Marc KatzComment

The Error of Judging (Parashat D'varim)

Marc KatzComment
The Error of Judging (Parashat D'varim)

This week we begin a new book of the Torah. Called the Book of D'varim or Deuteronomy, we begin reading the last speech of Moses. Moses has led the Israelites for forty years, marching them through the desert, and he knows he cannot continue with them. For the next number of weeks, we will hear Moses relate the history, ideals, theology, and values he wants to them to carry forward as the next generation assumes the mantle of leadership.  

As part of relating that history, Moses tells the story of appointing judges over the people to help him carry the burden of leadership. These people would mediate conflict, consider solutions, and proclaim judgement. As he retells the history of their appointment, he describes the attributes he used when choosing each of these leaders: they would be wise, understanding, and known (Dt. 1:13). If we add to that, the fact that in a different place in the Torah, we find a list that includes the description of a good judge as "able, God-fearing, truthful, and hating unjust gains" (Ex 18:21) we find that every judge must simultaneously be seven things at once.  

Yet, as we know, judges are human. And they err. But, as our rabbis explain, our job should still be to look for people who fulfil as many of the above attributes as possible. We should look for the greatest minds and hearts of our generation but allow ourselves to fall short in our task and accept the person who comes closest to our vision. As our rabbis explain, the reason all seven of these attributes are not explained together in one biblical passage is to teach that: 

If men possessing all the seven qualities are not available then those possessing four are selected; and if such are not available, then those possessing three qualities are selected; and if even three are not available then those possessing one quality are selected (Dt Rabbah 1:10).  

There is no question that finding the right judge is hard. It's difficult enough to be wise or God-fearing, understanding or known. It's nearly impossible to be all of these at once. Like anyone, a judge will have certain strengths and many weaknesses. When we acknowledge this, when we allow our judges to have their humanity, we will come to accept our legal system as imperfect rather than bemoan it. 

Judaism understands that law is evolving as life is evolving. If we are doing things right, we get closer to Truth at each generation. We stand on the shoulders of those who came before us, which is perhaps why Jewish law understand that the latest authority in time has the final say in legal matters (halacha k'batra). We are not constrained by the decisions of the past. 

This frees us up to do our best when choosing leaders. Since mistakes are not only accepted but expected, we should come to presume that certain held beliefs of today will be overturned tomorrow. We should seek perfect judgments and understand that they almost never come.  

And the reason for this is that often, when we judge, we are forced to choose between two "rights" rather than between "right and wrong." Our tradition illustrates this through a parable. Since the Torah does not define the seven terms they use to describe a good judge, our rabbis take up the task. In doing so they seek to examine the difference between the terms "wise" and "understanding." 

According to our rabbis, the two terms  might seem similar but they are in fact very different: 

What is the difference between wise men and understanding men? A wise man is like a rich money changer: when people bring him dinars to examine (to value) he examines them; and when they do not bring to him, he sits and does nothing (he does not go out to seek any). An understanding man, however, is like a merchant money changer: when they bring him coins to examine, he examines them; and when they do not bring to him, he goes about and brings of his own money (i.e. he himself buys coins) (cf. Sifrei Devarim 13:3).  

For our rabbis, a good judge must simultaneously be able to embody and engender two opposite characteristics. He should know what it is like to be that rich man, able to sit in ease but ready to help when asked. But he should also know what it is like to be a merchant, hungry for the next transaction, never allowing himself to be idle.  

The reason for this dual outlook is that a judge needs to understand the people that he judges. If he is out of touch with a working-class person, he will miss the nuance of their argument. But if he only sees the world through their point of view he cannot relate to those who have more money than he. To be a good judge, one needs to do the impossible work of embodying each individual he comes across and seek to see the world through their eyes. Since no one can do this all of the time, every judge will inevitably fail some of the time.  

Though we do not always have occasion to vote for a judge or to support a pick to the high courts, we all often have the occasion to choose lesser judges in our own lives. These are people who make important decisions that affect us, be they a coworker, a teacher, a mentor, or a friend. Though they might not work in a courtroom we hope that when they make important decisions in their lives they embody many of the attributes of the biblical judges. And like them we hope they perfectly comprise their role.  

But if the lesson of choosing judges teach us anything it is that life is unspeakably complicated, that we cannot be all things to all people, and that we will always fall short. Our goal, like it was for Moses, is to reach for the stars, to seek out the best people we can, and to understand that if they don't live up to our grand vision of leadership, it is not because of a defect on their part but on the grand and wondrous inadequacy of humanity.