TORAH SPARKS
Parashat Devarim
July 22, 2023 | 4 Av 5783
Torah: Deuteronomy 1:1-3:22 Triennial: Deuteronomy 1:1-2:1
Haftorah: Isaiah 1:1-2:7
Myth and Miracle
Bex Stern-Rosenblatt
Parashah
In this week s parashah, we lay the last of the giants to rest. Og, King of Bashan, gets into either his huge bed, or perhaps his huge sarcophagus, and his land is reassigned to Manasseh. The Tanakh flirts with the idea of mythical creatures. Hiding on the margins of text we find all sorts of mystical dragons, primordial watery depths, and talking animals. The underworld is frequently alluded to and sometimes shades or ghosts come back after death. Our God breathes fire out of his nose and his voice walks about the Garden of Eden.
It is tricky to differentiate between the mythical and the miraculous.We celebrate God s actions in the world – the big ones like the parting of the sea and the provision of manna, and also the smaller ones like the wetting of Gideon s sheepskin. In general, myth is other than God and miracle is from God. But over the course of the story told from creation through establishment of Judah and Israel and then from destruction and exile through return to the land, both myth and miracle peter out. At the end of the Tanakkh, Ezra and Nehemiah are essentially high-level bureaucrats who read Torah and build walls. Meanwhile, on an off-day, Moses curbs plagues and the like using a miraculous snake-rod.
One way to understand this transition is to read the Tanakh as telling the story of us recognizing that the world is under God s domain. Our recognition of God, our understanding of God as the creator of everything, takes away the need for myth. The sea dragons and the giants are fun, but we no longer need them to explain why ocean journeys can be treacherous or why some old ruins are really big. Moreover, having been introduced to God s dominion through the big, splashy actions such as the Exodus, we have gained the ability to see God s dominion in everything without needing God to prove it to us continually through miracles. We ve got the stories of past miracles to tell, lest we forget.
This week s parashah is the beginning of our first experiment with telling the story of past miracles rather than needing constant new ones. The Book of Deuteronomy is the grand attempt of Moses to teach us to trust God, to rely on what has happened, to draw appropriate conclusions about the way the world works, without need for further proof.
However, the mythical past still appears in our parashah. We meet Og, the last of the Rephaim, the giants according to Deuteronomy 2:10 or the dwellers of the underworld in Psalm 68. If Og is the last of the giants, then the twelve spies were not wrong when they spoke of the giants in Canaan. Indeed, perhaps Canaan was populated by a group of huge people and the failure of the spies was their lack of belief in God s ability to conquer huge people. They did not trust that the miraculous would prevail over the mythical. Moses tells the story of Og in our parashah to show our growth. We now are able to trust God and defeat giants.
On the other hand, if Og is King of the Underworld, dwelling in a sarcophagus, then Moses is describing a battle with the dead. Moses, a man who has seen all of his contemporaries die, who is the only one of his generation still alive, stands on the precipice of death in Deuteronomy. Likewise, of all the Rephaim, only Og remains. Og becomes the embodiment of myth and Moses the embodiment of miracle. Moses tucks Og into bed, laying the last of the mythical creatures to rest, just as God will lay Moses, the man of the age of miracles, to rest at the end of his speech.
They are both relics of pasts that we can move beyond.
Isaiah on the Streets of Modern Israel
Vered Hollander-Goldfarb
Haftarah
Some years back, as I passed the prime minister s residence in Jerusalem on my way to the Yeshiva, I stopped in my tracks. There was a man staffing the protest booth (a common sight) wearing a T-shirt reading (in Hebrew) How the faithful town has become a whore Your rulers are rebellious and companions of thieves; All loves bribes and chase payoffs. Isaiah s words in this week s haftarah were being broadcasted again on the streets of Jerusalem!
Let s look at Isaiah s succinct warning to the leaders and people of Jerusalem:
How has the faithful town has become a whore? [once] filled with justice;
Righteousness lodged in it, and now murderers!
Your silver has become dross, your wine mixed with water.
Your rulers are rebellious and companions of thieves;
All loves bribes and chase payoffs.
The orphan they do not defend, and the cause of the widow will not come before them. (Isaiah 1:21-23)
Small falsehoods grow into system-wide corruption. The economy is threatened when impure silver and diluted wine are passed off as authentic in the market. The streets reflect a deeper problem: from the very top comes the message of corruption.
A society must ask itself how it treats corruption by its leaders. Some are happy to tolerate it (and benefit from it.) For others, it is a line that cannot be crossed. If the leader is corrupt there are no boundaries. When money can buy a law, or preferential treatment in court, or clearing of any abuse, then it is not righteousness but rather possessions that rule. If morality is bought with money and justice with promises of power, if judges are controlled by the elite in control, then courts lose their authority as the check and balance of the ruling group.
In this setting, those who seek redress in the court system discover that not all are equal before the law. Radak and Rashi comment (v. 23) that the widow understands that it is not in the interests of the people who should fight her battle to take up her cause. Nor does the cause of the widow come before them – She will not even bother turning to the court for justice. Corruption becomes the golden standard.
A system like that seems hopeless. None could raise a voice against it. Those with enough power have a vested interest in perpetuating the system, and those who need it changed are powerless to affect a change. Only a prophet with the word of God can demand a functioning justice system that reflects honest leadership. To give some teeth to this demand he explains plan B : God will get involved and purge that which they do not clean up. Such a purge will be painful; we would do well to improve on our own.
Some 2700 years later the streets of Jerusalem are burning with Isaiah s divine message, demanding as we do in the Amidah prayer, I will bring back your judges as before and your counselors as long ago. (vv. 24-26, translation by Robert Alter.)
Is a Judge Required to Sacrifice
Their Life
for Justice?
Rabbi Joshua Kulp
The Halakhah in the Parashah
A few years ago there was a television show starring Bryan Cranston (who starred in Breaking Bad as Walter White) called Your Honor. Without giving away too much, the general plot of the show is that Cranston s character, Michael Desiato, is a respected judge. His teenage son kills another teenager in a hit and run accident. Judge Desiato encourages his son to turn himself in. But when it turns out that his son killed the son of a violent mobster, the judge sacrifices his integrity in order to protect his child. The judge chooses his family s safety over justice. [I am not endorsing this show the premise was, in my opinion, interesting. The show was, in my opinion, not great].
Judge Desiato would have struggled with Deuteronomy 1:17, which directs judges, Do not fear any human being, for judgment is to God. The simple meaning of this verse is easy to understand. When a judge sits in court, he (or today, she) is instructed not to fear a violent litigant who will take revenge against the judge or the judge s family. Sifre Devarim 17 states this quite simply:
Do not fear any human being: Lest you say: I am afraid that So-and-so will murder my child or light my property on fire or cut down my trees, thus the Torah says, Do not fear any human being for judgment is to God.
In 1992 two Italian judges who spent their careers prosecuting organized crime, Giovanni Falcone and Paolo Borsellino, were assassinated by the mafia in Italy. Prosecuting organized crime is dangerous both to judges and to witnesses. Posthumously these Italian judges were rewarded with medals and treated as heroes by the Italian government. We too might consider them heroes. But the question that we need to ask is whether a judge is obligated to put his own life at risk in order to convict a violent criminal. After all, generally according to Jewish law one is not obligated to sacrifice one s own life in order to fulfill a mitzvah or to avoid transgressing (murder, sexual sins and idolatry are exceptions). So when the Torah states, Do not fear any human being is it mandating that a judge put his own life at risk?
Resh Lakish addresses this verse on Sanhedrin 6b:
And Resh Lakish says: If two litigants come for a judgment, and one is soft and one is harsh, before you hear their statements, or after you hear their statements but you do not yet know where the judgment is leaning, it is permitted for you to say to them: I will not submit to your request to judge you, out of fear that perhaps the strong and contentious one will be found liable, and it will turn out that the strong one will pursue him. But once you hear their statements and you know where the judgment is leaning, you may not say to them: I will not submit to your request to judge you, as it is stated: You shall not be afraid before any man.
Both the Tur and the Shulkhan Arukh (HM 12) codify this ruling, leading R. Joel Sirkes, known as the Bach ( ), in his commentary on the Tur, to ask the question of whether a judge is obligated to endanger his own life in order to render a judgment against a potentially violent litigant. The Bach opens with Rashi s interpretation of Resh Lakish s statement. Rashi explains that harsh means that the litigant is persistent and quarrelsome. He will chase after the judge to argue his case even after he loses. The Bach explains that to Rashi, the judge can turn down the case before he knows what the outcome will be if he fears a quarrelsome litigant. Such a litigant could damage the judge s reputation (today they would post negatively about the judge on social media). After the case has begun and the judge can see which direction it is going, it is too late and the judge cannot recuse himself out of fear of a quarrelsome litigant. Fear for one s reputation is not sufficient grounds to avoid justice. But, the Bach argues, Rashi does not think that this rule applies to a violent and dangerous litigant. A judge is not obligated to put himself into danger, or his family or his property, in order to render a decision. Rashi, according to the Bach, essentially rules against the Sifre quoted above.
In contrast, the Rambam codifies the Sifre into law by appending the Sifre to Resh Lakish s statement in the Bavli (Laws of The Sanhedrin 22:1):
When two people come before a judge, one soft and one harsh – before he hears their words, or even after he hears their words, but does not know the direction in which the judgment is leaning – he has the license to tell them: "I will not involve myself with you," lest the harsh litigant be held liable and seek vengeance from the judge.
After he hears their words and knows in which direction the judgment is leaning, he does not have the license to tell them: "I will not involve myself with you," as Deuteronomy 1:18 states: "Do not be intimidated by any person." That verse implies that one should not say: "So-and-so is wicked, maybe he will kill my son, set fire to my crops, or cut down my trees."
The first paragraph here is Resh Lakish (whose statement is also found earlier in the Sifre) and the second paragraph is the Sifre (not found in the Bavli). The Rambam codifies both making it clear that a judge is liable to lay his life and his family s life on the line once he has accepted the case.
To the Bach, the issue at hand is a dispute between Rashi and the Rambam. According to Rashi, a judge is not obligated to risk his life to render judgment against a wicked person; according to the Rambam he is. There are two remarkable aspects to this piece in the Bach. First of all, the Rambam s position is explicit and is supported by the Sifre. In contrast, the Bach has to read into Rashi in order to tease out that Rashi would not demand a judge to endanger himself. The Bach reads what Rashi did say as if it was opposing what Rashi could have said. Now this is a standard means of reading an early Talmudic commentator. But it still requires creativity. Following this, the Bach rules against the Rambam and in favor of his constructed Rashi position. A judge is not obligated to endanger himself to render a judgment against a violent litigant.
When watching TV or reading the news, it is easy for us to condemn the moral sacrifices made by Judge Desiato and for us to celebrate the lives of Judges Falcone and Borsellino. The former is a cowardly villain and the latter are heroes. But the Bach warns us against turning our instincts into a legal demand. We might hope that judges will act with such great valor, but can we and should we demand this of them and their families?