City, NJ: Ktav, 2003, p. 107). Judaism emphasizes the beauty which lies within, not beauty for its own sake, certainly not beauty that is Platonic, eternal, and abiding. The aesthetic is a “fleeting human perception of G-d’s action in the world” in Judaism, to quote David P. Goldman, in his analysis of Jewish relationships to Christian classical music.

It is this moral beauty, these Divine attributes, says the Sforno, Maharik, and Rambam, that we ought to seek out in those who execute justice and lead our communities. Aesthetic beauty is secondary to morality and spirituality; perhaps this is why the Jews never produced a Bach or a DaVinci. It is the Platonic conception of beauty, which equates the good with the aesthetically pleasing, which makes the Divine understandable to humans through that which looks and sounds nice, that has fueled 2000 years of Western civilization and Christendom’s aesthetic achievements, many of which are innately idolatrous, akin to the altar-side Asherah or the one-stone altar. Planting a tree in an attempt to beautify the Temple, is a completely misguided act, rooted in non-Jewish, pagan notions of aesthetics. The beauty of the Beit HaMikdash flows from itself and its spiritual essence. To believe that external decorations and aesthetically appealing accouterments can contribute to its beauty is to lack any significant understanding of what the Beit HaMikdash and its purpose is. So too, to appoint a judge because of personal appearance, a cunning tongue, wealth, stature, or any aesthetic, superficial reasons (and not because of scholarship and worthiness to judge) is equally “missing the point”.

Thus, the Sforno continues, commenting on the Torah’s pasul of a one-stone altar: “Shenit hamatzevah she’af al pi shehayetah leratzon kodem mattan torah ke’ameru usheteim esreh matzevah. Vezeh ki hayah aninah ka’eliu hamkarev nitzav tamid lifnei hekdesh ke’inyan shivviti HaShem lenegdi tamid venafelu mizot hamadregah be’inyan ha’egel ke’ameru sam ki lo a’aleh bekirbecha. Vechen yekarah be’inyan zaken she’ein pereku na’eh sheyatza alav sam ra beyalduto keshettimtza zaken uferako na’eh;” Second is the one-stone altar, the matzeivah, that even though it was desired by Hashem before the giving of the Torah, as it says, “and [Moshe put up] twelve one-stone altars” (Shemot 24:4) [it is still considered invalid]. The concept behind the one-stone altar was that it was as if the person making an offering was always standing before [G-d’s] holiness (the word matzeivah is related to the word nitzav, standing). It is the same concept as the verse, “I place G-d before me constantly” (Tehillim 16:8). But Israel fell from that level through the Golden Calf episode, as it says, “For I will not go up in your midst” (Shemot 33:3). This will also happen with regards to an elder who did not have a good reputation as a youth, that when you find an elder who had a good reputation even as a youth [the latter is preferred].

Similarly, we learn from the issur of offering a mum, according to the Sforno:  Shelishit, hevi inyan hamum, hanim’as af al pi shetihyeh habehemah yafah kefi hachush ushemenah shavah elef zuz. Ve’im kol zeh hi nifselet lekaddesh mipnei mum bilti mechaser medamim. Veyihyeh shor shavah sela bishvil heyoto tamim kasher lekorban. Vechen yihyeh bezaken ba’al middah meguneh keshettimtza shalem mimenu bemadvat shelo yihyeh ashir vena’eh kamohu.” Third, it brings the matter of the blemish, considered abominable even though the animal looks externally beautiful, fat and worth a thousand zuz coins. Nevertheless, it is still invalid for a holy [sacrifice] because of its blemish, even though it doesn’t even detract from its value. In contrast, an ox that is only worth one sela coin but is unblemished is valid as a sacrifice. Similarly, an elder who has a bad character trait is rejected in favor of another whose character is better, even though the first is more wealthy and handsome than the second.

A beautiful tree planted near a lofty temple creates an aesthetically pleasing picture and makes a great impression, but the tree’s association with the idolatrous asherah trees that adorned pagan temples invalidates it. Aesthetics is secondary to spirituality. A fattened, expensive beast cannot be brought for a korban if it has a blemish in it, a “davar ra,” and a matzeivah, which appears wholesome, but whose usage feeds idolatrous temptations and proclivities, is likewise pasul.

The Torah here teaches us to apply the same principle to the justice system, says the Sforno. Though a strong and handsome judge might make a great impression and add to the prestige of his office, appearance is a secondary consideration when appointing judges. The primary value of justice must take precedence over the secondary value of good appearances. When choosing between two judges, the one that is a little more just should be preferred over the one whose appearance is a little more impressive. To do otherwise is to choose the path of Platonic aestheticism, the course of pagan accoutrement, pomp and externalities, the gravest form of betraying G-d. Such unethical superficiality directly causes an incompetent and corrupt judiciary, which for Chazal is no better than erecting an idol in the courtyard of the Beit haMikdash.

Reb Chaim Brisker, cited in Ma’atikei Shemu’a, vol. 2, p. 156, condemns this superficiality in the strongest terms. He notes that often, the  unqualified judge will receive the appointment because of his misleading external qualities. Good looks and charm will often mislead the authorities to appoint individuals lacking substantive credentials to important positions.  Chazal here draw our attention to the fact that people are sometimes like a beautiful, majestic Asherah tree, whose impressive exterior is a grossly inaccurate reflection of its true value.  Just as the beauty of the Asherah says nothing about its actual worth, similarly, people’s external qualities are not reliable indicators of their characters or credentials. The world is full of illusions, various idolatries, which are beautiful on the exterior, and inwardly rotten to the core. Sheker hachen, v’hevel hayofi. Beauty is fleeting and charm deceiving. Or as we are enjoined in Pirkei Avot (4:20), “Rabbi omer: Al tistakel bakankan, ela vemah sheyesh bo.” Rebbi says, look not at the vessel, but at what is in it. Look not at the beauty of the Asherah, but at the rottenness that defines its very essence. Do not be sidetracked by the appearance of a politician, judge, or rabbi, but at the principles they espouse and the truths they have to share. Look not at the comb-over, weight, height, suit, dress, nails or shoes, but at their chochma (wisdom), shem tov (good name), ahavat habriyot (love of humanity), ahavat haemet (love of truth), sinat mamon (disdain for wealth), yirat shamayim (fear of the Lord), and anavah (humility), the seven qualities the Rambam delineates for the judiciary. (Rambam, Hilchos Sanhedrin 2:7).  Torah and godliness thrive best in earthen vessels, not vessels of silver and gold, as we read in Nedarim 50b- “Amrah leih bat keisar l’Rabbi Yehoshua ben Chananya, Torah mefoara b’kli mechoar;” the daughter of the Caesar said to R’ Yehoshua ben Chananya, how can such beautiful torah be in such an ugly vessel (how could such an unattractive man be the repository of such wisdom)?” Amar lah, “limdi mibeit avuch- bameh m’nichin yayin?” He said to her, learn from your father’s house- where do they store wine? Amrah leih, b’manei d’pachra. She replied, in earthen vessels. Amar lah, kulei alma b’pachra v’atun b’manei d’pachra? Atun achitun b’manei d’kaspa v’dahaba. He queried, the entire world uses earthenware vessels and you, the royal family, are also using earthenware vessels? You should rather put your wine in gold and silver vessels. Azlat v’ramat chamra b’manei d’kaspa v’dahaba- v’sarei. She went ahead and listened, and as a result, the wine soured. Af orayta ken, and so to it is with Torah. (Rashi, Taanis 7b, DH Tefi hevu gemiri – she’i efshar lena’eh lehashpil da’to uva lidei shichchah- the superficial, the handsome cannot humble themselves to the point where they are a vessel capable of retaining Torah, and they will lose it as a result).

May the Ribbono Shel Olam grant us the strength of character and the resolve to look past the external, past looks, past charm, wit, socioeconomic status, or any of the externalities and superficialities that pervert the order of what is good and just. May G-d grant us the strength to cast out the idolatry of superficiality, the idolatry of the Asherah planted by the mizbeach, which elevates the physical and the aesthetic over that which is ultimately real: wisdom, holiness, truth, Torah. Amen.

About the Author
Daniel Sayani is a student of traditional Jewish texts, with an eye towards their contemporary applications. He has been widely published on issues of Torah, religion, ethics, and their geopolitical dimensions. He is also an ordained Orthodox rabbi, and a firm proponent of mesorah. He currently serves as rov of Kehillas Mevaser Tov in East Brunswick, NJ. Rabbi Sayani is frequently consulted for his expertise in matters pertaining to chevra kadisha and Jewish end-of-life practices. He has semicha Yoreh Yoreh from the Nitei Gavriel, HaRav Gavriel Tzinner, shlita, Rav Refoel Dovid Banon, Rav Yochanan Gurary, Rav Dovid Schochet, Rav Yosef Yeshaya Braun, from Yeshivas Ohr Kedoshim d'Biala, Kollel Hachshores L'Rabbonus, and Yeshivas Pirchei Shoshanim, and is a graduate of the Young Israel Rabbinic Training Program.