AND THE LORD SAID TO MOSES,

"COME UP TO ME TO THE MOUNTAIN AND REMAIN THERE, AND I WILL GIVE YOU THE

STONE TABLETS, THE LAW AND THE COMMANDMENTS, WHICH I HAVE WRITTEN TO INSTRUCT

THEM."

(Shemot 24:12)

It has been taught, R. Jose

stated: Neither did the Shekhinah ever descend to

earth, nor did Moses or Elijah ever ascend to Heaven, as it is written, The

men (Psalms

115).

But did not the Shekhinah descend to earth? Is it not in fact written, And the Lord came down upon Mount Sinai (Shemot19)?

That was above ten handbreadths

But is it not written, And His feet shall stand in that day upon the

Mount of Olives (Zachariah 14)?

That will be above ten handbreadths.

But did not Moses and Elijah

ascend to Heaven? Is it not

in fact written, And Moses went up unto God

(Shemot 19)?

[That was] to a level lower

than ten [handbreadths from heaven].

But is it not written, And Elijah went up by a whirlwind into heaven (II Kings 2)?

[That was] to a level lower

than ten handbreadths.

(Sukka 5a, Soncino translation)

Wherever

a word denoting approach or contact is employed in the prophetic writings to

describe a certain relation between the Almighty and any created being, it has

to be understood in this latter sense [viz., to approach mentally]. For, as

will be proved in this treatise (II. chap. iv.), the Supreme is incorporeal,

and consequently He does not approach or draw near a thing, nor can aught

approach or touch Him; for when a being is without

corporeality, it cannot occupy space, and all idea of approach, contact,

distance, conjunction, separation, touch, or proximity is inapplicable to such

a being.

There

can be no doubt respecting the verses, The Lord is nigh (karob)

unto all them that call upon him (Psalms

140:18); They take delight in approaching (kirbat)

to God (Isaiah 58:2); The nearness

(kirbat) of God is pleasant to me (Psalms 72:28); all such phrases intimate a

spiritual approach, i.e., the attainment of some knowledge, not, however,

approach in space.

(RaMBaM:

Guide for the Perplexed 1:18, Friedländer

tr.)

On the Rule of Law and Concern for the Weak

Daniel Statman

Scripture,

and especially the words of the Prophets, teach us how deeply the Holy One

blessed be He is concerned for the wellbeing of the weaker strata of society,

the stranger, widow, and orphan, and more generally for the poor and destitute.Due to their economic weakness, which was

principally expressed in their not owning any land, they were constant victims

of exploitation and guile on the part of the wealthy and the governing powers.Their powerlessness brought God to state that He

will "personally" look out for them and take responsibility for them,

so that anyone who harms them harms Him as well, and will suffer severe

punishment: He executes the judgment of the orphan and widow, and He loves

the stranger, to give him bread and clothing (Devarim 10:18); Sing to the Lord, praise the Lord, for

He has saved the soul of the poor from the hand of evildoers (Jeremiah 20:13); For He will stand to the right of the

needy to save [him] from those who judge his soul (Psalms 109:31); and many further verses written in the

same spirit.Sometimes, one may receive the impression

that caring for the weak is the principle concern of the King of the Universe,

and the chief cause for Him to become angry with His people.

This

extreme concern for the poor and destitute seems to stand in a kind of

contradiction to one our parasha's unequivocal

commands: Nor shall you show deference to a poor man in

his dispute (23:3); do not

distort the judgment of a poor man in his dispute (23:6), and in other parshiyot,

for instance: Cursed is he who distorts the judgment of a stranger, orphan,

or widow, and all the people shall say "Amen" (Devarim

27:19).

Why

does there seem to be a conflict here?For two reasons.Firstly, inasmuch as we are talking about a

monetary claim against the poor man, as long as the claimant is rich and the

one against whom the claim is being made poor (or at least the claimant is

wealthier than the poor man), he owes him money in any case on the basis of

charity and benevolence.What then would be wrong with

the court "organizing" this act of charity by ruling in the poor man's

favor?In other words, if in terms of socio-economic

justice, the economic condition of Reuven is supposed

to be in some relationship "F" to Shimon's economic condition, there

would seem to be no sense in the court ruling against Shimon, thus distorting

relation F, and obliging other societal institutions or individuals to correct

the apparent distortion that the court had created.

The

other reason for the conflict between concern for those belonging to the weaker

strata and the warnings against the court being prejudiced in their favor in

court is connected to considerations of affirmative action.Due

to their low social status, such people suffer for many years from various

kinds of discrimination and exploitation.These

oppressive relations find expression in every area of public life.It is more difficult for the poor to start a business,

to be accepted to educational institutions, to gain political influence, to be

chosen to serve as judges, and so on.In order to

re-establish just relations between them and the powerful and wealthy, it is

not sufficient to grant them "normal" treatment, because such

treatment will not allow them to break through the invisible barriers set up by

their inferior socio-economic status.Positive

discrimination is required; if it is practiced long enough, it will help

establish true social justice.

Another

way to express this difficulty is through the notion of compassion.It

is reasonable to assume that if someone distorts judgment in the poor man's

favor or grants him special treatment, he does so out of compassion.But

in our High Holy Days prayers we address God, the Judge of all the Earth,

asking that He "have compassion on His people on the Day of Judgment."In the Avinu

Malkeinu prayer we ask, "Have compassion for

us and answer us, for we are without [good] deeds."That

is: we ask God to grant us a favorable judgment, not in accordance with what we

deserve, but rather despite what we deserve.Why

shouldn't the earthly courts adopt the same policy?Why not have compassion upon the poor man on his day

of judgment, just as we ask God to have compassion for us ("See us

standing, poor and empty")?

Throughout

the generations, the Sages were aware of this problem.The

RaMBaM writes:

The

court is prohibited from taking pity on the killer; they must not say, "This

one has already been killed, what benefit is there in killing the other?"They would then be found delinquent in killing

him, for it says, Let not your eyes take pity; clean out the innocent blood.Similarly,

the court is prohibited from taking pity on someone who is charged to pay a

fine; they should not say, "He is poor, he did not act intentionally."Rather,

everything he has is collected from him without any amnesty, as it says, Let

no your eyes takes pity.And

so, pity is not taken on the poor in monetary cases, that you should not say, "This

one is poor, and his legal opponent is rich, since I and the rich man are obligated

to sustain him, I shall rule in his favor and he will gain sustenance in an

honorable fashion."The Torah has warned us

against this: Nor shall you show deference to a poor man in his dispute

and it is said, Do not show favor to the

poor. (Mishneh Torah, Hilkhot

Sanhedrin 20:4)

Whether

it is a criminal matter (i.e., the meting out of punishments) or a civil matter

(the settlement of financial disputes) the court must punish and require

payments "without amnesty."As Rabbi Akiva said in the Mishnah, "Pity is not shown in judgment" (Ketuvot 9:3).

It

seems that the answer to these tensions is anchored in the assumption that a

society can function only if there is a proper division of labor between its

various institutions and between those institutions and the individual.The

judicial system can win the public's confidence – confidence without which it

cannot do its work – only if it acts without any favoritism, applying the same

laws to all those under its jurisdiction.Rabbi Uziel wrote these appropriate words:

Jewish

Law always aspired to gain the full confidence of parties to legal action, so

that they would have faith in its judges and rulings, and would approach the

court with a calm mind, with complete trust and faith, and would accept the judgment

lovingly and with submission to the true and just law.That

is why they raised up the law court to a lofty and sacred height, so that

everyone entering it would enter in awe of the sacred and would only speak the

naked truth there without any trickery, and they warned the judges to treat the

opposing parties to a law suit as equals in every way, to grant each absolute

freedom of speech and to encourage the weaker party not to hold back its claims.They further warned the judges not to show more

deference to one than to the other, not to honor the wise or the wealthy, not

to believe the one to be righteous or to be suspicious of the other, not to show

deference to the elderly, not to skew judgment to favor the poor man's side to

a conflict.They further instructed them: "Do not

act the counsel's part; when the parties to a suit stand before you let them be

guilty in your eyes, do not recognize the face of the wealthy man and do not

favor the poor; Nor shall you show deference to a poor man in his dispute.

(Responsa Mishpatei Uziel vol. 4 Hoshen Mishpat 1)

Despite

the tremendous concern due the stranger, the orphan, and the widow, for the derelict

and poor, at the end of the day it is impossible to care for them properly

without properly functioning social, political, and judicial institutions.One condition for such functioning is maximal

meticulousness (without reaching the "trait of Sodom") that laws be

general and equitable, and that they apply fairly and transparently to all citizens.True, in some cases such meticulousness will

worsen the condition of the weak, because when the court rules against him,

forcing him to pay a fine, his distress increases, and there is no guarantee

that his distress will be ameliorated by other social institutions, or by

benevolent individuals.In any case, there are no

short-cuts in the creation of a fair and just society.If

law courts pervert their rulings, even out of good intentions in order to help

the poor, the very foundations of society will be undermined.It

is necessary to strengthen and fortify the rule of law not only against the

evil inclination towards corruption, but also against the good inclination to

bend the law for worthy purposes.

Zion

of her with righteousness

Prof. Daniel Statman teaches in Haifa University's Department of

Philosophy

Now these are the

ordinances. David said:

The fear of the Lord is clean, enduring for ever (Psalms.19:10). How is this so? Because

you will find that a man who studies Midrash, Halakhah, and Haggadah, but who

has no fear of sin, is left with nothing in his hand. It can be compared

to a man who said to his friend, "I have a thousand measures of grain, a

thousand of oil, and a thousand of wine." His friend asked him, "Have

you store-chambers in which to keep them? If you have, then all those things

are yours; but if you have not, then you have nothing."So

is it with a man who studies everything; for unto him is said: "Have you fear of sin? If so, you possess everything."For it says,

And the stability of your times shall be a hoard of salvation – wisdom and

knowledge, and the fear of the Lord, is its storehouse (Isaiah 33:6).Hence does it say, The fear of the Lord

is clean.The

prophet too, proclaiming aloud, Zion shall be redeemed with justice, and

they that return of her with righteousness (ib. 1:27).

(Shemot Rabbah 30, Soncino translation)

Temporal servants are

servants of servants – The servant of God alone is free.

(Rabbi Yehuda HaLevi)

But if the slave says,

"I love my master, my wife, and my children. I will not go free,"

his master shall bring him to the judges, and

his ear with an awl, and he shall serve him forever.

Why was the ear chosen

over all other organs of the body for piercing? Rabbi Yohanan

ben Zakkai said (Kiddushin 22b): This

ear, which heard at Sinai, You shall not steal – yet went and stole –

let it be pierced. And if the person chose to sell himself into servitude, that

ear which heard at SinaiFor the Children of

Israel are servants unto Me (Vayikra 25:55) – yet went and acquired a

master for himself – let it be pierced.

Rabbi Shimon expounded

this verse, deriving a "precious stone" [i.e., an important ethical

principle]: Why were the door and the doorposts chosen from among all parts of

the house?The Holy One, blessed be He said: Oh door

and doorposts who were witnesses when I passed over the lintel and the two

doorposts and I said, For the Children of Israel shall be servants unto Me,

they are My servants – and not servants to servants – yet this person went

and acquired a master for himself, let him be pierced in front of them.

(Rashi, Shemot

21:6)

And he shall serve

him forever [le'olam] – for the

period of a Jubilee – there being no longer period of time in the Jewish calendar.Exodus to freedom is like a renewal of the world [olam].Or another possible explanation: He shall

return to his original status of freedom.

(Ibn Ezra,

Shemot Ibid., ibid.)

If the laborer had

already begun to work, but changed his mind in the middle of the day, he may

leave; even if he already received his wages and has not the money to repay the

hirer, he may still retract and the wages [to be returned] will be considered a

debt, as is written: For the Children of Israel are servants unto Me (Vayikra 25:55) – not

servants to servants.

(Shulkhan Arukh, Hoshen Mishpat 333:3).

Peace is Achieved through Proper

Legal Processes and the Overcoming of Acrimonious Feelings

You established equity [meisharim] (Psalms 99:4). R. Alexandri said: You established straight ways [yesharot] in your world. Someone has

a legal dispute with his fellow. They go to court together, accept the verdict,

and make peace between them – that is what is meant by You

established equity. Someone takes to the road and sees his fellow's ass

crouching under its load, he goes and lends a hand, helping him load and unload