Yeshivat Orot Shaul, Ra'anana

Online Torah

Beit Hamidrash

The Exodus of Justice

By: Eli FIsher


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.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."