Shofetim D’var Torah for 28 August 1998
Twenty years ago this month, I got the letter in the mail announcing that I had passed the bar exam and was entitled to be sworn in as a lawyer in Illinois. At the time, I did not realize that I had taken a major step toward the practice of Judaism as well as the practice of law. I had often heard it said that many Jews are attracted to law because of the ingrained habit of study: instead of studying Talmud, we studied law. But this week’s portion, Shofetim, “Magistrates”, makes it absolutely clear that law, including its study and practice, fulfills an essential role in Judaism and in life generally.
We come across some of what my husband likes to call “the famous bits” about law in this parsha. One is familiar to everyone: the lex talionis - “an eye for an eye, a tooth for a tooth”. Now we as modern Jews are inclined to read this and say, “Well, it’s better than the law existing before it, and it served to make the punishment fit the crime” (in pre-Gilbert and Sullivan language). Both of these statements are probably true. We go on to say that it should not be taken literally (which the rabbis in the Talmud itself hold) and that it is outmoded. Those statements are debatable - but, then, I’m a lawyer.
Another famous bit we read in this parsha is “Justice, justice shall you pursue.” We like to twist this one to mean “social justice,” by which we generally mean giving food, housing, and political power to the poor. But in this portion, “justice” is used more like the word means for the Department of Justice than for the Democratic Party platform. In fact, justice is so important in the entire Torah that the Noahide commandments require even non-Jews to establish courts of justice.
This week, we read mainly criminal law. Justice relating to criminal law includes the duty to investigate violations of law, to try cases, and to punish wrongdoers. The system must be fair. Trials must have witnesses, magistrates must not take bribes and must be fair to the rich as well as the poor, but in the end, the magistrates and the people must enforce the law. Even the system of sanctuary cities established here operates on the same principles. God required the Jews to establish sanctuary cities to which a person who accidentally kills another may flee to escape unwarranted revenge from the victim’s family. But this is not the unconditional sanctuary of the Medieval Christian practice that anyone in a church asking for sanctuary could not be tried for a crime while he remained in the church building. In Torah, the elders of the sanctuary cities had a duty to investigate the killing. If the killing turned out to be intentional, the killer was to be extradited and punished.
Although this portion concentrates on criminal law, portions before and after it address civil law - personal injury, damages, etc. You may think these laws are outmoded, too, except that many of our statutes and common law came directly from the Bible, including rules for lost objects and the redemption period for land after bankruptcy. (When the rabbis said the law of the land was the law, it was easier to comply with both state and religious obligations for those living in a state where the civil and criminal laws coincided with the mitzvot.)
True, we don’t turn directly to Torah when we make, enforce, or interpret laws. If someone wrongs us, we are more likely to go to the police or the circuit court than to a bet din. Nevertheless, we must understand that Torah - the Bible - and Judaism as a Bible-based religion is a religion of law. Some of the laws say don’t murder, some of the laws say don’t leave water jugs in the road, some say leave food for widows in the corners of your fields, and some say be ethical in business. Others say observe festivals on specific days and honor the Sabbath. And unless we wish to live in the state of nature described by Thomas Hobbes, with every man against every other, with life nasty, brutish, and short, we had better follow some laws. According to Talmud, the world depends upon three things, Torah, prayer, and mitzvot - laws: the world cannot survive without mitzvot.
So, which laws do we obey? Not many of us are ready to begin stoning people who carry wood on the Sabbath; we have enough trouble punishing murderers and thieves. No-one can or would want to comply with all the mitzvot in Torah, not even counting the Talmudic instructions for carrying out the mitzvot. And even the most observant Orthodox Jewish men like to forget God’s injunction to Abraham, “Do as Sarah tells you.”
God tells us to “be mindful of all my mitzvot and do them.” I read this to say that we must be mindful of all - we must study the mitzvot thoroughly, but we do not have to do all. This interpretation is not merely excessive lawyering. The command itself separates knowledge and action. In fact, the whole structure of the mitzvot proves that we must do some but not all. Some of the mitzvot can be performed only in Eretz Israel. Some can be performed only in the Temple or while the Temple stands. Some are for priests, some are for landowners, some are for people with troublesome relatives. And some must change over time as our knowledge changes. For example, Torah prescribes one day of observance for what we now call Rosh Hashanah and one for what we now call Yom Kippur. Because they were uncertain of the day of the full moon’s appearance, the rabbis of the Talmud decreed that outside Israel, Rosh Hashanah should be observed for two days. They also attached an extra day to almost all other holidays, although knowing the limits of their power and people’s interest in fasting for two days straight, they never extended Yom Kippur. Now that we know the exact date of Rosh Hashanah, it is an unnecessary violation of Torah to observe Rosh Hashanah for two days.
So we as Reform Jews must pick. (I know many of you have heard me expound on this before, but why keep a dead horse if you don’t beat it occasionally?) We individually and as a community must study, struggle, and determine which laws, including those created by the rabbis in the Talmud, are appropriate for us to follow, which truly are mitzvot. Studying Torah, it is clear that choosing mitzvot is difficult, for even in Torah people choose which of God’s instructions to follow. And sometimes they decide in a way that most of us now would think right and just, such as deciding not to kill all the people living in the Promised Land before the children of Israel arrived, but in Torah, it is counted as a wrong decision and punished. I think we have to take our chances, deciding the best we can. I also believe that the Jewish people are one, and as each individual Jew carries out some mitzvot, the Jewish people as a whole are being mindful of God’s mitzvot and doing them. I am not, by the way, suggesting that we Reform Jews are counting on the Orthodox to perform our mitzvot for us. We have to follow appropriate laws. But we are not paying attention to Torah if we conclude that the only laws we must follow relate to charity for the poor. We can’t edit out the rest of Torah. Jews must follow laws. We must honestly decide which laws we believe will make us better Jews --- and, dare I say it, which laws we believe God commands us to obey