Who Is the Judge Today?

When there’s a dispute on a Jewish matter, to whom do you go to for resolution? Our portion begins that judges and magistrates should be set up throughout the land. If there is a dispute, whether on a criminal or civil matter, we are instructed “to appear before the Levitical priests or the judge in change at that time.”[1] Who is the judge today? The Talmud teaches that the judge is the authority, understanding it to refer to the rabbinical court or beit din. This group is meant to apply Jewish law to that generation’s particular circumstances.[2]  While in our movement such a court is only convened for life cycle matters (conversion or divorce), in the Conservative Movement each rabbi is meant to fulfill this responsibility as mara d’atra (the “master of the place.”) Rashi states that even if the judge is not on the same level as those who came before, you still need to listen to him, as it is the judge from your day.[3]

If one is supposed to go to the authority of one’s day then why are there so many rabbinic authorities?  This is especially true in the United States where there is no Chief Rabbi to adjudicate Jewish law. One is supposed to go specifically to one’s rabbi yet there are so many rabbis out there, two of whom could hear the same case and rule differently. As this verse teaches us, one is supposed to speak before the judge who gives him/her a ruling which s/he must hold by. One cannot halachically go to another rabbi for a second opinion. It has gotten to the point where a number of people in the Orthodox world research the rabbis’ opinions in advance of going to them so that they will get the answer that they want.

Can the rabbi really fulfill this position of judge? After all, the judicial system has a clear hierarchy, with county, district, appellate and supreme courts. There is no such objective hierarchy in the rabbinate: each rabbi has his/her own domain for making decisions. In the Orthodox world there is still a beit din of three rabbis used for legal matters, but that does not exist in the Conservative world. Furthermore, one can easily access the opinions of the Committee on Jewish Law and Standards online, so what need is there for an individual Conservative rabbi to adjudicate Jewish law?

One of the critiques I heard of our movement’s law committee was at Heritage Retreats in Santa Ynez, California in 2004. The retreat occurred at Ray Kroc’s former Circle K ranch, which was claimed to be the largest ostrich farm in the United States. The unstated goal of the two-week retreat was to make participants Orthodox by getting them to commit to attend Yeshivat Machon Shlomo in Har Nof for one year (ideally without telling their parents).  It was run by Baalei Teshuva rabbis.[4]  The rabbis tried to persuade me not to become a Conservative rabbi, even taking the liberty of changing the retreat schedule to do a class on Conservative Judaism, in particular Solomon Schechter’s Catholic Israel.[5] The problem as they saw it was that to be inclusive of multiple voices, the Conservative Movement created a law committee.[6] As was argued, when you need to decide as to whether or not to have surgery, you don’t go to a committee of doctors but rather an expert doctor. Similarly, when you decide Halacha, you don’t decide by committee-you go to an expert, as in the judge mentioned in Parshat Shofetim. The rabbis made the law committee, and by extension Conservative Judaism, seem farcical-one even proclaimed that a Conservative rabbi told him that if a majority of members of the committee wanted bestiality it would pass!

In retrospect, I would have argued that while ideally everyone should have their own rabbi they go to for advice, the nice thing about the 25 rabbis on the law committee is that they take the discussion to a higher level, ensuring that when a position paper is passed it is adequately researched and examined for any flaws in logic, as well as that all of the rabbinic sources behind the paper are thoroughly vetted.

Communication today on matters of Jewish law, at least from the Conservative Movement, is less between a person and a judge but rather a conversation on how to keep matters of Jewish law in the contemporary world. I find that when people come to me with questions about Jewish law, the most important part is the personal conversation. The goal of a rabbi is not to be a walking encyclopedia of Halacha but rather one who is able to apply Jewish law to contemporary situations. That is why the Torah doesn’t say look at these instructions but rather go to the judge who will be there in your day. It recognizes that Jewish law needs to continue to develop and evolve in light of new situations and contemporary reality. At the same time, judges and rabbis should not just bend on a whim but should be aware of the factors behind the decisions they are making and hold onto their core principles. As Rabbi Joseph Potasnik taught me, the words Hashivah Shofteinu which we say three times in the weekday Amidah means, “give us judges who don’t change from their ideals.”[7]

As we continue to study Parshat Shofetim, let us determine what it means to act in accordance with Jewish law and answer new questions that come our way. Similarly, we need to examine the role of the judge today in acting both according to tradition and addressing new questions which develop.

[1] Deuteronomy 17:9

[2] Babylonian Talmud Rosh Hashanah 25 a-b

[3] Rashi on Deuteronomy 17:9 ד”ה ואל השופט אשר יהיה בימים ההם

[4] Rabbis who grew up as secular Jews but later became Orthodox

[5] The English term for כלל ישראל, all of Israel

[6] The committee contains 25 rabbis, all of whom vote on responsa, as well as 5 lay leaders who do not vote.

[7] Rabbi Joseph Potasnik, Introduction to Chief Justice Stephen Breyer, May 12, 2017.

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Doing the Good and the Right

Are goodness and righteousness subjective things? Not according to our tradition, which states “…for you will do that which is good and right in the eyes of the Lord…”[1] How is this determined? Is what is good always the same as what is right? In an article entitled Doing the Good and the Right,[2] Rabbi Marc Angel quotes Rabbi Benzion Uziel z”l the first Sephardi chief rabbi of Israel, comments “Righteousness and justice, compassion and truth–these concepts exist simultaneously, as difficult as this is to comprehend. The fundamental teaching of the law of justice is that one may not show compassion in justice, but should uphold the law whatever the consequences. On the other hand, we are taught to do that which is good and upright, and we may compel behavior which is beyond the letter of the law (לפנים משורת הדין).”

Rabbi Uziel notes that the rabbinic judge must balance these seemingly conflicting claims. A decision must be reached that reflects both truth and compassion.  The halakha must not only be right–it must be good. In his own writings, Rabbi Uziel reflected a profound commitment to truth, and an overwhelming commitment to compassion. His rabbinic rulings are classic models of halakhic decision-making. He understood that the halakha must relate to real human beings in real life situations; halakha is not a set of abstract rules to be observed by sectarians and ascetics.

In one of his lectures many years ago, Rabbi Ovadya Yosef referred to two tendencies in religious life. One is “gevurah”–heroism. This tendency is marked by the desire to adopt as many stringencies as possible to demonstrate how self-sacrificing one can be in fulfilling the mitzvot. Followers of the “gevurah” approach draw on the strictest halakhic views, even when there are much more cogent and sensible views available within halakha.  They prefer extreme positions, thinking that stringency is equated with greater religiosity.

The second tendency is “hessed”–compassion.  This tendency is marked by the desire to deal with halakha in a humane, loving and kind manner. Religion should reflect lovingkindness, a profound sympathy for the human predicament, an optimism that God loves us. Followers of the “hessed” approach shun extremism and unnecessary stringencies.  Rav Ovadya Yosef comes down on the side of “hessed”, indicating that this was the quality that characterized the School of Hillel, whose opinions were accepted over those of the School of Shammai.

Surely one must observe mitzvot carefully; but just as surely, one must fulfill them in a spirit of joy and compassion.  The mitzvot were given to bring us happiness and spiritual fulfillment, not to serve as a constant source of fear and spiritual inadequacy. Excessive stringency is no more a sign of true religiosity than excessive leniency.

We are called upon to do that which is good and right in the eyes of God.  This is a tremendous challenge–and an honor.  It entails the fulfillment of the teachings of the Torah in a spirit of truth and compassion, but favoring the tendency to have “hessed”.

We are here at a momentous occasion-the 70th wedding anniversary of two very special people: Philip and Pearl Friend. They have truly been friends of the Jericho Jewish Center, here for us at numerous celebratory events. They are best known as the parents of our balabusta Barbara Rosenblum, who is the heart and soul of our congregation, doing so much both in person and behind the scenes to strengthen us. As we know, the 70th anniversary is a very special one, being a Second Bar Mitzvah. Phil lead us this morning in Pesukei D’Zimra, which states that the years of one’s life are seventy[3] so 70 years is a new lease on life. It is so rare to have a couple together for 70 years, and it is an occasion we must celebrate together. I wish you another 70 years of marital bliss and joy seeing your great-grandchildren grow up and your family continuing to expand. Mazal Tov on this very special day!

[1] Deuteronomy 12:28

[2] Rabbi Mark Angel, Doing the Good and the Right, Thoughts for Parshat Re’eh August 7, 2010.

[3] Psalm 90:10 ימי שנותנו בהם שבעין שנה

Cities of Refuge

Whenever I visit Israel, especially a kibbutz or a k’far, I always notice the buildings that say miklat (מקלט). These are the bomb shelters, the areas where residents will have 20-30 seconds to get to between the sounding of an alarm and the rockets striking. As a sheltered American, I think of what it must be like to live every day with a sense of uncertainty and danger, not knowing when the siren will strike.

Parshat VaEtchanan contains a reminder of the six Levitical cities, or towns in which the Levites will dwell. These cities are referred to as arei miklat, or cities of refuge. Anyone who has committed manslaughter through negligence needs to flee to one of these cities and must stay there until the Kohen Gadol, or High Priest, has passed away, whereupon s/he can return to his/her place of origin. However, if the goel hadam, or blood avenger, a relative of the deceased, encounters the one who flees outside of the city of refuge and kills him, there is no guilt on his account.

The cities of refuge, instead of becoming a temporary respite, turn into a prison, where someone cannot escape on pain of death. The person might need to remain there for years until the death of the Kohen Gadol. Instead of being brought to a trial by a judge, the person is required to hide out. Of course one could leave the city but then s/he would always be looking over his/her shoulder for the blood avenger.

The end of the Book of Joshua contains additional laws regarding these cities of refuge.[1] When someone arrived in the city, he needs to describe to the city elders the events that occurred-an example given in the Talmud being “as I was sharpening my axe head, it fell off and killed a person.” S/he stands trial and if found innocent, the Levites must find a place for the person to dwell. If the blood avenger comes, they cannot turn him over because “the fugitive killed their neighbor unintentionally without malice.”[2]

The cities of refuge bring up a number of “why” questions. Why establish a city of refuge in the first place rather than convicting someone of manslaughter? Why would these cities be the same as the dwelling places for the Levites, the servants of G-d? Why can’t the person leave the city until the death of the Kohen Gadol? Why establish this category of “blood avenger,” in Hebrew the same word for “redeemer” (גואל) as if you’re redeeming the person’s soul or legacy by avenging his life?

At first blush one might think that cities of refuge are places of protection; that the Levites, as spiritual authorities, were ensuring that the person was protected from the blood avenger. However, Philo of Alexandria has a different take, asserting that the cities were place of atonement. He writes that an innocent person would never be chosen as the instrument of another’s death, and so therefore he had to commit some sort of sin.[3] That is why he would need to escape to a Levitical city, for the Levites were the stewards of G-d’s will and would provide the spiritual role-modeling that would be necessary for this person’s atonement. It also relates to why a person needed to remain in a city of refuge until the High Priest’s death. Tractate Makkot in the Talmud[4] states that the death of the High Priest formed an atonement, viewing it in the same light as a sacrifice, for this was the most pious person who gave his life in the service of G-d. Maimonides[5] on the other hand stated that the death of the High Priest, the spiritual leader of Israel, was so troubling that the people dropped all of their thoughts of vengeance. It is interesting that the freedom of the refugees is dependent upon the death of the high priest. Turning back to Tractate Makkot in the Talmud,[6] we learn that the mother of the High Priest would provide clothing and food to all those who claimed asylum so that they would not wish for the death of her son.

This brings us to the question as to the need for a “blood avenger.” While this category might be troubling for us, in a sense it is actually an example of imitatio Dei. Every morning we refer to G-d as gaal yisrael, the Redeemer of Israel. G-d redeemed our ancestors from the wrongs done to them by their enslavement to the Egyptians. Similarly, the “blood redeemer” is righting the wrong done to his kinsman through his life being taken by another. It is one of many examples in the Bible about redeeming a kinsman from wrong, others including levirate marriage (יבום) and redemption from slavery or from captivity (פדיון שבויים). If we look at the role of this individual as fostering justice and righting wrongs, it becomes more understandable.

Where does this leave us today? Let us return to the example of the miklatot, the bomb shelters in Israel. It’s no secret that the world we live in is a scary place. Sometimes wrongs happen, whether deliberately as in the acts of radical terrorists in Israel or accidentally as in the case of our Torah portion. In either case we have a commandment to establish miklatot, places of refuge, in order to preserve the well-being of our people. We should never take life for granted and we require these miklatot as safeguards. In a few weeks we will read the command to “build a parapet for your roof,” to put safeguards up for protection, and it is our job to do so. Israel has been a prime example of being proactive and protective, and I hope we will follow suit. The cities of refuge were never the ideal, but rather a reality for those whose negligence resulted in a death. May we learn from this example and put up proper safeguards to preserve and strengthen life.

[1] Joshua 20:4

[2] Joshua 20:5

[3] The Writings of Philo of Alexandria, Special Laws I:159

[4] Babylonian Talmud Makkot 11b

[5] Moses Maimonides, The Guide to the Perplexed, 3:40

[6] Babylonian Talmud Makkot 11a