Parashat Devarim: Law or Justice?

Elderly Moses sits in his tent planning his farewell speech. He chooses to open with a surprising point – the moment he realized he could not carry the burden of leadership alone.

“And I spoke to you at that time, saying, I am not able to bear you myself alone: the Lord your God has multiplied you, and, behold, you are this day like the stars of heaven for multitude. (The Lord God of your fathers make you a thousand times so many more as you are, and bless you, as he has promised you!) How can I myself alone bear your care, and your burden, and your strife? Take wise men, and understanding, and known among your tribes, and I will make them rulers over you. And you answered me, and said, The thing which you have spoken is good for us to do. So I took the chief of your tribes, wise men, and known, and made them heads over you, captains over thousands, and captains over hundreds, and captains over fifties, and captains over tens, and officers among your tribes. And I charged your judges at that time, saying, Hear the causes between your brethren, and judge righteously between every man and his brother, and the stranger that is with him. Do not respect persons in judgment; but hear the small as well as the great; do not be afraid of the face of any man; for the judgment is God’s: and the cause that is too hard for you, bring it to me, and I will hear it.” (Deuteronomy 1:9–18)

Building authority

The choice to begin the speech with a moment of hardship, and with the way authority and a judicial system were built, is fascinating and teaches us a great deal about Moses’ leadership. Notice that within his words Moses emphasizes representation – each tribe chooses its own representatives; consensus – you said the proposal was good, and only then did I proceed; and the central command on which everything rests: “judge righteously.”

The instruction to judge righteously raises a critical question: what should a judge do when law and justice conflict? If he rules according to law, there may be no justice; if he tries to rule justly, he may rule against the law.

Riggs v. Palmer

One landmark case in this area was Riggs v. Palmer in New York in 1889. A man named Francis Palmer wrote a will leaving his estate to his grandson, Elmer Palmer. Elmer, fearing his grandfather would change the will, murdered him. After Elmer’s murder conviction, a question arose: was he still entitled to inherit?

The legal answer was yes. New York’s inheritance laws contained no provision denying a murderer the right to inherit. But this violated the judges’ sense of justice. Could Elmer murder his grandfather and still inherit his estate?

New York’s highest court was divided, but the majority, in an opinion by Judge Robert Earl (1824–1902), ruled that a murderer cannot inherit from his victim. The reasoning was clear: no one should profit from their own crime or found a claim on their own iniquity. Yet judges are bound to law – they are not legislators. Judge Earl’s resolution was that the legislature could not have intended for a murderer to inherit, as this is inconceivable. Therefore, the court’s duty was to decide according to justice; the law simply did not anticipate this case.

The Rabbinic perspective

Rabbi Ben-Zion Meir Hai Uziel (1880–1953), the first Sephardic Chief Rabbi of the State of Israel, addressed this tension in his halachic rulings. He wrote that according to Jewish law, a judge is obligated to examine matters beyond the strict letter of the law in order to arrive at the righteous judgment toward which Moses was pointing. For this purpose, Rabbi Uziel emphasized, one must appoint “judges expert in the law and righteous in their behavior” (per Responsa Mishpetei Uziel, vol. 4, Choshen Mishpat, section 1).

A judge is not a legislator, but neither is he a technocrat clinging to dry law. According to Moses’ farewell speech – which will accompany us throughout Deuteronomy – the judge bears both the right and the duty to ensure his ruling is, in the end, a just one.

Lior Tal Sadeh is an educator, writer, and author of “What Is Above, What Is Below” (Carmel, 2022). He hosts the daily “Source of Inspiration” podcast, produced by Beit Avi Chai.

For more insights into Parashat Devarim, listen to “Source of Inspiration” (in Hebrew).

Translation of most Hebrew texts sourced from Sefaria.org

Main Photo: Moses speaks to Israel, as In Deuteronomy\ Wikipedia