Divine Guidance Chapter 3 Part 2
Witnesses and the Nature of Law

We are now considering mitzvot concerning justice. We now move to  focus especially on Divine Guidance regarding witnesses and the nature of law and how we are to ascertain facts and serve as witnesses, more generally, in our lives. We will look as well at several issues regarding the nature of the law itself. We will look at the mitzvot that largely guide fair procedure in court. If we’re to have justice, these rules work to assure it. It’s amazing to understand how many of the best core principles in our own justice system have their roots in these mitzvot.

Let’s also think as we work our way through our study how valuable this guidance might be more broadly in our lives, especially when we’re called upon to ascertain facts and make judgments about people and all sorts of matters in our everyday encounters.

1. Read Exodus 22:8

Exodus 22:8   In any case of disputed ownership involving ox, donkey, sheep, clothing, or any other loss, of which one party says, “This is mine,” the case of both parties shall come before God; the one whom God condemns shall pay double to the other.

Q 1. Let’s focus here on the direction with respect to a whole host of civil disputes that there be the expectation of resort to court for resolution. Thoughts about the significance here?

(Even before we get to the substance of the law by which disputes are resolved, it’s crucial to recognize that the resolution take place in a court presided over in proper fashion by properly appointed judges who administer the law. This certainly felt implicit in the discussion we just had about judging. But it’s crucial that the guidance be explicit.

It must be clear that there is an orderly and fair process to achieve a just resolution of disputes over matters addressed by the law where the parties cannot resolve disputes on their own. The failure to have such a path or to leave resolution to force or other unacceptable means are incompatible with the requirements of a just community. A civilized community requires fair process to assure, among other things, peaceful coexistence of its members.

Think more broadly and deeply. Do these words teach you anything about how you should make judgments more generally in your lives, whether it’s in regard to disputes within your family, or with friends, or others in the community? Even more broadly, are these words relevant to how you make discriminating decisions in life?

2. Read Leviticus 5:1

Leviticus 5:1 If anyone sins because they do not speak up when they hear a public charge to testify regarding something they have seen or learned about, they will be held responsible.

Q2. As we begin to consider the crucial role of witnesses, we ask: what is crucial for the sake of justice in this mitzvah?

(If a person has evidence that is relevant and important to the disposition of a case, to resolve a dispute, he/she is duty-bound to present it to court. Though it might be uncomfortable or even involve risks to come forward, we are per se a character in the drama of the dispute and, as partners with God, must bring forward what we know to assist in the administration of justice. In a sense, we are God’s voice speaking truth that perhaps only we and God know. If we do not speak, we bear a piece of the iniquity of the injustice that could be done in the absence of the evidence we carry.

Again, I want to go deeper into the way we make decisions about ourselves, others, even ideas and views we might develop and live by? Is this guidance relevant outside the court and in these ways? How?

3. Read Deuteronomy 19:16-20

Deuteronomy 19:16-20  16 If a malicious witness takes the stand to accuse someone of a crime, 17 the two people involved in the dispute must stand in the presence of the Lord before the priests and the judges who are in office at the time. 18 The judges must make a thorough investigation, and if the witness proves to be a liar, giving false testimony against a fellow Israelite, 19 then do to the false witness as that witness intended to do to the other party. You must purge the evil from among you. 20 The rest of the people will hear of this and be afraid, and never again will such an evil thing be done among you.

Q3. How do these mitzvot necessarily complement the verse we just studied in Leviticus 5:1?

(Since testimony can turn an outcome from one side to the other, we need to be rigorous in the examination of the witness who brings it forward. We need witnesses to come forward, but justice requires that the evidence that is produced be authentic, true, worthy, and properly understood.

The injustice that could be effected by false testimony is so great that there must be a severe disincentive to engaging in it. The idea here is that the false witness should be punished with the same fine or punishment that would have been imposed on the party wronged by the false testimony. It must be clear this is not about testimony that has simply been contradicted or not ultimately dispositive, but rather testimony that is proven false and could lead to an unjust result.

4. Exodus 23:1 (second part), Deuteronomy 24:16, and Numbers 35:30

Exodus 23:1 (second part)  Do not help a guilty person by being a malicious witness.

Deuteronomy 24:16   Parents shall not be put to death for their children, nor shall children be put to death for their parents; only for their own crimes may persons be put to death.

Numbers 35:30  Anyone who kills a person is to be put to death as a murderer only on the testimony of witnesses. But no one is to be put to death on the testimony of only one witness.

 Q4. What additional limits do these mitzvot put on witnesses, and why are they important?

(Witnesses must be true to their testimony, as we have discussed. We see here a special concern about the testimony of those who are wicked or unrighteous. People should be responsible for, and be judged on the basis of, their own actions. The testimony required to convict for capital punishment must be especially convincing and abundant.

Some say a court may not hear the claim of one litigant while not in the presence of an adversary. Others, including Maimonides, have drawn from these words the idea that we must show care with witnesses such as relatives who have a stake in, or relationship with, a litigant. Further, Maimonides believes a witness is forbidden from acting as an advocate in a case in which he gives evidence.

There are many complexities to these provisions, which we won’t consider today. Indeed there are questions that could take us down interesting paths. But let’s focus primarily on the main principles we take from this and the extension. What do you draw as essential from these ideas?

(Discussion around all the ways in which we must go the extra mile to assure justice.))

5. Read Deuteronomy 17:11 and 12:32

Deuteronomy 17:11  You must carry out fully the law that they interpret for you or the ruling that they announce to you; do not turn aside from the decision that they announce to you, either to the right or to the left.

Deuteronomy 12:32  You must diligently observe everything that I command you; do not add to it or take anything from it.

Q5.  Now we turn to the respect we must give the law itself? What lessons have our legal system drawn from these Biblical words? We’ll consider a host of questions about how we might interpret the prohibition against adding to or subtracting from the law, both in the Jewish context and more generally.

These ancient words have been read with different meanings throughout time. It appears originally to have meant that the decisions of the judges of the Sanhedrin were binding. Later it was read to mean that rabbinic decisions regarding the mitzvot, etc. were binding. There are different opinions among the sages on the exact meaning in that context. We won’t go into those disputes today. What meaning might we give these mitzvot contained in this verse today?

(We are bound by the decisions of the courts. If we could on our own presumptuously turn aside judges’ decisions and those of the courts and get away with it, we would indeed live in a land in which justice does not prevail. Those disposed to live outside the law would do so. And those committed to the law would have no assurance they could receive justice.

 There’s a sense, too, that the court in one era should give deference to previous courts’ rulings and only overturn them under unusual circumstances (perhaps when the current court is distinctly wiser or has significantly broader support, but perhaps never in cases in which earlier courts were dealing with clear Biblical prohibitions). Perhaps another day we could look at the commentary of the sages on these matters for lessons that might be relevant to our modern-day discussion of the Supreme Court’s use of past sources as a basis for its decisions.)

6. Read Exodus 23:2-3

Exodus 23:2-3   You shall not follow a majority in wrongdoing; when you bear witness in a lawsuit, you shall not side with the majority so as to pervert justice; nor shall you be partial to the poor in a lawsuit.

Q6. What do you take this to mean? Once you answer, I’ll tell you what Maimonides thinks. It goes against the grain.

A. We’re to look for the just result, not the most popular.

Indeed judges are to show independence from others to seek the true and the right, which is God’s expectation. A judge must be careful not even to be overly swayed by other judges. He/she was selected as a judge to bring his/her own conscience, mind, judgment to bear, not to turn to that of another. There is a debate, though, as to certain cases, typically non-capital cases, in which, in certain circumstances, a judge should pay attention to another who is far wiser.

 We should particularly be careful about following the herd, getting swept up in a mood that is enticing but not right.

In some cases where the consequences are severe, we should expect a super majority to act, to be sure we don’t unjustly impose such consequences (as in the death penalty).

In some cases where the consequences are severe, we should expect a super majority to act, to be sure we don’t unjustly impose such consequences (as in the death penalty).

B. Now look at the last words of the verse. What translation does your Bible show? Some say “to bend to the many to pervert justice.” But the Hebrew is read by Maimonides and others as “bend to the many or the majority.” I think this might be a stretch. Maybe it was the position of the rabbis’ union!

Well - whatever - let’s give it some deference and ask that if it means that the majority of a rabbinic court or, more generally in court (on most matters), a majority of the decision-makers rule. If so, how do we square this with what we just discussed?

(Isn’t it possible that this gets us to a profound and nuanced understanding of justice that we aspire to follow today. Often, the majority does rule, or, if needed, a super-majority. We must not get deadlocked in decision-making, or else justice would be impossible to achieve. So, we conclude that majority will is the right measure.

BUT we worry about the majority going in the wrong direction and the possibility that each decision maker might contribute to a majority going in the wrong direction. So, the first part of the verse is directed to guiding us strongly and distinctly to avoid that. Isn’t this the exact right balance?)

C. Once again, I want to take this out of the court setting and ask: what relevance and what meaning do these ideas have to the way we make decisions and judgments in our own lives?

7. Read Deuteronomy 13:1

Deuteronomy 13:1

Q7. We could and will look at (at least) two different meanings of these mitzvot. On first reflection, what do you see?

(A. In the judicial setting, we certainly appreciate the principle that the law shouldn’t be changed (added to or subtracted from) by the judge or any other figure of authority during a pending trial. That sort of “shifting sands” of the guiding rules governing the outcome of the contest would per se create an unjust environment for a fair resolution. This would especially be so if the change worked to the advantage of one party and was instituted for his/her advantage.

B. But this language is mostly associated with the idea that the mitzvot should not be added to or subtracted from. This gets very complicated in Judaism for many reasons, not the least of which is that it is generally deemed to cover both the Written Law and the Oral Law.

Also, there are obvious issues around what it means to add or subtract. Does this cover interpretations that, in effect, add to or subtract, though there may be no material or explicit addition or subtraction? This leads to a great debate, one we won’t have today. Let’s just assume that the mitzvot permit at least fairly liberal interpretation.

Now, here are my questions (with that assumption in your minds).

1. What’s the case for these mitzvot?

(First, if we believe this was God’s revelation, it represents God’s word - the foundation of our way of life - available to people of all time. To the extent that it is fixed and accessible, not subject to human change, people, whether strong or weak, know and play by the same rules.

Second, if the mitzvot could be fundamentally changed over time, our Way would be too unstable to support fair and just decision-making. The Text would be ever-changing, weakening God’s revelation and making it ever more faint over time. Followers of the Way would no longer share the same system of living that connects us as a people to the revelation. This loss of connection would create a loss of confidence in the strength and meaning of the mitzvot and their tie to God.

Finally, if additions and subtractions were permitted, they’d most likely be made by people in power. How confident would we be that such changes would be for the good? And, in such an environment in which the Divine Guideposts are constantly changing, we would lose a shared sense of fairness and justice. Our Way would be diluted and ultimately lost.)

2. What’s the case against the mitzvot?

(The mitzvot have been either recorded by human beings or so edited and changed over time, it’s naive to think they haven’t been radically added to and subtracted from throughout our long history.

Times change, and so do our needs. We need to update these provisions, if we keep them at all, to reflect our changing environment.

The powers-that-be have long had the authority to add and subtract in one way or another. So, these rules exist and are regularly changed, perhaps arbitrarily.)

3. So, where do we end up? What position might we take away?

(If we believe these words were revealed by God and received and perhaps recorded and even edited by humankind, there must be at least a presumption to preserve them and seek and try to live by their fundamental precepts.

These truths may be difficult to comprehend, and their meaning may be seen in a different light in different places and times. Yet, that does not absolve us of the requirement of diligent effort to try objectively and wisely to listen for God’s voice and try to get to meaning in the “soul” of the mitzvot.

The dress with which our cognition, language, and mores cloak God’s expectations is our human doing. The mitzvah is God’s teaching underneath, awaiting our effort to penetrate and find the eternal truths and the ways that guide us in our own time. We may in that work, honestly and truly done, change our understanding, but only to the extent that we come to a truer understanding of God’s expectations.

Finally, while we may not in our work of mindfulness be bound to any specific understanding, I believe we should be committed to two tenets: a) we benefit mightily by studying the long chain of wisdom that connects us through the generations with the great sages, and b) we also benefit by devoting considerable time, effort, and spirit to studying, discussing, and understanding the mitzvot, as we are here, with fellow sojourners on God’s path.

In so doing, we have the promise that God’s teachings are indeed accessible, eternal, and inalterable. And because the divine instruction is suffused with a God-granted system of justice that is available to all people, yet unchangeable by even the most powerful of us, human justice for all is possible and indeed expected.)

 Conclusion

Divine Guidance Chapter 3 Part 2
Witnesses and the Nature of Law

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