Monday, August 9, 2010

Justice of Means and Ends

Parashat Shoftim
4 Elul 5770 / August 13 – 14, 2010
D’varim 16:18 – 21:9

Parashat Shoftim begins with God commanding the Jewish people to establish a legal system. God commands us to appoint “magistrates and officials” to “govern the people with due justice.”[1] Law is the modus operandi of an imperfect world. The functionality of society depends on the willingness of individuals to sacrifice a certain amount of autonomy in order to obtain the benefits of order; therein lays the logic behind the social contract. It is this social contract that creates the mandate for the rule of law, and our obedience to it. In democracies, the goal of this contract is to elevate man from his lowly individual existence and to hopefully create a just society. However, the very fact that the creation and practice of law are a human-led endeavour marks it with an inevitable fallibility, especially in its pursuit of justice. Since man is fallible and subject to unjust tendencies, so too the law he creates is also subject to such imperfection. In the image of man, law was made. Although intermittently unjust, law is our saving grace from the barbarity of anarchy, and necessitates obedience. As Justice Felix Frankfurter once said: Fragile as reason is and limited as law is as the institutionalized medium of reason, that's all we have standing between us and the tyranny of mere will and the cruelty of unbridled, undisciplined feeling.
            God provides us with a enigmatic directive in our pursuit of achieving a just society: Tzedek, Tzedek Tirdof  or “Justice, justice shall you pursue”[2] This oft quoted phrase is grammatically unique, the Torah could have made its point with merely one “justice” rather than two, as our sages teach us there is no such thing as a redundancy in the vernacular of the Torah, and this second “justice” has a profound meaning. Rav Elya Meir Bloch[3] interprets the verse to mean "the pursuit OF righteousness must also be pursued WITH righteousness". We are not merely being taught to run AFTER justice. We are told to run AFTER justice WITH justice. Many times we pursue that which is righteous and fair. Our goal is to ensure that what is right prevails. We are often tempted to let the ends justify the means. We may overlook the fact that we have to step on a few laws here and there as long as in the end "righteousness will prevail". The message of our verse is that we may not overlook unscrupulous methods to achieve lofty goals. Righteousness must be pursued WITH righteousness.”
A “rodef” is usually a person that is chasing you with the intention of doing you harm. The use of this word shows us that the pursuit of justice is a dangerous endeavour, a pursuit that is never an easy option. Without parallel the tragic fate of Socrates at the hands of Athenian lawmakers most powerfully illustrates the divergent course of law and justice, and our sober responsibility in its wake. Let me briefly summarize the history of Socrates' trial and death.                                                                                                      
 An Athenian jury convicts Socrates of corrupting the youth and heresy against the gods, ultimately sentencing him to death. Although Athens was a society that prided itself on democratic principles, its court system had decided it was prudent to put Socrates to death for speaking his mind. The hypocritical nature of the conviction and sentence leaves the reader with an interminable frustration. However, when Socrates is presented the option of fleeing and averting death, he refuses, presenting us with one of the most powerful arguments in the Western intellectual tradition. Socrates argues that to avert punishment handed down by the courts, however unfair, would be unjust. He claims that he entered into a social contract with the Athenian democracy through his residing and benefiting from the society before the sentence was issued.
            What relevance does this history have for us today? Having accepted upon himself the binding nature of the contract, Socrates was obligated to adhere to its judicial decisions. He understood that the functionality of society depends on the citizens’ obedience to its laws: “Do you imagine that a State can subsist and not be overthrown, in which the decisions of law have no power, but are set aside and overthrown by individuals?" 1An evil verdict had been imposed on Socrates, yet he understood that breaking the law was not the solution, as the following citation makes abundantly clear: “Neither injury nor retaliation nor warding off evil by evil is ever right”2 Socrates was fearful of the slippery slope that ensues when an individual disregards his duties and takes matters into his own hands. In his strict adherence to the virtues of justice, Socrates departed “in innocence, a sufferer and not a doer of evil; a victim, not of the laws, but of men.” 3
Law is not inherently just, and must be actively protected from the manipulation of those ready to prey on the law’s weaknesses for their own purpose. Tzedek Tzdek Tirdof. The injustice that is perpetrated through the law is no argument for the removal of law, but rather a tribute to the evil men behind it. Socrates understood the sacredness of the rule of law and the social contract. He was willing to die at its hands, knowing that although it may not be flawless, it is a necessity for order.
            Socrates ran AFTER justice WITH justice, and would not compromise on an immoral mean to achieve a seemingly just end. True revolutionaries can be killed, but it is their revolutions that are eternal, however, a revolution that uses immoral means in hopes of achieving a moral end is a “revolution that devours its children.” Those before us who strove for truth and justice merely pass it on for the next generation to prove themselves worthy of defending it.

[1] Deut. 16:18
[2] Deut. 16:20
[3] as told by Rav Frand


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