We will be thinking about what it means to provide for the doing of justice in a community, as we study Deuteronomy 16:18-20 and Deuteronomy 17:8-13 for Sunday, January 23. [Some notes on the text are here.] Here are a few notes on these texts:
BACKGROUND AND CONTEXT: The book of Deuteronomy presents itself as Moses’s recitation and review of the Torah with the Israelites just before entering the land of Canaan. Scholars estimate the text was composed at a later date, however. The text of Deuteronomy prescribes centralized institutional worship, and prohibits local sanctuaries as places of sacrifice and of judgment; it also calls for the three pilgrimage festivals. None of these practices seem to have been the rule for the earliest Israelites, who apparently had local sanctuaries that played a role in ritual and in justice. So scholars date the earliest text of Deuteronomy closer to the time of the reforms made by King Josiah, in the 7th century BCE. Subsequently, the text seems to have been edited in light of the exilic experience, and incorporated into the larger unit of the Torah. Its themes of loyalty to Adonai, its emphasis on suppressing idolatry and unorthodox practice, and its promotion of centralized worship and legal practices, also make it a fitting introduction to the Deuteronomistic history. That theological history of ancient Israel also responds to the exilic experience.
Our texts are an important part of the establishment of the central judicial apparatus. They emphasize the importance of justice as a community value; they acknowledge the role of the local community in settling disputes; but they also establish a centralized procedure for settling disputes that go beyond what the local judiciary can manage.
According to Bernard M. Levinson, in his notes on Deuteronomy in the Jewish Study Bible, cases were usually decided empirically, on the testimony of witnesses. But sometimes, evidence was lacking, and cases like that would be settled “before God,” with the aid of a priest, who might administer a trial by ordeal (e.g., see Numbers 5:11-31) or cast lots or use some other method of discerning God’s view of the matter. After worship was centralized in Jerusalem, there were [supposed to be] no local sanctuaries that could perform this task.
Cases that do not meet that empirical standard, and that once would have been remanded to the local sanctuary for divine resolution, must now be remanded instead to the central sanctuary (17.8-13). Deuteronomy is thus completely consistent in its transformation of sacrifice and in its revolution of the judicial system (Levinson, 405).
The presumptions of this legal system are fundamentally different from the presumptions we are used to in our secular society. In our society, we presume, at least theoretically, that authority to judge disputes between members of the community derives from the community itself. The members of the community are bound to acknowledge commonly available standards of empirical authority – the rules of evidence. If the evidence is insufficient, we can go no further. We don’t acknowledge any higher authority in legal matters.
The Israelite system outlined in Deuteronomy assumes that the authority for judgments derives from God, who always holds the final judicial authority. And God can render judgments “super-empirically” – that is, unconstrained by humans’ lack of empirical evidence.
Think about that.
If we haven’t thought about that for a while, or ever, it may give us a lot to discuss. In particular, we may find ourselves having to think hard about what value we place on our own fully secular legal system – and why.
No part of Deuteronomy 16 or 17 is in the lectionary. This whole matter is something you wouldn’t know about the Bible if all you knew were the lectionary. Bible Content Examinees, be warned. [And seriously: doesn’t this seem like something you’d want to know about the Bible? Or even, need to know?]
CLOSER READING: In v18, the word translated “officials” is the same word used back in Exodus for the “overseers” or “foremen” who supervised the Hebrew slaves. Robert Alter notes that the word derives from a root that means “to write down,” and might have meant something like a secretary or administrator who worked alongside the judge (674).
The word translated “in all your towns” is literally “in all your gates.” The gates are a feature of walled towns, presumably; and are referred to over and over as the places where the community and in particular the elders assembled for conferring and transacting business and making decisions. This makes more sense if you can have in mind the kind of big, spacious gates that would have been built into ancient walls. [See the image below – one of the gates in the wall around the Temple Mount. This picture shows the basic structure of these gates better than most. They are deep and tall, like big rooms, usually with alcoves on either side. This gives a better idea of how people could be sitting “in the gates” palavering and deliberating and trying cases and generally administering the affairs of the community. It also, just by the way, gives a whole new meaning to the poetry of “Lift up your heads, O ye gates, and the King of Glory will come in!” (Psalm 24:7)]
NRSV translates “just decisions” as what these “given” or “placed” officials are to render, using the word for “just” (tzedek) that in other contexts can be and is translated “righteous.” Upright, true; also, compassionate. (Don’t forget that tzedakah boxes (justice-and-righteousness boxes) are the banks we put money in to give to the poor.)
In v19, “distort justice” is literally “slant” or “lean” justice; we use this image sometimes, when we talk about “a level playing field” or “leaning towards” some outcome. Justice isn’t supposed to give one party an advantage before the fact. “Not showing partiality” is literally “not recognizing face” – maybe giving us an image of someone coming into a dispute who’s a friend, or someone you know from past experience, for better or worse. You are not supposed to “recognize” that. [It shouldn’t matter if one is fat and the other slim; one is wearing a rumpled t-shirt and the other a suit and tie; one is neatly groomed and polite, the other slovenly and crude; one is … you know the drill. It is not supposed to matter, when it comes to justice.]
The proverb “a bribe blinds the eyes of the wise and perverts the words / cause of those who are in the right” (or, “the innocent,” or “the righteous”) is almost a direct quote of Exodus 23:8, which was in our text last week. But here, the eyes are those of the wise rather than “the sighted” – re-emphasizing the need for the judges to exercise wisdom. Commentators have traditionally read the second clause as referring to the innocent disputants. When someone sees that the judgment won’t be fair, they are less likely to argue their case well, for instance. (So says Rashi.) It looks, however, like it could also mean that a bribe makes the “words of the righteous,” the arguments the judge would use, fall apart – that is, that it ruins an otherwise good person’s legal reasoning. And that reading seems like it would make more sense, honestly – that the bribe works its pernicious work on the [supposed to be] wise and good, on the judges, rather than on the disputants.
V20 is famous, and a good motto: Justice, justice, you shall pursue. The word tzedek is flat out repeated there – it might remind us of a parent or teacher, trying to get a point across, repeating a key word for good measure. “Pursue” means literally “run after,” strive for, follow – “pursuit” is a dead metaphor for us in many contexts, but here it does seem to be a live one; following justice is active. So that you may live.
[What comes to mind when we think of “justice” will probably affect our reading of this text. If when we hear the word “justice” we think of punishment, and purging evil from among you, and “an eye for an eye,” we may end up with one set of ideas. If we hear the word “justice” and think of tzedakah and jubilee and “care for the widow, and the orphan, and the stranger within your gate” we will end up with a different one. All of that is in the Bible, too, so another question before us might be … when does justice seem to demand which response, and whose task is it to decide that. These texts address that last bit, who has to decide.]
In v8 of chapter 17, different commentators give different interpretations as to the concrete meaning of what can’t be decided. Alter translates “between blood and blood, between case and case, between injury and injury,” which is nice, and says “[t]hese three phrases are meant to mark out the whole range of nonritual law,” from capital cases through assaults to torts (677). JPS translates “a controversy over homicide, civil law, or assault” and Levinson says that “in each of these pairs, the distinction is between premeditated and unintentional offenses” (405). Rashi seems to have a really different reading (!) The main point is that resolving the case goes beyond the competency of the local court. This might be a little bit like the distinction in the US between a matter for a state court, and one for a federal court. A little bit.
V9 seems to mean that both the priest and the judge – that is, someone who isn’t a priest, and who doesn’t have worship ritual responsibilities, but who exercises this function of judging disputes – are in place in the central location.
Commentators refer to the judge as a “layman” or a “secular” official, but it seems to me that our modern categories break down here. This high court seems to be acting as an agent of divine justice, so calling the official “secular” seems technically incorrect. Saying that this is a distinction between “religious” and “civil” authority also seems … misleading. That is, if we think that by “religious” we mean “having to do with God or Ultimate Reality or ‘the sacred’” or whatever, then this allegedly “civil” official seems quite “religious” as well. Just not a priest.
In vv10-13, the text is at pains to make clear that the verdict of this court is final, and shall be executed, or there shall be the most extreme penalty. Contempt of court in this case would be fatal.
I expect we can see why it would be a bad thing for judicial officials, whether priests or judges, to take bribes.
Also, why people might be motivated to offer them.
A PERSONAL WORD: This all brings us back to the question, which seems enormous to me at this point, of how earthly communities ought to conduct their affairs. According to what basic principles.
“Justice, justice, you shall pursue” seems like a good watchword. Tzedek. It’s a tall order. Also, a marathon, not a sprint.
But when it comes to the structure of the legal system, I have to admit [being modern, and post-Enlightenment, and all that]: I trust God. But people, not as much. “If men were angels, we would have no need of government.” But we’re not, and we do. And when people claim the official power to speak for God … well, see above.
So the idea of a justice system where the verdicts of human beings, however highly and centrally placed, would have to be accepted as the verdicts of God, on penalty of death … that sounds scary to me. Not that the human all too human justice system we have is non-scary. Just scary in a different way.
That’s not even to mention the idea of Judgment Day, and “from thence He shall return to judge the quick and the dead,” and possibly even “the fear of the LORD is the beginning of wisdom.” Although, as we also know, “perfect love casteth out fear.” And maybe even, along those lines, “justice is what love looks like in public.”
We’ll have plenty to talk about on Sunday, anyway.
Alter, Robert. The Hebrew Bible. Volume I: The Five Books of Moses. A Translation with Commentary. W.W. Norton & Company, 2019.
Levinson, Bernard M. “Introduction and Notes – Deuteronomy.” The Jewish Study Bible. Adele Berlin and Marc Zvi Brettler editors. Oxford University Press, 2004.
Images: “Torah scrolls in the Reconstructionist Synagogue of Montreal,” Genevieve2, CC BY-SA 3.0, via Wikimedia Commons; “Gates of Old City of Jerusalem, Palestine,” by عماد الدين المقدسي, CC BY-SA 4.0, via Wikimedia Commons; “Jerusalem Western Wall” (detail) By Berthold Werner [Public domain], from Wikimedia Commons