Moses died close to 4,000 years ago, while Elijah, according to the biblical account, was "translated" alive into heaven and regularly returns to earth.
By SHLOMO RISKINsword scale justice 88(photo credit: )"Judges and executors of justice shall you establish for yourselves in all of your gates... Righteousness, righteousness shall you pursue in order that you may live and inherit the land which the Lord your God is giving you" (Deut. 16:20).
In this opening passage of our weekly portion, the Bible conditions our ability to remain as inhabitants of the Land upon the appointment of righteous judges who will not pevert justice, show favoritism before the law or take even the smallest of bribes (ibid., 19). The Bible also stresses "Righteousness, righteousness shall you pursue" - a commandment with a number of interpretations: first, seek or appoint another court if the local court is not deemed adequate for the needs of the litigants (Rashi, ad loc.); secondly, in the words of Rabbi Menahem Mendel of Kotzk, make certain that you pursue justice by means of justice; that your means as well as your goals are just.
I would add the stipulation that the "administration" of courtroom management also be just: begin on time without keeping the litigants waiting, conclude each case with as much dispatch as possible, and listen sympathetically to the claims of each party, so that everyone feels that he/she has received a fair hearing.
Further on in our portion, the Bible adds another critical criterion for true justice: "When there arises a matter for judgment which is hidden from you [a case which is not cut-and-dried, which requires extra consideration on the part of the judges] you shall come to the judges who shall be in those days." (Deut. 17:8, 9). Rashi makes it clear, basing himself on the words of the talmudic sages, that we must rely on the sages of the particular era for the judgment at hand, that "Jephthah in his generation is as good as Samuel in his generation." This notion is further elucidated by Rabbi Levi Yitzhak of Berditchev in his masterful Kedushat Levi under the rubric tayku, usually explained, "Tishbi [Elijah the Prophet] will answer your questions and ponderings" in the Messianic Age. Why Elijah, asks Rabbi Levi Yitzhak. After all, there will be a resurrection of the dead in the Messianic Age wherein Moses will be resurrected; since Moses was a greater halachic authority than Elijah, why not have him answer the questions?
Rabbi Levi Yitzhak provides a sophisticated response. Moses died close to 4,000 years ago, while Elijah, according to the biblical account, was "translated" alive into heaven and regularly returns to earth, appearing at every circumcision and Passover Seder. Since Elijah understands the travail, hopes and complexity of the generation of the redemption, only he can answer the questions for that generation; a judge must be sensitive to the needs and cries of his particular era.
In the Book of Exodus, when Jethro, the Midianite priest, first suggests to his son-in-law Moses that he set up a judicial system of district judges, we find more qualifications: "You shall choose from the entire nation men of valor, Godfearers, men of probity who hate dishonest profit" (Exodus 18:21).
Our great 12th-century legalist Maimonides (Rambam), defines men of valor (hayil), a Hebrew word which connotes a soldier (in the army of the Divine) as follows (Mishne Torah, Sanhedrin 2, 7): "Men of valor refers to those who are valiantly mighty with regard to the commandments, punctilious in their own observance... And under the rubric of 'men of valor' is the stipulation that they have a courageous heart to rescue the oppressed from the hands of the oppressor, as in the matter of which it is written: 'And Moses rose up and saved [the shepherdesses]' from the hands of the more powerful shepherds. And just as Moses was humble, so must every judge be humble."
Rabbi Shlomo Daichovsky, one of the most learned and incisive judges in the rabbinical court in Jerusalem, asks how is it possible for him to be a valiant fighter on behalf of the oppressed, which requires the recognition of one's power to exercise one's strength against the guilty party, and at the same time be humble, which requires self-abnegation before everyone? These are two conflicting characteristics.
Rabbi Daichovsky concludes that humility is an important characteristic only when the judge is not sitting in judgment; when the judge is on the throne of judgment, he must be a valiant and self-conscious fighter, fearlessly struggling against injustice as though "a sword is resting against his neck and hell is opened up under his feet" (B.T. Sanhedrin 7, Rambam there). "The judge must be ready to enter Gehenna and face a murderous sword in defense of his legal decision. He must take responsibility and take risks, just like a soldier at war who dares not worry about saving his own soul" or walking the safe (and more stringent) halachic ground.
Rabbi Daichovsky reminds his fellow judges about R. Zecharia ben Avkulis (B.T. Gittin 53a), who refused to sanction the sacrifice of a blemished lamb the Roman emperor sent to the Temple. Those on the Right accused him of acting too leniently regarding Temple sacrifices because he refused to execute the spy who had blemished the sacrifice, while those on the Left accused him of putting strict observance ahead of common sense and simple survival. The Talmud concludes, "the humility of R. Zecharia b. Avkulis destroyed our Temple, burnt our Sanctuary, and exiled us from our homeland."
Finally, Rabbi Daichovsky exhorts his fellow judges not to fear any human being when they render a decision, not even great halachic authorities, because these scholars did not hear the case, did not look into the eyes of the petitioners, and therefore are not vouchsafed the same heavenly aid as the judges involved with the litigants eye-to-eye and heart-to-heart (see Maimonides, Laws of Sanhedrin 23, 9).
Tragically, the majority of the rabbinical court judges in Israel are not heeding the wise counsel of Rabbi Daichovsky. They are not hearing the cries of oppressed women refused divorces by recalcitrant and greedy husbands, they are not being sensitive to the crying need to find appropriate ways to convert the close to 400,000 gentiles living as Israeli citizens and often risking their lives in the wars for our national survival.
There are manifold solutions in the Talmud and Rishonim to free "chained" women, and bring the gentiles among us under the wings of the Divine Presence. Instead, our judges choose to take the safe way out, to rule in accordance with every stringency, to deafen themselves to the cries of the aguna in favor of the ultra-Orthodox, anti-talmudic insistence on "the purity of Israel," to refuse to nullify sham and shameful marriages but hasten to nullify conversions performed by respected religious authorities like Rabbi Haim Druckman - nullifications clearly forbidden by Maimonides - which wreak havoc on Jewish families.
Given such judges, do we merit our inheritance in the land of our forbears?
The writer is the founder and chancellor of Ohr Torah Stone Colleges and Graduate Programs, and chief rabbi of Efrat.
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