Tzedek

Shoftim Drash By Marlene Booth & Avi Soifer

Marlene: The portion of the Torah I read today emphasizes the need to have two witnesses in a criminal case.  No conviction can be based on the testimony of a single witness.  There must be testimony by two or more witnesses. Fran’s son, Rabbi Natan Margalit, in his wonderfully thought-provoking book, The Pearl and the Flame, writes beautifully about the individual and our roles in a minyan of obligation and satisfaction. We come together as a minyan, a term Rabbi Margalit explores and describes as central to Jewish life. He declares: “We find our own personal wholeness within our interdependence with others.”

In other words, the minyan functions to link and expand the holiness and wholeness of each of us with the holiness and wholeness of the group.  It raises us up together.

Avi: In an important sense, this connection recapitulates the intertwining of procedure and substance in seeking justice, which this parsha famously and emphatically commands us to do: Tzedek, Tzedek terdof. (Deut. 16:20). As Elliott Dorf points out in “Justice,” his excellent essay near the back of our Eitz Hayim:  “The Torah indicates its awareness that [procedure and substance] are inextricably intertwined, that procedure affects substance and substance demands certain procedural rules” (1427). By contrast, Thomas Reed Powell, a somewhat sardonic law professor, wrote long ago: “If you can think about two things inextricably linked to one another, and think about only one of them,, then you are thinking like a lawyer.” And Grant Gilmore, another late, great law professor, ended his The Ages of American Law this way: “The worse the society, the more law there will be. In hell there will be nothing but law, and due process will be meticulously observed.”

A discussion of these claims must await another day. Yet last June our current Supreme Court insisted  that procedure and substance must be clearly separated. In Dobbs (2022), the decision that overruled Roe v. Wade (1973), the crux of Justice Alito’s majority opinion was rejection of a constitutional doctrine called substantive due process. That, too, is for another time.

The entire Shoftim parsha emphasizes the role of communal norms and procedures, as Marlene just pointed out. For example, bearing false witness is prohibited in both of the Torah’s versions of the Ten Commandments: and the community will judge—and perhaps stone to death—a false witness in a capital case. Further, once a verdict is announced, one should not “deviate… to the right. Nonetheless,  rabbis and scholars, have long recognized that one can be “a scoundrel within the four corners of the law.” (1428)

For example, judges are instructed to judge as does God, and God “shows no favor and takes no bribes.” (But aren’t our communal prayers and pleas during the High Holidays meant as bribes to receive long life, forgiveness, etc.) On the other hand, directly following the exhortation to judge evenhandedly like God is the following: “but [God] upholds the cause of the fatherless and the widow, and befriends the stranger, providing him with food and clothing. You too must befriend the stranger, for you were strangers in the land of Egypt.” (Deut. 10: 17-19]

The apparent tension here mitigated, at least somewhat, if we recognize that the law of the written Torah is not the only source of Jewish law. We also accept the oral Torah and even, as Rabbi Goldfarb delighted to point out, minhag (custom) as legitimate sources. In fact, in some situations , even a communal custom can override some rules of the Torah. Like other portions of the Torah, Shoftim emphasizes additional paradoxes and striking gaps between “the law in the books and the law in action.”

Indeed, we count on the community to make sure, for example, that a parent, seeking to stone to death a rebellious teenager, never actually does so. Shoftim’s instruction: “Life for life, eye for eye, tooth for tooth, hand for hand, and foot for foot” (Deut. 19-21) states an important restorative justice principle, but the rabbis insist that its retributive focus has always been countered by equitable communal norms.

As Bernice famously replied when, as the President of our congregation, a caller phoned and asked if we still stone homosexuals, “I’m so sorry. We haven’t the facilities for that.”

Marlene:

Avi and I are going to be doing a different kind of raising up ourselves.

This is our final shabbat before we leave for the fall semester to join our daughter Amira, her husband Al, and our grandson Sam, to welcome the birth later this month, b’sha’a tova, as we say, of our new granddaughter.  We will miss you all, but we will take with us a piece of our minyan, our holiness and wholeness, that makes us whole each shabbat.

As a postscript, I had a dream the other night that involved Amy/Naomi.  I don’t remember the story of the dream, but I remember that at one point, several people were scrambling to get to a litter of newborn kittens.  Amy was among them, and the final image of her I had as I woke up was of Amy sitting in an easy chair, very contentedly petting a little kitten.

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