On occasion, the Constitution of the United States is
displayed in the rotunda of the National Archives in Washington, DC.
On these occasions, the line to catch a glimpse of it stretches down
(appropriately enough) Constitution Avenue and curls around the block. The
Constitution shapes the structure, function, and operation of our government,
yet few can recite it. To fully understand and apply it, we have legions of constitutional
scholars and a Supreme Court. We need interpretation and commentary to explain
and apply it.
So, too, Torah, which is the constitution of the Jewish
people. Like the Constitution of the United States, it requires interpretation
and commentary. That process begins with Talmud.
Torah is certainly our foundational sacred text, the core of
Judaism. At so many junctures Torah is remarkably progressive and enlightened, but
even at some of these junctures, we experience a sour aftertaste. In this
week’s parashah, Shoftim, we find
several examples of this sweet-and-sour cuisine. I’ll share with you three
examples in this drash.
The parashah
begins by instructing the Israelites to establish a system of courts presided
over by judges who
…govern the people with due justice. You
shall not judge unfairly; you shall show no partiality; you shall not take bribes,
for bribes blind the eyes of the discerning and upset the plea of the just.
Justice, justice shall you pursue, that you may thrive and occupy the land that
the Lord your God is giving you. (Deuteronomy 16:18-20)
The prohibition against judges taking bribes is indeed
admirable, but when you live in a small community, everyone has done favors for
everyone else. What is the meaning of bribe? Does it apply only to money? Here
the sour aftertaste is what appears to be Torah’s narrow understanding of what
may lead to corrupt judges.
My second example concerns the use of witnesses. Numbers
35:30 and Deuteronomy 17:6 have already stipulated the need for two witnesses
in order to convict someone of a din
nefesh (an offense punishable by execution). In parshat Shoftim, Deuteronomy 19:15 seems to expand that standard
to encompass non-capital cases, as well: A single witness may not validate against a
person any guilt or blame for any offense that may be committed; a case can be
valid only on the testimony of two witnesses or more. What are we do
to with all that we have learned from neuroscientists about human observation
and memory? We now know that people often provide the worst evidence in crimal cases. Here, the sour aftertaste concerns a
standard that appears trapped in the ancient, pre-scientific world.
My third example concerns the rules of warfare:
When you approach
a town to attack it, you shall offer it terms of peace. If it responds
peaceably and lets you in, all the people present there shall serve you at
forced labor. If it does not surrender to you… when the Lord your God delivers
it into your hand, you shall put all the males to the sword. You may, however,
take as your booty the women, the children, the livestock, and everything in
the town… (Deuteronomy 20:10-14)
Little explanation is required here. Is this a prescription
for future -- and current -- military encounters? The “sour aftertaste” is more
a toxic mouthful. Enslaving or exterminating a conquered people is simply
barbaric and immoral.
All three examples -- judicial bribes, witnesses, and rules
of warfare -- highlight an important point: Torah, as our constitution, is the
starting point for our values and beliefs. It is our jumping off point for conversations
about crucial issues of justice, crime, and warfare (as well as dozens of other
topics) but the conversation is fleshed out and shaped by Talmud and continues
beyond with extensive and on-going discussion, interpretation, and commentary.
Concerning the acceptance of bribes, our Sages perceive the
“sour aftertaste.” In Talmud b.Ketubot 105b we find:
Rava said: “What is
the reason for [the prohibition against a judge accepting] a gift? Once he
receives a gift from someone, his opinion draws closer to his, and he becomes
like him, and a man cannot see guilt in himself.
What is shohad [the term for “bribe” in
Deuteronomy 16:19]? [We can understand it as] she-hu chad -- he is one/unified [with the one who gave the bribe].
Rav Papa said: “A person should not judge a case of someone he loves, nor of
someone he hates, for one does not see the faults of a loved one and one does
not see the merits of a hated one.”
Talmud examines the issue in the bright light of Torah’s
morality. Thanks to Rava, we understand Torah’s underlying concern: justice
depends upon judicial impartiality, and gifts sway a judge’s judgment. Rav Papa
takes us even further. In the pursuit of justice, we cannot stop with
forbidding judicial bribery. Close relationships, intimate knowledge of someone
-- either because you love or hate that person -- render a judge incapable of
delivering blind justice.
Concerning the use of witnesses in a din nefesh to convict someone of a crime punishable by execution,
Talmud teaches us by its own example to take into serious consideration what is
known through secular sciences. The Sages frequently cite what they have
learned outside the bet midrash (House
of Study) and integrate it into their arguments. Their standard is our
standard: use the best information available in rendering legal decisions.
Concerning the disturbing rules of warfare described in parshat Shoftim, the Rabbis tackle this
problem by first neatly creating categories of wars in Mishnah Sotah 8:7. They
distinguish between discretionary wars (milkhemet
reshut), commanded wars (milkhemet
mitzvah), and obligatory wars (milkhemet
chovah).
When is this the
case [that men may return from the battle front to their homes]? In the case of
a milkhemet reshut (discretionary
war). But in a milkhemet mitzvah (commanded
war) all must go forth, even the bridegroom from his wedding chamber and the
bride from her chupah. Rabbi Yehudah said: When is this the case? In the case
of a milkhemet mitzvah (commanded
war). In a milkhemet chovah
(obligatory war), however, all must go to the front, even the bridegroom from
his wedding chamber and the bride from her chupah. (m.Sotah 8:7)
The comments in the mishnah, and the discussion in the Gemara
that follows, center around the various conditions Torah stipulates (see Deuteronomy
20:5-8) that exempt one from fighting. What gradually
becomes clear is that “commanded wars,” such as our passage in Deuteronomy
describes, are limited to the conquest of the Land in the time of Joshua, and
are therefore a one-time event of the past. Hence the requirement to enslave or
slaughter can no longer pertain. It is now forever impermissible.
A constitution without commentary cannot
function in a living society. The legal scholars in this country continue to
study, debate, and explicate the Constitution; the Supreme Court is a living
organ of interpretation. So, too, the Jewish constitution: Talmud begins the process
of asking questions, debating difficult issues, and formulating responses to
the issues raised by Torah. The process continues to this day.
© Rabbi Amy Scheinerman
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