February 17, 2012

At first blush, Exodus 23:2-3 can appear troubling.  The JPS translation is “You shall neither side with the mighty to do wrong---you shall not give perverse testimony in a dispute so as to pervert it in favor of the mighty---nor shall you show deference to a poor man in his dispute.”  The primary reading one can glean from this is justice should be strictly maintained with no deference to the masses or the poor.

Rabbinical students are no different than medical, law or business students.  We frequently study in groups and I vividly recall being at a classmates apartment going over this very pasuk, verse, and her husband, a lawyer chimed in “that could be said for the legal system we have today.”   I was getting ready to say it and his wife so ably responded, “Where do you think the current system came from?”

It is remarkable that the Torah anticipates what remains one of the most challenging aspects of democratic rule---how to respect the will of the majority while protecting the rights of the minority, especially when that minority is vulnerable.  Unlike our translation, I see verses 2 and 3 as opposites---verse 2 warns us not to join the crowd in favoring the mighty; verse 3 balances this by warning us not to show partiality to the poor either.  Is justice in the middle?

Digging deeper, our rabbis in the Talmud, Hullin 11a read this as a moral instruction and, as a legal guide.  How?  In the first clause, we see in capital cases, a simple majority suffices to exonerate a defendant and a “majority” of two is required for conviction.  Rashi notes, the extensive rabbinic comments around this verse are confusing; their basic thrust is to follow the majority for “good” (i.e. to exonerate) but to require a supermajority for “bad (i. e. to convict).  How can a conviction be considered “bad?’

The overwhelming posture in rabbinic literature is that capital convictions represent failure---for the evil doer---and society as a whole.  In today’s world we see the same “bad” result when examining incarcerations.  Whites are incarcerated at a rate of 353 per 100,000 and blacks at a rate of 2,532 per 100,000.  In any given case, justice may have been served, and yet the result is still “bad.”

In the Jerusalem Talmud, Sanhedrin 3:8 we see a principal enunciated some 200 years before the Babylonian Talmud came into being, the gist of which being you “listen to the words of the plaintiff and only then to the words of the defendant.”  I am sure my lawyer friend would tell me “that is exactly how they do it nowadays in New Yorkcourts.”  This reminds of a precious interaction I had with one of my own teachers last year days after my ordination.  It was overwhelming and intimidating to sit in a room with many of the hanhala or faculty, all greater than me in “wisdom and years” trying to interject my opinion on a contemporary halachic issue.

My mind wandered back to those remarkable days in the study halls and classrooms of JTS where one of my beloved rabbis taught me the importance of comprehending what others may say, I must make up my own mind on halachic and political issues---but within the proper framework.  Even rabbi’s listen and learn from each other and even more so from those I have come to respect and adore.  It is perhaps for this reason that the ancient Sanhedrin began its deliberations from the side, where the junior scholars sat, so the junior scholars could speak freely without intimidation.

Taken together, these short reading of one or two verses of Mishpatim yield a sense of great moral responsibility in the construction of a just society.  Each judge must be independent, respectful of rich and poor alike, tipping the scales just slightly towards leniency so that just and righteous society can emerge.  Leadership requires wisdom and creativity and at the same time principle and courage.  What is true for judges and civil leaders is equally true for those called to religious leadership.

Shabbat Shalom!

Rabbi Jeffrey Abraham