Parshat Mishpatim–Shekalim – 2017

Dvar Torah delivered by Mike Garmise, Shabbat, 29th Sh’vat 5777, 25th February

Untruths – also called lies – are a major source of comedy and tragedy. If you remember Fawlty Towers, most of the impossible situations that Fawlty got himself into were the result of lies he told.

But let us distinguish between two main situations of lying. Nechama Leibowitz writes about the sentence in Vayikra which says, “Do not steal, do not deny (the truth) and do not lie to one to another.” This is directed to us, in daily life, but there is a little wiggle room there for little white lies (like those that will keep peace at home) where the truth would bring down the roof.

The second arena for falsehoods-lying appears in our parsha. The Torah has just been given. The euphoria has died down and Moshe and the people are beginning to deal with real life. Slavery, property, damages. All of these are matters that may come before a judge for a decision. And judges are commanded:  Mi’dvar sheker tirhak. From anything false – keep your distance.  The whole sentence is: “Keep away from falsehood, do not kill the innocent and the righteous for I will not justify the wrongdoers.” The connection between falsehoods and finding the innocent and righteous guilty is clear.

Judges are not only forbidden to lie. They must also keep away from anything that may look like a lie or cause a lie. Courtrooms are supposed to be temples of untarnished truth.

This does not always mean that the results are what we might consider to be justice. For example, the latest episode of the Elor Azaria trial. And then there are the reports about abuse in old age homes. In this case, a few people will be found guilty. Our view may be that they should be strung up and abused to death but the judge may sentence them to one year in jail, with or without plea bargaining. That’s justice? No, that is adhering to what the law allows.

The temple of untruth is, of course, politics. Does anyone still believe a politician when he or she promises something? The old joke is still true: if you hear a specific rumor (that something happened, or didn’t happen, that something will be done or won’t be done, that someone is being charged or being released) – and  politicians deny that rumor vehemently three times – you know it is true!

That’s politics. What happens when politics comes into the courts? Fireworks. There are those who believe that the courts should hole up in their ivory tower. Activism should not be in their purview. But this changed some 40-50 years ago in the US, and here, Aharon Barak acted on his belief that the court should intervene where it felt that a wrong was being done, or had been legislated. This changed this week when three conservative justices were appointed to the Supreme Court.

The more conservative elements, in line with the legislators, believe that the courts should keep away from legislation – that’s the job of the Knesset. But what does the Torah say?  

The conservative approach raises a problem that derives from the sentence Mi’dvar sheker tirhak, from false things – keep your distance. Chazal inferred 13 different rules from these three words in Hebrew, and they are important for understanding the role of the courts. Here are three of them.

One of the inferences is this: if, on the basis of testimony, a judge feels that his own opinion of the case is weak, he must reevaluate his position. Just because he came in thinking one way beforehand does not mean he has the right to defend it if he has been persuaded otherwise. Mi’dvar sheker tirhak.

If a judge knows that a witness or one of the court contestants is lying, he cannot accept it as truth. Mi’dvar sheker tirhak.

If a judge realizes that a wrong is being done – de facto or by legislation – it is his obligation to set it right, if he can, or at least mitigate its effects in his court. Mi’dvar sheker tirhak. Obviously these inferences are not so black and white and have lots of room for interpretation, but the general tenor is clear, even though rabbinical courts today seem to adjudicate otherwise.

So what’s the situation here? Last week’s The Marker ran a 6-page spread of all the cities in Israel whose mayors or council members are accused or suspected of malfeasance such as accepting bribes, almost all connected to real estate (Netanya was well represented there!). Another 6 pages (plus 7 more in a follow-up article) unraveled the trail of behind-the-scenes contributors to the campaigns and projects of various Knesset members. 19 pages of potential sheker, lies, that our elected leaders may or may not have avoided, some of which will make their way to the courts where the judges have to maintain their truthful integrity.

Attempts to appoint state attorneys and government attorneys who will turn a blind eye to minor infractions such as taking bribes and allocating funds to cronies,  and also looking for judges who will not allow their consciences to affect their decisions are the ruleת and not only in our little piece of heaven here.

OK, you say. We all know the situation. What solution can you offer? I cannot tell a lie. I have none. I will close with a short poem by Stephen Crane that offers one reason why it is so hard to right the situation:

The wayfarer, 
Perceiving the pathway to truth, 
Was struck with astonishment. 
It was thickly grown with weeds. 
“Ha,” he said, 
“I see that none has passed here 
In a long time.” 
Later he saw that each weed 
Was a singular knife. 
“Well,” he mumbled at last, 
“Doubtless there are other roads.”

Shabbat Shalom