Parashat Shoftim 5778 — 08/18/2018
Devarim 16:18-21:9
The judges shall inquire thoroughly, and behold, the witness is a false witness; he testified falsely against his fellow. You shall do to him as he conspired to do to his fellow, and you shall abolish the evil from your midst. (19:18-19)
This passage is one of those laws that has always baffled me. On the surface it appears completely reasonable – if you conspire to be a false witness to cause harm to someone else, including having the death penalty exacted, then the court does to you what you tried to do to the defendant. Fair enough? The devil is in the details.
First, it will be interesting to consider the general rules of evidence that govern the deliberations of Beit Din / the Rabbinical Court. We’ll confine ourselves to criminal cases. First, there must be two witnesses to the act in question. They both must be Jewish men above the age of majority (13 years old and showing signs of sexual maturity). Neither of the witnesses can be related to either the perpetrator or the defendant, nor can they be related to one another, including by marriage – Moshe and Aharon themselves could not testify jointly on any matter. Only eyewitness testimony is acceptable. Furthermore, prior to the perpetrator’s committing the act, the witnesses must warn him that what he is doing carries whatever penalty is prescribed for that act (e.g. stoning to death), and the perpetrator has to acknowledge the warning, reply that he is going to do the act anyway, and immediately do it. Needless to say, it would have to be a very lucky prosecutor and a pretty dumb criminal to ever get a guilty verdict!
There is an obvious question here – if it is so difficult to bring criminals to justice, how does one maintain an orderly society? There are several answers:
- The society that Torah was legislating for had far less random violence than ours. If there was a murder in a village it was probably a crime of passion – the witnesses’ warning would give the perpetrator time to cool off enough to back off. If there was a fight between two people, it’d probably be in the public square with plenty of witnesses.
- The Rabbinical courts had a certain amount of leeway to administer punishments to those it couldn’t technically convict. A murderer, who had plenty of circumstantial evidence against him, but only women eyewitnesses for example, could be locked up in a room without food or water, which would probably make him wish the court would have beheaded him. This of course was a powerful deterrent.
- The Rabbinical courts could excommunicate a person. Nobody was allowed to talk with him, do business with him, or be within 6 feet of him. In an age where one didn’t just pick up and move from place to place (until fairly recently, most people lived their entire lives within a few miles of their place of birth) this too was a powerful deterrent to breaching the social order.
- Gd has no need for courts or witnesses. In a time when Gd’s punishments were clear to everyone, this is the most powerful deterrent of all. Related to this point is the idea that the punishments specified in the Torah were, by and large, not meant to be carried out in fact, but indicated the severity of the harm one does to one’s own soul by committing the specified transgression. Otherwise, why would breaking Shabbat carry a more severe penalty (stoning) than murder (beheading)?
When witnesses come forward, the judges are instructed to examine them thoroughly. They are questioned separately so they can’t coordinate their stories. There are two kinds of examination that the witnesses undergo. The first establishes place and time. The witnesses are asked which Sabbatical cycle (of the seven cycles of 7 years each that made up a Jubilee cycle of 50 years – the Jubilee Year was the 50th), which year of the cycle, which month, which date of the month, which day of the week the incident took place, and the location. The second type of investigation is into the details of the incident – what was the murder weapon, what was the victim wearing, etc. This second type of investigation is to uncover inconsistencies in the two witnesses’ testimonies, which, depending on the degree of difference and the materiality of the information, might or might not disqualify the testimony.
If a second set of witnesses comes forward and contradicts the first on the details of the incident (“It wasn’t Bill who did it, it was Harry!”) and there is no way to tell which of the two sets is telling the truth (both could be telling the truth as they saw it, but one must be mistaken), then the testimonies cancel each other out, and there is no evidence upon which to base a judgment. The defendant goes free. Neither of the sets of witnesses are declared false witnesses.
In the case of the time and place of the incident (the first type of investigation) the situation is very different. Suppose pair A says that the incident happened at the Western Wall at 2 PM yesterday. Pair B now comes along and says “We were with pair A in Eilat yesterday at 2 PM!” and therefore they couldn’t possibly be testifying about something in Jerusalem. Pair B is automatically believed, and pair A are declared false witnesses. If the judgment against the defendant has not been executed, it is executed on pair A instead. If it has been executed, then nothing is done to pair A.
This has always bothered me. It can’t be too hard, especially for the rich and powerful, to find two people who were noticeably out of town at the time of the incident, and can be persuaded to testify that the opposing witnesses were with them. If they are automatically believed (unless pair A can scurry around and find two witnesses that pair B were with them somewhere other than Eilat), and pair A has no way to contradict their testimony, I’d find that a very powerful disincentive to testify. Furthermore, if pair A really did conspire to convict someone unjustly, why should they get off scot-free once the sentence has been executed?
Abarbanel brings the technical answers to these questions. The reason pair B is believed over pair A is that they are testifying about two different things. Pair A is testifying about the incident in question. Pair B, on the other hand, is testifying about where pair A was at a particular time. Since in this case pair A have become the defendants of an unrelated charge, they cannot testify about themselves concerning that charge (and thereby cancel out pair B’s testimony)! They must produce other witnesses to contradict pair B, just as in any other case of testimony.
The case of pair A’s not being punished if the defendant has already been punished, Abarbanel imputes to the need for the courts to appear to be consistent, and this requires not reversing their judgments as new evidence appears. Some judgments, like death penalties, cannot be undone. Therefore, once the verdict has been handed down and enforced, the case is closed and pair B cannot come along and reopen it.
Abarbanel notes that underlying all these rules of evidence and procedure is the steadfast belief that Gd is the one who is the true Judge, and will mete out justice perfectly. Human judges are Gd’s agents, and can only deal with what is in front of them. Their rules are strict and give them little wiggle room. There are only a few factors they can take into account. Human judges cannot see into a person’s heart and discern his intent; they are condemned, as it were, to be the Inspector Javerts of the judicial system. Gd, however, can mete out punishment with regard to all the myriad particulars of the case, how it will affect the families and communities involved – Gd can take the evolution of the whole cosmos into account automatically in His every action. Thus, if the defendant is executed on the basis of perjured testimony, the believer assumes that the defendant deserved it for some reason, and that the perjurers will get their just deserts. We learn in Pirke Avot (1:7): Never despair of retribution.
This is a very fundamental point of Jewish thought. The universe is not random (there would be no science if it were) – it is guided by an intelligence that inheres in every particle and at every level of creation. We believe that this intelligence is all-comprehensive and all-good. If at times we don’t see that goodness and that justice, the reason is that our awareness isn’t broad enough or comprehensive enough. We see systems as isolated from one another, interacting perhaps, but each its own individual “thing.” What we often lose sight of is that all these individual pieces are actually all perfectly integrated parts of a seamless whole, and everything is governed by a cosmic level of intelligence which is at the basis of the entire cosmos. If we want to discern Gd’s Justice as well as Gd’s Mercy, and more important, if we want to act in accordance with the cosmic intelligence that runs the entire universe, then we must station our awareness on that fundamental level of life, which we have seen over the past few weeks is not only possible, but easy and natural. This process is t’shuvah, and we are approaching the season of the year when t’shuvah is the name of the game. Let’s make the most of every opportunity we have!
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Commentary by Steve Sufian
Parashat Shoftim
Parshah Shoftim has the theme of “Justice”, and illustrates this through the laws of appointment and behavior of judges and kings, the need for witnesses to prevent violations of Torah law and the need for witnesses to prevent crime and to attest that a crime has been committed.
“Justice” is a quality of attunement with Gd: only in perfect attunement can we act completely justly — but good intentions and good actions from innocent hearts can move us in the right direction.
“Shoftim” means “judges” and this parshah speaks about judges, kings and prophets, people who might serve as intermediaries between us and Gd to guide us towards justice even when our hearts are not yet sufficiently pure.
In this parshah, Moses tells us that in Horeb, Mt Sinai, our ancestors heard Gd’s voice and bid Moses to go on the mountain and speak with Gd, lest they die. Gd tells Moses they have said well. And Moses speaks of judges, kings and prophets who will be appointed and will arise: intermediaries who will guide us when we are still not pure enough to be completely at ease in Gd’s Presence, to “love Gd with all our heart, all our soul and might” which includes perceiving Gd everywhere and so “loving our neighbor as ourselves”
Fortunately, there can be a situation and come a time when we do not need intermediaries, when we know Gd directly
In the Haftarah, Isaiah 52: 6-10 Gd says we will know Him: no intermediary is necessary.
6 Therefore, My people shall know My name; therefore, on that day, for I am He Who speaks, here I am.”
ולָכֵ֛ן ידֵַ֥ע עַמִּ֖י שְׁמִ֑י לָכֵן֙ בַּיּ֣וֹם הַה֔וּא כִּיֽ־אֲניִ־
ה֥וּא הַֽמְדַבֵּ֖ר הִנֵּנֽיִ:
7 How beautiful are the feet of the herald on the mountains, announcing peace, heralding good tidings, announcing salvation, saying to Zion, “Your Gd has manifested His kingdom.”
זמַה־נּאָו֨וּ עַל־הֶֽהָרִ֜ים רַגְלֵ֣י מְבַשֵּׂ֗ר מַשְׁמִ֧יעַ
שָׁל֛וֹם מְבַשֵּׂ֥ר ט֖וֹב מַשְׁמִ֣יעַ ישְׁוּעָ֑ה אמֵֹ֥ר
: הָֽיִ אֱ לְצִיּ֖וֹן מָלַ֥
8 The voice of your watchmen- they raised a voice, together they shall sing, for eye to eye they shall see when the Lrd returns to Zion.
נָ֥שְׂאוּ ק֖וֹל יחְַדָּ֣ו ירְַנֵּ֑נוּ כִּ֣י עַ֚יןִ חק֥וֹל צפַֹ֛יִ
בְּעַ֙יןִ֙ ירְִא֔וּ בְּשׁ֥וּב יהְוָֹ֖ה צִיּֽוֹן:
9 Burst out in song, sing together, O ruins of Jerusalem, for the Lrd has consoled his people; He has redeemed Jerusalem.
טפִּצְח֚וּ רַנּנְוּ֙ יחְַדָּ֔ו חָרְב֖וֹת ירְֽוּשָׁלִָ֑ם כִּֽי־נחִַ֚ם
יְהוָֹה֙ עַמּ֔וֹ גּאַָ֖ל ירְֽוּשָׁלִָֽם:
10 The Lrd has revealed His holy arm before the eyes of all the nations, and all the ends of the earth shall see the salvation of our Gd.
יחָשַׂ֚ף יהְוֹהָ֙ אֶת־זרְ֣וֹעַ קָדְשׁ֔וֹ לְעֵינֵ֖י כָּל־
הַגּוֹיִ֑ם ורְָאוּ֙ כָּל־אַפְסֵי־אָ֔רֶץ אֵ֖ת ישְׁוּעַ֥ת
הֵֽינוּ: אֱ
Joy is rising in our world, though the headlines don’t seem to show it. Soon we will be pure enough, our world will be pure enough, open enough to Gd, to Love, so that the fear of Gd’s voice which existed at Horeb will no longer rise.
“Justice” seems a bit of an austere word: Think of it as “Love”, as in “Love Gd above all else” and “Love Thy neighbor as thy self [Self]” and it feels better. Where there is Love, there is no blemish, no violation, perfect attunement, Justice.
“Shoftim” means “judges” and the commandment to establish judges indicates that people are not able to act completely in harmony with Gd’s Will, so there will be disagreements.
The appointment of judges also suggests that there are some people, the judges, who are able to act at least to a good degree in accord with Gd’s Will — promising help to those a bit out of tune to get into tune and participate in a harmonious society.
Judges will be appointed in every generation and they will administer justice without bias and they will teach Torah law and people must follow, not deviating. Teaching Torah law means not just teaching the 10 utterances, the 613 commandments, for people to memorize and follow: it means teaching harmony with Torah, which is harmony with Gd, teshuvah, return to Oneness. It means teaching people to realize they are impulses of Gd, characters in a story Gd, One, tells within Himself/Herself/The Self.
In our generation, the closest we can come — and we hope that it is close — to the formally appointed judges intended by Gd is the Supreme Rabbinical Court in Israel which is respected by rabbinical judges not only in Israel but throughout the world. But, fortunately, we are growing in the ability to spontaneously Love and to create the world so pure that the Rabbinical Court will be a place for Torah recitation, singing, dancing in the Joy of Oneness.
Shoftim repeats the law against idolatry and adds a law against sorcery: both involve putting trust in a partial value not in the Wholeness that is Gd. We are growing in Wholeness so that we will guide our life within Wholeness, in Fulfillment, so there will be no fear to draw us into fragments of Life.
Shoftim talks about kings: they are like judges in their power and Gd commands them to be humble, not to think themselves better than others, and each king is commanded to write a copy of the Torah Scroll for himself, to keep it with him [or her!] always. [Greatness comes from humility, because humility is the awareness that the individual is only great through connection to Wholeness, Gd, the Self]. What is commanded for a king can certainly be useful for anyone. Learning to create our own Torah scroll in the way that the trained soferim, Torah scribes, do would be a wonderful experience in attuning ourselves to Torah on the level of meaning, language, words, but also on the level of letters, the level of the way body, mind, feeling, ink, pen and parchment interact to produce letters, words, spaces, words, sentences, paragraphs, chapters, all of Torah in written form.
To become a Torah scribe requires considerable training and Torah scrolls created by them are quite expensive. So for most of us, we will probably have to substitute reading the Torah, reciting Torah, and keeping a printed copy of Torah by our bedside or some other place that is convenient.
Torah is on the Internet in many places and so anytime we are near a computer, we can take a few minutes now and again to dip into Torah and return to our other activity with some fine refreshment.
Shoftim describes the creating of cities of refuge: Here we see justice in another form — places where someone who accidentally killed will be safe from retribution. Better is to rise in purity so that our world rises with us and there are no accidents, much less accidental killings, and no need for cities of refuge.
Unblemished offerings: These symbolize the purity that justice is — unblemished. Since the real offering is not the physical offering, or even the prayers that we offer today as a substitute for the physical offerings: the real offering is our self. So we offer ourselves to Gd as the Mi Shebeirach prayer says: “Give us the courage to make our lives a blessing.”
Witnesses: As an example of standards of evidence, two adults witnessing someone about to break Torah law were required to warn him. In a world, a full realization of Canaan, the Promised Land, this might not even be necessary for small children. But even when it is, in a world where everyone experiences “The World is My Family” anyone seeing any child in danger of breaking a law would certainly unhesitatingly, lovingly warn the child.
Rules of war: Peace terms are to be offered before attacking a city. In a world where everyone is in harmony with Gd, with One, wars will not arise.
No Wanton Destruction: For example, no cutting down a fruit tree that is bearing fruit in order to use its wood to build a house. A harmonious world shows us exactly the appropriate materials and tools at exactly the right time.
Action when a dead body is found without witnesses to the murder: the whole community is held responsible; it is the community’s lack of attunement to Torah, to Gd, that led to the crime. With each of us becoming more and more attuned, the community becomes attuned, murder does not occur.
These specific examples of justice depend on our attunement to Wholeness, to Oneness, and this depends greatly on the justice, the purity, of our daily routine. When our daily routine is healthy, we see things as they are, act appropriately in a spontaneous way.
Shoftim is an aspect of Torah that gives specific examples of the qualities of judges and specific examples of ways to ensure that justice is done. Through our reading, reciting, hearing, writing this passage we can move to the Universal Justice that is Love, Joy, Harmony, Oneness, Wholeness, Gd, Self.
How nice!
Baruch HaShem