Frederick M. Lawrence
Frederick M. Lawrence

The work of Shabbat Nachamu

Shabbat Nachamu seems to have come at precisely the right time, a time when we can certainly all use some comfort. What is the best way for us to follow the admonition that opens today’s haftarah and seek comfort?

In life unlike geometry, sometimes a straight line is not the shortest and most direct route. Nearly twenty years ago, I attended the retirement celebration/commemoration of Rabbi Robert Miller, now Rabbi emeritus, of Temple Beth Avodah in Newton, Massachusetts. On that occasion, he shared the story of what father-in-law told him. “Don’t take a position at a congregation that has ‘shalom’ in its name as you will never find peace there. But if you can find a congregation with ‘avodah’ (work) in its name, you might just get some work done.”

So what is the avodah that will bring us to our nachemu moment, and that will bring us some peace and some comfort.

Our Sedra seems to suggest several opportunities.  In many ways, Ve’Ethanan is it the essence of Seder D’varim, the Deuteronomy of Deuteronomy if you will. Moshe’s final expositions over the final weeks of his life represent the recapitulation of the law and our sedra has what can be seen as the central moment, the recapitulation of the Aseret HaDibrot, the 10 Commandments, along with among the most celebrated pesukim (verses) in all Tanach, (Bible): the Sh’ma and the first paragraph of kriat Sh’ma, the Ve’ahavta. It is the sedra of such foundational mitzvot as Ahavat Ha-Shem, love of God, and l’hamin ki Ha-Shem, belief in the Oneness God, and lilmod machmat hatorah ul’lamda, the mitzvah of studying the Torah.

But my focus is drawn to another pasuk today, and a different mitzvah or, as we will come to, perhaps not a mitzvah at all but rather a methodology for thinking about what it means to live within what my late teacher Robert Cover once called a mitzvah thick reality, or Nomos as he used that term. It is the pasuk of Deuteronomy 6:18: v’ashita hayashar b’hatov b’eyney ha’Shem. “And you shall do that which is right and good in the sight of the Lord.”

The verse begs the question as to what role it could possibly play after numerous recapitulations of the laws. If one has observed and kept all of the mitzvot, all of the hukim v’mishpatim (statutes and ordinances), wouldn’t he or she be entitled to a presumption of having done that which is “right and good in the sight of the Lord?”

One possible explanation is that this verse is not really a mitzvah at all – it is rather a summary of all other mitzvot designed for rhetorical effect. That, of course, would run contrary to the understanding that no word in Torah is merely for rhetorical effect but rather is always for some greater purpose. Still, it is noteworthy that the Sefer Ha-Hinuch, which orders all of the 613 mitzvot set out in the Ramban’s (Maimonides) Sefer ha-Mitzvot (Book of the Commandments), sedra by sedra, our verse is not set out in the enumerated mitzvot associated with Parashat Ve’ethanan. The Rambam in the Sefer ha-Mitzvot does not count “doing what is right and good in the eyes of the Lord” as a separate mitzvah. We will return to what the Rambam does think about the role of hayashar b’hatov b’eyney ha’Shem.

Both Rashi and the Ramban (Nachmanides) do in fact find a new obligation implied by our verse. Rashi says that “that which is right and good” implies a compromise beyond the letter of the law. The Ramban builds on the Rashi and begins our understanding of what Rashi may mean.  The Ramban makes two points here. First, he sets forth his understanding that, as comprehensive as the mitzvot are, it is not possible to articulate a set of specific rules, laws and standards that cover every conceivable human condition. Thus the Ramban posits that there will be cases in which no specific divine command applies to a situation; when that occurs, we should use the background rule to do that which is right and good in God’s eyes. To understand the originality of the Ramban’s position, we may look to an alternative approach that the Ramban, writing in the 13th century, would not have had: the Enlightenment and its role as the philosophical underpinnings of Anglo-American jurisprudence.

What alternative background rule could we have? Social contract theory begins with autonomous human beings who possess autonomy and sovereignty that is the essence of their very humanity. They exist in a pure state of nature, as Thomas Hobbes called the “natural condition of mankind” in Levithan and elsewhere. Social structures are formed when those individuals surrender some of their autonomy to the collective for the good of all. Hence the social contract. The background rule, for Hobbes and Locke and their colleagues, is that those rights not surrendered to the collective in the social contract are retained by the individual. Lawyers or constitutional historians will recognize the resonance with the Tenth Amendment to the Constitution, that provides that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Thus to overstate only slightly, the background principle for the Enlightenment and for our own system of government, is that:

  • in the absence of “thou shalt not”, you may; and
  • in the absence of “thou shalt”, you may refrain from doing so if you wish.

The Ramban’s background rule is non-libertarian and it is robust.  In the absence of a particular divine injunction, do that which is good and right and God’s sight.

The Ramban’s second point re-states the Rashi, but does not really advance our understanding of it. The purpose of the “general injunction” to do what is right and good in God’s eyes is to fills any gaps that might be left between specific injunctions, accepting where necessary, the Ramban says, even a compromise in a legal dispute and going beyond the letter of the law.”  Why is the Ramban talking about compromises here, just as Rashi did?

Nehama Leibowitz helpfully suggests that we compare our verse with another, from the very beginning of Parashat Kedoshim. (Leviticus 19:2). We may ask the same question of this verse as we did of our verse at the beginning – what is the added value of an injunction to be holy over and above a thick set of injunctions represented by the full panoply of the 613 mitzvot? Once again, when we turn to the Sefer Ha-Hinuch, we find that there is no specific mitzvah associated with kidoshim t’hiyu. Another “general exhortation”? Not to the Ramban. Again, the Ramban finds with kidoshim t’hiyu to be a useful background rule, and here, he appears to anticipate the Enlightenment. The Ramban was concerned that one could become naval bi-reshut ha-Torah, “a fool by authorization of the Torah.” There are, after all so many rules, that anything not prohibited might in fact be tempting. That certain foods are permitted, for example, does not justify gluttony. The Ramban looks to kidoshim t’hiyu as the background principle for cases in our relations with God: if a particular mitzvah does not apply, we should still seek to holy. Doing what is right and good in the eyes of the Lord is the background principle in our relations with each other: if a particular mitzvah does not apply, we should still seek to do what is good and right in God’s eyes.

But why were the Ramban and Rashi talking about compromise as the key to doing what is good and right in God’s eye’s? Here we do best to move from the abstract to the concrete, as with the example found in the Talmud in Tractate Bava Metzia (83A). Some porters negligently broke a barrel of wine that belonged to Rabbah bar bar Chana. He took their garments as a pledge against their obligation to pay him back and they went and complained to Rav who told bar Chana to given them back their garments.  Bar Chana said “is this the law?” Rav did not say “yes.” Rather, he said, even so, give it back to them, quoting from Mishlei Proverbs (2:20) “l’ma’an telech b’derech tovim,” “So that you may go in the way of the good or upright.” Thereafter the Gemara says, he returned their garments but when they asked for their wages, being poor and without food, he refused, claiming that they owed him already for the damage done to his property.  Once again, Rav ordered him to pay their wage, finishing the verse from Proverbs: v’erchot tzadikim tishmor“(and the paths of the righteous shalt thou keep”).

Rav used the verse from Proverbs as we have looked to our verse today – there is a background principle to do something beyond the law.  This is Rashi and Ramban’s notion of compromising – what lawyers would call negotiating against yourself; that is, yielding on a claim on which you have the right to prevail. A more dramatic and well-known teaching that makes the same point, and that is particularly relevant to the point in time where we find ourselves – on Shabbat Nachamu and but one week out from Tisha B’Av — is the teaching of Rabbi Yohanan, also from Bava Metzia (30b): “Jerusalem was destroyed only because they acted in accordance with the letter of the Torah and did not go beyond it.”

Finally, let us return to the Rambam who we said at the beginning did not include v’asita ha-yashar v’hatov as a free-standing mitzvah in his Sefer Ha-mitzvot. But he clearly did understand its powerful role as a background principle in the same sense that Rashi spoke of compromising one’s rights as the essence of doing what is right and good. In the Mishnah Torah, Hilkhot Shekhenim (12:5), the Rambam states that a landowner who wishes to sell his land must give his neighbor precedence in the sale – what we would today call a right of first refusal. This is true, the Rambam says, even if he wished to sell to a scholar or a kinsman and if the neighbor were an am ha-aretz (ignorant person) or complete stranger. The supporting text is not from any law of property.  It is our verse, v’asita ha-yasha v’hatov, to go what is right and good.

We are called upon to live not in the state of nature, but in a mitzvah thick environment. Where those mitzvot run out and do not fully encompass, we are asked to fill in the gaps in the law not by retreating within but by reaching out. Those who failed to do so, every bit as much as the Romans, destroyed Jerusalem. We are bound not merely to observe all mitzvot, all hukkim v’mishpatim, (statutes and ordinances) as onerous as that alone is. We are bound as well to go beyond – the profound background principle of doing what is right and good requires us to do more for one another, to be more decent to one another, to be more accepting of one another.

This is the work of Shabbat Nachamu.  If each of us starts out seeking comfort, we will destroy Jerusalem all over again. If each of us starts out to do what is right and good, we might just create some comfort for each other, and even for ourselves.

About the Author
Frederick M. Lawrence is an American lawyer, civil rights scholar, Senior Research Scholar at Yale Law School and the former President of Brandeis University.
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