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Parashat Beshalach: The Exodus of Justice

By: Eli Fisher (Student)

Parashat Beshalach is a, perhaps the, key parasha in the entire Torah. It tells of the actual Yetzia - the exodus from Egypt - which becomes the cornerstone of our faith as a nation. Many of our...

 


 


Parashat Beshalach: The Exodus of Justice - Eli Fisher



 


Parashat Beshalach is a, perhaps the, key parasha in the entire Torah. It tells of the actual Yetzia - the exodus from Egypt - which becomes the cornerstone of our faith as a nation. Many of our rituals and practices invoke the memory of this event (Friday night Kiddush, for example), and throughout Tanach, we construct our perception of Hashem as the One who took us out from Egypt. In fact, we quote Hashem, in the third paragraph of Sh'ma, referring to himself as "Asher hotzeti etchem m'eretz Mizrayim" - "[I am] He who took you out of the land of Egypt". The two principal messages of the Yetzia in general, and Parashat Beshalach in particular, are clear: God, in all His might and justice redeemed His chosen nation through a series of majestic miracles. And Hashem will ensure Israel's destiny; and all Israel's enemies will - like Egypt - be decimated and ridiculed.


 


Hence, it is no surprise that Beshalach is an uplifting portion of the Torah, one of jubilation - it is, after all, referred to as Parashat Shira - the Parasha of Song. There is the famous song in the middle of our parasha that has become so stirring that it is recited each morning in Shacharit. It is not so astounding, then, that amidst all the celebration and ceremony, something goes missing, forgotten - neglected.


 


The problem, sometimes, with understanding a classic event is that its fame precludes contemporary audiences from interpreting the story as it has been written. Instead, because it's so talked about, celebrated and popular, it becomes near-impossible not to approach it with presumption, expectation or prejudice. But if we briefly re-cap one particular scene of the story - as it is told in the Torah, as opposed to popular tradition - the problems should arise fairly quickly.


 


Israel is enslaved in Egypt under an evil, genocidal Pharaoh. Hashem wants Israel's release. So He sends messengers - Moshe and Aharon - to arrange Israel's freedom. But, he simultaneously manipulates Pharaoh's intention and will, to ensure that Israel is not released. "Vayechazek Hashem et lev Pharaoh" - "And Hashem hardened the heart of Pharaoh". Subsequently, He punishes and all but destroys Egypt through the ‘Ten' Plagues. In between most of the plagues, Hashem would send Moshe and Aharon demanding Israel's freedom, and at the same time, manipulate Pharaoh's heart to ensure this would not happen. Then after Pharaoh releases Israel, Hashem forces him to send Egyptian troops in pursuit. Hashem, then, takes control of their chariots and leads their riders to their death in the Reed Sea. Ultimately, Hashem forced Egypt to sin so that He could punish them. We are told numerous times that His intentions were that, through the plagues - Egypt's punishment - the Egyptians would come to know Hashem. "Vidatem ki ani Hashem" - "And you [the Egyptians] will know that I am Hashem" (10:2). In fact, this rationale is repeated at least 10 times in the entire story.[1]


 


So there is a triple problem:


 


1) How can Hashem control what Pharaoh does in order to punish him?


2) How can Hashem punish all the Egyptians for the actions of their leader? And,


3) Why does Hashem care so much about non-Jews knowing His might? And why must he ridicule their theological beliefs to raise the Jewish ones? (But I'll deal with this question next week, because it'll get really long this week...)


 


What is interesting, here, is that the first two questions - the ones we'll deal with now - are questions of justice. Alan Dershowitz titled his commentary on Bereshit ‘The Genesis of Justice' for it is in that sefer that the concept of Justice is born. With these questions in mind, perhaps we would be justified in titling this analysis of Sefer Shemot ‘The Exodus of Justice', for it seems that in this book, Justice is dispensed with. It is suspended, denied and neglected.


 


Let's develop each dilemma individually. Firstly, it is a fundamental pillar of our understanding of the way God operates, that each Human Being has a free will. Human Beings can choose to do or act or think however they feel. God cannot regulate this. Indeed, this is core to our relationship with God; because, how could God reward us for something we did robotically - controlled by Him; and how could we be responsible for any misdeed we commit if that, too, was His doing? Likewise, if Hashem needed to, for whatever reason, override Pharaoh's free-will, then basic notions of justice dictate that Pharaoh was not deserving of punishment.Hashem did not have jurisdiction to punish Pharaoh: it was an abuse of His power. To be sure, we know that it was not Hashem who encouraged or forced Pharaoh to initially enslave, or drown the Israelites - that was Pharaoh's autonomous choice. Moreover, we know that the Torah says that with the first five plagues, Pharaoh hardened his own heart. For example, in 7:22, it notes that Pharaoh's heart was hardened because his magicians could duplicate Hashem's plague, not because his intentions were manipulated. But these facts merely diminish the gravity of Hashem's actions. He abused his power fewer times, perhaps, but it doesn't answer our problem. That Hashem controls Pharaoh and thereby prevents him from releasing the Jews only needs to occur once for it to be a miscarriage of justice.


 


But there is a profound message, a remarkable definition of justice, which is explained through this episode. There are two types of justice. The first one is problematic and has been developed by Western philosophy. That is, justice is contingent on two criteria: each individual must be subjected to the same equal treatment, and that treatment is decent. This means that we establish a set of rules and institutions, and each individual in each circumstance must abide by them. And in executing judgment, these principles must be applied to each individual each time. However, even if in the majority of instances, this results in an orderly and appropriate state of affairs, it is possible that these rules and institutions might bring about a situation that is indecent. A clever accountant might use otherwise decent rules and principles to achieve financial gains indecently. Likewise, murderers, rapists and other heinous criminals have been acquitted on technical laws in the name of justice, even though no-one doubts that they actually committed the crime. This Western, Kantian version of justice is highly problematic, but perhaps the best system we have.


 


In sum, the systems of justice that we are familiar with are predicated on laws and principles that must be applied in all situations: no-one can steal; all must wear seat-belts; all who drive at 70km/h in a 60 zone will receive the same punishment, etc. Hence our problem: all human beings - even the bad, genocidal ones - are entitled to the same equal process, the same treatment, the same laws and principles. This is justice. So how can Hashem override Pharaoh's freedom to choose and behave autonomously? Evil as Pharaoh may have been, he was entitled to a just process, a ‘fair trial'. And of this, he was deprived - at least in reference to the final five plagues, and his ‘decision' to pursuit the Israelites. Hashem's hardening of Pharaoh's heart was an abuse of His powers, and it cannot be said, therefore, that Pharaoh was dealt with justly.


 


But to comment on justice, we must become aware that the Torah views justice very differently from the way Kant and other Western philosophers did and do. To fully comprehend the implications of ‘justice' in the Torah, we must explore the contexts and functions of its Hebrew translation - Mishpat - throughout Tanach. To be sure, Mishpat can refer to many things: to a particular judgment, to a law, to the administration of justice, to a punishment, and to the wider, general concept of justice. But there are other usages, albeit ones that are mostly overlooked because they are incongruous, with Western perceptions of justice, unintelligible to the Western mind. Mishpat is often a reference to saving the innocent from injustice. Eliezer Berkovits even goes as far as to assert "in Biblical thought, ‘to judge' becomes the equivalent of ‘to save'. [2]


There seems to be such a close proximity between salvation and deliverance and protecting the innocent, on the one hand, and biblical justice, on the other, that the words are synonymous, are virtually interchangeable in some places in the Tanach.[3]


 


More clearly, in Shmuel, the verb ‘Shafat' actually means ‘to save'. When David and his men catch King Shaul in a cave, and then release him, the two have an exchange where David asserts:


 


"V'haya Hashem l'dayan beni u'vanecha, v'yer'e, v'yarev et rivi, va'yishpeteni miyadecha."


 


"May Hashem be a judge and give sentence between you and me, and see and plead my cause, and deliver me out of your hand."


 


Translated literally, the conclusion of that sentence yields "and judge me out of your hand", but that doesn't make sense in English. Nonetheless, the implication is clear that David should be delivered from Shaul's hand. Indeed, it is with this more subtle understanding of the word ‘mishpat' that we can grasp why the post-Joshua leadership of Israel is referred to as Shoftim - as judges - when they were more than just arbiters. These leaders functioned as kings and as military commanders, saving Israel, for instance, from other enemy nations; so it is strange that they would be referred to as judges. But in the Biblical Hebrew, and with all the connotations of the word Mishpat, ‘Shoftim' is an extremely apt name: Arbiters, but also Deliverers.


 


But let's take the idea of Mishpat even further. Eliezer Berkovits points out that there is also an intimate relationship between ‘mishpat' on the one hand, and ‘chessed, ‘tzedakka' and ‘rachamim', on the other.[4]


The association between justice, and mercy or kindness, is counter-intuitive, even nonsensical in Western philosophy. To be just, one must withhold mercy and kindness. By definition, justice is exacting the same punishment as the to-be-punshed deserves. Mercy, or kindness, is its opposite. Jonathan Sacks makes the same point in his discussion on charity and justice. Charity and justice are mutually exclusive in Western philosophy, he claims. Justice is giving a man what he deserves, charity is giving to a man even without him deserving it. For example, says Rabbi Sacks, if I give $50 to another person, either he deserved it or he did not. If he did, then it's justice; if he didn't, then it's charity. It's strange, then, that the etymological root - the shoresh - of charity (Tzedaka) in Hebrew, is justice (Tzedek).


 


But what is the significance that in Biblical Hebrew there is a connection between these seemingly contradictory notions? The significance lies in the fact that the idea of justice in the Torah is radically different from the Western notion of applying the same laws to the same cases. The Torah's version of justice is different to Western philosophy's version of it.


 


The final connotation the Biblical notion gives to justice is the implication of a balance, an appropriateness, an orderliness. ‘Mishpat' carries, in the Biblical vocabulary, a reference to "an eternal cosmic principle of measured and balanced relatedness which applies to the whole of life, ... to nature, ... to the universe." (Berkovits).[5]


 


 


It seems that the Biblical idea of justice is understood as the intersection of salvation/deliverance, mercy/kindness and the administration of the cosmic balance of nature. While all three of these concepts are foreign to the West's system of justice, they also share another characteristic. None of the three deals with the process of justice, the way we get there. On the contrary, the Biblical version of justice is occupied with ensuring that, in the end, the world is orderly and appropriate. To reduce the scale and discuss only one particular example, the Biblical version of justice seems more attentive to creating an orderliness by freeing slaves than it is to protecting the rights of a genocidal autocrat. In other words, there was nothing intrinsically indecent with Pharaoh receiving harsh treatment - he was, after all, genocidal. The only reason we protect the rights of criminals is for the sake of those of whose guilt we are not certain. For this reason, Hashem, certain of Pharaoh's guilt, need have no moral reluctance in discarding Pharaoh's ‘civil liberty' of free will. The message behind the hardening of Pharaoh's heart is that justice is not comprised of technical legal acrobatics, of casuistry, but rather, in how the final, ultimate picture is decent and appropriate.


 


Parashat Beshalach, thus, presents an alternative comprehension of justice: that justice is to be perceived by the end result, not the process. Even if the criminal was tricked into confessing, or was tortured, or illegally surveilled - if he is punished and the crime is stopped, justice is served. This is in stark contradiction to the Kantian model of justice that relies on just maxims and principles being applied equally to each individual in each instance. This second model, advocated by our parasha, requires a result that is appropriate, even if the process if dubious. It teaches that justice would have preferred Pharaoh be punished as he was, even if God had to traverse beyond his jurisdiction.


 


But to assert that the Torah dictates that we should follow the second model is problematic too. The central reason why we don't practise the second model of justice in Western systems is because it is subjective. Who is to say that one is guilty or innocent if there is no objective, scientifically demonstrable set of rules that determine one is so? Who has that authority?


 


This ‘rhetorical question' has an answer. Only God can define what is truly good and what is truly bad - and therefore, who is truly guilty and who is truly innocent. These are the benefits of divine justice. Limited human capabilities restrict us to a finite, imperfect system of justice, where the end result is not always just. We are not able to select which outcome would be more ‘good' than another, only God has can do that. We, consequently, bind ourselves to instructions, rules and principles that guide us in making human justice as ‘just' as humanly possible.


 


Our second question, nonetheless, stands. The Torah teaches us that divine justice would prefer to override legal technicalities and the protection of criminals, in favour of a just conclusion. But that does not justify the utter destruction of many of Egypt's citizens, animals and crops. The story is as follows: an evil king enslaves Israel, God wants its release and so kills each human and animal family's firstborn, kills all those who go in the way of the fiery hail, destroys their crops, food and water, inconveniences each Egyptian with lice and frogs, etc. In modern political language, we refer to this action as ‘collective punishment' - punishing an entire community for the actions of one individual.


 


But surely God, omnipotent and infinite, was able to only punish those who had caused or exacerbated Israel's slavery. Those Egyptians who were innocent, surely, didn't need to be punished.


 


There is no deep answer to this question. I only raise it to point out the answer lest one be disenchanted by Exodus' lack of justice in God's treatment of the Egyptians. The answer is found in two subtle p'sukim in the story. They testify to the fact that we have misunderstood the story if we are concerned with issues of collective punishment. Namely, there are two possibilities. Firstly, either Hashem was not just, and the Egyptians' punishment was undeserved (they were innocent); or Hashem was just and the Egyptians' punishment was deserved (they were each guilty). In other worsd, if the Egyptians had each contributed to the slavery, Hashem would not have collectively punished Egypt, but rather punished each Egyptian individually for their independent actions.


 


Indeed, this is what the Torah demonstrates, albeit through hints. The Egyptians were not punished collectively, but individually. What tells us this? We know from the fifth plague - Dever - that all the horses, donkeys, camels, herds and flocks belonging to Egypt were destroyed (9:3). It even emphasises that each and every one of those animals owned by Egyptians died (9:6). But, later, as in the instance of the plague of Barad killing animals left outside, or the scene where the Egyptians soldiers pursue Israel on horseback, these animals are referred to. If all the Egyptians' animals had been killed, where did these other animals come from? In a little-known and strange passage, we are informed that those Egyptians who feared Hashem hid their animals in the house when they heard Moshe's warning (9:20-21). Rashi asserts that these were the animals that survived. The implications of this are extremely informative. Even the most righteous Egyptians provided the means to pursue the Israelites, collaborated with the enslavement. How much more so would those less-righteous Egyptians have been deserving of punishment?


 


Moreover, the Torah tells us in 14:5 what transpired when Pharaoh heard the Jews were escaping:


 


"Va'yehafech levav Pharaoh el ha'am, va'yom'ru..."


 


"And Pharaoh's heart was changed according to the nation [Egypt] and they [together] said..."


 


Indeed, the decision made by Pharaoh to pursue the Jews was made together with his entire nation. It was a national decision, a ‘referendum' of sorts. Thus, Egyptians weren't punished collectively because of the actions of one individual - that would be a tragic absence of justice. Rather, they were punished as individuals for what they each contributed to the enslavement of Israel.


 


The point, in my eyes, of the Yetzia is the same as the point of the Chag that celebrates it - Pesach. We are supposed to ask questions. We should question the story, and dissect it, and challenge its inherent values. Likewise, we should do the same with justice, for it is only able to exist if individuals challenge and critically assess every action, every thought, every person. For this reason, the text never explicitly spells out the message of justice in the story of the Yetzia - it is only hinted to. The questions are obvious, they beg to be asked. But the answers are only hinted to. We have to labour over, and effortfully investigate all the issues. This itself is the point: only through questions can Justice exist.


 




[1] See: (Ex: (7:5); (7:17); (8:6); (8:18); (9:4-7); (9:30-31); (10:2); (12:12); (14:4); (18:11))


[2] For example, in Tehillim (76:9-10), it is written of God: "B'kum la'mishpat Elokim l'hoshia kol anvei eretz." -  "... [w]hen God arose to judgment, to save all the humble of the Earth." Or otherwise, in Isaiah (51:5), "Karov tzidki, yatza yishi uzro'ai" - "My Salvation has gone forth, and My arms shall judge the peoples."


 


 


[3] For example, in Isaiah 59:11, it is written:  "Nekav'e Lamishpat, va'ayin, lishua; rachaka mimenu." - "We look for mishpat, but there is none, for salvation (y'shu'a), but it is far from us."  


[4] For example, in Jeremiah (9:23), Hashem says: "Ki ani Hashem oseh chessed, mishpat u'tzedaka" - "For I am Hashem, doer of Chessed, Mishpat and Tzedaka." Another example, Zechariah relays Hashem's words saying (7:9): "Mishpat emet sh'fotu, v'chesed u'rachamim asu ish et achiv." - "Judge with truthful justice, and kindness and mercy do, each many to his brother."  


[5] Consider Jeremiah's articulation of God's frustration with Israel's sins (8:7): "Gam chassida ba'shamayim yad'ah mo'adeha v'tor v'sis v'agur sham'ru et et bo'ana v'ami lo yad'u et mishpat Hashem." - "Even the stork knows its [migration] seasons, and the turtledove, the swift, and the crane keep their time of their arrival; but my people do not know the mishpat of Hashem." Parashat Beshalach: The Exodus of Justice


Parashat Beshalach is a, perhaps the, key parasha in the entire Torah. It tells of the actual Yetzia - the exodus from Egypt - which becomes the cornerstone of our faith as a nation. Many of our rituals and practices invoke the memory of this event (Friday night Kiddush, for example), and throughout Tanach, we construct our perception of Hashem as the One who took us out from Egypt. In fact, we quote Hashem, in the third paragraph of Sh'ma, referring to himself as "Asher hotzeti etchem m'eretz Mizrayim" - "[I am] He who took you out of the land of Egypt". The two principal messages of the Yetzia in general, and Parashat Beshalach in particular, are clear: God, in all His might and justice redeemed His chosen nation through a series of majestic miracles. And Hashem will ensure Israel's destiny; and all Israel's enemies will - like Egypt - be decimated and ridiculed.


Hence, it is no surprise that Beshalach is an uplifting portion of the Torah, one of jubilation - it is, after all, referred to as Parashat Shira - the Parasha of Song. There is the famous song in the middle of our parasha that has become so stirring that it is recited each morning in Shacharit. It is not so astounding, then, that amidst all the celebration and ceremony, something goes missing, forgotten - neglected.


The problem, sometimes, with understanding a classic event is that its fame precludes contemporary audiences from interpreting the story as it has been written. Instead, because it's so talked about, celebrated and popular, it becomes near-impossible not to approach it with presumption, expectation or prejudice. But if we briefly re-cap one particular scene of the story - as it is told in the Torah, as opposed to popular tradition - the problems should arise fairly quickly.


Israel is enslaved in Egypt under an evil, genocidal Pharaoh. Hashem wants Israel's release. So He sends messengers - Moshe and Aharon - to arrange Israel's freedom. But, he simultaneously manipulates Pharaoh's intention and will, to ensure that Israel is not released. "Vayechazek Hashem et lev Pharaoh" - "And Hashem hardened the heart of Pharaoh". Subsequently, He punishes and all but destroys Egypt through the ‘Ten' Plagues. In between most of the plagues, Hashem would send Moshe and Aharon demanding Israel's freedom, and at the same time, manipulate Pharaoh's heart to ensure this would not happen. Then after Pharaoh releases Israel, Hashem forces him to send Egyptian troops in pursuit. Hashem, then, takes control of their chariots and leads their riders to their death in the Reed Sea. Ultimately, Hashem forced Egypt to sin so that He could punish them. We are told numerous times that His intentions were that, through the plagues - Egypt's punishment - the Egyptians would come to know Hashem. "Vidatem ki ani Hashem" - "And you [the Egyptians] will know that I am Hashem" (10:2). In fact, this rationale is repeated at least 10 times in the entire story.


So there is a triple problem:


1) How can Hashem control what Pharaoh does in order to punish him?
2) How can Hashem punish all the Egyptians for the actions of their leader? And,
3) Why does Hashem care so much about non-Jews knowing His might? And why must he ridicule their theological beliefs to raise the Jewish ones? (But I'll deal with this question next week, because it'll get really long this week...)


What is interesting, here, is that the first two questions - the ones we'll deal with now - are questions of justice. Alan Dershowitz titled his commentary on Bereshit ‘The Genesis of Justice' for it is in that sefer that the concept of Justice is born. With these questions in mind, perhaps we would be justified in titling this analysis of Sefer Shemot ‘The Exodus of Justice', for it seems that in this book, Justice is dispensed with. It is suspended, denied and neglected.


Let's develop each dilemma individually. Firstly, it is a fundamental pillar of our understanding of the way God operates, that each Human Being has a free will. Human Beings can choose to do or act or think however they feel. God cannot regulate this. Indeed, this is core to our relationship with God; because, how could God reward us for something we did robotically - controlled by Him; and how could we be responsible for any misdeed we commit if that, too, was His doing? Likewise, if Hashem needed to, for whatever reason, override Pharaoh's free-will, then basic notions of justice dictate that Pharaoh was not deserving of punishment.Hashem did not have jurisdiction to punish Pharaoh: it was an abuse of His power. To be sure, we know that it was not Hashem who encouraged or forced Pharaoh to initially enslave, or drown the Israelites - that was Pharaoh's autonomous choice. Moreover, we know that the Torah says that with the first five plagues, Pharaoh hardened his own heart. For example, in 7:22, it notes that Pharaoh's heart was hardened because his magicians could duplicate Hashem's plague, not because his intentions were manipulated. But these facts merely diminish the gravity of Hashem's actions. He abused his power fewer times, perhaps, but it doesn't answer our problem. That Hashem controls Pharaoh and thereby prevents him from releasing the Jews only needs to occur once for it to be a miscarriage of justice.


But there is a profound message, a remarkable definition of justice, which is explained through this episode. There are two types of justice. The first one is problematic and has been developed by Western philosophy. That is, justice is contingent on two criteria: each individual must be subjected to the same equal treatment, and that treatment is decent. This means that we establish a set of rules and institutions, and each individual in each circumstance must abide by them. And in executing judgment, these principles must be applied to each individual each time. However, even if in the majority of instances, this results in an orderly and appropriate state of affairs, it is possible that these rules and institutions might bring about a situation that is indecent. A clever accountant might use otherwise decent rules and principles to achieve financial gains indecently. Likewise, murderers, rapists and other heinous criminals have been acquitted on technical laws in the name of justice, even though no-one doubts that they actually committed the crime. This Western, Kantian version of justice is highly problematic, but perhaps the best system we have.


In sum, the systems of justice that we are familiar with are predicated on laws and principles that must be applied in all situations: no-one can steal; all must wear seat-belts; all who drive at 70km/h in a 60 zone will receive the same punishment, etc. Hence our problem: all human beings - even the bad, genocidal ones - are entitled to the same equal process, the same treatment, the same laws and principles. This is justice. So how can Hashem override Pharaoh's freedom to choose and behave autonomously? Evil as Pharaoh may have been, he was entitled to a just process, a ‘fair trial'. And of this, he was deprived - at least in reference to the final five plagues, and his ‘decision' to pursuit the Israelites. Hashem's hardening of Pharaoh's heart was an abuse of His powers, and it cannot be said, therefore, that Pharaoh was dealt with justly.


But to comment on justice, we must become aware that the Torah views justice very differently from the way Kant and other Western philosophers did and do. To fully comprehend the implications of ‘justice' in the Torah, we must explore the contexts and functions of its Hebrew translation - Mishpat - throughout Tanach. To be sure, Mishpat can refer to many things: to a particular judgment, to a law, to the administration of justice, to a punishment, and to the wider, general concept of justice. But there are other usages, albeit ones that are mostly overlooked because they are incongruous, with Western perceptions of justice, unintelligible to the Western mind. Mishpat is often a reference to saving the innocent from injustice. Eliezer Berkovits even goes as far as to assert "in Biblical thought, ‘to judge' becomes the equivalent of ‘to save'.
There seems to be such a close proximity between salvation and deliverance and protecting the innocent, on the one hand, and biblical justice, on the other, that the words are synonymous, are virtually interchangeable in some places in the Tanach.


More clearly, in Shmuel, the verb ‘Shafat' actually means ‘to save'. When David and his men catch King Shaul in a cave, and then release him, the two have an exchange where David asserts:


"V'haya Hashem l'dayan beni u'vanecha, v'yer'e, v'yarev et rivi, va'yishpeteni miyadecha."


"May Hashem be a judge and give sentence between you and me, and see and plead my cause, and deliver me out of your hand."


Translated literally, the conclusion of that sentence yields "and judge me out of your hand", but that doesn't make sense in English. Nonetheless, the implication is clear that David should be delivered from Shaul's hand. Indeed, it is with this more subtle understanding of the word ‘mishpat' that we can grasp why the post-Joshua leadership of Israel is referred to as Shoftim - as judges - when they were more than just arbiters. These leaders functioned as kings and as military commanders, saving Israel, for instance, from other enemy nations; so it is strange that they would be referred to as judges. But in the Biblical Hebrew, and with all the connotations of the word Mishpat, ‘Shoftim' is an extremely apt name: Arbiters, but also Deliverers.


But let's take the idea of Mishpat even further. Eliezer Berkovits points out that there is also an intimate relationship between ‘mishpat' on the one hand, and ‘chessed, ‘tzedakka' and ‘rachamim', on the other.
The association between justice, and mercy or kindness, is counter-intuitive, even nonsensical in Western philosophy. To be just, one must withhold mercy and kindness. By definition, justice is exacting the same punishment as the to-be-punshed deserves. Mercy, or kindness, is its opposite. Jonathan Sacks makes the same point in his discussion on charity and justice. Charity and justice are mutually exclusive in Western philosophy, he claims. Justice is giving a man what he deserves, charity is giving to a man even without him deserving it. For example, says Rabbi Sacks, if I give $50 to another person, either he deserved it or he did not. If he did, then it's justice; if he didn't, then it's charity. It's strange, then, that the etymological root - the shoresh - of charity (Tzedaka) in Hebrew, is justice (Tzedek).


But what is the significance that in Biblical Hebrew there is a connection between these seemingly contradictory notions? The significance lies in the fact that the idea of justice in the Torah is radically different from the Western notion of applying the same laws to the same cases. The Torah's version of justice is different to Western philosophy's version of it.


The final connotation the Biblical notion gives to justice is the implication of a balance, an appropriateness, an orderliness. ‘Mishpat' carries, in the Biblical vocabulary, a reference to "an eternal cosmic principle of measured and balanced relatedness which applies to the whole of life, ... to nature, ... to the universe." (Berkovits).



It seems that the Biblical idea of justice is understood as the intersection of salvation/deliverance, mercy/kindness and the administration of the cosmic balance of nature. While all three of these concepts are foreign to the West's system of justice, they also share another characteristic. None of the three deals with the process of justice, the way we get there. On the contrary, the Biblical version of justice is occupied with ensuring that, in the end, the world is orderly and appropriate. To reduce the scale and discuss only one particular example, the Biblical version of justice seems more attentive to creating an orderliness by freeing slaves than it is to protecting the rights of a genocidal autocrat. In other words, there was nothing intrinsically indecent with Pharaoh receiving harsh treatment - he was, after all, genocidal. The only reason we protect the rights of criminals is for the sake of those of whose guilt we are not certain. For this reason, Hashem, certain of Pharaoh's guilt, need have no moral reluctance in discarding Pharaoh's ‘civil liberty' of free will. The message behind the hardening of Pharaoh's heart is that justice is not comprised of technical legal acrobatics, of casuistry, but rather, in how the final, ultimate picture is decent and appropriate.


Parashat Beshalach, thus, presents an alternative comprehension of justice: that justice is to be perceived by the end result, not the process. Even if the criminal was tricked into confessing, or was tortured, or illegally surveilled - if he is punished and the crime is stopped, justice is served. This is in stark contradiction to the Kantian model of justice that relies on just maxims and principles being applied equally to each individual in each instance. This second model, advocated by our parasha, requires a result that is appropriate, even if the process if dubious. It teaches that justice would have preferred Pharaoh be punished as he was, even if God had to traverse beyond his jurisdiction.


But to assert that the Torah dictates that we should follow the second model is problematic too. The central reason why we don't practise the second model of justice in Western systems is because it is subjective. Who is to say that one is guilty or innocent if there is no objective, scientifically demonstrable set of rules that determine one is so? Who has that authority?


This ‘rhetorical question' has an answer. Only God can define what is truly good and what is truly bad - and therefore, who is truly guilty and who is truly innocent. These are the benefits of divine justice. Limited human capabilities restrict us to a finite, imperfect system of justice, where the end result is not always just. We are not able to select which outcome would be more ‘good' than another, only God has can do that. We, consequently, bind ourselves to instructions, rules and principles that guide us in making human justice as ‘just' as humanly possible.


Our second question, nonetheless, stands. The Torah teaches us that divine justice would prefer to override legal technicalities and the protection of criminals, in favour of a just conclusion. But that does not justify the utter destruction of many of Egypt's citizens, animals and crops. The story is as follows: an evil king enslaves Israel, God wants its release and so kills each human and animal family's firstborn, kills all those who go in the way of the fiery hail, destroys their crops, food and water, inconveniences each Egyptian with lice and frogs, etc. In modern political language, we refer to this action as ‘collective punishment' - punishing an entire community for the actions of one individual.


But surely God, omnipotent and infinite, was able to only punish those who had caused or exacerbated Israel's slavery. Those Egyptians who were innocent, surely, didn't need to be punished.


There is no deep answer to this question. I only raise it to point out the answer lest one be disenchanted by Exodus' lack of justice in God's treatment of the Egyptians. The answer is found in two subtle p'sukim in the story. They testify to the fact that we have misunderstood the story if we are concerned with issues of collective punishment. Namely, there are two possibilities. Firstly, either Hashem was not just, and the Egyptians' punishment was undeserved (they were innocent); or Hashem was just and the Egyptians' punishment was deserved (they were each guilty). In other worsd, if the Egyptians had each contributed to the slavery, Hashem would not have collectively punished Egypt, but rather punished each Egyptian individually for their independent actions.


Indeed, this is what the Torah demonstrates, albeit through hints. The Egyptians were not punished collectively, but individually. What tells us this? We know from the fifth plague - Dever - that all the horses, donkeys, camels, herds and flocks belonging to Egypt were destroyed (9:3). It even emphasises that each and every one of those animals owned by Egyptians died (9:6). But, later, as in the instance of the plague of Barad killing animals left outside, or the scene where the Egyptians soldiers pursue Israel on horseback, these animals are referred to. If all the Egyptians' animals had been killed, where did these other animals come from? In a little-known and strange passage, we are informed that those Egyptians who feared Hashem hid their animals in the house when they heard Moshe's warning (9:20-21). Rashi asserts that these were the animals that survived. The implications of this are extremely informative. Even the most righteous Egyptians provided the means to pursue the Israelites, collaborated with the enslavement. How much more so would those less-righteous Egyptians have been deserving of punishment?


Moreover, the Torah tells us in 14:5 what transpired when Pharaoh heard the Jews were escaping:


"Va'yehafech levav Pharaoh el ha'am, va'yom'ru..."


"And Pharaoh's heart was changed according to the nation [Egypt] and they [together] said..."


Indeed, the decision made by Pharaoh to pursue the Jews was made together with his entire nation. It was a national decision, a ‘referendum' of sorts. Thus, Egyptians weren't punished collectively because of the actions of one individual - that would be a tragic absence of justice. Rather, they were punished as individuals for what they each contributed to the enslavement of Israel.


The point, in my eyes, of the Yetzia is the same as the point of the Chag that celebrates it - Pesach. We are supposed to ask questions. We should question the story, and dissect it, and challenge its inherent values. Likewise, we should do the same with justice, for it is only able to exist if individuals challenge and critically assess every action, every thought, every person. For this reason, the text never explicitly spells out the message of justice in the story of the Yetzia - it is only hinted to. The questions are obvious, they beg to be asked. But the answers are only hinted to. We have to labour over, and effortfully investigate all the issues. This itself is the point: only through questions can Justice exist.