Shoftim 5776 - 2016

Post date: Sep 8, 2016 2:05:55 PM

9/9/2016, Parshat Shof’tim, Torah Portion: Deuteronomy 16:18 - 21:9

This week’s parsha – Shoftim – contains one of the most well known exhortations for Jewish social action and personal agency: “Tzedek, tzedek tirdof” - justice, justice you shall pursue. Again, we see this literary construct of repeating a word for emphasis. Some commentators interpreted this to mean that when pursuing justice, one must do it justly. In other words, the ends do not justify the means.


Chapter 17 describes judges and judgments, and kings that shall be appointed over the people of Israel when they enter the land of Canaan. Chapter 18 focuses on the role of the Levites, discernment of true prophets, and punishments for divination and soothsaying. The next chapter, 19, begins by describing an act of manslaughter. The Torah makes a clear delineation here between murder that is an accident (e.g., happens in the context of cutting down a tree) and murder which is premeditated.


One of the primary factors separating manslaughter from murder, according to the Torah, is the feeling of the murderer toward the victim prior to the act itself. The Torah states that if a man kills another man without awareness, having not hated him at a time in the past, he shall be allowed to flee to a city of refuge and live there peacefully. However, the Torah distinguishes this from murder where the man son’eh l’rei-oh (hated his neighbor), lies in wait for him, and hikahu nefesh va’met (strikes his soul and he dies). In this perspective, it is not a cognitive element (thoughtful plans) that is necessarily the most problematic and telling element of premeditated murder, but rather the emotional hatred of another person.

This hatred, combined with the act of killing, demands the gravest of consequences. If the murderer tries to flee, the Israelites are to pursue him, avenge the murder he committed, and kill the murderer.

It is important to note that in ancient Israel, only the Sanhedrin, the highest court, was permitted to adjudicate capital cases. They rarely delivered the death penalty. In clear distinction between ancient Judean and modern American jurisprudence, after hearing a case, if the judges were unanimous in recommending the death penalty, it was considered to be an indication of the inadequacy of the defendant’s representation! For this and other reasons, the Sanhedrin rarely issued a death penalty. Echoing this extreme caution in the application of capital punishment, Maimonides (c. 12th century CE), one of the greatest Jewish scholars, said that in order to maintain the majesty of the court, it would be preferable to let 1,000 guilty people go free rather than convict 1 innocent person to death.

So, if a murderer who faced the Sanhedrin was unlikely to be sentenced to death, what is it about premeditated murder, when associated with a documented history hatred and attempted escape, that sparked our forefathers’ anger enough for them to condone revenge killing? It is not dissimilar to our own sentencing guidelines – reserving the harshest punishment (death or life without parole) for grievous crimes only when there are aggravating circumstances. Perhaps it speaks to whether they believed the perpetrator had the capacity to reform. Perhaps they considered one who hates his victim enough to commit an irreversible crime was himself irredeemable. Perhaps they were simply concerned with the safety of the community.

I have been reading a book lately that describes various disabilities, and gives detailed interviews with the parents of children carrying these diagnoses. Without contest, the author states that the most reacted to chapter has been the chapter on autism. Other chapters on conditions such as Down’s Syndrome, dwarfism, and schizophrenia have garnered some attention, but the pages on autism draw out more response than the others combined. He describes some of the pain felt by parents of children with autism as stemming from the mid-twentieth century myth that “refrigerator mothers” – mothers who are emotionally unavailable to their young children – cause their children to become autistic. This myth, long since disproved, has, the author argues, resulted in parental distress unparalleled by parents of children with other disorders.

For me, these two share a common thread – our readiness and willingness to assign blame, fault, or volition to an act radically changes how we treat the party at issue. When a person causes the death of another person, the degree to which we believe that act to be volitional directly correlates with the violence we apply to the perpetrator of the killing. When a parent comes to us with a struggling child, the degree to which we believe their parenting is to blame directly relates to the harshness with which we treat that parent.

This is not to say, by any means, that there are not volitional murders or willfully hurtful parents. History and, sadly, current events show us that these people certainly exist. Tragically, many of us have personal experience with such abuses. At the same time, our readiness to assign blame and intent to actions has widespread and long-lasting consequences.

A professor of clinical psychology, and a practicing clinician herself, once told me that she attempted to treat each person she met for one week with kindness. This included everyone from waitresses and clerks (people to whom she had little difficulty being kind) to her children’s teachers and school administrators (somewhat more difficulty) to other Boston-area drivers (extreme difficulty!). The challenge, she said, is that it is nearly impossible not to assign intent to the actions of others, particularly when those actions have a negative impact on you.

In some cases, it may seem clear-cut that negative, hurtful behaviors are volitional – luring a child away to cause them harm, keeping a person enslaved, or organizing a group to ostracize another. But, often times, it is not so obvious. When we are upset or hurt, or see someone we love and care about upset or hurt, it is our quick nature to judge the party who did the hurting and find them to blame. Far more difficult is to step back, and attempt to treat that party with kindness.

The Torah’s guiding principle in distinguishing these situations (the volitional from the non-intentional) is how the party had previously felt about the victim – hated them or not hated them. The trouble is, we are not always privy to the emotions of those who cause us harm. Human emotions are rarely as simple as “I hate you” or “I don’t hate you.”

What, then, can we use as our guidepost? In this approaching season of renewal and forgiveness, my own challenge to myself is to begin by approaching with kindness. I do not imagine that this is easy – research suggests Florida drivers (my famously aimless current road mates) are even worse than Boston-area drivers (my notoriously aggressive previous road mates) on many metrics. And still – I want for this to be my goal – to begin by approaching with kindness. How many times will I find myself looking at forgiveness, when I may have previously believed I was dealing with a case warranting revenge?

Shabbat Shalom

-Yvonne Asher