Shabbat Parshat Shoftim Judges, and the Month of Elul - 5759
Among the other aspects of this great Parshah, is the fact that Parshat Shoftim is the Parshah of Jewish Justice. "Judges and Officers shall you appoint in all your cities - which Hashem, your G-d, gives you - for your tribes; and they shall judge the people with righteous judgment. You shall not pervert judgment, you shall not show undue respect to any particular litigant, and you shall not take a bribe, for the bribe will blind the eyes of the wise and make the words of the righteous crooked. RIGHTEOUSNESS, RIGHTEOUSNESS shall you pursue, so that you will live and possess the Land that Hashem, your G-d, gives you." (Devarim 16:18-20)
Jewish Law goes to surprising lengths in the definition of a bribe. The slightest contact between a judge and a litigant - a "good morning," a smile, holding the door open, are considered sufficient for a judge to disqualify himself from the case.
As we enter the Month of Elul, we begin the approach to the "Yamim Noraim," "Rosh HaShanah" and "Yom Kippur," when all individuals and all nations must perforce stand and render an accounting before the Supreme Judge of the World. For better or for worse, depending on our behavior, that Judge is a Righteous Judge, Who shows no favoritism, and takes no bribe.
According to the Midrash, we don't say Hallel on Rosh HaShanah because of the reasoning by G-d that "the Books of Life and Death are open before Me - How can you now say Hallel?" The usual understanding of this is that the occasion is too serious for the mood of exaltation, which is the mood of Hallel, to be appropriate. Perhaps another understanding of this custom of not saying Hallel is that those praises could be construed as a bribe!
The Parshah also discusses witnesses: "A single witness shall not stand up against any man for any iniquity or any error, regarding any sin that they commit; according to two witnesses or according to three witnesses shall a matter be confirmed. If a false witness stand against a man to accuse him; as the litigants stand before G-d, and before the Priests and Judges who will be in those times throughout your history, then the Judges shall inquire thoroughly, and behold! The witness is a false witness, he spoke up falsely against his fellow. You shall do to him as he conspired to do to his fellow, and you shall destroy the evil from your midst." (Devarim 19:15-19)
(The specific variety of "false witness" spoken of here is the "conspiring witness," who testifies that Reuven, for argument's sake, committed a certain criminal act in New York at 1:30 in the afternoon. These witnesses are then shown to have been in Los Angeles, at that very time and place, and would consequently have no direct knowledge of Reuven's activities.)
Oliver Sacks, a Neurologist with an exceedingly broad perspective, discusses in his book, "An Anthropologist on Mars - Seven Paradoxical Tales," perhaps not from a specifically Torah-oriented point of view, the act of remembering (which is part of the burden the Torah places on the witness). On one hand, he writes, "No two witnesses ever tell the same story, and no story, no memory, ever remains the same. A story is repeated, and gets changed with every repetition." According to this view, "there cannot be any fixed memories, any 'pure' view of the past uncolored by the present; there are always dynamic processes at work, and remembering is always reconstruction, not reproduction."
On the other hand, he recognizes certain "highly accurate archival memories found in oral cultures" in which there are "immense powers of reproduction at work, "
He quotes Kierkegaard, in the opening of "Stages on Life's Way," "Memory is merely a minimal condition. By means of memory, the experience presents itself to receive the consecration of recollection For recollection is ideality it involves effort and responsibility, which the indifferent act of memory does not involve Hence it is an art to recollect."
It might be said that we engage in that "art" on an annual basis at the Seder Table on Pesach.
Thus, we see the difficulties in the human capacity of remembering that may lie behind the Torah's disallowance of the testimony of a "single witness." It is only when two separate testimonies are available regarding an event, and the process of "Drisha V'Chakira" "Examination and Thorough Investigation" is applied by expert Judges, who search out whether the required level of consistency is present, that the Torah accepts the testimony as valid.
Sacks speaks of a patient of his who, possessed of a photographic memory, was at some point in his life "called upon" to paint scenes of the Italian town in which he had grown up, Pontito. The childhood of this patient, primarily a happy one, had been disrupted by the arrival of the Nazis, who brutalized the town and its people.
When his mother died, he said to her, "I shall make Pontito again for you; I shall create it again for you." He went on to paint thousands of pictures, accurate to the smallest detail, of his beloved Pontito.
Sacks writes, "One may be born with the potential for a prodigious memory, but one is not born with a disposition to recollect; this comes only with changes and separations in life - separations from people, from places, from events, and situations, especially if they have been of great significance, have been deeply hated or loved. It is, thus, discontinuities, the great discontinuities in life, that we seek to bridge, or reconcile, or integrate, by recollection and, beyond this, by myth and art. Discontinuity and nostalgia are most profound if, in growing up, we leave or lost the place where we were born and spent our childhood, if we become expatriates or exiles, if the place, or the life, we were brought up in is changed beyond recognition or destroyed. All of us, finally, are exiles from the past."
I don't think that the Jewish point of view is that myth or art are superior to recollection, but perhaps Sacks' idea is related to the statement in Jewish Tradition that "All who mourn for Jerusalem will merit to see its Rebuilding." Without reference to the World-to-Come, this perhaps can be understood in a this-worldly way. Someone who mourns intensely for Jerusalem comes to see it in his mind's eye with similar accuracy to that with which Sacks' patient saw his boyhood Pontito, though in his case it took over his entire personality. But he who mourns Yerushalayim properly will be able to imagine and recreate it spiritually with such an intensity that he can almost touch it.
In each of our Daily Prayers, we request of Hashem, "Return our Judges as of old, and our Advisors as at our Beginning."
The Prophet Yeshayahu, who literally was shown the future with a clarity of vision far beyond even that of Sacks' inspired patient, prophesied to the City of Jerusalem and the Jewish People, "And I will return your Judges as at the first, and your Advisors as they once were; afterwards, you will be called the "City of Righteousness, the Settlement of Faithfulness. Zion will be redeemed in Justice, and those of its children who Return, will be redeemed in Righteousness." (Yeshayahu 1: 26-27)
On Rosh HaShanah, we will pray in "Zichronot," Remembrances, that the Judge, Who is also the all-knowing Witness, Who remembers all and Who knows our innermost thoughts, will temper Justice with Mercy in the determination of our fate, the fate of the Jewish People and the fate of the World, in the coming year, 5760, which, we pray, is "coming to us for good."
Rabbi Pinchas Frankel
Rabbi Frankel is an Educational Coordinator at the OU