Shofetim

Devarim 16:18-21:9

Earthly Justice as Preparation for Divine Judgment

Aryeh Bernstein, 5761

The opening verses of our parashah command the establishment and proper administration of a moral justice system:

We have also just entered the month of Elul. Leading up to Rosh HaShanah, the Day of Judgment on high, Elul is the month of heightened focus on teshuvah (repentance). To pace this spiritual preparation ritually, we blow Shofar and recite Psalm 27 daily. Sepharadim have already begun saying Selihot, penitential prayers, every dawn. So this week, we hear God's command to establish earthly courts at the time that we prepare to enter God's court to receive our judgment. What experience does the tradition guide us to have by combining these two messages?

The Tur (Orah Hayim 581), brings a tradition that the reason we blow Shofar throughout Elul is because Mosheh went up to receive the second tablets of the Ten Commandments on Rosh Hodesh Elul, coming down 40 days later, Yom ha-Kippurim:

What is it about the second set of tablets that Hazal understood to be connected to the preparation for the Days of Awe? Rav Yitzhak Hutner (Pahad Yitzhak Shabbat, 9) points out that the main characteristic distinguishing the second tablets from the first is that while the first tablets were solely the work of God (Shemot 31:18; 32:15), the second tablets were formed by Mosheh (Shemot 34:1, Devarim 10:3). Therefore, the second tablets-and Torah from that point on-incorporate and reflect human perspective. A very nice connection emerges. Our Elul preparation to stand in the Court on High on Yom ha-Din echoes Mosheh's reception of the second tablets: it must be an active and not passive process, just as Mosheh invested of himself in the re-creation of Torah. How do we do this? Just as Mosheh received Divine truth by investing his earthly perspective, we prepare to stand trial in God's court by working on our earthly justice systems, which is precisely the charge of our "Elul parashah"-Parashat Shofetim.

There is one problem, though, posed by the following midrash (Devarim Rabbah, Shofetim 5):

This is very strange. Doesn't God justly visit our human actions with measure-for-measure reward and punishment? Why should human and divine justice be mutually exclusive? Shouldn't our enactment of judgment below invite God's enactment of judgment above? This midrash seems to undercut the spirit that the calendar creates this shabbat, with the confluence of Shofetim and preparing for Yom ha-Din. We thought that enacting justice below would prepare us for justice on high; now we discover that enacting justice below precludes justice on high.

Rav Hutner (Pahad Yitzhak, Yom HaKippurim, 36) explains that whereas doing hesed (lovingkindness), as the Talmud tells us, is a fulfillment of the commandment to imitate God, performing justice in the human realm is not. The gemara (Shabbat 133b) says that to imitate God, "Just as [God] is compassionate and merciful, so, too, should you be compassionate and merciful" - "הוי דומה לו: מה הוא חנון ורחום - אף אתה היה חנון ורחום". It never says, "Just as God judges the wicked, so, too, must you judge the wicked." Judgment is essentially a divine, not human, activity, so when we perform justice-as God commands us to-we are doing so as God's shelihim (agents or messengers). Therefore, when we achieve justice on the human plane, there is nothing left for God to do: we have already done the work. When there is judgment below, there is no judgment on High.

Our problem with that midrash is solved, then, but our understanding of the spiritual connection between Shofetim and Elul remains broken. What can we learn from the confluence of Parashat Shofetim and the beginning of Elul? Above, I cut off the text of the Tur prematurely. After explaining the custom to blow shofar in Elul as a commemoration of Mosheh's ascent for the second tablets, he continues as follows:

We blow shofar during the month of Elul not only to recall Mosheh's ascent to the mountain, but also to awaken the slumbering to do teshuvah, repentance. Several of the poseqim (halakhic authorities) ask why the Tur bothers to bring this second reason; wasn't the first reason, about the second tablets, sufficient justification for the custom? I think if we can answer this question by connecting the dots of what we have learned so far: If the second tablets represent human investment in creation of Torah and if Torah-God's will and message for us-is all about forging a just world (as God's messengers), it follows, then, that the Tur's second reason-arousing repentance-is a contemporary fulfillment of the spirit of the first reason-Mosheh receiving the tablets. Awakening to repent is just what Mosheh did on behalf of the people when he ascended to receive and carve the second tablets after the golden calf disaster.

Our parashah began with the principle of establishing a justice system. It ends with the most jarring example of the inadequacy of that system, a murder whose perpetrator is unknown. In that circumstance, the elders of the nearest town perform the strange ritual of breaking the neck of a heifer over a raging river. At the end of the process, they wash their hands of the cow's blood and, symbolizing their innocence in this person's death, say "Our hands did not spill this blood and our eyes did not see it" -- "וְעָנוּ וְאָמְרוּ יָדֵינוּ לֹא שָׁפְכוּ אֶת הַדָּם הַזֶּה וְעֵינֵינוּ לֹא רָאוּ"(21:7).

The Mishnah asks about the formula of the elders' statement (Sotah 9:6):

We can wash our hands of bad things that happen only if we can really say, without reservations, that "our hands did not shed this blood", that we did all we could to create a safe and just society and to care for this human being. How often can we say this about people who die prematurely in our society?

The midrash mentioned above, from Devarim Rabbah, exhorts us to create a society in which court decisions will be unnecessary. Just as exacting justice below obviates the need for God to judge above, so too, acting justly in the first place obviates the need for a court system. Parashat Shofetim, establishing the justice system at the beginning and coping with the failures of that system at the end, comes at the beginning of Elul to remind us that the opportunity and duty to repair the world rest in our hands. We prepare ourselves optimally for God's judgment on Rosh HaShanah by investing ourselves fully in the creative enterprise of teshuvah. This is accomplished not by simply feeling bad about mistakes, but by improving and remaking ourselves and the world around us. In the terminology of Parashat Shofetim, we accomplish this by administrating a fair justice system and by conducting a society in which people are cared for to the point that everybody can honestly say "our hands did not shed this blood". In the terminology of Elul, we translate into our own teshuvah process our recollections of Mosheh going back to the drawing board to carve out the second tablets. If we respond to the shofar of Elul accordingly, we can spare God and ourselves the trials of Yom Ha-Din.