Judges, Justice and the Rule of law – Shoftim: Deuteronomy 16:18 – 21:9.

Shoftim is the Hebrew word for judges. It is also the name for the Book of Judges as well as the portion of the Torah for this week. The topic of judges is very intimately connected to the issue of justice, but judges lack an exclusive control over the delivery of justice. At the very least, the responsibility for justice is shared with those who make the laws and execute them.

The gist of the Torah message is summarized as follow:

You shall appoint magistrates and officials for your tribes, in all the settlements that the LORD your God is giving you, and they shall govern the people with due justice. You shall not judge unfairly: you shall show no partiality; you shall not take bribes, for bribes blind the eyes of the discerning and upset the plea of the just. Justice, justice shall you pursue.

Tor repeat, “Justice, justice shall you pursue.”

On the other hand, there are the rulers and legislators. In Moses view of the executive branch, the king or ruler is chosen by God and not the people. But there are restrictions – no excessive wealth or power (epitomized by the clause: “The king must not have many horses.” Why? If one visits the archeological site at Megiddo, more specifically, all the stable and the training arenas, one recognizes why a horse is a stand-in for military power. Jeroboam II built the fortress to breed horses to be sold to the Assyrian Empire. Limits had to be placed on the ruler lest his heart go astray. Where to – wealth, sex and military might. The ruler must NOT set himself above his brethren or turn aside from the law. He has boundaries.

The divisions between executive, legislative and judicial branches of government are provided in outline. They will influence the entire history of civilization. I want to bring the issue into the present by considering two items:

  1. Fiddler on the Roof
  2. The current situation in Britain (a change from the U.S.)

Why Fiddler on the Roof? One simple reason: we saw the documentary, Fiddler: A Miracle of Miracles directed by Max Lewkowicz last evening at Hot Docs Ted Rogers Cinema, the revamped Midtown Theatre where I watched double bills after going to shul on a Saturday morning. It is a brilliant film placing the development of the musical in the context of political history that is culturally time-bound, but making that context universal so that the film shows versions of the production in Japan, Thailand and by schoolkids in Brownsville, Brooklyn with a cast that seemed to be mostly African-American. There was even a production in Anatevka, Ukraine, at which refugees from eastern Ukraine were in attendance.

For the documentary is about, as the musical Fiddler on the Roof was about, universal values and issues – about love between a man and his wife, love between a father and a daughter, love among sisters, about different forms of love between men and women, about oppression, persecution and ethnic cleansing, about parental prerogatives, the tension between tradition and modernity, and female rights. The song, Matchmaker, Matchmaker, follows Sholem Aleichem’s deep critique of the “profession” in the ironic mockery by Tevye’s three oldest daughters of a practice that had become reduced to avaricious horse trading of daughters.

The tension between tradition and modernity is related, not only to the events over one hundred years ago and the pogroms after the failure of the 1905 revolution in Russia, not only to the tensions when Fiddler on the Roof first appeared on the stage in America in 1964 as the feminist movement began, the civil rights struggle was heating up and protests against the Vietnam War were in their initial phase, but also to the present where widespread efforts are underway to reconnect with traditions that have begun to move into the twilight zone.

The documentary combines odes to both Sholem Aleichem (who wrote the Tevye the Dairyman short stories) and Marc Chagall, including cartoon drawings in Chagall’s style, as well as historical film footage and talking heads. The documentary moves smoothly through the analysis of different songs in the musical and the various highlighted themes, acknowledges and shows great appreciation for the different and unique contributions of the composer, Jerry Bock, the lyricist, Sheldon Harnick (currently 95 and the only survivor of the original creative team – he does not look 95 and in the opening plucks out a version of “Tradition” on the violin), the librettist who provided the narrative, Joseph Stein, Harold Prince, the producer, and especially Jerome Robbins, the director and choreographer of the distinguished innovative dance numbers. The documentary recognizes the different interpretations of Zero Mostel on a Broadway stage and Chaim Topol, the Israeli actor who has the part in the film. I want to focus on a theme that was present but not highlighted, at least as conceptions – that of injustice, the rule of law and the role of tradition.

At the core of the film, in my belief, is Tevye’s very interesting relationship with his only friend outside his family, as revealed in the musical, his relationship with God. We never hear God, but Tevye addresses God directly – except he no longer does when his beloved daughter, Chava, runs off to marry a very handsome gentile, Fyedka. (“I’m a pleasant fellow – charming, honest, ambitious, quite bright, and very modest.”) At the same time, the local militia commander gives the occupants of Anatevka three days to vacate their homes and move into exile. We are not told whether Tevye feels betrayed by God or whether he has just become bewildered and no longer knows what to say.

In fact, the film offers two very different and alternative ways of communing with God. There is the one as conceptualized by the prickly perfectionist Robbins in the exhilarating “Bottle Dance” at the wedding of Tzeitel and Motel. The ecstatic and wild dancing of Hasidim as they cross arms allows them to engage in their very own and very physical joyful expression of a union with God versus the verbal and plaintive and perhaps even ultimately disenchanted verbal dialogue of Tevye.

As Bartlett Sher comments in the documentary, “The Bottle Dance” is the epitome of a very visual metaphor of the struggle for achieving balance in the wild struggle through life between the demands of the law and individual passions, between tradition and change – after all, the scene is a tribute to the dancing tradition of the Cossacks, the prime perpetrators of the pogroms. How does one keep one’s balance amongst all the competing tensions in one’s life? “A fiddler on the roof. Sounds crazy, no? But, here, in our little village of Anatevka, every one of us is a fiddler on the roof trying to scratch out a pleasant, simple tune without breaking his neck. It isn’t easy. You may ask, why do we stay here if it’s so dangerous? We stay because Anatevka is our home. And how do we keep our balance? That I can tell you in one word: Tradition!

Loveable, human-all-too-human, raging and resigned, affectionate and stubbornly turning his back on his own daughter, as Chava exits voluntarily, Tevye is not permitted to stay home. The fiddler on the roof balancing on the upside “V” of a roof and inspired by Chagall always remains precariously balanced, but out of reach, and remains out of reach as Tevye has to pull his own wagon when his horse has died. Why? Because the Jewish traditions that once preserved that balance no longer work. Tevye, in his initial expression of faith, says: “because of our traditions, every one of us knows who he is, and what God expects him to do.” However, Tevye, with an upbeat spirit as mammoth as his chest, gradually grows silent, resigned and depressed. In the end, he no longer talks to God.

However, this is an uplifting musical about the most profound and serious matters. Tevye has his lighthearted doubts. “Sometimes I wonder, when it gets too quiet up there, if You are thinking, ‘What kind of mischief can I play on My friend Tevye?’ Sometimes with ironic challenges. ‘It may sound like I’m complaining, but I’m not. After all, with Your help, I’m starving to death. Oh, dear Lord. You made many many poor people. I realize, of course, it’s no shame to be poor… but it’s no great honor either. So what would be so terrible… if I had a small fortune?’” If I Were a Rich Man. For, “As the good book says, when a poor man eats a chicken, one of them is sick.”

Tevye cannot spit in God’s face for, “As the Good Book says, if you spit in the air, it lands in your face.” Yente, the matchmaker, is more direct and earthy. “If God lived on earth, people would break His windows.” Tevye cannot throw God’s words back in his face at the injustice of it all, at the failure to fulfil promises made. “Am I bothering You too much? I’m sorry. As the good book says… aaahh, why should I tell You what the Good Book says?” And by the end of the musical, after his daughter has run off with a tall, blond goy, Tevye has lost his sense of balance altogether. There is no longer Rabbi Dow Marmur’s, “On the one hand …and on the other.” Tevye remains silent and will no longer speak to his daughter, Chava, whom he will never see again as she departs “Far from the Home I Love.”

Balance! We live in a world that seems to have totally lost any sense of balance. When I once worked with the UN, I learned that it was Britain that was viewed as the responsible party for running the Security Council. Other states deferred to Britain to interpret the rules and protocols by which that august body made its decisions. That deference is the equivalent of oral law. It is tradition. Now Britain cannot even seem to govern itself.

Jonathan Sumption, who took a seat on the Supreme Court in Britain in 2011, has written a brief book, Trials of the State: Law and the Decline of Politics based on his 2019 Reith Lectures. There has always been a tension between judges who must interpret the law and legislators who must make the law. The sources of the tension are many. But the main ones are that, to make law, legislators must act within the rule of law. At the same time, judges build on those inherited laws and they set deep limits on how and what direction changes in the law may take. Balance is particularly difficult in a time when the executive seat of government is occupied by a George IV or a Prime Minister Boris Johnson or a President Donald Trump. Because all of these were or are disrupters and had or have insufficient respect for the role of tradition. For Sumption, a conservative legal theorist, the courts must not overstep their boundaries and fail to recognize that it is the legislature that has the primary responsibility for making the law.

These rulers have been or are reckless, irreverent and disruptive. They paid or do not pay attention to administrative detail. Trump challenges, weakens and tries to delegitimize American political institutions. Johnson in the pursuit of Brexit also is at war and actively undermining democratic government.

What if the executive branch goes legally “mad,” what if it transfers enormous sums of monies approved by the legislature to building a monument to madness, a wall on the American-Mexican border to keep out unwanted “aliens”? How do courts remain a source of continuity in touch with constitutional principles and responsible for political stability? The costs of instability are enormous. After 1905 in Russia, the rule of law broke down. Edicts issued were arbitrary and harsh and none suffered from them more than the Jews in the Pale of Settlement.

What happens if the judiciary is stacked such that judicial review of actions undertaken by royal or presidential prerogative has withered on the vine? What happens when the legislature has become dysfunctional and has become either subservient to the ruler or in open revolt against that ruler? Parliament in Britain has refused to follow the leader, Boris Johnson, and dissolve Parliament without conditions. What happens if the judicial review of the power has become silent or ineffective, if God, or God’s appointee, the Queen, reveals herself to be impotent and operates as an automaton acquiescing in the request of the Prime Ministerial will of a mad leader and issued an Order in Council proroguing Parliament after 9 September and before 12 September? Who is in charge? As Dan Balz wrote in Politics, “British Prime Minister Boris Johnson has eclipsed President Trump as the chaos-maker-in-chief…the new leader tried to take a wrecking ball to the political system and ended up hitting himself as well.”

We have a plague of leaders around the world, including Israel, making enormous and consequential decisions without the authority of legislatures. Judges now hold the balance of power and have a duty to decide whether to protect ancient constitutional principles that only the legislature may change the law. This is orthodoxy. This is tradition. And when the tradition of substance breaks down into dysfunctionality, the tradition of process must rise to provide a backstop.

Tevye lacked that. He had two rulers, his God above and a Tsar who thought he was god. His God seemed to have slipped into silence so, in the end, Tevye no longer bothered addressing Him anymore. And the ruler in Moscow had lost his bearings. So a local militia officer could order the villagers of Anatevka to leave within three days. But Tevye neither had a legislature which he could help elect nor a court of law that would determine, as Sumption did, that, “It would be inconsistent with long-standing and fundamental principle for such a far-reaching change to the UK constitutional arrangements to be brought about by ministerial decision or ministerial action alone.” Arbitrary decisions made on the fly are no way to execute laws.

Moses erred in expressing a belief in the divine right of kings allegedly appointed by God. But not wrong in recognizing that leaders often took themselves to be appointed by God, if not gods themselves. There must be executive restraint. There must be judicial restraint. There must be a parliamentary willing to exact restraint, especially when the executive ignores the grossly excessive destruction of our planet which jeopardizes all life and earth, an issue that was highlighted in the presentations of the Democratic candidates for president on Wednesday.

What happens when the well-trodden paths of tradition break down and people are forced to take roads to elsewhere? Jewish institutions and systems of law possibly have the honour of having the longest record in the history of humanity, but the executive role has been intermittent and the tiny historical legislative role has only recently been revived. No matter the length, and Britain can boast the longest record of all three at the same time, imbalance has displaced balance and unrestraint had buried restraint just when restraint is absolutely necessary to control the murder of planet earth.

Sumption wrote ominously, “Politics may be a dirty word, but the alternative to it is bleak: a dysfunctional community, lacking the cohesion to meet any of its social or economic challenges and exposed to mounting internal and external violence. This is a potential catastrophe in the making. But there is nothing that law can do about it.” In my free translation, Tevye said to God, “Ok, punish me, for what I do not know. But my horse? My planet?” However, as the organizers of the climate crisis debate showed, there is plenty that people can do when the rule of law fails us. We can organize to inform, educate and solicit the cooperation of our sisters and brothers. But the prime line of defence is our shoftim, our judges. The courts cannot stand by if the legislature cow tows to the executive to erode the rule of law and allow wanton destruction to continue.

Credit where credit is due. There has been enormous restraint in the use of military power, though in America that has been offset by the unrestraint in economic matters, whether it be with respect to fair contributions from the rich or the negotiations on international trade.

Justice, justice shall you pursue.

With the help of Alex Zisman

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