2 Elul 5780 August 21, 2020
After laying the foundation for an anti-idolatrous society, Moshe turns his attention to new mitzvot Parashat Shoftim that will enable the Jewish people to build their society. Moshe opens with the imperative to establish a fair judiciary: tzedek yzedek tirdof, “pursue, pursue justice.” Rashi explains that a Jewish society must find righteous judges and fair courts. Ibn Ezra adds that righteousness must be a cornerstone of society so that all litigants recognize and accept verdicts as fair, even when they are not in their financial favor. Rambam expands the criteria for judges beyond people who are not driven by profit motives or predisposed to favoritism. He teaches that a judge must look dignified, must speak many languages in order to understand the cultural mind-set of the litigants, must be educated and wise, must be wealthy so that they will not be enticed to accept bribes.
Moshe then turns his attention to mitzvot governing a king. The main concern is that the person holding the most important position of leadership not abuse his power. The Torah protects the people against such abuses. Moshe teaches that even the king is not above the law. The king is not permitted to use his position to his financial advantage and fill his treasury with personal gain. The king is not permitted to use military force or his own personal benefit. The king is not permitted to form alliances with idolatrous nations by having many wives. The king is not permitted to turn back the historical clock and return the nation to the ways of Egypt. Rambam expands these controls on the king’s power. Should the king need to sequester land or quarter troops in people’s homes, he is obligated to pay for room and board at fair market prices. In effect, the Torah holds the king accountable to principles of honesty, fairness and justice. As Rambam explains, the king must “…respect the poor and see himself as the servant of the entire nation.” The king is obligated to write two sifre Torah, and to read from the Torah daily, in order that he cultivate and maintain a character of humility and protect the people from his becoming arrogant and self-important.
Moshe then instructs the nation to adhere to the truth. All forms of superstition are forbidden, particularly when engaged to anticipate future policy. A Jewish society must remain humble and behave with awe and respect for the forces of nature that reflect God’s ultimate power in the world. In contemporary terms, the Torah demands that leaders lead with the power of rational thought. They need to appeal to science and medical knowledge in order to understand the ways and power of nature. The obligation to build safe haven cities ensures that forces of passion, violence and anger not undermine society’s dedication to justice. Tragic mistakes happen, but all actions and their consequences must be adjudicated legally, and not succumb to the chaos of vigilantism.
Indeed, the entire parasha instructs our people about the foundational importance of a fair, equitable judiciary, leadership of ethical and rational character, the dedication to justice, and the awe and humility that comes from a commitment to the truth. In this context, Moshe teaches the seriousness of the felony crime of perjury. The harsh consequence for ‘edim zomemim, lying witnesses, is such an example. Moshe paints a picture of a society that balances righteousness with compassion, justice with empathy, and the truth with love. These balances must start with leadership, modeled in government, and then permeate the population. In the advent of war, the Torah recognizes and affirms the meaning of life-events of individual soldiers for their lives and for the morale of the military. Soldiers who married but have not lived together for a year are exempt. The same exemption applies to soldiers who have planted new fields without harvesting them, or who are too faint-hearted to spill blood in battle. Underlying these exemptions is the profound recognition that life is precious, war, horrific if sometimes necessary, and that there lies a tension and balance between the needs of the individual and the needs of the nation. This sensibility also applies to the natural world. Fighting an enemy is a singular goal; it does not permit a Jewish army to decimate the natural environment. The ends do not justify the means, and the Torah forbids the destruction of fruit-bearing trees in order to lay siege to a city.
The commitment to justice, truth, rationality, humility, and empathy is most exemplified by the final mitzvah of parashat shoftim. This is the ritual of the ‘eglah arufah, the ritual of “breaking the heifer’s neck.” The Torah says:
If, in the land that the LORD your God is giving you, the corpse of a person who was murdered is found lying in the open, and nobody knows who it is, then your elders must go out and measure the distances from the corpse to the nearby towns. The elders of the town nearest to the corpse must then take a heifer, a young cow, that has never worked in the field, and has never pulled a yoke for a plow. The elders of that town must bring the heifer down to a flowing river in a wild field that has never been planted, which is not tilled or sown. There, by the river, they must break the heifer’s neck. This is called the mitzvah of the eglah ‘arufah, “the young cow with the broken neck.” Then kohanim must come to that place because part of their responsibility is to serve as judges in court cases and to make certain that the Jewish society protects justice. Then all the elders of the town nearest to the corpse must wash their hands over the eglah ‘arufah whose neck was broken in the riverbed. And then those elders must say out loud: “Our hands did not spill this blood, and our eyes did not see it done. Please forgive us, Hashem! We are taking responsibility for this terrible murder, even though we are innocent. Hashem, please do not punish us and do not see us as guilty for spilling the blood of an innocent person.” When they do this, they will be forgiven of bloodguilt. By doing this ritual, you will remove from your midst guilt for the blood of the innocent, for you will be doing what is right in the sight of God. (Devarim 21:1-9)
This is a fascinating, powerful ritual. Moshe is teaching us that Jewish leaders should never be permitted to say, “I take no responsibility.” Imagine such a society, in which the cultural sensibility of the entire population, exemplified by the leadership, feels responsible for tragedies that occur on their watch! Imagine a society in which nobody claims, “I did not do that, so I am not responsible.” Imagine a world, modeled by such a society, in which the natural inclination of leadership is to reach out and measure their closeness to a catastrophe and seek ways of repair and healing. The measuring between city and corpse is an internal measuring, as in the term, middot. By the elders measuring the external topography of their district, they are modeling the requirement for an internal measuring, a cheshbon hanefesh of the entire society, asking aloud: “How could this have happened here? What have we not done? How could we have allowed the murder of an unprotected, dependent, wayfarer? How have we allowed our society to become dangerous to one bereft of its privileges or benefits? Where and how and when were we negligent? If our ancestors overlooked these matters, then we must fix it now, under our watch.” Imagine such a sensibility.
That is exactly what the Kohanim and elders declare out loud: “Please forgive us, Hashem! We did not literally spill this blood, but we are taking responsibility in order that blood not remain on our hands.” Rashi quotes the Talmud Bavli’s explanation of this ritual. On the words, and they shall break the heifer’s neck, Rashi wrote: i.e. one breaks its neck with a hatchet. The Holy One, blessed be God, says, as it were, Let a heifer which is only one year old and which therefore has brought forth no fruits (no offspring) have its neck broken at a spot (the untilled valley) which has not brought forth fruits, to expiate for the murder of him whom they did not permit further to beget children (Sotah 46a). Taking responsibility for all that occurs in society expiates for sin, including outcomes that we did not cause directly. Moshe is teaching a profound value. Starting with the leader of a Jewish society, God wants us to balance justice with compassion, truth with self-judgment, rationality with righteousness. All of these commitments, however, rest on our recognition that a humanity sharing God’s beautiful world requires our taking responsibility for actions, structures, laws, policies, attitudes, and beliefs that cause pain, indignities, injustices, and the destruction of life. As Rabbi Avraham Yehoshua heschel said, “In a free society, some are guilty, all are responsible.” This teaching lies at the heart of parashat shoftim.