Shoftim – Justice For All

Among the many Mitzvot that appear in Parshat Shoftim, one of the better known phrases is the mandate to perform and preserve justice in our society. “Justice, justice you shall pursue, in order that you shall live and inherit the land which the Lord, your God has given you.” (Deuteronomy 16:20)

It is not unusual for the Torah to repeat a word twice, and the explanation for such repetitive language is usually to emphasize the importance or severity of a Mitzvah or action. Of course there are many layers of meaning to such phrases in the Torah, but translators often simplify the repetitions, using a phrase such as: “You shall surely ___,” where a purely literal translation would simply repeat the word twice, as it appears in the Biblical language.

I’m not certain of this, but all uses of double language, with the exception of names, appear to apply with verbs rather than nouns. Words such as listen, see, tithe, strike, heal, are all used repetitively in their active forms (I’ll have to ask an English teacher for the specific grammatical term for such verbiage). In this instance, however, the repeated word is a noun. Justice, justice you shall pursue. The verb in this phrase is “pursue.” It would be more in line with the Torah’s pattern to state: Pursue and pursue justice. Or, as translators would probably put it – Justice you shall surely pursue. The repetition of a noun is something of an anomaly.

Grammar aside, the repetition of the word “justice” has captured the intrigue of commentaries, and numerous ideas are advanced to explain the emphasis the Torah places upon the quest for justice. The great Hassidic master Rabbi Simcha Bunim of Peshischa presents a charming interpretation of the phrase, which reflects the spirit of many explanations given by other commentaries in a most succinct manner. Justice shall be pursued through justice. The great goal and end of justice does not justify all means in attaining it. The means as well must be just. Our pursuit of justice, explains Reb Bunim, must be through a pathway which is itself just. Therefore the Torah repeated twice the word “justice.”

This is a most poignant idea. How many times has history witnessed a truly virtuous goal of universal equality and utopia become the cause of dreadful cruelty and unjust conduct? How many tens of millions did Stalin, Chairman Mao and others send to torture and death in the name of a new social equality which would finally bring fairness and justice to all of mankind? Some of these world leaders began with a charitable vision, seeking to pursue a form of justice which they truly believed was for the best of mankind. They might be commended for attempting to achieve that justice which the Torah entreats us to establish, but they woefully neglected to take note of the repetition of the word. Their pursuit of such justice ignored any fairness or equity in the process of achieving that most noble goal.

If the Torah had put its emphasis on the word “pursue,” the door might be open to justify various means of achieving the “justice” sought after. Pursue and pursue, regardless of casualties along the way. The Torah deviates, however, and puts the emphasis on the noun “justice,” to stress that the means as well must account for the dignity and humanity of people, and that collateral damage in the pursuit of such justice is unacceptable. A general principle of the application of halacha similarly demands that the means of achieving a result are often equally important as the result itself. Solomon’s wise words are invoked in this principle: “Its ways are ways of pleasantness and all its paths are peaceful.” (Proverbs 3:17)

Rabbi Abner Weiss, in an article in Tradition magazine, explores one form of justice pursued by various societies over the last half century. Many programs have been unrolled in attempt to redress grievances for past injustices. In some cases, where previous racial discrimination created systemic inequality, Affirmative Action was instituted to help minorities and disadvantaged groups so that equality would be restored. Affirmative action is, in itself, a form of discrimination. It gives distinct advantages and opportunities of benefits, education and employment to certain groups over others. This discrimination is justified as a necessary evil to help bring back a balance to society, whereby minorities and certain disadvantaged groups can gain a foothold in areas from which they had previously been excluded. I discovered, while looking into this further, that in New Zealand the 1990 Bill of Rights Act deems any differential treatment categorically unlawful. An explicit exception is incorporated into the act, if the intent of such differential treatment is meant to assist disadvantaged individuals or groups who need such aid merely to reach equal footing with others in society.

In the United States the Civil Rights Act was passed in 1964, outlawing discrimination on the basis of race, colour, sex, religion or national origin. In the following year legislation was passed concerning voting and immigration, and all of the above effectively established the US as a nation of individuals rather than groups, enshrining the individual’s inalienable rights for equal opportunity in all fields. The New York Times magazine in 1976 noted that the employment, housing and educational situations of individuals previously discriminated against were significantly improved in the decade following this legislation. Many, however, felt that outlawing discrimination was insufficient in itself to restore equality and redress prior discrimination. Generations of racial differentiation had set patterns and caused major setbacks for affected minorities, and more Affirmative Action needed to be taken in order to enable the affected minorities to be able to take advantage of such “equal opportunities.” Educational opportunities, hiring and promotions needed to give distinct advantages to members of certain groups over others.

Rabbi Weiss points out that the Affirmative Action policies of the ’70s reversed both the letter and spirit of the Civil Rights Act of the ’60s, blurring the individual rights which had been so clearly defined by the act, and bringing back the concept of “groups” to US society. Affirmative Action was nevertheless justified both legally and morally on the basis of the absence of a discriminatory purpose as well as the temporary nature of such measures, pending the restoration of equality in American society.

Rabbi Weiss discusses the effects of Affirmative Action on the larger society. He notes that this reverse (or compensatory) discrimination assumes the guilt of individuals belonging to the majority for past deprivations of the minority group(s). An individual who is a member of the so-called majority is negatively affected by the differential treatment, which now discriminates against members of non-affected groups. It is also noteworthy that some groups are singled out for preferential treatment while others, equally disadvantaged, are excluded from the assistance programs, sowing resentment and exacerbating racial divides through systemic neglect in favor of other groups, which amounts to government sanctioned marginalization. Racial quotas, ensuring representation of certain racial minorities in medical or law schools, push out deserving candidates in favor of members of disadvantaged groups who may be less qualified. This raises numerous moral and halachic issues which are outside of the scope of this discussion.

In New Zealand, where such quotas exist primarily to advantage the indigenous Maori population and Pacific Islanders, the problem is somewhat mitigated, although not eliminated. The quotas to encourage Maori students to achieve higher academic qualifications reflect a commitment to the Treaty of Waitangi and therefore, aside from cultural disadvantages, such Affirmative Action has certain justifications. Similarly, the special tutorial assistance given to such students and denied to other minority students, can be attributed to the special efforts the government and its institutions are making to redress the grievances of the past toward the indigenous population. Elsewhere, however, where certain groups are deemed eligible for preferential treatment and others not, Affirmative Action creates many problems while it strives to solve others.

The complexities of Affirmative Action demonstrate that it is no simple matter to pursue justice in a just manner. In restoring a balance of equality it is of extreme importance to ensure that disadvantages are not imposed on other groups and segments of the population in the process of assisting disadvantaged groups. In Israel, if and when a peaceful solution is achieved, there will be a need to assist Palestinian Arabs, who are absorbed into Israel proper, to similarly overcome their historical setbacks and gain entry into the middle class without suffering perpetual poverty and hardship. Solutions are hard to come by, and any attempt to bring equality must carefully consider the effects such Affirmative Action has on other individuals and groups. The clarion call for justice by well-meaning activists must be studied carefully, so that it does not, in its execution, render injustices to others. The Torah deliberately places the emphasis on “justice” and not on its “pursuit,” reminding us that every measure must be tested for its effect on other individuals and groups.

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