The Currencies of Justice

Devarim By :  David Hoffman Posted On Aug 12, 2016 / 5776 | Main Commentary | Social Justice
You shall not be partial in judgment: hear out low [katan] and high [gadol] alike. Fear no man, for judgment is God’s. (Deut. 1:17)

Philo, the great 1st-century Alexandrian Jewish thinker, was engaged in a project that in many ways was deeply modern. He sought to “translate” Judaism for the Greek-speaking world of his day, and to demonstrate to a highly educated and urbane population that the Torah was a philosophically serious work. Not only could one be a Jew and be a Greek, but in many ways a pious Jew was the truest of Greeks.

Yet despite embracing the philosophical worldview of an elite segment of Greco-Roman culture, in important ways, Philo seems to have rejected one of the cornerstones of the Roman world. Philo passionately argued against the meaningfulness of status and social rank, particularly as it related to judicial proceedings. While Philo decried the workings of status within society, he understood that hierarchies of some sort—wherein men accrue power and influence—were inevitable. Moved by a biblical vision of justice, Philo, in his reflections on the challenges of leadership in the Jewish community, identified the creation of equity and the fostering of equality as some of the central mandates of a leader. Indeed, Philo believed the pursuit of judicial parity in a hierarchical society to be the great challenge for a jurist. Recognizing this challenge, Philo offers a particularly interesting take on how the courts should be structured:

Since of the matters which would force themselves upon his attention, some are of greater importance and others of less, the chief will very reasonably commit those which are more unimportant to his lieutenants, while he himself would of necessity become the most accurate judge of the weightier matters.
But the affairs which we ought to look upon as the most weighty are not, as some persons think, those in which persons of reputation are at variance with other persons of reputation, or rich men with rich men, or princes with princes; but on the contrary, are rather where there are powerful men on one side, and private individuals, men of no wealth, or dignity, or reputation on the other, men whose sole hope of escaping intolerable evils lies in the judge himself. (Special Laws IV, 171–172)

Philo presents a wonderful understanding of the type of managerial pyramid Yitro suggested to his son-in-law Moses (Exod. 18:14–26). Philo suggests that the principle of equality as it is developed in the Torah requires that the jurist behave in a counterintuitive way. A great jurist is not required in a case between men of equal reputation and wealth. Her skills and fairness are needed in a world where people of great status wield great influence. There will always be people of “humble condition,” Philo reminds us. Wealth and power are simply creations of “fortune.” The role of a just society is to guarantee equality, because it is the foundation of justice.

The Rabbis address these themes in a beautiful way. In their commentary on 1:17 (above), they respond to the tension that arises between a biblical vision of justice and the importance we often ascribe to people of wealth and reputation: “Hear out low (katan) and high (gadol) alike” (Deut. 1:17).

Lest one say: “How can I damage the honor [kavod] of this rich person for a mere dinar?! I will rule in his favor, and then when he goes outside, I will say to him, ‘Give him [the poor man] the dinar because you really owe him,’” Scripture therefore teaches, “Hear out low and high alike.” (Sifrei Devarim 17)

The language is terse, but this short passage reveals a real cultural conflict. A judge finds himself compelled by the facts to rule in favor of a poor person in a dispute with a man of wealth. However, the judge realizes that ruling in favor of the poor person and ordering the wealthy fellow to pay him the small amount of money (a dinar)—while it is the just thing to do—might dishonor the wealthy man! The Rabbis are sensitive to the fact that there are two currencies moving back and forth in this transaction. One is money and the other is honor (kavod). The suggestion is entertained that perhaps the judge can protect the honor of the rich litigant while also carrying out justice, making sure the poor man gets his money. The Rabbis reject this option and argue that, even though the poor man would receive the money he was owed, the biblical verse would have been violated and justice compromised. This rabbinic reading of Torah reinforces the biblical prohibition of granting any normative significance to the social status of the litigants.

But what I love about this piece of midrash is that it asks us to consider the intangibles of human interactions. One might have thought justice would have been served if the poor man received the money he was owed. The Rabbis remind us, however, that human dignity (kavod) is part of the package of justice. And, as Philo argued, it is the role of leaders to facilitate a world of justice, to safeguard the kavod of all human beings, especially for those who are most vulnerable in our communities.

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