Ruth Hubbard and the Power of Interpretation

Parshat Shoftim

Dear Rabbi,

 

"Truth is in the eye of the beholder” was originated by Ruth Hubbard in her 1988 essay, Science, Facts and Feminism. She was a professor of biology at Harvard University. It means the perception of truth is subjective. Parshah Shoftim starts off with something near and dear to me, the law and how it is to be interpreted and dispensed. Starting with Deuteronomy 16:18-19 we read the following: “You shall set up judges and law enforcement officials for yourself in all your cities that the Lord, your G-d, is giving you, for your tribes, and they shall judge the people [with] righteous judgment.”

“You shall not pervert justice; you shall not show favoritism, and you  shall not take a bribe, for bribery blinds the eyes of the wise and perverts just words.”  This sounds simple enough, but as someone that has been a part of the “law” for more than forty-seven years, attempting to interpret the law can be quite difficult. It is easy to say that under no circumstances showing favoritism and taking bribe can be tolerated, but how do we appoint judges and law enforcement officials that shall judge the people with righteous judgment? Human nature is such that personal bias or other human emotions can get in the way of how a decision is rendered. Look at the reprehensible act of the killing of George Floyd at the hands of a police official, Derek Chauvin. If not for the advent of modern technology, his death may have gone down as “proper” police action of someone who would not obey police commands. What was going on in the mind of Derek Chauvin cannot be answered by anyone other than Mr. Chauvin, but unless Mr. Chauvin was mentally incapacitated, which could have been put forth as a defense, it could be suggested that Mr. Chauvin, in his mind, thought he was doing the “right thing” in putting his knee on Mr. Floyd’s neck for more than nine minutes, but any rational person could not have thought that his actions were in any way justified. Staying with the First Aliyah at Deuteronomy 17:9-11 we see the following: “And you shall come to the Levitic kohanim and to the judge who will be in those days, and you shall inquire, and they will tell you the words of judgment.” “And you shall do according to the word they tell you, from the place the Lord will choose, and you shall observe to do according to all they instruct you.” “According to the law they instruct you and according to the judgment they say to you, you shall do; you shall not divert from the word they tell you, either right or left.” Again as an attorney, these words fascinate me. If I choose to accept a case, I become an advocate for those that I happen to represent. I base my presentation on the law as I understand it. I stand before a judge and attempt to convince him or her that my position is the correct one. One of the things that I do is try to find out anything I can about the judge I am appearing before so that I can couch my argument to please the leanings of who I am standing before. The point that I am attempting to make is that the judge that I am before has his or her slant on how the law should be interpreted. The best example I can give you are the justices that are currently sitting on the Supreme Court of the United States. The selection of the current makeup of the Court has been hotly contested. The bona fides of those under consideration in terms of their academic background were for the most part uncontested. It was their “right or left leanings” that were up for debate. Right now the makeup of the Court leads to the overall conclusion that they are to the “right” or conservative in their interpretation of the law. This was not always the way and politics dictates what interpretation is the “just” one.  I am using my experience to explain my position as it applies to the secular law. I am sure you can find many examples where interpretations of religious law are dictated by the “liberal” or “conservative” bent of the scholar giving his decision. Notice I used the pronoun “his”. Have there been any major decisions of Jewish religious decision made by a woman?

Shalom,

Mordecai

Dear Mordecai,

Why is the law so difficult to interpret? Because life is live in the particular, in situations with context, not in the universal, a realm of abstraction.

Given the complexity of human nature and character, the appointment of people that shall judge with righteous judgment is an ever present problem. As embodied beings with backgrounds and prejudices, righteous judgment is an ongoing aspiration.

You are most right to suppose that, if not for modern technology, Derek Chauvin would have gone unpunished for the murder of George Floyd.

Couching one’s words to the judge in a way that will advance your case is a crafty approach. I’ve always looked at the law as an imperfect way to adjudicate truth. If you were being completely truthful, then you wouldn’t need to take such factors in to account. Part of the game of the law is being able to acknowledge the biases of a judge or jury while still developing the most factually accurate narrative about the account at hand.

Regarding the Supreme Court, I think one can argue that we are living in a highly ideological time and that the vast differences between Supreme Court justices is less an example of the law’s malleability and ambiguity and more a reflection of the ideological tenor of our time. Ideology is a poor substitute for truth. In fact, I think I’ve argued on more than one occasion that ideology is often idolatry. The ideological implications are more important than what is just. The Supreme Court is another measure of the contempt that characterizes our times.

The terms “liberal” and “conservative” basically map out regarding Jewish law to “lenient” and “stringent.” Certainly, rabbis do tend to fall into one or the other category, though the picture is usually more complex. I don’t know that – until the modern era – rabbis would be down the line lenient or stringent. If a major decision has been made by a woman, it would have to be something of recent time since women only entered the Conservative rabbinate in the early 1980s. One of the most significant decisions was about the admission of gays and lesbians into rabbinical school, but that was executed by a male rabbi. Female scholars have played an important role in exegesis, however. Nehama Leibowitz is perhaps the most outstanding example.

Shalom,

Rabbi 

Dear Rabbi,

I think you are confusing the "law" with "facts". The law sets down the guidelines we are to follow. The "facts" are what come from testimony be it an eye witness or some other form of evidence like DNA. Your statement of "if you were being completely truthful, then you wouldn't need to take such factors in to account" is an example of the confusion. Looking at another part of the First Aliyah Deuteronomy 17:6 we are told the following:

 "By the mouth of two witnesses, or three witnesses, shall the one liable to death be put to death; he shall not be put to death by the mouth of one witness."

The Torah teaches us that even though one thinks he is telling the truth, it may not always be correct and that two people must see the act before someone is put to death. The law interprets what is right and wrong, the facts dictate what may be a transgression of the law. 

As to the Supreme Court , it has always been a reflection of the "ideological tenor of our time." The Court did not always have nine judges and FDR was so frustrated with his liberal policies being knocked down by a conservative Court when he first became president that he threatened to increase and "stack" the Court to get his programs approved. He was president so long that he eventually picked who he wanted and his programs went through in a much smoother manner. 

Your analogy to the religious approach of "lenient" versus "stringent" reminds me of the song that starts "You say potato and I say potato", with the "a" either being pronounced hard or soft but it is exactly like "conservative" and "liberal".

Finally "justice is blind" and is supposed to be in the abstract, but the humans that sit in judgment carry with them their own point of view as to what is righteous.  

Shalom,

Mordecai

Dear Mordecai,

I appreciate your clarification of the distinction between law and facts. If the law determines what is right and wrong and the facts dictate what a transgression of the law is, how do "law" and "facts" relate to truth. One seems theoretical. The other seems based in application. 
 
Your example of FDR is well-taken, but that was an extreme time given the Great Depression. Generally speaking, a greater consensus existed in the past in our country than does in our present. I would assert that this is a particularly ideological moment. 
 
Lenient, stringent, liberal, conservative - each contains special nuances. The ideas of liberal and conservative would be foreign to the rabbinic mind. Conserving what? I don't know what motivated certain rabbis of the Talmud to be one or the other. Leniency generally won out until much later in our history when the modern era encroached. 
 
These cliches are baffling. How could justice be blind? Isn't what one sees a guide to what is true? 

Shalom

Rabbi