Rabbi Elli Tikvah Sarah
17 August 2018
World Union of Progressive Judaism
On June 27 2018, the Supreme Court in the UK ruled that heterosexual couples may not be discriminated against concerning civil partnerships, which were originally established by the UK government for same-sex couples. Ever since the UK’s Marriage (Same Sex Couples) Act of 2013, heterosexual couples have been calling for equality, too. Following that Supreme Court ruling, the hope is that the 2004 Civil Partnership Act will be extended to heterosexual couples. So: equal marriage, equal civil partnership: equal justice.
Parashat Shoftim opens with a clear statement about the administration of justice (Deuteronomy 16:18-20):
You shall appoint magistrates (shoftim) and officials for your tribes in all your settlements (literally, ‘your gates’) that the Eternal your God is giving to you, and they shall govern (v’shaf’tu) the people with just judgement (mishpat tzedek). / You shall not pervert judgement (mishpat); you shall show no partiality; you shall not take bribes, for bribes blind the eyes of the wise and turn aside the words of the righteous (tzaddikim). / Justice, justice (tzedek, tzedek) shall you pursue (tirdof), that you may live and inherit the land which the Eternal your God is giving to you
The language of these verses pairs the system of justice (Hebrew root: Shin Pei Tet, to charge or govern) with the execution of justice (Hebrew root: Tzadi Dalet Kuf, to be just or righteous). But more than this, it amplifies that judgement must be just: mishpat tzedek – and to underline the point: justice (tzedek) must be pursued (tirdof).
Interestingly, a few verses further on in the parashah, another Hebrew root connected with the system of justice is employed in the context of matters which are difficult to resolve (17:8-10):
If a matter is too baffling for you for judgement (la-mishpat) be it a controversy concerning homicide, conflicting pleas (bein din l’din), or assault – matters of dispute in your courts – you shall go up to the place that the Eternal your God will choose and come to the levitical priests or the magistrate who is in charge in those days, and you shall explain the issue. When they tell you the verdict in the case, you shall carry out the verdict that is told to you from that place that the Eternal shall choose, observing scrupulously all their instructions to you.
So, in the absence of a resolution, the matter is brought to a higher authority: the priests, who represent Divine authority. As this passage indicates, among other things a higher authority must decide between conflicting pleas – bein din l’din. The Hebrew root here, Dalet Yud Nun, to judge, focuses attention on the execution of judgement.
There are multiple examples throughout TaNaKh of the Eternal one delivering judgement. Further on in the Book of D’varim/Deuteronomy, in parashat Ha’azinu, we read, for example (32:36):
Ki yadin Adonai ammo – For the Eternal One will judge His people.
However, the whole point of the system of justice is that people bear the responsibility of judgement. Further, those whose circumstances in life make them vulnerable or marginal are dependent on others to ensure that they are treated with justice by those with the power to judge. And so, for example, we read elsewhere in Deuteronomy in parashat ki tavo, amongst the infamous curses (27:19):
Cursed be the one who perverts the judgement (mishpat) due to a stranger (geir), an orphan (yatom), and a widow (almanah).
Following a searing invective directed at the ‘sinful nation’ – goy chotei – the prophet Isaiah pronounces succinctly what justice in action looks like (1:17):
Learn to do good; seek justice (mishpat), relieve the oppressed, judge (shiftu) the orphan, plead for the widow.
All should be equal before the law – which means that all should have equal access to the law and be treated equally, regardless of their social position. We read in parashat K’doshim, known as the Holiness Code, at the heart of the Book of Va-yikra/Leviticus (19:15):
You shall not commit iniquity (avel) in judgement (ba-mishpat): do not favour the weak (dal) or show deference to the great (gadol); in justice (b’tzedek) you shall judge (tishpot) your people.
As we have seen, a single phrase in parashat Shoftim, encapsulates what is required for equality before the law to be a reality: Tzedek, tzedek tirdof – ‘Justice, justice shall you pursue’ (Deut. 16:20a). In Hebrew, the usual syntax is for the verb to come first, but here, for reasons of emphasis, the noun precedes the verb, and even more significant, it is repeated twice: Tzedek, tzedek tirdof – ‘Justice, justice shall you pursue’. The supremacy of justice could not be clearer. And it also could not be clearer what it takes to ensure that justice rules supreme: Tzedek, tzedek tirdof – ‘Justice, justice shall you pursue’. Rebecca Steinfeld and Charles Keiden, the couple who campaigned for the right of heterosexual couples to enter a civil partnership, pursued justice as far as their pursuit could take them – to the Supreme Court. And they did so, on the assumption that the presiding judges would execute a just judgement. It is a reasonable assumption. The Supreme Court in the UK, the Supreme Court in the USA, the Supreme Court in Israel, the Supreme Court in any country surely must be so constituted that the presiding judges are disposed to dispense just, impartial judgements?
The commitment to equality is one of the cornerstones of Progressive Judaism. And so, progressive Jews, in particular, must do what we can to ensure that justice rules supreme wherever we live. Of course, in the case of two equally just claims, a commitment to justice may entail deciding not for one or the other (bein din l’din), which would involve partiality, but rather, effecting a compromise between them: Tzedek, tzedek tirdof – ‘Justice, justice shall you pursue’: justice for both parties. As we think of the dispute between Israel and the Palestinians, we know that this is not just a theoretical matter. Indeed, it is what the pursuit of the two-state solution is all about.
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