Friday, July 24, 2015

Power, Powerlessness, and Justice: Complicated Lessons from Parashat Dvarim

       "There shall be one Torah for the citizen and the stranger who dwells among you." (Exodus 12:49)  At the center of the Torah's conception of justice is that there is one law for all individuals within the physical borders of Israel and among the Jewish people.  In order to create a just and orderly society, you need to have one legal system applied equally to all individuals.  On the face of it, this demand, and the values that support it, seem simple and fair.  We cannot make up laws on the spot depending on context or convenience, nor should be tip the scales of justice in favor of the rich, strong, or influential.
         However, the Torah does not just warn us against favoring the strong against the weak, but also against favoring the weak against the strong.  And when Rashi delves deeper into the Torah's warning, he forces us to see how justice can be perverted even with the best of intentions.  In Deuteronomy 1:17, we are instructed:

17You shall not favor persons in judgment; [rather] you shall hear the small just as the great; you shall not fear any man, for the judgment is upon the Lord, and the case that is too difficult for you, bring to me, and I will hear it."

What does it mean to hear the "small just as the great?"   According to Rashi, there can be many meanings:
יזלֹא תַכִּירוּ פָנִים בַּמִּשְׁפָּט כַּקָּטֹן כַּגָּדֹל תִּשְׁמָעוּן לֹא תָגוּרוּ מִפְּנֵי אִישׁ כִּי הַמִּשְׁפָּט לֵאלֹהִים הוּא וְהַדָּבָר אֲשֶׁר יִקְשֶׁה מִכֶּם תַּקְרִבוּן אֵלַי וּשְׁמַעְתִּיו:
You shall hear the small just as the great: A case regarding a perutah [small coin] should be as important to you as [a case] regarding a hundred maneh [a large sum], so that if it [the former] is presented before you first, do not postpone it for last (San. 8a). Another explanation of “You shall hear the words of the small as you do those of the great,” as per the Targum [The words of the small you shall hear like the words of the great]: You shall not say: “This is a poor man, and his friend [opponent] is rich, and it is a mitzvah to support him [the poor man]. I will favor the poor man, and he will thus be supported respectably.” Another explanation: You shall not say,“How can I affront the honor of this rich man because of one dinar ? I will favor him now and when he goes outside [leaves the court] I will tell him, 'Give it to him [to the poor man], for you really owe it to him!’” (Sifrei)כקטן כגדול תשמעון: שיהא חביב עליך דין של פרוטה כדין של מאה מנה, שאם קדם ובא לפניך לא תסלקנו לאחרון. דבר אחר כקטן כגדול תשמעון, כתרגומו, שלא תאמר, זה עני הוא וחבירו עשיר ומצוה לפרנסו אזכה את העני ונמצא מתפרנס בנקיות. דבר אחר שלא תאמר היאך אני פוגם כבודו של עשיר זה בשביל דינר, אזכנו עכשיו, וכשיצא לחוץ אומר אני לו, תן לו שאתה חייב לו:

One reading of this verse teaches us that we should view all transgressions
 with equal weight, whether the amount of money is small or large.  From a Torah perspective, we should not let small transgressions slide and only take large ones seriously.  When trying to create a holy society worthy of God's presence, every mitzvah (commandment) and every averah (sin) need to be taken seriously.  Many small averot can culminate into a profoundly crooked society.
     However, beyond the issue of small crimes verses large crimes lay the issue of linking judgment to actual or perceived power, wealth, and status.  This singular ethical standard is quite controversial, especially in contemporary academic circles.  And to a certain extent this makes sense.  Should someone poor receive the same fine as a rich person if the fine affects them in deeply unequal ways?  If one nation has a strong and wealthy army, shouldn't they be held to a higher ethical standard than a nation without an army that uses terrorism as a form of resistance?  
     These challenges to the Torah's standard are not new, and many of them were addressed by the rabbis in Talmud, specifically in the tractates that deal with financial damages and criminal codes.  Jewish law becomes far more nuanced and sophisticated over time, in large part because the blunt tools provided by Scripture often failed to address the complex contours of real life.   
     At the same time, however, the Torah also teaches us an important lesson about justice, and highlights some of the problems with distributing justice based on perceived power, status, or wealth.  For one thing, our perceptions can often be flawed.  Power is complicated, rarely stable, and can express itself in unexpected ways.  If one people has the power to kill 20 people by blowing up a bus, and another people has power to drop a missile that kills 20 people on a beach, who is more powerful?  What if someone used to be rich and lost all of their money, but the judges on the court don't know his current financial status, and judge him according to his former wealth?  What if someone is wealthy, but friendless and held in contempt by most of her community?  What if someone is a police officer and respected in the community, but barely makes enough to sustain their family?  Who is powerful and who is powerless?
      Beyond the problem of evaluating the power of another individual or group of people, if we link perceived or actual power to judgment, our deliberation centers on evaluating privilege and not on the nature of the crime or its victims.  This type of deliberation not only moves the focus away from crime and punishment, but it also poisons discourse.  In circles where being oppressed has cache and power, parties compete for the position of greatest victim.  Neither party is encouraged to own up to their power and assume responsibility for their sins.  Neither party is encouraged to empower themselves.  Rather, we create a society of ressentiment,  justifying powerlessness and glorifying the licking of wounds instead of accountability, self-determination, and a mutual submission to the common good.  One does not need to look particularly far to see how this trend has polluted contemporary political discourse in our country (from both the political right and left), and made a mockery out of current political culture on college campuses. 
     The Torah cannot always provide the final or perfect ethical or legal standard for a just society.  If it could, there would be no need for a Mishnah, Talmud, Midrashim, or later legal codes and Responsa.  Over the generations, our scholars have had to challenge and refine the wisdom posited by the Torah in order to make it relevant and more fair.  At the same time, there are deep lessons to be learned from this foundational text, even if they are difficult to hear and accept.  Even though maintaining a single legal standard may be difficult and unpalatable at times, I believe it still is the best of all the available options. We've seen the alternative, and it seems to lead to a world that is no more just or holy as a result.  Sometimes, the older wisdom still holds the key to the most timeless and valuable truths.

Shabbat Shalom.