More musings on justice

It’s kind of amazing how quickly it feels like we get to the end of each year’s Torah reading cycle. (Cue old-man voice yelling at kids to get off my lawn.) This week’s parasha is the double portion Nitzavim-Vayelech. We’re nearing the end of Deuteronomy, and we are only a few weeks away from starting all over again at Genesis 1:1.

Deuteronomy is a mixed bag in terms of general reading interest. Sometimes it’s a slog, reciting in no particularly obvious order various legal provisions. But Nitzavim, in particular, has some of the most used (abused?) verses: Deuteronomy 30:9-20, part of the book’s beginning-of-the-end oration. 

The text states (the translation is my own):

What I am today commanding you to do is not such a mysterious thing, nor very far from you. It is not in heaven, so as to allow you to say, “Who could go up to heaven for us, get it for us, and teach it to us so that we can do it!?”; nor is it beyond the edges of the sea, so as to allow you to say, “Who could traverse the sea for us, get it for us, and teach it to us so that we can do it!?” It is instead very close to you – in your mouth and in your heart – so that you will do it!

Look: I have today set out before you life – that which is good – and death – that which is evil. What I have commanded you today is to love Yahweh your god, to walk in his ways and to adhere to his commandments, his statutes, and his judgments, so that you may live and increase, and so Yahweh your God will bless you in the land you are coming to take possession of.

But if your heart turns – if you do not take heed, and you are drawn away and bow down to and serve other gods – I have told you today that you will most assuredly perish; you will not last long in the land into which you are crossing over the Jordan River to take possession.

I call as a witness against you today the heavens and the earth: I have set life and death before you – both blessing and curse – so that you will choose life, so that you and your offspring may live; so that you will love Yahweh your god, heed him, and cling to him, for he is your life and its length, so that you may dwell upon the land that Yahweh swore to your fathers – to Abraham, to Isaac, and to Jacob – that he would give them.

A few weeks ago I wrote about Deuteronomy’s famous injunction, “Justice, justice you shall pursue!” Since we’re now in another of those places that apparently dwells on justice and discusses our obligations in the abstract, I want to revisit this issue.

One notable use of this text within the rabbinic tradition is to “authorize” the oral Torah. That is the function given to verse twelve – specifically the phrase, “it is not in heaven” – in Bava Metzia 59 in the story of Akhnai’s oven. (By the way, G-dcast has a fun animated retelling of Akhnai’s oven.)

A more interesting and telling interpretation of Deut. 30:12 is found in Rashi’s commentary on that verse, which he derives from Eruvin 55a. Rashi says (the translation is my own):

“It is not in heaven”: since if it were in heaven, you would be obligated to go up after it and learn it [there].

Rashi refers to the following passage in Eruvin 55a (very near the top of the page; the translation is my own, and fills in gaps because the Gemara here is a bit laconic):

What does the Torah mean where it is written, “It is not in heaven … and it is not across the sea”? “It is not in heaven” means that if it were in heaven, you must go up after it, and if it were across the sea, you must go across the sea after it.

If  the Torah, written and oral, had not been taught at Sinai, it would have been incumbent upon each person to go to the ends of the earth to learn it! (By the way, the prior page of Talmud includes the Rabbis’ account of how the oral Torah would have been taught at Sinai so it would not be forgotten.)

I think the Rashi/Eruvin interpretation of verse 12 here is, from the perspective of an effort at “original intent,” probably a correct one at least as it concerns adherence to the provisions in Deuteronomy. (It’s important not to gainsay the notion of authorial intent, from a secular perspective; to understand why, I recommend a read of Michael L. Satlow’s How the Bible Became Holy.)

Why am I belaboring this? Because in our tendency to isolate from context quotes like “Justice, justice you shall pursue” and “It is not in heaven,” we lose sight of the very real separation of our own perspective from that of the biblical text. (As noted above, I’ve made this argument before in discussing fidelity to the worldview of the text; today’s discussion takes a slightly different turn.)

There is an argument to be made that this separation from the worldview of the text doesn’t matter, or that it only matters as an academic or intellectual question. I don’t think that’s true. Often, we want to know why we do something. This happens with children–“why do I have to go to school today?”–and with adults–“why should I bother visiting him when all he does is make me feel bad?” Knowing the reasons for doing things can sustain us when continuing to do something becomes hard. A “because” answer to a “why” question can provide motivation for doing, or for stopping, or for changing.

What does this mean when we start to explore more deeply the passages of Deuteronomy that explain why the Torah was purported to have authority over how we should act? If you cannot accept the idea that the commandments must be obeyed because doing so will assure your prosperity, where do you begin to draw the lines on what commandments you will or will not keep? There is, I think, a slippery slope at play here.

When we think about justice, and we point to Deuteronomy as our support, we aren’t telling the whole story if we don’t say that the justice Deuteronomy wants us to pursue has as its broader point not human happiness, but human happiness as a secondary effect of obedience that is in some sense contractually obligatory. A covenant is, after all, a kind of contract.

I don’t think many modern Jews would find that message of Deuteronomy 30 to be a particularly sustaining one. We should not really wonder why Jews don’t go to prayer services all that often; if you’re a modern Jew paying attention to what’s going on in the service, it may seem patently absurd because even liberal Reform approaches to the liturgy include recitation of Monty Python-esque, “Oh, Lord, you are so big” kinds of materials. And I don’t think the classical Reconstructionist answer, that a civilization has sancta that can be sustained separate from their purposes in a form of divine service, is really viable separated from a more traditional religious context.

We ought, then, to be honest. Most Jews don’t want to do justice because justice as we understand it in our own time is about making a divinity happy in hopes the divinity won’t smite us. For most American Jews, it’s about allowing the broadest number of people the greatest number of opportunities to make of themselves what they will, while finding ways of curbing the odds of harm posed by outliers and their actions, because we recognize that in the broadest ways, this vision of justice is what is most likely to aid and protect everyone.

But we don’t need biblical texts to teach us that lesson.