Thoughts on Parashat Shoftim.
Is it possible to eliminate crime completely? How about at least eliminating the worse crime, murder? It probably is possible. Here is a scenario: We lock all the people in individual prison cells and we construct our societies that way. It would require three social castes: prisoners (let’s say 90% of the population), guards (9%) and various administrators and rulers (1% or less). If any murders occurred then it would primarily happen between the rulers fighting for power since they would be the only “free people” in this society. Murder would be a phenomenon affecting no more than 1% of the population so the murder rate would be much lower than in our contemporary societies. And frankly, who would care about them killing one another as they likely would be the most hated.
Too extreme? Ok, lets try again…. In the US 93% of people in prison are men. The overwhelming majority of murderers were involved in some sort of previous criminal activity before they were convicted of murder. We could introduce a penal code according to which even the smallest crime will be punished with life imprisonment. We can leave women out of the equation because they represent a small minority of crimes, even fewer violent crimes and have a lower recidivism rate. They have less problems with alcohol and drug abuse, which is a significant factor here, they also do better in school, on average, and are less often homeless. With our most recent penal code not only would murder basically disappear but also many smaller crimes. Shall we aim for this? Do you see any problems or objections?
This week’s Torah portion starts with a call for establishing law enforcement institutions: judges (chieftains, Hebrew shoftim) and officials (Hebr. shotrim):
You shall appoint magistrates and officials for your tribes, in all the settlements that the LORD your God is giving you, and they shall govern the people with due justice. (Deut. 16:18)
The Torah then points to the fundamental principles of the rule of law:
You shall not judge unfairly: you shall show no partiality; you shall not take bribes, for bribes blind the eyes of the discerning and upset the plea of the just. (Deut. 16:19)
Here, the Torah prohibits bribery, but the principles of a fair trial are discussed elsewhere in the Torah:
You shall not render an unfair decision: do not favor the poor or show deference to the rich; judge your kinsman fairly. (Lev. 19:15)
or at the beginning of the Book of Deuteronomy:
I charged your magistrates at that time as follows, “Hear out your fellow men, and decide justly between any man and a fellow Israelite or a stranger. You shall not be partial in judgment: hear out low and high alike. Fear no man, for judgment is God’s. And any matter that is too difficult for you, you shall bring to me and I will hear it.” (Deut. 1:16-17)
Our Torah portion for this week concludes its call for fairness with another call:
Justice, justice shall you pursue, that you may thrive and occupy the land that the LORD your God is giving you. (Deut. 16:20)
Tzedek, tzedek tidrof… The Hebrew verb lidrof used here means to be behind, follow after, pursue, persecute, run after. Justice is something you shall pursue. Notice, it does not say ‘establish’. The Torah is aware of the impossibility of completely eliminating injustice because to do so would put tremendous restrictions on human freedom and would require the elimination of mercy, compassion and various forms of love. Justice here is defined in a Deuteronomistic way: everyone gets what they deserve according to their moral conduct. In that context mercy, for example, would be a suspension of justice. God, according to the Torah, has never intended to create a world that made no consideration for love and compassion and freedom. Probably nobody would want to live in that kind of world except some psychopaths.
Justice is not something that can be decreed by some edict. It’s an endless process. Injustice, then, is not a problem that can be fixed the way we can fix a car or airplane, by fixing a mechanism or system that is working improperly. Justice in society contains another crucial element: freedom of human decision. This ingredient cannot be ignored.
Yes, some forms of injustice, like slavery, have been eliminated in the course of history. Yet, it hasn’t been eradicated – there are slave auctions in Libya, there are other forms of human enslavement that can be considered slavery in China, for instance, let alone North Korea where the entire society is held hostage by a group of insane despots. Nor has slavery been eliminated permanently in places where it was banished; there is no guarantee that when things get really bad in the world some old practices that are based purely on domination and power will be reestablished, perhaps even with the acceptance of entire nations. Thus we should never take for granted what we – as humanity – have achieved.
Freedom of human decision and its fundamental value all but insures neither evil nor the human inclination towards evil will ever vanish. To get rid of (moral) evil in the world we would have to fix this “human nature”, as the prophets believed. In line with this messianic view, the Rabbinical view of yetzer hatov (inclination for good) and yetzer harah (inclination for evil) is more developed and more useful practically. It doesn’t claim that yetzer hara should be eliminated. According to the rabbinic view, while impossible to eradicate, the goal is to employ those bad inclinations to work towards good purposes. When properly understood, this philosophy is not only positive, it’s also easier to put into practice. It can take a form of rewiring your brain in which you modify your impulses and the processes they cause to work for desirable outcomes rather than not.
It’s a better approach than hating evil and injustice. Hating evil and injustice is ultimately about hating something in human nature. Thus it is consequential to strictly define this thing that supposedly causes all the evil with which we fight. It’s very important to define it precisely and to make sure that this element is not something that is, in fact, essentially good: for example, the desire for freedom, ambition or even something that is relatively good like rivalry or competitiveness. If something is relatively good it basically belongs to a different realm than good and evil. It is more of a tool and tools tend to be useful.
When considering or debating the eradication of other negative social phenomena – like corruption, theft, racism or prejudice, we should keep all the above in mind. To completely eliminate them we would have to employ similar measures like those we would need to eliminate murder. We cannot use legal methods to obliterate erroneous thinking and speaking, at least not without suppressing freedom of speech and thought. Through proper and factually correct education we can minimize it but even then, we cannot completely eliminate errors from our teachings.
By way of example, we see that eliminating one kind of evil, one kind of injustice, here and now, would require totalitarian measures. Which is why people obsessed with only one or two particular “forms of evil” or who very narrowly define what is “the worst evil” develop tendencies to totalitarian thinking. A more constructive attitude towards evil and injustice is to perceive the many different kinds of evil and injustice and to put them in some sort of hierarchy, as we do with things we consider good and just. This doesn’t mean that people shouldn’t stand up for a cause that is close to their hearts. They should. Nevertheless, it is also very good and healthy to see the evil, suffering and injustice you are fighting in the context of the evil, suffering and injustice other people are fighting.
Shabbat shalom!
