Human Justice is an Ambiguous Adventure
A Biblical Defense of Optimism
“In their moral justification, the argument of the lesser evil has played a prominent role. If you are confronted with two evils, the argument runs, it is your duty to opt for the lesser one, whereas it is irresponsible to refuse to choose altogether. Its weakness has always been that those who choose the lesser evil forget quickly that they chose evil.” (Hannah Arendt)
A single witness may not validate against an accused party any guilt or blame for any offense that may be committed; a case can be valid only on the testimony of two witnesses or more. (Deuteronomy 19:15)
If, in the land that your God יהוה is assigning you to possess, someone slain is found lying in the open, the identity of the slayer not being known, your elders and magistrates shall go out and measure the distances from the corpse to the nearby towns. The elders of the town nearest to the corpse shall then take a heifer which has never been worked, which has never pulled in a yoke; and the elders of that town shall bring the heifer down to an ever-flowing wadi, which is not tilled or sown. There, in the wadi, they shall break the heifer’s neck. The priests, sons of Levi, shall come forward; for your God יהוה has chosen them for divine service and to pronounce blessing in the name of יהוה, and every lawsuit and case of assault is subject to their ruling. Then all the elders of the town nearest to the corpse shall wash their hands over the heifer whose neck was broken in the wadi. And they shall make this declaration: “Our hands did not shed this blood, nor did our eyes see it done. (Deuteronomy 21:1-7)
What is justice? Jewish tradition associates justice with judgment (Din) and judgment with truth (Emmet). To judge something truly requires that one remove one’s blinders and see reality for what it is, even if it’s uncomfortable. Good judgment implies impartiality, objectivity, neutrality. In a court of law, you can’t favor the person you like because you like them. You can’t suspect a person of guilt simply because you don’t like them. But human perception is flawed, and it is human nature to care, to value, and to favor. In extreme circumstances, it is impossible to treat one’s loved ones as though one were a robot simply spitting out the data. And that is one reason why Jewish tradition does not make a single, absolute value of truth or justice. Sometimes, we are encouraged to fib for the sake of peace. Sometimes, we are allowed to forgive and be forgiven even though our actions are unforgivable.
Parashat Shoftim—the Torah portion concerned with the execution of justice—offers us a variety of cases where absolute truth and absolute judgment are impossible:
1) Evidence based on witness testimony is not fool-proof. Thus, the laws of witnesses are as much about enabling testimony as limiting it.
2) A case of manslaughter (unintended killing) creates an ambiguity. Does justice require that the deceased be avenged? Yes, from a certain, fact-based point of view (the victim). But no from the point of view of intent (the perpetrator). So, the result is a race where both manslaughterer and avenger have a right.
3) A corpse is found between two villages and it is impossible to discern who is responsible, yet nonetheless the fact remains that there is a corpse and something must be done to respond to the injustice implied by it.
Presumably, in the realm of Divine justice, the lines of guilt and innocence are bright. In the human realm, however, truth is unknown, and judgment occurs under conditions of uncertainty. This presents a kind of paradox—to do human justice requires acknowledging the inherent injustice or untruth in any decision. Human justice essentially means adjudicating between the lesser evil, the lesser lie.
II.
Why do these laws about imperfect justice feature, clustered together, in Deuteronomy? I take it that they are paradigmatic of the situation that Moses impresses upon the people—one day they will have to live without Moses; one day, they will even have to live without (the direct and obvious) voice of God. Some day, not just in the Promised Land, but for generations to come, through Diaspora, and all the epochs to come, the people will have to enact the will of the Creator to the best of their ability without the surety that they are in fact aligned with that will. Deuteronomy, the repeated Torah, is the preparation for the life of uncertainty and distance. It is the human Torah in contrast to the divine Torah of Exodus.
Suppose that you get a directive from your boss, or someone you look up to and respect, but have no idea how to apply that directive and you can’t get a hold of that person. What do you do? This is one (benign) way to frame what is often called the principal-agent problem (which I just wrote a long twitter thread on here). Deuteronomy forecasts as a structure of Judaism that following the Torah is inherently difficult—not simply because of any weakness of will or desire to stray (although these tendencies exist), but because it’s not always clear what God would want, what God would do.
What if the witness are lying or conspiring but you can’t prove they are lying? What if the accidental killer can’t run fast enough to the city of refuge?
The result of realizing human fallibility is to try to protect against downside risk. In a legal context, we do this by focusing on due process rather than on good outcomes. But an over-focus on process can yield the kind of proceduralism that ends up forgetting the aspiration to justice altogether, focusing only on formal rules. Technocracy allows people to forget the inherent difficulty of trade-offs and to think of justice, once again, as akin to following a formula.
Human justice stands in relationship to divine justice as a messenger does to a sender. The experience of human justice as fundamentally limited goes hand in hand with a realization of the human being as limited, and a recognition of God as the true judge (something we affirm upon learning of a death: Baruch Dayan HaEmmet). The desire to raise human justice to the level of divine justice, or to believe that humanity can transcend bias and become all-knowing is a kind of self-worship, a kind of idolatry. But just because we are made to be limited does not mean that we cannot aspire to truth to the best of our ability. Walking this line—between giving up altogether on objectivity and committing to one’s fundamentally limited worldview—is quite difficult. To compensate us for the cognitive dissonance, the Torah gives us rituals that offer catharsis, ways of easing the burden of measuring our own limited justice against God’s ultimate justice. The egla arufa, the heifer that serves as expiation for the guilt implied by a discarded body, is one such example.
For the monotheist, the principal-agent problem is this: we agents must represent God, but must also accept that we are not God. Representing God, we must seek out truth and justice; accepting that we are not God means not trying to fix that which we cannot fix. There is a proverb attributed to Julius Caesar: “If you want it to happen, go; if not, send.” The problem of theodicy may be asked thus: Why does God send us to do justice knowing that justice will not get done unless God Godself goes directly?
III.
Human justice is an ambiguous adventure, just as human truth is like an unidentified corpse found in the no-man’s land between villages. But the task of pursuing truth and justice is difficult not just because we are biased. It is also difficult because of the problem of time. Should we judge the present by what it is now, or by what it might be? In investing, a company may be valued by its projected future earnings—which are speculative. Should we not apply the same idea towards ourselves and others in the spiritual and moral realm. This may be one way to interpret the line in Pirkei Avot—to judge all people with the scale weighted in their favor. Judge people according to their “discounted moral flows” (DMF). That is, an evildoer today may be 10x better person in 3 years. I don’t think we should be so scientific or probabilistic about it, but the point is that once we are talking about the future the line between realism and optimism is no longer clear. Truth and judgment about the present are not truth and judgment regarding the potential of the present. And since we don’t live in a deterministic universe, but live in one in which we take human agency seriously, divine justice or divine truth can actually go awry if applied prematurely.
This is one reason why we pronounce Baruch Dayan HaEmmet only upon death—because divine justice must be suspended until there is no more potential in a life. Up until the end, we have the ability to change, and so narrow justice, focused exclusively on past and present will miss out on future possibility, future moral-spiritual “(y)earnings.”
William James teaches that a person looking at their world does not stand outside of it, but inside of it. Thus, the perception of reality changes reality. If you think the world is good it is more likely to be good than if you think it is bad, because that judgment itself influences reality. Human justice, which seems flawed from the scientific technocratic and algorithmic point of view is advantaged in its appreciation for the dynamism that James describes. Perception can alter reality. We know this intuitively, as when we receive a warm and encouraging word and are full of energy. and how many dreams have been crushed by a would-be mentor saying “You’ll never be good enough.”
Perfect Judgment concerns the past, but not the future. As we head deeper into Elul we can aspire, in good conscience, to judge and be judged not in final accordance with what we’ve done, but in who we might become. Perhaps the flaws in human justice are to our personal advantage. Perhaps God has “sent” us instead of gone Godself so that we might have a chance to prove divine justice wrong, to outsmart the algorithm, and overcome—or re-enter—the story of our stars.
Shabbat Shalom,
Zohar Atkins @ Etz Hasadeh
P.S.—Happy to share my latest podcast conversation on the theology and technology of place with Torah Scholar and Investor Michael Eisenberg.