As Moses begins his great closing addresses to the next generation, he turns to a subject that dominates the last of the Mosaic books, namely justice:
I instructed your judges at that time as follows: "Listen to your fellow men, and decide justly [tzedek] between each man and his brother or a stranger. You shall not be partial in judgment. Listen to great and small alike. Fear no one, for judgment belongs to G-d. Any matter that is too difficult for you, bring to me and I will hear it."
Tzedek, "justice", is a key word in the book of Devarim - most famously in the verse:
Justice, justice you shall pursue, so that you may thrive and occupy the land that the Lord your G-d is giving you. (16: 20)
The distribution of the word tzedek and its derivate tzedakah in the Five Books of Moses is anything but random. It is overwhelmingly concentrated on the first and last books, Genesis (where it appears 16 times) and Deuteronomy (18 times). In Exodus it occurs only four times and in Leviticus five. All but one of these are concentrated in two chapters: Exodus 23 (where 3 of the 4 occurrences are in two verses, 23: 7-8) and Leviticus 19 (where all 5 incidences are in chapter 19). In Numbers, the word does not appear at all.
This distribution is one of many indications that the Chumash (the Five Books of Moses) is constructed as a chiasmus - a literary unit of the form ABCBA. The structure is this:
A: Genesis - the prehistory of Israel (the distant past)
B: Exodus -- the journey from Egypt to Mount Sinai
C: Leviticus - the code of holiness
B: Numbers -- the journey from Mount Sinai to the banks of the Jordan
A: Deuteronomy - the post-history of Israel (the distant future)
The leitmotiv of tzedek/tzedakah appears at the key points of this structure - the two outer books of Genesis and Deuteronomy, and the central chapter of the work as a whole, Leviticus 19. Clearly the word is a dominant theme of the Mosaic books as a whole.
What does it mean? Tzedek/tzedakah is almost impossible to translate, because of its many shadings of meaning: justice, charity, righteousness, integrity, equity, fairness and innocence. It certainly means more than strictly legal justice, for which the Bible uses words like mishpat and din. One example illustrates the point:
If a man is poor, you may not go to sleep holding his security. Return it to him at sun-down, so that he will be able to sleep in his garment and bless you. To you it will be reckoned as tzedakah before the Lord your G-d. (Deut. 24: 12-13)
Tzedakah cannot mean legal justice in this verse. It speaks of a situation in which a poor person has only a single cloak or covering, which he has handed over to the lender as security against a loan. The lender has a legal right to keep the cloak until the loan has been repaid. However, acting on the basis of this right is simply not the right thing to do. It ignores the human situation of the poor person, who has nothing else with which to keep warm on a cold night. The point becomes even clearer when we examine the parallel passage in Exodus 22, which states:
If you take your neighbour's cloak as a pledge, return it to him by sunset, because his cloak is the only covering he has for his body. What else will he sleep in? When he cries out to me, I will hear, for I am compassionate. (Ex. 22: 25-26)
The same situation which in Deuteronomy is described as tzedakah, in Exodus is termed compassion or grace (chanun). The late Aryeh Kaplan translated tzedakah in Deut. 24 as "charitable merit". It is best rendered as "the right and decent thing to do" or "justice tempered by compassion".
In Judaism, justice - tzedek as opposed to mishpat - must be tempered by compassion. Hence the terrible, tragic irony of Portia's speech in The Merchant of Venice:
The quality of mercy is not strain'd,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes:
'Tis mightiest in the mightiest: it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to G-d himself;
And earthly power doth then show likest G-d's
When mercy seasons justice. Therefore, Jew,
Though justice be thy plea, consider this,
That, in the course of justice, none of us
Should see salvation: we do pray for mercy;
And that same prayer doth teach us all to render
The deeds of mercy. I have spoke thus much
To mitigate the justice of thy plea . . .
Shakespeare is here expressing the medieval stereotype of Christian mercy (Portia) as against Jewish justice (Shylock). He entirely fails to realize - how could he, given the prevailing culture - that "justice" and "mercy" are not opposites in Hebrew but are bonded together in a single word, tzedek or tzedakah. To add to the irony, the very language and imagery of Portia's speech ("It droppeth as the gentle rain from heaven") is taken from Deuteronomy:
May my teaching drop as the rain,
my speech distill as the dew,
like gentle rain upon the tender grass,
and like showers upon the herb . . .
The Rock, his work is perfect,
for all his ways are justice.
A G-d of faithfulness and without iniquity,
just and upright is he. (Deut. 32: 2-4)
The false contrast between Jew and Christian in The Merchant of Venice is eloquent testimony to the cruel misrepresentation of Judaism in Christian theology until recent times.
Why then is justice so central to Judaism? Because it is impartial. Law as envisaged by the Torah makes no distinction between rich and poor, powerful and powerless, home born or stranger. Equality before the law is the translation into human terms of equality before G-d. Time and again the Torah insists that justice is not a human artefact: "Fear no one, for judgment belongs to G-d." Because it belongs to G-d, it must never be compromised - by fear, bribery, or favouritism. It is an inescapable duty, an inalienable right.
Judaism is a religion of love: You shall love the Lord your G-d; you shall love your neighbour as yourself; you shall love the stranger. But it is also a religion of justice, for without justice, love corrupts (who would not bend the rules, if he could, to favour those he loves?). It is also a religion of compassion, for without compassion law itself can generate inequity. Justice plus compassion equals tzedek, the first precondition of a decent society.
FutureTense – The Unwritten Chapter
The first task of Zionism was achieved with extraordinary success: the creation of a Jewish state. The second task has not yet been achieved: the creation of a Jewish society. Yet historically it was the second, not the first, that drove the vision of the Bible. Israel in ancient times was not conceived as a political project alone. If it had been, it would have disappeared after the Babylonian conquest, along with the Canaanites, Hittites and Perizzites. Judaism never saw power as an end in itself. Politically, one of the most successful Israelite kings was Jeroboam II. Yet we do not see him as one of our heroes.
The visionaries who sustained our national identity, from Abraham to the last of the prophets, saw the Jewish task as the creation of a society built on justice, compassion, the sanctity of life and the dignity of the individual, a society that was the opposite of the empires of their day, in which few had power and the many were powerless. As historian Norman Gottwald wrote about the Israelites of Bible times, 'Israel thought it was different because it was different: it constituted an egalitarian social system in the midst of stratified societies.' G. K. Chesterton once said that America was the only nation built on an idea. He was, of course, wrong. Biblical Israel was based on an idea, millennia ahead of its time: that every individual is in the image of God, and society must honour that fact.
It may seem absurd to speak about these things at a time when Israel is – as it surely is – fighting for its life, especially in the wake of this week's terrorist attack in Dimona. Yet that is what the prophets did. While others were reacting to the present, they spoke about the future. Their message was simple: serve God. But it had a deep rationality that can be translated into secular terms. Amos, Hosea, Isaiah and especially Jeremiah were political realists. They knew that Israel is a tiny country surrounded by large empires. It cannot match them on any conventional measure of military-demographic strength. Israel wins its battles because of its extraordinary morale, itself the result of its societal strength. When divisions open up within society, people become demoralized and the nation falls prey to its larger, more powerful neighbours. In Israel, social solidarity is the nation's best long term defence.I had a life-changing experience when writing the first of my political books, The Politics of Hope. I suddenly realized that Tanakh, the Hebrew Bible, contains a political theory more subtle than any of the philosophical classics. Uniquely, Israel had not one foundational moment but two.
One is the moment when Israel first became a kingdom in the days of Samuel. Until then it had been a loose confederation of tribes, without a political head of state. It was led, during emergencies, by charismatic figures like Gideon, known as 'judges'. In Samuel's old age the people demanded a king. God tells Samuel to warn the people of the risks involved, and adds that if, despite the warning, they still want to go ahead, Samuel should appoint a king.
The narrative is fraught with ambivalence. Samuel warns the people what will happen if they appoint a king. He will take their sons into the army, their daughters into royal service, seize their property and tax their produce. When that happens, he says, 'You will cry out for relief from the king you have chosen, and God will not answer you.' Is the Bible telling us that monarchy is good or bad? Maimonides said 'good', Abrabanel, who worked with monarchs in Spain, said 'bad.'
It was the nineteenth century Talmudist, Rabbi Zvi Hirsch Chajes, who solved the problem. What God and Samuel were proposing was a social contract, on the lines later expounded by the founders of modern political thought: Hobbes, Locke and Rousseau. A group of self-interested individuals will find it worthwhile to appoint a leader who will defend them from lawlessness within and enemies outside. To do so they will have to sacrifice some of their liberty and wealth, but the alternative is anarchy and foreign conquest. Samuel's appointment of Saul is the first recorded instance of a social contract.
What makes the history of Israel unique is that this was its second political founding, not its first. That had happened centuries earlier at Mount Sinai in the days of Moses, when the people made a covenant with God. They were no longer a group of escaping ex-slaves. At Sinai they became a body politic under the sovereignty of God with the Torah as their written constitution. In the days of Samuel they became a kingdom, but it was in the days of Moses that they became a nation.
Tanakh, in other words, makes a clear distinction between social contract and social covenant. Social contract creates a state; social covenant creates a society. Social contract is based on self-interest; social covenant is about shared identity. Social contract belongs to the world of politics; social covenant is about morality and collective responsibility, the idea that kol Yisrael arevin zeh bazeh, 'All Jews are responsible for one another'. Only one other nation has ever had a similar dual founding, namely the United States, whose covenant is set out in the Declaration of Independence (1776), and whose contract was formulated in the Constitution (1787). This is no coincidence: the Founding Fathers of America were deeply influenced by the Hebrew Bible.