Commentary on Parashat Shoftim, Deuteronomy 16:18 - 21:9
Parashat Shoftim begins with the command to appoint judges to execute mishpat tzedek, righteous judgment (Deuteronomy 16:18). Two verses later comes the biblical principle perhaps most frequently cited by activists: “Tzedek Tzedek Tirdof – Justice, justice you shall pursue, that you may live, and inherit the land which the Lord your God gave you (Deuteronomy 16:18).”
It’s not only judges who are responsible for maintaining an ethical judicial system. Shoftim also delineates the rules of legal testimony, which presume innocence and seek to ensure that witnesses be corroborated and accountable. The Talmud expands upon these laws and views this area of social/civil justice as a matter of concern for the divine.
Three the Holy One hates: him who says one thing with his mouth and another in his heart; him who possesses evidence in favor of his neighbor but fails to testify on his behalf; and him who, seeing something improper in his neighbor, acts as the sole witness against him. (Babylonian Talmud, Pesachim 113b)
Parshat Shoftim goes on to describe other laws meant to facilitate ethical society, laws that protect people from the capricious use of violence and power.
Dealing with Enemies
In a ruling often cited by progressive Jews, Parashat Shoftim, in its laws of war, commands the Israelites to offer its enemies the opportunity to surrender peacefully before the attack. But a thorough reading of these laws of military engagement reveals a problem with a pacifistic interpretation of Parshat Shoftim: What happens if the enemies of the Israelites accept the terms of peace?
“If they respond peacefully and let you in, all the people present there shall serve you as forced labor.” (Deuteronomy 20:11) Turning your enemies into forced laborers may be a better alternative than killing them, but it can hardly be deemed progressive.
Additionally, the mandate to extend terms of peace only applies to so-called “optional wars.” When it comes to “commanded wars,” including the conquest of Canaan, no offer of peace is to be extended, and no living person — man, woman, or child — is to be left alive (Deuteronomy 20:11).
Difficulties in the Text
The call for a just court system at the beginning of the Torah portion is also far from simple. While the Torah articulates clear guidelines in support of judicial impartiality and fairness — for example, explicitly prohibiting judges from giving preferential treatment and taking bribes–there is no indication that the Torah extends “tzedek tzedek tirdof – justice, justice you shall pursue” beyond the courts to social justice.
Even more challenging to progressive sensibilities, judges and officers were expected to enforce religious law, not just civil and criminal law. In a stark articulation of this requirement, Sefer HaChinuch, a medieval commentary on the 613 commandments, explains the job of the shoftim and shotrim as follows:
To appoint judges and officers who should enforce the observance of the mitzvot of the Torah, and should return to it, against their will, those who stray from the path of truth…For with this method we can establish our religious system of law, while fear of our officers and judges is cast over the mass population.
According to Sefer HaChinuch, the commandment to appoint judges and officers is aimed at establishing a society ruled by religious law with enforcement that generates fear among its citizens. Hardly a pre-modern form of constitutional liberalism!
Dealing with Unethical Teachings
None of this is new, of course. We are all aware that when we turn to Jewish tradition for teachings that inspire us to work for social justice, we often turn a blind eye to texts that can inspire the opposite: religious paternalism, inequality, brutal forms of capital punishment, and yes, even race-based genocide.
But is this okay? Can we credibly cite Jewish teachings that encourage a better world when there exist parallel teachings that could lead to a worse one? I think yes, but only with these conditions: that we are honest about which texts we are excluding from active duty and that we study not only those traditions that promote our social agendas, but those that contradict it–because neglected texts left unattended have a nasty way of coming back to life in more virulent forms.
A Modern Approach
Historically, Jews have not had to worry too much about our racist and anti-social texts because we, as a corporate entity, have not had power. The existence of the State of Israel and the influence wielded by Jews in America and elsewhere in the Diaspora has changed this and upped the ethical ante.
Parashat Shoftim is the perfect reminder that scattered amongst Judaism’s most noble and righteous teachings are passages that are anachronistic at best and immoral at worst. We must identify these teachings — biblical, rabbinic, medieval and modern. As we engage texts that inspire us to pursue social justice, we must, at the same time, engage those that can inspire violence and oppression.
Whether we condemn these texts or merely note their difficulty, they are our responsibility. If we ignore them and fail to forge communal opinions about them, we risk the possibility of them being resurrected and reclaimed.
Perhaps we can see this consciousness-raising re-examination as the fulfillment of another famous command in Parshat Shoftim: U’Viarta HaRa mi’Kirbekha — You shall purge the evil from your midst.
Provided by American Jewish World Service, pursuing global justice through grassroots change.
Pronunced: TORE-uh, Origin: Hebrew, the Five Books of Moses.