When Justice Gets Personal Fair Courts & Fairness to Friends

This week's parsha contains a famous verse:

(כ) צֶ֥דֶק צֶ֖דֶק תִּרְדֹּ֑ף לְמַ֤עַן תִּֽחְיֶה֙ וְיָרַשְׁתָּ֣ אֶת־הָאָ֔רֶץ אֲשֶׁר־יְהוָ֥ה אֱלֹהֶ֖יךָ נֹתֵ֥ן לָֽךְ׃ (ס)

(20) Justice, justice shall you pursue, that you may thrive and occupy the land that the LORD your God is giving you.

We can look at the verse from a variety of perspectives. A normative way of reading it is to put it in context; chapter 16 contains instructions about the court system. Witnesses must be brought forward, and judges in every generation must decide cases that citizens bring to the courts. Righteous and trustworthy halls of justice must be established; administer justice in just ways - thus the double language of our verse, "tzedek, tzedek."

Another way of reading the verse is to keep its vocabulary and charge chained to the justice systems matter while "using" the second tzedek to hypertext us to a different concern of the Torah where the word justice also appears. We are instructed, on a more personal basis, to judge our compatriots generously and charitably. Between everyday people we are to be aware of our powers of judgement and how easy it is to judge unfavorably.

"Judge your fellow in the scale of merit" is the way the Mishnah describes the Jewish value of judging favorably and righteously. The Torah's use of the term "tzedek" may seem to refer to the courts and legal matters, but the reach of the Torah's lessons about the lawyers and litigants impacts our personal relationships "in the court of human affairs."

Let's start with the Mishnah that mentions judging others favorably, to understand the applications and limits of the principle, and then work our way through text of the Torah that uses the word "tzedek" - the word that appears twice in Parshat Shoftim (above, Deuteronomy 16:20).

Can we judge everyone favorably, all the time?

(ו) יְהוֹשֻׁעַ בֶּן פְּרַחְיָה וְנִתַּאי הָאַרְבֵּלִי קִבְּלוּ מֵהֶם. יְהוֹשֻׁעַ בֶּן פְּרַחְיָה אוֹמֵר, עֲשֵׂה לְךָ רַב, וּקְנֵה לְךָ חָבֵר, וֶהֱוֵי דָן אֶת כָּל הָאָדָם לְכַף זְכוּת:

(6) Yehoshua ben Perachiah and Nitai of Arbel received from them. Yehoshua ben Perachia says, "Make for yourself a mentor, acquire for yourself a friend and judge every person as meritorious."

Rav Benyamin Zimmerman examined the Mishnah in a shiur (class) on the subject:

Setting aside the question of whether in fact there is an obligation to judge others favorably or just a suggested practice, the terminology employed in Avot is slightly different than that in Shevuot (another part of the Mishnah), and this may prove significant. The former speaks of judging everyone, “et kol ha-adam” (literally: “all of the man”) favorably, while the latter speaks of judging “chaverkha,” “your fellow,” seemingly limiting the obligation of judging favorably to one’s friends or acquaintances.

Looking back to commentary that appears before the modern era, R. Ovadiah Bartenura's commentary sheds light on how the Mishnah's authors might have intended the lesson:

(ו) והוי דן את כל האדם לכף זכות כשהדבר בכף מאזנים ואין לו הכרע לכאן ולכאן. כגון אדם שאין אנו יודעים ממעשיו אם צדיק אם רשע ועשה מעשה שאפשר לדונו לזכות ואפשר לדונו לחובה, מדת חסידות היא לדונו לכף זכות. אבל אדם שהוחזק ברשע, מותר לדונו לחובה, שלא אמרו אלא החושד בכשרים לוקה בגופו [שבת צ''ז], מכלל שהחושד ברשעים אינו לוקה:

(6) "and judge every person as meritorious:" when the matter is hanging in the balance and there is no way to decide it in this way or that way. For example, a man from whose actions we do not know if he is righteous or wicked, who performs an act that is possible to judge favorably and possible to judge unfavorably, it is pious to judge him favorably. But it is permissible to judge a man who is established to be evil unfavorably. As we learn from a Talmudic passage: (Shabbat 97), “One who suspects righteous people is afflicted on his body” - [and so] it is implied [from this] that one who suspects evildoers is not afflicted.

Evil is evil. We are not to turn a blind eye to the crimes or immorality of those who should not earn our favorable outlooks.

But what refinement of our powers of judgement are called for, if the Torah and the tradition are encouraging us to judge others favorably?

גם במה שאמרנו שכל אדם חיב לדון חברו לכף זכות, שהוא בכלל המצוה, יהיה סבה להיות בין אנשים שלום ורעות, ונמצא שעקר כל כונת המצוה להועיל בישוב בני אדם עם ישר הדין ולתת ביניהם שלום עם סלוק החשד איש באיש.

The Chinnukh (Mitzva 235) explains the composition of this directive:

Judging others favorably is mitzvah work, and it is a factor in creating peaceful and friendly relationships between people. Essentially, the main purpose of all the aspects of this mitzvah is to direct communities into establishing fair judicial systems, and to bring it about by removing suspicion from others.

Wait! That seems to take us back to the original context of our verse from this week's parsha. But there is a little nuance here. Be a participant in your community's endeavors to establish righteous courts. How do we personally get involved in making that happen?

Given the challenges of judging others' character and establishing just courts and legal systems, our sources explore the matter further. How do we become more careful judges or those who invoke our powers of judgement? What must society be prepared to respond to? How must we conduct ourselves as generous souls yet as careful agents of justice in our world?

from the Shiur of Rav Zimmerman

...the whole concept of judging others favorably at all costs and under any circumstances is seemingly not in line with other statements of our Sages. As they note, it is sometimes dangerous to assume that people are innocent and therefore deserve to be judged favorably. In the minor tractate Derekh Eretz, (Pirkei Ben Azzai 3:3) we find a startling statement regarding how one should view others (referenced by Rashi, Taanit 23b):

People should always be in your eyes like thieves, but honor them like Rabban Gamliel.

The passage continues to tell the story of Rabbi Yehoshua, who allows a wayfarer into his home, gives him to eat and drink and then shows him his sleeping quarters in the attic. However, Rabbi Yehoshua secretly removes the ladder to the attic afterwards. During the night, the guest takes all the valuables from the attic and attempts a quick escape. Failing to notice that the ladder has been removed, he falls and is injured. In the morning, Rabbi Yehoshua found him on the ground and berates him: “Fool, you aroused our suspicions last night!” The passage concludes by reiterating this teaching of Rabbi Yehoshua: though he might have honored the guest as if he were a prince, nevertheless Rabbi Yehoshua was as careful with him as if the guest were a robber, which in fact he was.

This source would seem to indicate that excessive application of “Be-tzedek tishpot amitekha” is dangerous and ill-advised. This idea is often referred to as “Kabbedehu ve-choshdehu,” “Honor him but suspect him.” If there is in fact an obligation to judge others favorably, how may one suspect his fellow Jew? Why is doing so not adverse to the obligation to judge others favorably?

Here is the verse from Leviticus that uses our word from Deuteronomy "tzedek" about judging others - again, in the context of the courts, but now applied to personal outlooks and opinions.

(טו) לֹא־תַעֲשׂ֥וּ עָ֙וֶל֙ בַּמִּשְׁפָּ֔ט לֹא־תִשָּׂ֣א פְנֵי־דָ֔ל וְלֹ֥א תֶהְדַּ֖ר פְּנֵ֣י גָד֑וֹל בְּצֶ֖דֶק תִּשְׁפֹּ֥ט עֲמִיתֶֽךָ׃

(15) Ye shall do no unrighteousness in judgment; thou shalt not respect the person of the poor, nor favour the person of the mighty; but in righteousness shalt thou judge thy neighbour.

And here is the short passage from the Talmud that was referred to, from Shevuot:

שבועות ל

"בצדק תשפוט עמיתך" הוי דן את חבירך לכף זכות

Set up courts based upon the pursuit of righteousness - judge your fellow in the scale of merit, treat everyone equally before the law Sh'vuot 30a

Let's remember that this Shabbat is the first Sabbath in Hodesh Elul. We are a month away from Rosh HaShanah, Yom Din - Judgement Day.

My teacher, Rabbi Ed Feinstein wrote in Sh'ma Now: “On these holidays, we pray God might move from the throne of din, judgment, to the throne of rachamim, merciful love. We pray not to dismiss judgment but to temper its aftermath.” What is the purpose, during the High Holidays, of the courtroom drama with God atop a throne wielding the power of judgment? Abraham Joshua Heschel writes that it is better to be judged by God than ignored and abandoned. Do you agree? How does that sense of being judged inform your approach to Rosh HaShanah and Yom Kippur?

Rabbi Feinstein explained that judgment is the beginning of teshuvah, repentance and return. He writes that if we are stuck in self-deception, we can’t find the truth and make personal change.

Are we generous with our judgements of ourselves? With others? How would we want to be treated "before the court?" How does that impact how judgemental or merciful we are with family, friends, and others in our lives?

Another of the entries in Sh'ma Now:

The human rights activist and attorney Hadar Harris writes about her awakening to the notion that multiple truths can exist. She writes, “As we contemplate this High Holiday season, as we ruminate on the ultimate judgment that God makes — who shall live and who shall die — I’m struck by the impact of different versions of truth on judgment.” She wants to consider “God as a civil law judge (investigating as well as adjudicating) rather than a common law judge (sitting on high and determining truth after hearing adversarial arguments twisting facts).” In that scenario, God judges “while considering the complicated, multifaceted lens of multiple truths, while narratives are deconstructed and reexamined, facts are explored and rebuilt, and changes in behavior are taken into account.” How do yu understand these two constructions of God as judge? How do you weigh stories of moral ambiguity that require thoughtful judgment? What happens when a judgment goes wrong? Is truth always constructed? How are facts related to truth? And if truth is constructed, how does that impact justice?

What truths do we know, when it comes to judging others? What stories are we telling ourselves, when we invoke our powers of judgement? How should tzedek, tzedek inform our use of our powers of judgement - personally and societally?

Is it healthy to respect yet suspect others? Do we accept that or reject that?

Is it easy to "judge on the scale of merit?" What makes that so difficult? Easy for you?

How have people abused their own powers of judgement? In our time many false accusations and rushes to condemnations seem to upend a dependable systems of justice approach? How do we work to set into place reliable systems of justice without becoming judge and jury ourselves?

What are the central questions and issues that arise when we consider the verse from Deuteronomy with which we began this exploration:

(כ) צֶ֥דֶק צֶ֖דֶק תִּרְדֹּ֑ף לְמַ֤עַן תִּֽחְיֶה֙ וְיָרַשְׁתָּ֣ אֶת־הָאָ֔רֶץ אֲשֶׁר־יְהוָ֥ה אֱלֹהֶ֖יךָ נֹתֵ֥ן לָֽךְ׃ (ס)
(20) Justice, justice shall you pursue, that you may thrive and occupy the land that the LORD your God is giving you.