Law, Compassion, and Justice

Emor By :  Eliezer B. Diamond Professor of Talmud and Rabbinics Posted On May 12, 2017 / 5777 | Torah Commentary

In the fall of 2012, I taught a course at the Princeton Theological Seminary entitled “An Introduction to Rabbinic Literature.” I saw my mission as twofold. My stated goal was to familiarize my students with the intellectual and spiritual world of the Rabbis through the study of representative texts from each of the genres of rabbinic literature: Mishnah, Tosefta, the Talmuds, and the halakhic and aggadic midrashim.

However, my study of text had a subtext: to disabuse my Christian students of the pernicious stereotypes of rabbinic Judaism that, some would argue, were first fostered by the apostle Paul and that persist to this very day in many Christian circles. I speak in particular of the image of rabbinic Judaism as spiritless legalism, lacking in compassion for the sinner and offering no path to salvation.

I began addressing and combating this perception by presenting the rabbinic treatment of “an eye for an eye” (Exod. 21:24, Lev. 24:20, and, with slight variation, Num. 19:21). The Torah seems to be prescribing lex talionis, imposing the same injury on the assailant as he inflicted upon his victim. Through midrashic interpretation, however, our Sages posited that what was intended was monetary compensation rather than corporal retribution.

After completing the study of the halakhic midrashim that are employed to buttress this claim, I screened the courtroom scene from The Merchant of Venice. I chose the version in which Al Pacino is cast as Shylock. No actor radiates seething anger more than Pacino, and his portrayal of a scorned and despised Jew seeking murderous revenge against his Christian tormentors is raw and disquieting. Throughout the scene, Shylock insists on the authority of law and demands that it requires that his claim to a pound of his debtor Antonio’s flesh be satisfied. In the midst of the proceedings a lawyer’s apprentice, Balthazar—actually, the beautiful heiress Portia in disguise—arrives and seemingly takes Shylock’s side in the dispute. At the same time, she urges Shylock to exercise compassion, in what is undoubtedly the most famous speech in the play: “The quality of mercy is not strain’d.” She concludes as follows:

Therefore, Jew,
Though justice be thy plea, consider this,
That, in the course of justice, none of us
Should see salvation: we do pray for mercy;
And that same prayer doth teach us all to render
The deeds of mercy. (4.1)

The notion that mercy is of supreme importance is hardly foreign to Judaism, although Shylock has clearly chosen to put aside all thoughts of compassion. However, folded into the warning that “in the course of justice none of us shall see salvation” is a specifically Christian claim that lies at the heart of Pauline Christianity; “the law [literally: the letter] kills, but the spirit gives life,” as Paul proclaims in 2 Corinthians 3:6. In fact, Portia attempts to demonstrate the literal truth of this assertion in Shylock’s case. Shylock, she points out, is entitled only to flesh and not to blood, and to precisely a pound, no more and no less. In other words, it will be impossible for him to exact the revenge he seeks without violating the terms of the bond and thereby becoming liable for the death penalty and the confiscation of his property. Thus, if the law is followed, death will result: Antonio’s, if Shylock successfully extracts exactly a pound of Antonio’s flesh without spilling a drop of blood—an impossibility—and Shylock’s as well if his efforts are unsuccessful.

After watching the film—which clearly discomfited many of the students—we returned to the rabbinic analysis of the “an eye for an eye” passage. I asked the students, “What do you think the Rabbis would have said to Shylock and Portia?” They were able to see that Shylock’s actions were diametrically opposed to rabbinic law: he sought to impose physical injury as payment of a monetary obligation, whereas the Rabbis were mandating monetary compensation for the inflicting of physical injury.

However, I needed them to go beyond this realization. I needed them see that the mercy of which Portia spoke was found by the Rabbis neither outside of the law nor in opposition to it, but rather within and through the law itself. God’s law must embody justice, and there is no justice without compassion.

In an argument that anticipates Portia’s ridicule of law, the Rabbis point out the inherent absurdity and consequent injustice of lex talionis:

Rabbi Simeon b. Yohai said: “An eye for an eye”—this means monetary compensation. You say it means monetary compensation; but perhaps it is to be taken literally? Behold, if a blind assailant took out someone’s eye, or an amputee caused another the loss of a limb, or someone lame caused another to become lame, how am I to fulfill in this case “an eye for an eye”? Did not Scripture state, “there shall be one law for you” (Lev. 24:22), a law in which all are treated equally!” (BT Bava Kamma 84a).

One may say that Rabbi Simeon is engaging in a bit of casuistry, and indeed the Talmud goes on to suggest proofs for their interpretation that it considers more convincing. What unites and underlies all the interpretations, however, is a fundamental belief that God would not prescribe a punishment both useless and inhumane. Compassion is and must be a guiding force when pursuing justice.

The Rabbis understood well that the law is not always just. They struggled to counteract the inequities that are sometimes its result, and they were not indifferent to the claims of compassion—because they recognized that law (halakhah) is revealed to us through Torah, which we received as a consequence of God’s love for us. Law itself can be an expression of love when it is meant to guide us toward the good and the holy. As we read in the blessing before the Shema in the morning liturgy: “You have shown us a great love…you taught [our ancestors] live-giving laws; so too, show us favor and teach us.”

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