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  • Writer's pictureJosh Scharff

Parashat Mishpatim - Being an Impartial Judge

Updated: Jul 12

In last week’s portion, the Israelites received the first ten mitzvot - commandments. But ten rules are not sufficient to build a society. Parashat Mishpatim is a continuation of revelation and is made up almost entirely of a list of commandments. Some of them are well known: “the penalty is life for life, eye for eye, tooth for tooth…” (Exodus 21:23-24) Or there is the famous legal principle that if an ox gores a human then the owner is not liable BUT if the ox was known to gore and does so again then the owner is liable for the damages. This has led to the creation of a whole realm of legal liabilities and insurances against liability that keeps armies of lawyers employed even today. 

I want to take a moment to consider three verses that are likely less well known to you. The first three verses of Exodus, chapter 23 read as follows: “You must not carry false rumors; you shall not join hands with the guilty to act as a malicious witness: You shall neither side with the mighty to do wrong—you shall not give perverse testimony in a dispute so as to pervert it in favor of the mighty— nor shall you show deference to a poor person in a dispute.”

When a dispute reaches the point that it can no longer be solved it must be brought to an outside arbiter, to a court of law. In that process there are several principles that the Torah presents about the role of witnesses, community members who are not themselves involved in the trial but have a great deal of impact on its outcome. First, tell the truth, bring honest testimony before the court, not hearsay. Second, do not come to the aid of a guilty witness by changing your testimony. Third, and this is the idea that I will consider in this drasha, do not pick a certain side in any dispute according to their position of power or lack thereof.

When I was young, I fell in love with studying history. To this day when I want to understand something I start by looking backwards in an attempt to understand how we arrived at this point or how a certain phenomenon came about. I particularly loved American history, the Revolution and Constitution, the Civil War - I even memorized the Gettysburg Address for a project in fourth grade. Through my learning of American History, I developed a pride for the country in which I was born. I looked to certain historical leaders as role models. 

I distinctly remember the first time I read excerpts from Howard Zinn’s A People’s History of the United States in a history course in high school. All of a sudden, all of my conceptions about history were turned on their heads. The same leaders and historical figures that I had been encouraged to respect or learn from suddenly were presented in an entirely different light - the same events that I had previously understood as transformatively positive were reframed and shown to be exploitative and masterminded by a cynical and singularly self-interested elite. Zinn’s telling of history presented not only a factual, but also a moral framework to the reading and understanding of history. It was not enough for me to sit and read history. Rather, I needed to divide events and decisions from the past between good, moral actors and bad, immoral actors. Without recognizing it at the time, what Zinn was teaching me and his readers could be summarized into: the powerful were motivated by bad intentions and mistreated those without power and should be judged negatively - the weak were motivated by good intentions only as a response to the powerful and should be judged positively. 

For a young, empathetic, open-minded teenager growing up in the St. Louis suburbs, this version of history struck a chord. It felt good to look critically on history, to judge the actions of those who came before me. It felt empowering to rally to the side of the disenfranchised, the powerless; after all, my own family’s origin story that we told every year at Passover was that we, too, overcame a much more powerful adversary to finally be released to freedom and prosperity. The viewpoint of history also provided me with a very useful rubric through which to view and understand my world: the powerful is suspect and should be judged as such, the powerless is justified and should be judged as such. 

This worldview was certainly not created only by Howard Zinn. Cultural changes that began in the 60’s and 70’s laid the groundwork for what we see in 2024: that this specific way of understanding both the past as well as the present has become widespread in institutions of higher learning and in the wider culture - particularly among young Americans, Gen Z’ers. 

We have seen just how powerfully this worldview has taken hold in some of the public responses to the events happening in the Middle East. In certain parts of the American left, the current war and the entire conflict in the Middle East can be explained simply using the principles of this progressive worldview. Israel = powerful, therefore it is in the wrong. Palestinians = powerless, therefore they are in the right. 

As someone who, for a time, was an acolyte of this worldview, I understand just how comfortable and comforting it is. It allows me to take this rubric, place it over every conflict, every point of tension in my culture and all around the world and quickly discern who is in the right and who is not. It also empowers me to be on the “right side” of each and every dispute or moral question. There is great serenity in knowing that I am, seemingly, always on the side of the just, that I will not be judged by generations to come. 

But this worldview also has serious downfalls that, to me, make it entirely untenable and fundamentally flawed. The first is that it excuses its followers from critical thinking and consideration. If the same rubric can be used to determine who is right and who is wrong in any given dispute and it is based on only one measure, power, then people have no responsibility to ask further questions, consider other viewpoints, or to wrestle with the particularities of a certain case. To my mind, any worldview or way of thinking that makes things so clear and simple, regardless of whether it comes from right or left, is suspect. Critical thinking and discerning is one of the great gifts that humanity has been blessed with. If my belonging to a certain organization, group, or movement asks me to set those aside, then I would choose to not belong at all. 

The second serious flaw in this way of thinking is that morality cannot be determined by a rubric. What is right and wrong cannot be understood only through one measure, be that power, wealth, gender, race or other. Take the Middle East for example. If you look narrowly at the conflict as one with two actors, Israel and the Palestinians, it is simple to label Israel as the powerful and Palestinians as powerless. But if you zoom out, changing the framework to the entire Middle East, then Israel no longer seems like the powerful when we consider Hezbollah, the Houthis, ISIS, other terror organizations, Syria, Lebanon, and Iran - all groups and nations that intend Israel harm or wish for its destruction. All of a sudden, by the exact same measure, Israel now becomes the powerless and morally correct actor in the face of the other, more powerful forces surrounding it. But that is the point: morality cannot be determined in this way. What is right and wrong can only be determined by a careful and close consideration of myriad factors at play in each and every conflict. More often than not, and this is significant, both sides of any conflict can and should be condemned for their lack of moral actions because we are talking about organizations, nations, and states built and run by human beings, all of whom are flawed. But if we implement a predetermined rubric of right and wrong, we rob ourselves of the ability to be honest moral arbiters. 

And that is what our Torah portion, Mishpatim, is teaching us. That we must come to each and every dispute and conflict without predetermined biases. We cannot judge a case because going with the powerful or the majority will serve our self interests, nor can we rally to the side of the powerless or the minority simply because we feel more comfortable siding with the underdog. We must use the gifts with which we were created, critical thinking, gathering of facts, asking difficult questions to broaden our understanding of circumstances far different than our own. Then, and only then, can we be reliable witnesses in the pursuit of justice. 

This goes against our human tendency and desire to lead with our heart, to rally to the side which awakens our sympathy and desire to make things right in this world. But our tradition teaches that only through careful, patient, thoughtful arrival to determinations about a certain dispute or conflict can we build a truly just society and world.

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