This week’s Torah commentary from Hebrew Seminary has been sponsored by Joan Kripke in memory of Ludmila Shimelivitch.
To sustain Hebrew Seminary’s work of bringing the words of the Torah to life, please consider sponsoring an upcoming Torah commentary through your gift of any amount.
* * *
A Jury We Trust: Commentary on Parashat Mishpatim 5785
By Rabbi Jonah Rank, Rosh Yeshivah of Hebrew Seminary
The Sixth Amendment states that if you are accused of a crime, you have the right to a trial before a jury of people too stupid to get out of jury duty.
—Dave Barry, Dave Barry Slept Here: A Sort of History of the United States
The American court of law poses a paradox of faith in democracy: According to a 2019 study of the Pew Research Center, 49% of Americans do not believe their fellow citizens are trustworthy. Still, aside from voting, one of the most common and impactful actions a citizen can take to shape the opinions of the United States’ government is to serve on a jury. A judicial bench composed of common folks—not usually trained in American law—empowers everyday people to use their guts and their wisdom to dispense justice. Should a citizen of the United States trust a jury that has never gone to law school?
Moreover, whereas Americans are used to participating in decisions where the majority rules—and anyone eligible to vote can throw their support behind a candidate who is not destined to win—in many cases, all twelve members of the jury are required to agree to the jury’s final ruling. To the layperson, the American judicial branch may appear severely hampered by occasional jurors who are unfamiliar with the far-reaching potential impact of their decisions. Further, this justice system seems to deny the importance of independent thinking, favoring instead consensus, potentially tempting jurors to place undue social pressure on jurors who sincerely disagree with their compatriots.
When the Torah was given to our spiritual forebears some 3,000 years ago, the Israelite court system operated with far fewer rules than an American court must follow. In Parashat Mishpatim, God instructed judges (or anyone thinking of becoming a judge) that they had a code of sacred and ethical conduct to uphold. In Exodus 23:1, God instructed this early judiciary, “לֹ֥א תִשָּׂ֖א שֵׁ֣מַע שָׁ֑וְא” (“do not uplift a baseless rumor”) and “אַל־תָּ֤שֶׁת יָֽדְךָ֙ עִם־רָשָׁ֔ע לִהְיֹ֖ת עֵ֥ד חָמָֽס” (“do not place your hand alongside somebody evil, becoming a malicious witness”). Although God had mercy for those living in poverty, God wanted the poor to be treated to no less scrutiny than any wealthy person on trial would (Exodus 23:3). God expected our people’s first judges to adjudicate impartially—to show no greater favor to the accused or to the accuser—and to maintain their independent thinking in the presence of their fellow judges:
לֹֽא־תִהְיֶ֥ה אַחֲרֵֽי־רַבִּ֖ים לְרָעֹ֑ת וְלֹא־תַעֲנֶ֣ה עַל־רִ֗ב לִנְטֹ֛ת אַחֲרֵ֥י רַבִּ֖ים לְהַטֹּֽת׃
Do not (automatically) follow a majority that prosecutes. Do not testify during an argument in a way that inclines towards a majority that bends others. (Exodus 22:2.)
Experienced Hebrew readers can recognize just how awkward the Hebrew is in this Divine address to the judge who might get caught up in the wrong crowd. Nonetheless, millennia of rabbis who read these words were hurt by the failures of justice systems that had gone wrong. Although many medieval and early modern rabbinic commentaries on the Torah have a habit of quoting each other and not offering entirely new insights at all times—the fear of mob rule sparked creative writing for rabbis of every generation. These rabbis, commenting on Exodus 22:2, all witnessed some ruler express tolerance towards the Jewish community before some thoughtless assemblage of unusually powerful people bent the law according to their will.
The French rabbi Rashi (c. 1028–1105), who penned letters to Jews who felt their sense of security slipping away when Crusaders came to their towns, knew to be wary of anger fostered by any mass of people. Rashi advised, “אִם רָאִיתָ רְשָׁעִים מַטִּין מִשְׁפָּט, לֹא תֹאמַר, הוֹאִיל וְרַבִּים הֵם הִנְנִי נוֹטֶה אַחֲרֵיהֶם” (“If you see wicked people bending justice, do not say, ‘Since they are a majority, I will bend with them’”). Rabbi Abraham ibn Ezra (c. 1089–1164), admonished his readers similarly, “אם ראית רבים יעידו על דבר שלא ידעתו לא תאמר בלבבך אלה לא יכזבו.” (“If you see a majority of people testifying about something you do not know about, do not say to yourself, ‘These people would never be false’”). Although little is known about why ibn Ezra became so itinerant in his life, in his Introduction to the Book of Lamentations, ibn Ezra personally lamented, “הוצאתני מארץ ספרד חמת המציקים” (“the wrath of torturers expelled me from the land of Spain”). Perhaps he, living in the Golden Age of Spain, knew of some friends to the Jews who turned sour.
The Italian Rabbi Yitzchak Shemu’el Reggio (1784–1855), who was appointed in 1810 the chancellor of a French school that fell under Austrian rule in 1813, knew how quickly the hands of the government could change. Austria’s anti-Jewish legislation pressured Rabbi Reggio to resign. In his commentary on this section of the Torah, he urged his readers not only to be wary of a false majority but further: “אמור את המשפט כאשר הוא” (emor et hammishpat ka’asher hu, “Speak justice as it is”). When in 1938, Rabbi Dr. Umberto Cassuto (1883–1951) lost his job in Rome due to new antisemitic laws, Rabbi Cassuto moved to the Land of Israel and four years later published his commentary on the Book of Exodus, wherein he enjoined his readers, “ותתאמץ לשחות נגד הזרם אם כיוון הזרם הוא לרעות.” (“be brave enough to speak against the movement when the direction of the movement is towards evil”).
“In God We Trust” became a motto for Americans in 1956, amidst the second ‘Red Scare,’ when many Americans would not trust their neighbors. Many suspected their fellow citizens to be communists with a plot to overthrow the government. So too, the Psalmist once warned us, “Do not trust leaders; amidst humanity, there is no salvation” (Psalms 146:3). Is it possible though for us to have faith in our fellow people?
If we have friends or family we trust, or neighbors or community members we trust, or even just a few leaders we trust—we may be better off than many of our ancestors who, overcome with despair and disappointment, felt completely abandoned by all earthly beings. If we can trust God, who made us in God’s image (as per Genesis 1:26), then we can begin to work on our trust issues. Rabbi Dr. Abraham Joshua Heschel (1907–1972) often said that the whole Hebrew Bible shouts a resounding “yes” to the question “Am I my brother’s keeper?” (Genesis 4:9). It is upon us—little by little—to build and to rebuild a society we can trust. If we are God’s partners in creation, we must be able to trust more than God alone.
* * *
Every week, Hebrew Seminary publishes words of contemporary Torah commentary, linking the words of our past to the values of our here and now. Committed to making Jewish life accessible, Hebrew Seminary’s weekly Torah commentary allows readers around the world to nourish their neshamot (“souls”) with words of Torah composed by Hebrew Seminary’s students, faculty, graduates, and friends.