History has proven that a society can be governed by laws, its people law-abiding, and yet be thoroughly unjust. Sodom and Gomorrah, as depicted by the Talmud (as well as Pharaoh’s Egypt), were regimented by elaborate legal systems, and their citizens were by and large obedient. Bearing that in mind, we can perhaps better appreciate the following teaching from the first verse of this week’s Torah reading, “and they shall judge the people with righteous judgment” (Deut. 16:18). Here Torah reminds its readers that law and righteousness are not the same thing, nor are they inevitably linked.
How then to achieve righteousness according to Torah standards? The Rabbis of old valiantly strove to identify the Torah’s priorities, and concluded that in order to maintain the laws’ righteousness it may become necessary at times to suspend certain legal procedures.
“Midrash Shemuel,” a collection of comments on “Mishnah Aboth” by Rabbi Shemuel de Uzeda (16th century), expounds this idea: “[I]f one [acts] solely according to what is written, that can lead to utter iniquity. Thus, the Sages taught (Baba Metsi’a 31a) ‘Jerusalem was destroyed only because they gave judgments therein according to the narrow letter of the law.'” Rabbi de Uzeda goes further. “Tsedek tsedek tirdof” (“Righteousness, righteousness you shall pursue” Deut. 16:20) means there is never a lawful excuse to pervert justice. Example after talmudic example shows that the Sages believed this to be an overarching principle of the Torah. Indeed, Torah is righteousness as affirmed repeatedly in Psalm 119 and succinctly in Psalm 19: “God’s judgments are altogether righteous.” Let us review some examples of how the Rabbis’ prioritization of tsedek shaped their halacha.
Hillel instituted “perozbol,” a legal formula whereby a creditor could claim his debts from the court because he found that people were reluctant to extend loans for fear of forfeiting their money in the year of release (shemittah; cf. Mishnah Gittin 4:3). By empowering the courts to issue the perozbol he helped both rich and poor (cf. Gittin 36b-37a) and in the process kept shemittah as the institution envisaged by Torah: an institution that furthers rather than curtails tsedek. A more germane example than perozbol – inasmuch as it directly impacts legal procedure – is the relaxation of inquiry and examination (derishah va-haqirah) for monetary cases.
According to the Sages’ understanding of Deut. 13:15 (“Then shall you inquire and make search”), before evidence is accepted, each witness must be separately questioned and cross-examined as to day, hour, and attendant circumstances in order to get at the truth. The Sages further believed the Torah demanded a single standard of cross-examination for all cases. However, at some point creditors again became wary of lending lest the rigor of the cross-examining fail to produce a clear verdict, thus making loans too risky. At that point the Sages stepped in and relaxed the law, in order “not to slam the door against needy borrowers.” Their intervention restored Torah righteousness to the law. In acting this way the Rabbis were not attacking Torah law as unjust. Far from it. They were simply recognizing that in their day, lenders – for whatever reason (most probably the changed commercial reality) – were less inclined to take risks with their money.
Rabbi Isaac Sassoon points out in his commentary on the Pentateuch (“Destination Torah,” Ktav 2001) that “even laws that begin life equitably may fall out of step with righteousness which is a variable whose measure is an evolving quantity – man. Therefore, unless linked to righteousness like the Torah’s law, any legal system is liable to ossify, excellent as it may have been at its inception.”
A slightly different example is furnished by the talmudic device called miggo. Miggo is essentially the assumption that a litigant who makes a lesser claim is telling the truth because he could just as easily have made a better claim. No doubt the rabbi who came up with the miggo was a great psychologist. But this strategy works only as long as the public is unaware of its use by the courts. Once they get wise to it, miggo loses its usefulness for uncovering truth. Thereafter, a judge who would rely on miggo must have rejected the primacy of tsedek – viewing his judicial duty as “going through the motions.” But as we have seen, the Sages held righteousness to be a value of the highest rank, a value they never lost sight of even amid the most recondite of deliberations.
But also outside the confines of the courtroom, each one of us has to make the choice whether to stand for tsedek or to pretend the Torah never demanded righteousness but merely conformity to the expectations of tradition and custom, even when those customs have fallen out of step with tsedek.
Hakam Sassoon concludes: “Torah gives us law along with its corrective – righteousness. Thus the Psalmist, on confronting laws that were becoming de-coupled from righteousness, does not lose hope, but rather proclaims: “Judgment shall yet return unto righteousness and all that are upright of heart will follow it.” (Ps. 94:15)