Rabbi Judith Rosen-Berry
“The most absurd apology for authority and law is that they serve to diminish to crime. Aside from the fact that the State is the greatest criminal, breaking every written and natural law…” (Emma Goldman, Anarchism and Other Essays)
Mishpat is so much more than ‘law,’ mishpat it is trying to articulate something about Justice, a concept that transcends ‘laws’ in excessive, and incalculable ways. But, as Jacques Derrida pointed out (in keeping with the tradition of our ancestors – I think) that what is “incalculable about justice requires [demands] us to calculate” (J. Derrida, Force of law: The ‘mystical’ foundations of authority.1992: 28), and so: it is just that there be law[s].
Mishpatim (our Torah parasha) is possibly doing two things at once then. It is asking about the ‘nature’ or source of Justice (which is a potentially theological question); and it is also rightly addressing issues of governance, the establishment of laws, the interpretation of ordinance, the pronouncement of verdict, and the authority to sentence. Mishpatim (regulations/laws) then, pave the way for real-time and real-place restoration – they a/mend what has been broken in real-lives, – and re-establish the status quo through reparations.
But what happens when it doesn’t? What happens when mishpat is corrupted by politics and power? When the relationship between law[s] and Justice breaks down, or is no longer clearly obvious. Well, this is possibly where the ‘greater’/excessive (revealed) sense of mishpat/Justice is called on to illuminate the shortcomings of laws. This is Justice that points beyond not only the corruption of laws but beyond legality – it points to something more, it points towards: ‘the Law’.
Having said that, we need to avoid any simple, putative distinction between law[s] and Justice, refusing that un-complex, but (today) common construal, when we can. For our community ‘the Law’/Justice is both the revealed (excessive) word and the object of interpretation (laws) – and it is this dynamic that needs to be maintained, a dynamic that speaks to and performs the teleological possibility of ‘the Law’/Justice – as ‘increasingly’ [and futurally] present in the midst of concrete law[s].
Paradoxically, the possibility of ‘the Law’/Justice working as an embedded corrective to corrupt laws – is often played out in the lives and stories of those who have deviated from (problematic/unjust) laws. It has often been the ‘outlaws’ – who in both (politically) conscious and unconscious illegal actions have tried to restore Justice.
Throughout her life Rabbi Sheila Shulman z”l – spoke of her abiding connection to the fictive (and possibly historical) actions of the ‘bandits in Sherwood Forest’ – indeed, for Rabbi Shulman being an ‘outlaw’ may have been a requisite qualification for rabbi-hood.
She was not alone in this. There is a long, and rich religious and secular history of Jewish ‘lawlessness’; and although you may not agree with Emma Goldman (as above), we (today) must pay attention to the way that the ‘State’ is complicit in undermining aspects of the Justice system through lack of funding, inept policy, poor recruitment process and sometimes what seems like wilful disregard. All of which is putting Justice/mishpat at risk.
We should be sufficiently unnerved by published findings of the Bar Council that over the last twelve years 43% of all courts in England and Wales have been closed: “Local courts matter and local justice matters. There is an increasing demand for access to local public services including access to justice. The closure of hundreds of courts means that people must travel further and for longer, and waiting lists and backlogs have grown. We urgently need a political commitment to fund capacity across the justice system” (Mark Fennhalls KC, Chair of Bar Council).
Although it’s a complex situation, I also believe our current government to be contributing towards “a slow decline in the rule of law” (Imogen Tyreman, Young Fabian) because it has, possibly, become disconnected from the excessive ideals of Justice, which is dangerous for society generally, but particularly for women, minorities, and seekers of asylum.
So, perhaps now is the moment for us to embrace the ‘outlaw’ within – and to re-read those accounts in Torah, and Talmud of ‘law-breaking’ individuals – through a different lens, that of the: restoration of Justice via illegality (or a/legality, without/outside of the legal). We may not want to become ‘outlaws’, or antinomian – but sometimes Justice demands more than an adherence to ‘laws’, and our tradition, from rabbi to robber has plenty to say about this.
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