Shall Not the Judge Do Justice?

This post was originally delivered as a Yom Kippur Evening sermon at Kol Hadash Humanistic Congregation in suburban Chicago in September 2020. It was part of a series on Five Jewish Questions. Video is available here.

Consider Abraham. Abraham is told that the city of Sodom will be destroyed for its wickedness. Abraham bargains to save the city, and his opening remarks echo even today: “will you destroy the righteous with the wicked? What if there are 50 righteous people in the city, You would then wipe out the place and not forgive it for the sake of the righteous 50? Far be it from you to do such a thing, to bring death upon the innocent as well as the guilty, so that innocent and guilty fare alike. Far be it from you! Shall not the judge of all the earth do justice?

The judge should do justice. Innocent and guilty should not fare alike. This is an essential challenge of any legal system – once you make laws, their equal and impartial enforcement is a key to justice. The Soviet Union had a written constitution that theoretically guaranteed wonderful freedoms; in reality it had a KGB and gulag prison camps. The American Declaration of Independence declared all men were created equal, in an era when most people were disqualified from being a full person. After the Civil War, “separate but equal” existed on paper, but it was always a lie, everyone knew that the reality was separate and unequal. Declaring law and order is one thing; doing real justice is much harder.

Human beings are bad at judgment. We leap to conclusions from scanty evidence. We make snap decisions, and then try to justify them; brain scans confirm this sequence: decision first, reasons afterward. We all have biases; we say, “don’t judge a book by its cover,” and we do. For example, we are very poor at judging risk – pre-coronavirus, which do you think was more dangerous: 1) flying in an airplane, 2) driving a car, 3) riding a bike or 4) taking a walk? Many people would rank them in that order – flying most dangerous, walking the safest. The statistical truth is that planes are safer than cars, and bikes are safer than walking! The National Safety Council regularly produces an “Odds of Dying Chart” (believe it or not). It turns out that the odds of dying of cancer over your lifetime are more than 1 in 10, and from opioid overdose more than 1 in 100, and BOTH are more common than dying in car crashes. As a pedestrian, odds are 1 in 500 – as a cyclist, 1 in 4000. And you are more likely to die of sunstroke, insect stings, even dog attacks or lightning than you are to die from a plane crash. Those are the facts. Do facts change our judgment? Now consider issues like social distancing, wearing masks, wiping down groceries and mail, eating outside, visiting friends and family and so much more. Some may be too cavalier, and some may be more cautious than science truly warrants. In this empty sanctuary, speaking to an online congregation, I know that saving life is paramount. But living life is important too. We will talk more about living life moving forward at our memorial service which explores Ecclesiastes’ question “Who can see what will happen after?”

The challenge of flawed human judgment is one reason we are tempted to outsource justice to the cosmos: if we are unreliable, untrustworthy, incomplete, then we want someone or some thing to be absolutely fair, knowing everything, judging without bias. Growing up in an Orthodox Jewish community, my father was convinced that he was earning points with every mitzvah/every commandment he fulfilled; this was no metaphor, he really believed in a heavenly tally of good deeds and demerits. Many people would rather believe that a disaster was their fault and add guilt to their own suffering rather than picture a universe where good things and bad things happen by chance, without justice. We want the righteous rewarded and the wicked punished. Yom Kippur is also called Yom Ha-Din, the day of judgment, when it was believed that a book of life of who will live and who will die is written and sealed for the year. This way when someone died that year, everyone knew it was justice and they could say “barukh dayan ha-emet,” blessed is the true judge. On this Yom Kippur date, Jews sacrificed and fasted and prayed and atoned because they believed in a just god, they believed they had failed, and they believed that they would justly suffer and even die for an unatoned sin. This is the start of Abraham’s challenge, believing in a judge of all the earth, and then challenging that judge to do justice.

It is chutzpah to challenge the judge to do justice. There is a long Jewish tradition of challenging God, from Abraham on. Challenging cosmic justice is an important step towards humanism – for us, assuming the universe works by our moral calculus is chutzpah! As far as we know, based on our experience, the only power working for our justice is just us. And if that deep desire for justice is part of being human, if individuals and communities need real justice to survive and to thrive, then WE have to work for it – that’s Humanism.

Our question from Rosh Hashana echo again – am I my brother’s keeper? We know that it is not really justice if it is for just us, our group, those we like or identify with. This is why the idealized statue of justice is blindfolded. As we heard tonight, Exodus 23 expresses exactly this sentiment, but of course other Torah laws accept slavery, even treating the slavery of Israelites different from the slavery of other peoples – Israelites may be freed every 7 years, but not “them,” just us. A man may suspect his wife of adultery and require her to undergo a ritual that could make her a curse among her people – there is no parallel process for a MAN committing adultery, and no compensation for a false accusation. Post-Biblical Judaism was very legalistic, but before modern times women were not accepted as rabbis or judges, they were not even accepted as witnesses for some cases – even today they cannot sign many Orthodox marriage ketubahs as witnesses, though they can witness the civil marriage license or a prenup; on secular documents, their testimony is valid and valued. Yes, there are wonderful statements in the Torah and Jewish tradition about avoiding bribes, doing justice, having fair weights and measures, not oppressing the stranger. And then there are Torah laws for just us, and just for men.

Remember, a well-written law is only one first step towards justice; Abraham has no written law to cite when he challenges God: no Constitution, no Torah yet, and they won’t admit any use of the Code of Hammurabi. Abraham’s challenge does not quote the letter of any law – it begins with a basic moral principle, a spirit of the law: “will you destroy the righteous with the wicked?” This is the spirit of justice: the innocent should not suffer with the guilty; if they do, there is no justice. For many of us, the injustice of earthquakes and holocausts and plagues that kill indiscriminately is why we do not believe in a benevolent world or a just personal god. If the righteous are indeed destroyed with the wicked, then any cosmic judge there may be is not doing justice and does not deserve our petition or our praise.

What about judges in our world, judges and juries we designate to decide who by prison and who by community service, who by fine and who by plea deal, who is guilty and who not guilty. Human justice is not blind: from policing priorities of which cars to stop in which neighborhoods, to what charges are filed, to what plea deals are offered, to the sentence, human justice has not been blind because humans are not blind. Our biases affect our judgment, as study after study has shown both in theory and in the real world. When it comes to human justice, however, we draw the opposite conclusion from the cosmos – no cosmic justice seen means no cosmic justice possible. But human justice failed does not mean it cannot be done. Human injustice motivates us to work even harder, to go beyond the letter of the law that sounds fair but works out unjustly to reach for the spirit of the law, that the righteous and the wicked should not meet the same fate.

One of the first teachings in Pirkey Avot/Sayings of the Fathers encourages us to “judge every human being favorably.” Large passages of Jewish law are devoted to legal procedure, rules of evidence, and the like. The American criminal justice system decrees suspects officially innocent until proven guilty. We appoint public defenders, we read the accused their rights, we present a public trial, the accused are judged by a jury of peers, there are courts of appeals, and more. And still, in the real world, there have been failures to do justice at every step. Remember what Winston Churchill said about democracy: “No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.” There is no substitute for human justice, which means we have to take Abraham’s challenge and renew it for our days – the human judges of the earth must do better at doing justice. Martin Luther King Jr. once quoted a 19th century theologian to affirm that “the arc of the moral universe is long, but it bends toward justice.” For Humanists, that arc does not bend itself.

What should we do, then, if we accept Abraham’s revised challenge that judges must do justice and the righteous and wicked must not fare alike? How do we make it so? We need to balance accuracy and haste. It is true that justice delayed is justice denied. It is also true that partial information spreads wildly through the online mobs of outrage. Like the witch trials of Salem, condemning others makes us feel more righteous, especially when the violators are some version of “them.” Fact-checking gets a bad rap these days, but we cannot create justice through injustice. This is why you need a warrant for a search, and confessions extracted by torture are inadmissible. Policemen and malicious thieves who break the law are criminals. This does not mean that laws = justice; there can absolutely be unjust laws and even systems worth disobeying for positive goals. Civil rights icon John Lewis was arrested 40 times protesting segregation – definitely a repeat criminal offender. His suggestion? “get in good trouble, necessary trouble.” Abuse of power, falsifying evidence, this is not good trouble. This is injustice, period.

If we do not want righteous and wicked to fare alike, then we need subtlety and discernment. There are police officers and judges and district attorneys who work for justice, even if there are enough problems that the system itself needs reforming, and not just trimming out bad apples. There are protestors marching for justice, there are people in difficult financial circumstances, and there are criminals looking to steal and profit and destroy. The rush to sweeping judgment is very tempting, just as black and white thinking is tempting, but neither serves the complicated cause of justice. To address habitual offenders, lawmakers passed mandatory minimums and 3 strikes/you’re out laws, but many judges felt unjust imposing long sentences for small offenses. Or the tragic case of Brianna Taylor being debated right now. She was asleep at home when someone broke in the door without warning so her boyfriend shot at the intruder. The police had a no-knock warrant to break in the door and when police officers are fired at, they fire back. Taylor’s family has received a financial settlement that included police reforms like better supervision for warrants and body cameras required to be on during raids. But an innocent person is still dead by mistake, either accident or negligence. What would make perfect justice now? These reforms are progress, incremental steps towards a better system, and improvement based on real life experience and criticism is exactly what needs to happen. But we may never arrive at pure justice. That’s how human justice works.

In the end, Abraham’s appeal does no good. He bargains the Hebrew god down from finding 50 righteous people to save the city to 40, to 30, eventually to only 10 righteous being enough to save Sodom. When angels are sent to investigate, the men of Sodom try to violently assault them. Abraham’s nephew Lot IS saved, though that is really an example of “just us” justice: Lot had offered his two virgin daughters to the mob in place of his guests, hardly a righteous gesture. All of Sodom is destroyed, including presumably children and animals just like Noah’s Flood. It IS praiseworthy that Abraham calls for the judge to do justice and negotiates down the sentence, but the system itself merits serious critique.

Recall Moses’ question – who am I to question justice to be more just? Our society’s justice answers a larger question: who are WE. Who are we as Jews, as Americans, as human beings. When we participate in a system, we assume responsibility for what that system does. Those children at the border were taken from their parents under the authority of our government. Judges in our justice system have been appealed to do justice as best they can within current law. Do we need more judges to reduce delays and make fast and fair decisions on asylum and immigration, up or down? Absolutely. And sometimes real justice means rewriting the laws. Thousands of Israelis protesting government corruption and wrongdoing in the streets are just as Israeli as the thousands who voted the other way three times in 12 months. Shall we treat the righteous like the wicked and boycott them all? I will not.

If there are laws, there will be criminals. If there are people, there will be some who are dangerous to others and who should face consequences for their actions. Almost 2000 years ago, rabbis debated how harsh justice should be:

A sanhedrin that executes once in seven years, is called murderous. Rabbi Eliezer says: once in seventy years. Rabbi Tarfon and Rabbi Akiva say: “Had we been members of a sanhedrin, no person would ever be put to death.” Rabban Shimon ben Gamaliel remarked: “They would also multiply murderers in Israel.”

How harsh is too harsh? What is the proper sentence for a given crime committed by a particular criminal? All of this is up for debate. But equal application of the law, blind justice, righteous and wicked not facing the same fate, judges and the justice system doing real justice – those are non-negotiable if we want to look ourselves in the mirror and say we have honestly pursued justice.

Sodom is destroyed with heavenly fire, and Lot’s wife who dares to look back is turned into salt. On one level, this is an origin story for the desolation of the Dead Sea valley and its high salinity. Like the best of stories, it touches us on many levels. Can we, at long last, meet that challenge, can we satisfy that deeply rooted human desire for equal treatment under shared law? Can our judges and our justice here on earth truly be just? Far be it from us to give up now. Let us save this place, our home, our nation and community for the sake of the righteous and the for sake of righteousness. After all, the Hebrew word Tsedek means both righteousness and justice. As it says in Deuteronomy 16, tsedek tsedek tirdof justice, righteousness you will pursue. It does not say reach, it says pursue. So yallah, let’s go!

About Rabbi Adam Chalom

Adam Chalom is the Rabbi of Kol Hadash Humanistic Congregation in north suburban Chicago. He is also the Dean for North America of the International Institute for Secular Humanistic Judaism.
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2 Responses to Shall Not the Judge Do Justice?

  1. Pingback: Five Jewish Questions – High Holidays 2020/5781 | Shalom from Rabbi Chalom

  2. Pingback: If Not Now, When? | Shalom from Rabbi Chalom

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