Parashat Shofetim

Deuteronomy 16:18–21:9

September 3, 2011 / 4 Elul 5771

This week's commentary was written by Professor Arnold Eisen, chancellor, JTS.

Rousseau opened his famous essay on the ideal political order, "The Social Contract," by stating his intention to "imagine men as they are and laws as they might be." The same could be said of Moses's objective in the book of Deuteronomy and particularly in this week's parashah. Moses offers a blueprint for the ideal society to be built by the Children of Israel in the Promised Land in accordance with divine directive. That social and political order, he promises in God's name, will be superior to every existing regime in at least two ways: the wisdom of its laws and the fact that God will be "close at hand" (Deut. 4:7–8). Above all, the social contract that Moses imagines will be one of justice: just magistrates; just words; no unfairness, favoritism, or bribery. "Justice, justice shall you pursue, so that you may live and inherit the Land which the Lord your God is giving you" (16:20).

There is a problem with this mandate, however, and Moses is well aware of it: "men [remain] as they are." The human material God has to work with at the end of the wilderness journey is more suited to fashioning an ideal commonwealth than was that of their parents' generation, the former slaves. But these Israelites, too, are less than perfect: sinful, violent, deceitful, prone to error: in other words, human. Some of them, our parashah warns, will be tempted to worship other gods and will, as punishment, be put to death. Others will consult soothsayers or "consign their children to the fire." There will be murderers, and "blood-avengers" to hunt them down. Tragic accidents will occur, as when two men go to chop wood and "the ax-head flies off the handle and strikes the other so that he dies" (19:5). There will be wars, and the unspeakable horrors that wars entail (20:13–18).

Blood flows liberally in these pages of Deuteronomy—a consequence of the fact that the book attempts to impose a just and sacred order upon creatures of flesh and blood. It is telling, I think, that the parashah ends with the case of a person found slain in a field, the killer unknown. A ceremony must be performed in which nearby townsmen break the neck of a heifer and declare, "Our hands did not shed this blood." Thus the children of Israel shall remove from their midst the "guilt of innocent blood, for you will be doing what is right in the sight of the Lord" (21:7, 9).

This parashah, more than any other in Deuteronomy, is concerned with what we would call authority: rightful action in a world full of wrongdoing; power that is right and not merely effective; rule by those who have a right to rule. A parade of authorities is delineated, starting with the word that opens the parashah and gives it its name—magistrates—and followed by officials, judges, priests, prophets, elders, kings, and, of course, the immediate and ultimate authors of the book who are the sources of its authority: Moses and God. We need authority desperately, the Torah teaches, because our very lives depend upon doing what is right—and that is difficult for us.

Rabbi Nissim Gerondi (known by his acronym, the Ran; 1310–76) ingeniously addressed this central conundrum of our parashah. (I cite the selection from Gerondi in The Jewish Political Tradition, edited by Michael Walzer et al, 2000, Vol. I, pp. 156–61.) "Every nation needs some sort of political organization," he wrote, and the children of Israel—commanded to build an ideal society in accordance with God's commandments—needed a twofold structure of authority in accordance with Israel's special mission. The Israelites were, on the one hand, a people like any other, who had to live with one another in societies and states that required governance. But they were also blessed with God's laws and God's abiding presence. This unique status mandated the unending search for justice for which Moses calls at the start of Parashat Shofetim. The Torah's laws are designed both to institute an ideal political order and to "induce the divine effluence to cleave unto us."

However, R. Nissim continues, these laws may not always be practicable. Following the strictures prescribed in Tractate Sanhedrin of the Talmud, for example, we can find murderers guilty of a capital offense only if we can prove with the testimony of two witnesses that they had been warned about the consequences of the crime before committing it and knew exactly what they were doing when they murdered. "There is no doubt that this is required by just law," Gerondi observes-but if we follow it, murderers would go free! "That is why God ordered the appointment of a king for the sake of civilization." The king makes the system work; "any deficiency regarding political order was corrected by the law of the king."

"Justice, justice shall you pursue" pertains to the ideal order. "You shall be free to set a king over you" brings the order down to earth.

Gerondi's solution to the glaring tension in the parashah is elegant, but it too, of course, falls prey to a danger that the commentator knew very well, and to which the parashah itself refers: kings are often corrupted. They may take too many wives, accumulate too much gold and silver, lead their subjects on a path God wants them never to walk (back to Egypt), or simply go astray. The king must write a copy of the Torah, in the hope that it influences his behavior (Deut. 17:16–20). Moses is well aware that human beings can spend night and day reading the Torah or even copying it and then disobey its commandments. He knows too that they might interpret the law in ways God would not sanction. There is no preventing this. And yet the Torah insists that the Israelites try.

Deuteronomy, we might say, is a Zionist book. It wants the Children of Israel to take mitzvot beyond the sphere of private observance in home or synagogue and attempt to apply them in the entire social and political order. The justice system must be just, the poor must be taken care of, the laws and norms of Torah must govern education and health care, environmental policy and foreign policy, treatment of minorities, and distribution of wealth. It is a grand and demanding vision, the foundation of my own religious Zionism and that of countless other contemporary Jews.

What then do we make of the State of Israel's uneven success in living up to these high standards? We say—prepared for such failings by this week's parashah—that Israel's citizens and leaders are human, operate under pressures of scarcity and war, and are subject to the same shortcomings as any other nation. The Torah judges all lapses from justice severely—and calls on all of us to do better, confident that we can.

What do we do with rabbis or other leaders who, in the name of God and Torah, and sometimes no doubt citing Parashat Shofetim as proof-text, forbid Jews from employing or renting homes to Arabs; tell Israeli soldiers they must not obey orders to evacuate settlements; and teach that children produced by donations of sperm from non-Jews are at risk of inheriting "negative genetic traits that characterize non-Jews" ("Jerusalem Riots Expose New Rift Between Religious Zionists and Authorities." Forward, July 15, 2011). We argue with and oppose such leaders in the name of Torah and generations of commentators, not at all surprised that some Jews will read the text in this way. We bring the full force of human learning, wisdom, and experience to bear in support of our very different reading and commitments. And we rejoice that Israel is a democracy rather than a theocracy; it is governed by civil magistrates and laws rather than clerics or self-proclaimed prophets.

We have a Jewish society and State in the Promised Land once more, thank God, in which Jews and others, for all our many flaws, continue to pursue justice, fall short, and pursue it yet again.

The publication and distribution of the JTS Commentary are made possible by a generous grant from Rita Dee and Harold (z"l) Hassenfeld.