Congregation Netivot Shalom

Parashat Shoftim
September 10, 2005 / 6 Elul 5765
by Chauncey Bell, delivered by Shirah Bell
 

Deuteronomy 16:18 - 21:9

The name given by the Rabbis to this parashah is Shof’tim: “judges.” The speaker of the parashah is Moshe. As he speaks, we are with him in Moab, in the second of five discourses and poems that constitute D’varim, shortly before his death. Shof’tim brings us a range of instructions about living with Adonai and living with each other. The first instruction is to appoint judges and police officers to provide Israel with ‘righteous justice.’

Some of the instructions of the parashah might lead us to conclude that the moment in which it was written is too distant from our “modern” times. Yes, we do have judges, higher courts, and police departments, and witnesses in trials, but what happens there today is complicated, distant from most of us, and full of technicalities. Against that background the parashah may look linear, naïve, or shallow. Further, I do not expect to see any of these in Western Civil Society –

…people stoning those who worship falsely.

…the witnesses to a serious sin casting the first stone in an execution (although we do see witnesses asked to witness executions).

…executions of those who deliberately disregard the instructions of judges.

…refuge cities to which those who have accidentally killed others may escape.

…execution of false prophets.

However, ‘reading between the lines’ – I understand it is an old trick of the rabbis – I am going to focus upon a question that I interpret underlies many parts of this parashah:

How do we make decisions – come to resolution and get into action – when we don’t know enough about some situation? How do we act with confidence when we don’t have enough information or experience about the situation?

Over the years I have concluded that this is one of the most important challenges that we face in our communal and personal lives: learning how to make important decisions when we cannot possibly have the right information or sufficient competence for making those decisions. As I look back, I see that every single important decision in my life has had this characteristic, to some degree. The situation of an important decision where we have exactly the right information and experience in front of us is, I think, very rare.

Before exploring the guidance we may find in the text let me give an example of what I am pointing to with this question.

A year and a half ago, while coming down a mountain in Chile on a bicycle, our 20 year old son Nicolas flew off a ledge and landed on his head. He was – thank G-d – wearing a helmet, but still he injured himself. (He has since recovered well)

Initially he didn’t even tell us what had happened. However, when the pain didn’t go away, he called for our help. He traveled back to Santiago where we were fortunate to have friends with whom he could stay. Several diagnoses were ambiguous, the pain did not abate, and finally he cut his trip short and returned to California to seek help here.

One afternoon shortly after his return I overheard him complaining bitterly to his friend about the physicians who didn’t know what they were doing, would not give him a straight answer, and seemed to change their minds every few days about what they thought was going on. He was looking for the kind of doctor that would ‘tell him what to do.’ (You will recognize that this is not so rare a situation as we would hope). I asked to speak with him about this and we had a conversation with there main elements:

1.     I said that, in the end, only one assessment about what was going on with his back mattered. (I meant, of course, his assessment.) He fired back that he already knew that, and that he had tried to figure out what was going on and to follow his ‘gut instinct’ in the matter, but that had not worked. I said I was not surprised, because, among those in the conversation, he was also the least competent person to make assessments about the damage and how to address it.

2.     I recommended that he pay close attention to how he was talking about the physicians. In the way that he was speaking about them, he was damaging his own capacity to listen and build relationships with them. I told him it was critical that he build a skillful and trusting capacity for talking and listening to them. Although they were more competent than he for making assessments about the situation, he also was learning that they had limits. They could not see inside his back despite X-Rays and MRIs. They were all operating in a domain in which human beings must make interpretations. I proposed that a successful result would most likely come from a trusting collaboration between him and them. The critical challenges then were these:

3.     I said that, perverse as it might seem, he had in front of him an extraordinary opportunity to learn to do something that would stand him in good stead throughout life – to learn how to make assessments and move to confident action while working with only hints, symptoms, and a team of people more experienced than himself.

So now let us turn to the parashah and see what guidance it might offer about how to construct effective conversations when we don’t have all the necessary evidence and experience. I’ve organized my comments under four instructions:

• Don’t Indulge in Augury or Divination
• Conduct a Diligent Inquiry
• Escalating to a Higher Authority
• Take Extraordinary Measures to Protect the Innocent

Don’t Indulge in Augury or Divination: Let me start with the weird stuff. Shof’tim (18:10-13) prohibits certain tests and sacrifices – “passing a child through a fire”, divination as a method of coming to decisions about actions we should take, foretelling the future, sorcery, snake-charming, or various kinds of what we would today call “channeling” (having dead people, ‘spirits,’ or gods speak to us through the mouths of the living.) What is this collection of practices? I propose to you that each offers a way of placing responsibility for making decisions that affect us, our families, and the members of our communities in the wrong place. In each – the fire test, divination, fortune telling, and so on – the false gods promised to show us the truth of matters that concerned us, and to show us ways to escape the messes in which we found ourselves.

In his anguish about what had happened to his body, our son Nicolas had set for himself the wrong standard for what a doctor would do for him. He unwittingly fell into a trap that a misunderstanding of modern medicine had led him to. He expected that the doctors would have access to a kind of truth to which they do not have access, and that they, rather than he and Adonai, would have the capacity to heal him. Have you ever done that? How many of us have not, in some moment, felt the call of that siren?

The text continues with this extraordinary exhortation: [Tamim teh’yeh im Adonai Elohecha] “Walk in perfect trust with Adonai, your God.” (18:13) With this, Moshe takes us back to the only possible place for building confidence in the moment of confronting a future without recourse to “perfect” facts and apparently all-knowing advisors: walking into an unknown and unknowable future with Adonai at our side, trusting in our conversations with wise brethren and our relationship with Adonai.

Finally, Moshe reports that Adonai will fulfill the people’s request for making the word of Adonai available in their communities: “A prophet will I establish for them from among their brethren like you (i.e., Moshe), and I will place My words in his mouth and he will tell them everything that I command him.” Clearly, this is one of the more problematic parts of the text. Are we listening for this voice, or have most of us given up on that possibility?

I take many lessons from this part of the text.

When we confront important matters, we must beware the legions of modern “augurers and diviners” that step forward and pretend to take responsibility in our deliberations. Look around you in the world of business, organizations, and government. To what gurus and authorities do we find people paying homage? What Jack Welch or Tom Peters said? The Harvard Business School? Surveys reporting how “most people” are dealing with such and such? Listen to the words coming out of our own mouths. Who do we quote when se are looking for authority to urge others to pay more attention to our “opinions.” We are surrounded by voices that would have us believe that their ‘words’ come from another god, are inevitably true, or will spare us the sometimes awe-ful task of taking responsibility for the situations in which we find ourselves.

What we need in such circumstances is something that Moshe called ‘walking in perfect trust with Adonai, my God.’ What practices can position us to walk in perfect trust with Adonai? As I understand it, many rabbis have concluded that something like this is the central question of our tradition: “What does Adonai want me to be doing right now?”

If we look carefully we can find the words of Adonai coming from ‘brethren like Moshe’ – humble, learned, wise members of our communities who can help us find our ways through circumstances where we lack competence, evidence, and experience. In my personal experience, I am surrounded continuously with the word of G-d. To re-set myself, recover my bearings in life, find again what challenges G-d has placed before me in the worlds in which I live and work, I pay attention to the face and voice of G-d in my brethren. My wife of 22 years, Shirah, who is reading this to you, has for the last years dedicated herself to a question that is approximately this: “Where does the word of G-d appear in our lives, and how do we listen to it?” Her discipline, awkwardly named Spritual Direction, has as its subtext something that its practitioners call “holy listening.” It is a whole and rich tradition dedicated to listening to the living word of G-d, and it is not the only one.

A dear friend, Sidney Gottesman, reminds me here that in this interpretation I have omitted the phenomena and tradition of prophecy, which, though not apparent today in our world, may still be a deeply relevant foundation. I invite conversation about this.

Conduct a Diligent Inquiry: The second part of the text to which I draw our attention begins in earnest in Shof’tim 17:4. When someone claims that something evil has been done, we are told to [Hebrew]: ‘inquire thoroughly.’ One witness is never enough. We must explore the situation carefully to make deliberate assessments about the situation. We must not allow ourselves to frame the inquiry as a contest between two opinions. We must have two, or three consistent witnesses. (Rashi tells us that authentication means that we find the reports of the witnesses consistent with each other.)

Inquiry means having conversations with people who have something substantive to say about the situation we are confronting. They have witnessed the situation, or other similar situations. Witnessing is done in a public space, before witnesses, and records are kept so that consistency can be assessed. I interpret ‘thoroughly’ to mean that our ‘inquiry’ should be done with planning and care, diligently.

To inquire, we construct a space in which responsible people can make interpretations and define actions to address whatever mess we confront. In the time that the text was written, our forebears were centrally concerned with criminal behaviors of individuals and communities. Today, I would say that central concerns more usually have to do with missing competences and entrenched habits that stop us from taking effective actions. In such cases, the two human endeavors present here – witnessing, and guiding the inquiry – become even more challenging. Witnesses must provide a record of the past in the context of the development of particular social behaviors. Those guiding the inquiry must inspire the future of a new opportunity, looking into the hearts of people and discerning how to bring new futures on old foundations.

When judgment is passed, if the crime is serious, Moshe tells us that the witnesses must ‘throw the first stone.’ This corresponds to the question we sometimes ask our advisors or physicians, “If this were your back (or eye, or arm, or lung), what would you do in this case.”

Finally, if in the process of investigation one or more witnesses are found to have delivered false testimony – their testimony impeached by other witnesses testifying that they could not possibly have witnessed what they had claimed, because they had been with the second set of witnesses at a different location – then very serious punishments (the equivalent of what the original ‘criminal’ would have received) are defined for the falsifiers. If witnesses testimony is contested by others, and comes thereby not to be believed, they do not receive these punishments. Moshe says we are not to have compassion for false witnesses.

As in the first part of this exploration, this text again brings us a framework within which to design and build responsible practices for taking care of situations in which we lack information, experience, or competence.

In our ‘modern’ world we have forgotten that ‘bearing false witness’ is one of the big sins. Anyone in public life is open to all manner of claims by individuals and the news media. The media have become very clever at hiding their culpability for false witnessing – they are simply quoting others, or citing the results of a survey. In the parashah, the remedies sought against those found to have borne false witness are of the most serious sort. How should we measure the loss of this sensibility in our lives? I think of the way that MADD – Mothers Against Drunk Driving – helped us construct a new sensibility about the culpability of a chronic drunk driver who kills a human being in his or her drunkenness. They shifted that transgression from ‘an unfortunate event’ to ‘murder.’ Perhaps a reconstruction of the consequences of false witnessing could be accomplished.

When begin constructing conversations to take care of ‘modern’ situations, often we need special steps. For example, many of the ‘witnesses’ that we call upon – laboratories, news reporters, or functionaries in organizations that give us ‘reports’ of situations – do not start from the same premise that bearing false witness constitutes a serious mis-step. Too often the “witnesses” are ‘only doing their jobs’ and are unaware or unconcerned with the possibility that their witnessing may have serious consequences for others. Then we must redouble our efforts to validate – authenticate – the evidence of our witnesses, and call upon not 2 or 3, but more witnesses. And we must take care to manage the witnessing in ways that limit the opportunity for false and misleading witnessing. Other texts can help us here. We can take care not to construct ourselves as customers of Leshon Hara (true negative comments about someone, intended, consciously or unconsciously, to harm them) or Rechilut (false tales about people’s actions).

Escalating: In Shof’tim 17:8-11 we find ourselves instructed about when we are to escalate matters to a higher authority, and how we are to do that. If a situation is ki yipalei: “baffling” (Etz Hayim) or “abstruse” (Metsudah Chumash/Rashi), Moshe instructs us to bring it to a higher authority and follow their instructions exactly, without deviation.

Two aspects of this instruction strike me as important in the context of the questions I am asking.

First, being “baffled” and taking something to a higher authority is not the same thing as getting a second or third opinion. We get a 2nd or 3rd opinion when we are taking responsibility for our situation and getting ready to make a decision. In the end, our son Nicolas had 4, 5, or 6 advisors to whom he was listening. When, however, we turn to a “higher authority” we are dealing with a situation in which we find our capacity to understand the situation completely insufficient. Rashi tells us to seek a higher authority when the situation is concealed from us – we cannot ‘see’ it – or it is separated from us – we don’t have access to it. In such a situation we are in grave danger. On the one hand, Nicolas was able to ‘see’ important aspects of his situation – he had sensations and could feel what was happening to him. He needed additional witnesses, but not a higher authority. A different situation is that which we confront when we construct wills, living wills, or [what is the name of the blessing we give to our children] in which we are delegating our authority into the future because we know that we will not be in condition to make the essential decisions. In such cases, we are instructed to take the matter to a higher authority, and follow their instructions exactly, without deviation. For us moderns, there is something very challenging here. We want to do Frank Sinatra’s song, “I did it my way” under all circumstances. We always want the last word. However, there really are real circumstances in which we are simply not in condition to deal with a situation. In those cases, the responsible thing to do is to declare ourselves incompetent, and ask a higher authority to take responsibility for us in our stead. This is an extremely important practice when we are dealing with situations in which we don’t have the information, skills, or experience to deal effectively with it.

The second interesting question in this part, then, is the instruction to follow the instructions of the higher authority exactly, without deviation. Why are we instructed to follow the instructions of the higher authority exactly, without deviation? My interpretation is this: once we have declared ourselves incompetent in some matter, to change the instructions of someone to whom we have escalated the matter constitutes something far worse than incompetence. In such a case we are simply fools. Even in our modern egalitarian communities, organizations, families, and, yes, synagogues, we simply are not all equals. Not to recognize that is to put ourselves in situations where we will act badly, or foolishly.

Take Extraordinary Measures to Protect the Innocent: The parashah tells us to take extraordinary measures to prevent the shedding of innocent blood. In several places in the text (especially 19:1-13), we are admonished to act in ways that avoids the possibility of shedding the blood of innocents. Frequently the situations we are addressing in this set of comments involve imminent danger to life and limb. 

The rabbis advise us that there are many circumstances in life in which the responsible action is to take no action at all. Taking action is not, in and of itself, a mitzvah. To take action to preserve life, on the other hand, is commanded, even on the Sabbath when it might not otherwise be permitted. If life is at stake, I understand, it is a violation of the law – an averira – not to violate the Sabbath and thereby not save the life.

However, in the moment that we act, the parashah recognizes, we dramatically increase the danger that innocents will be harmed. To this end, the parashah calls for the people to set up refuge cities – safe havens – to which people can escape should they accidentally cause a death, or by other infringement bring about the hatred of someone who would seek to damage that person. The instruction goes on to say that if someone who hates and would kill someone intentionally goes to one of these refuge cities, the elders of his community shall fetch him from there and see him executed. Refuge cities – ir miklat – appear also in Parashah Mishpatim, and are discussed in the Talmud.

I have thought about this quite extraordinary example from the text, and have not been able to find modern analogues or examples. I do not see in our Western societies structures that attempt to take such care of the innocents. In the texts we see instructions to protect the life of the killer and to avenge the loss of life as well. True, in the US and others who follow the traditions of justice that we follow (which, indeed, had their roots in Judaism), we formally consider the accused as innocent until proven guilty. That, however, falls far short of the practice of safe havens. I can see that we have negative examples of this in our communities today. For example, sexual predators must register themselves in at least some parts of the country. If someone can show me an example of a modern safe haven practice, or conversation about how an analogous practice could be constructed, I would appreciate it. (Rabbi Arthur Gould offered this reflection, that I think is important: Rabbinic tradition transformed a physical world – the land of Israel – into a portable and ‘procedural’ world – the world of halachah.  Perhaps the court system of a trial by one’s peers, concepts of self-defense, necessity defense and so on, have transformed the physical city of refuge into the portable/procedural way of taking refuge from those who come to avenge/punish the crime.)

I want to close with a note about listening as an underlying theme in the parashah. In our annual cycle we have just passed the moment in which Moshe gave us the Shma – our paradigmatic prayer. The word, of course, means “listen!” not in the sense of ‘attend to the noise of my voice,’ but something more like ‘attend to these words and allow them to change you and your world.’

My experience is that listening in this sense is by far the most important skill for dealing with situations in which we don’t know enough to be confident of taking effective action. Too often we confuse listening with the activity of hearing – collecting words and sentences as information, the way that tape recorders record our words. In the parashah, we listen to the instructions and admonitions of Adonai and Moshe. We listen to claimants and witnesses. We listen to our brethren, and we listen to prophets. Some parts of the parashah tell us what we are to do in the way of punishments for the purpose of having the members of our community listen to the consequences of acting in the wrong ways. When we listen well, we have a place to begin.

I propose that the parashah poses a provocative background in which we can ask questions about how we might go about designing and establishing vital, just, and enlivening communities, and how we might reduce suffering in our living and working together.

Shabbat Shalom.

Compendium of the instructions of Shof’tim.

1. Assign in each community judges to render just verdicts, and police officers to compel people to abide by those instructions.
2. Pursue “absolute” justice and avoiding all manner of injustices, including favoritism and bribery.
3. Avoid those actions that are an abomination to Adonai, including all manner of idolatry and blemished sacrifices.
4. Investigate and authenticate claims that particular men or women have committed abominations, and delivering punishments for those crimes.
5. Escalate decisions from local judges, and interpreting the verdicts of higher judges.
6. Execute anyone who deliberately does not follow the instructions of kohein or judges. (This instruction comes with the explanation that this will stir fear in the people not to sin further, and so eliminate this particular evil from Israel.)
7. How, on arrival in the promised land, a king may be appointed and govern, consistent with the prohibition against repeating the experience of Egypt.
8. How to compensate kohanim for their role and services.
9. That we are not to perpetuate certain roles currently found in the new lands – passing children through fires, divination as a method of coming to decisions about our behavior, foretelling the future, sorcery, snake-charming, or various kinds of what we would today call “channeling.” In the place of these roles, Moshe instructs the people to ‘walk in utter trust’ with Adonai, and reports that Adonai has promised prophets from the community, like Moshe, in whose mouth Adonai will place his words.
10. Detect false prophesy – self-serving and malevolent utterances – and the punishment of false prophets.
11. Eliminate from Israel the shedding of all innocent blood. To this end, the parashah calls for the people to set up refuge cities – safe havens – to which people can escape should they accidentally cause a death, or by other infringement bring about the hatred of someone who would otherwise damage that person. The instruction goes on to say that if someone who hates and would kill someone goes to one of these refuge cities the elders of his community shall fetch him from there and see him executed.
12. Don’t move the boundaries of your neighbor’s property.
13. How witnesses shall establish the facts of a situation. One witness will never be sufficient to authenticate any claim of a sin or transgression. Two or three are required. If disputes are found, the witnesses are brought to the kohanim and judges, who shall ‘investigate thoroughly. If a witness is found to have testified falsely ‘against their brother,’ he is to be treated in the same way that the person he testified against would have been treated. Again, the text tells us that this strong treatment is for the purpose of putting fear in the people and eliminating the practice from the community.
14. How to prepare the courage of troops for battle, and appoint commanders for the battle.
15. How to deal with cities in the promised land, including giving the city a chance to surrender, the treatment of its people, its trees, and handling the situation of someone found killed under mysterious circumstances.