Truth shall smash the mountain

Can we decide between victory and peace?

There is a nice coincidence this Shabbat between the weekly reading of Mishpatim, which speaks about the judicial system, and the date of Rosh Hodesh Adar that begins tonight. The Talmud says that when Adar begins, we increase happiness - in theory, this applies to the first Adar as well as the second. But the Talmud continues with a very specific example of how to increase happiness. I quote:

מִשֶּׁנִּכְנַס אָב מְמַעֲטִין בְּשִׂמְחָה וְכוּ׳. אָמַר רַב יְהוּדָה בְּרֵיהּ דְּרַב שְׁמוּאֵל בַּר שִׁילַת מִשְּׁמֵיהּ דְּרַב: כְּשֵׁם שֶׁמִּשֶּׁנִּכְנַס אָב מְמַעֲטִין בְּשִׂמְחָה — כָּךְ מִשֶּׁנִּכְנַס אֲדָר מַרְבִּין בְּשִׂמְחָה. אָמַר רַב פָּפָּא: הִלְכָּךְ בַּר יִשְׂרָאֵל דְּאִית לֵיהּ דִּינָא בַּהֲדֵי נׇכְרִי, לִישְׁתְּמִיט מִינֵּיהּ בְּאָב — דְּרִיעַ מַזָּלֵיהּ, וְלַימְצֵי נַפְשֵׁיהּ בַּאֲדָר — דְּבָרִיא מַזָּלֵיהּ.

Rav Yehuda, son of Rav Shmuel bar Sheilat, said in the name of Rav: Just as when Av begins one decreases rejoicing, so too when the month of Adar begins, one increases rejoicing. Rav Pappa said: Therefore, in the case of a Jew who has litigation with a gentile, let him avoid him in the month of Av, when the Jews’ fortune is bad, and he should make himself available in Adar, when his fortune is good. [Taanit 29a-b]

I’m not surprised by the negative attitude to non-Jews in this text, which I think was correct and mutual in fourth-century Babylon. But the more surprising assumption here is that winning or losing a case in court depends on luck rather than on who is deserving of justice. Therefore, going to court in Adar is a rational plan, because it’s a month when lucky things happen. This attitude to the law and the courts fits the story of Purim - there, everyone follows the law, but the law itself is ridiculous and arbitrary. Achashverosh invents laws - everyone has to bow to Haman, the Jews can be killed on exactly this date - but then, when he discovers that Esther is a Jew herself, he says: what can I do? According to the law, the Jews can be killed. So he makes another law that the Jews can fight back, and the book finishes with a final law that everyone has to pay a new tax to the king. It’s not surprising that this is the attitude towards the justice system that’s associated with the month of Adar.

In comparison, our parasha presents an ideal of justice that is clean and simple and absolute. “If one man strikes another and kills him, he shall be put to death.” “If one harms another, he shall pay for the damage and for the healing.” “If one digs a pit, he is responsible for the damage it causes.” The entire system of civil law in the Mishnah and Talmud is based on the verses of this parasha. And if there is a question here about who is responsible, or the amount of damage that has to be paid? The two parties have to go and stand before Elohim. There is an easy way to check whether a translation of the Bible is Jewish or not: usually (with very few exceptions), a Christian or academic translation will translate ‘Elohim’ here and everywhere else as ‘God’. Jewish translations will usually (with very few exceptions) translate it exceptionally here as ‘judges’. The two parties have to stand before Elohim, that is, the rabbis. The judges and rabbis have the absolute power of interpretation, decision, and execution: in these situations they become the manifestations of God. The word ‘Elohim’ is written three times in this parasha in such a context, and this becomes the source for having three judges in a Jewish court for civil matters. It’s not the case so much in the Masorti movement or in France, but in many Jewish communities, people prefer to bring their disputes to the Beit Din rather than civil courts.

With all this veneration for truth and justice, it’s interesting to consider an injustice that the courts sometimes engage in — peace. In theory, peace is the opposite of justice. In justice, the one responsible for harming another is punished in proportion to the wrong they committed. In peace, two sides commit to living together despite wrongs that may have been committed by one or both of them in the past. Which of these models, justice or peace, is advocated by the Torah? Our tradition recognises both of these possibilities, and also recognises their incompatibility. The two positions are often personified by Moses and his brother Aaron.

וכן משה היה אומר יקוב הדין את ההר אבל אהרן אוהב שלום ורודף שלום ומשים שלום בין אדם לחבירו שנאמר (מלאכי ב, ו) תורת אמת היתה בפיהו ועולה לא נמצא בשפתיו בשלום ובמישור הלך אתי ורבים השיב מעון

Moses would say: Let the judgment pierce the mountain. But Aaron, however, was a lover of peace and a pursuer of peace, and he would apply peace between one person and the other, as it is written: “The law of truth was in his mouth, and unrighteousness was not found in his lips; he walked with Me in peace and uprightness, and turned many away from iniquity” (Malachi 2:6). [Sanhedrin 6b]

The Talmud presents a great debate between these two positions. There are three opinions. One group of rabbis say that it is forbidden to compromise in the court, and anyone who suggests a compromise is a sinner and blasphemer. Justice demands totality. On the other hand, another group of rabbis say that compromise is permitted, while a third group say that it is a mitzvah, a great success to reach a compromise between the two sides, rather than judging the case in court and finding one party guilty. In the Talmud, all these opinions are laid out one after the other, without a decision being given, because there’s a fundamental paradox at play here. How can you decide between justice and compromise? [[If you decide which one is more correct, then you are applying the principle of justice. If you don’t choose, and say that each have their merits and disadvantages and there’s a time for each, you have already inherently chosen compromise.]]

To give just one example of this paradox, that’s on many of our minds at the moment: the Israeli leadership has to decide between fighting for absolute victory over Hamas, which is both just and probably impossible, and moving towards a political peace deal with representatives of Hamas, which is unjust and probably also impossible. With all my critiques of Israeli politicians, I don’t envy the impossible decisions they are forced to make. Nonetheless, they need to make a clear decision. On a smaller level, in many cases we need to decide between an imperfect compromise, that includes accepting or ignoring the wrongs committed towards us, and fighting a legal battle that could be more expensive or exhausting than the actual issue at hand, but would at least declare a winner and a loser.

As I said, the Talmud doesn’t choose between the different attitudes to compromise and justice, but later works do. Both Maimonides and the Shulchan Aruch choose the maximalist approach and rule:

מצוה לומר לבעלי דינים בתחלה הדין אתם רוצים או הפשרה אם רצו בפשרה עושים ביניהם פשרה וכשם שמוזהר שלא להטות הדין כך מוזהר שלא יטה הפשרה לאחד יותר מחבירו וכל ב"ד שעושה פשרה תמיד הרי זה משובח

From the outset, it is a mitzvah to ask the litigants: "Do you desire a judgment or a compromise?" If they desire a compromise, a compromise is negotiated… Any court that frequently negotiates a compromise is praiseworthy. [SA HM 12:2; Yad Sanhedrin 22:4]

Nonetheless, there is a sense of unfairness here. Again, hamishpat le’Elohim hu, justice belongs to God, and every human compromise, even with the best intentions, is distant from the justice that we deserve. Peace is messy and difficult, and that is why it is not taken for granted: this too, we project on God, and finish our prayers with a hope that we can learn to overcome the paradox and unite peace and justice:

עושה שלום במרומיו הוא יעשה שלום עלינו ועל כל ישראל ועל כל יושבי תבל ואמרו אמן

He who makes peace in the heavens, may he bring peace to us, to all of Israel and to the entire world, and let us say Amen.

Amen.