Shlomo Zuckier

Introduction

Immediately following the divine revelation at Sinai, the Torah opens with a listing of statutes to be presented before Israel: ואלה המשפטים אשר תשים לפניהם, “And these are the laws that you shall put before them” (Exodus 21:1). Rashi, following midrashic tradition, understands that these laws are not (only) put before the collective of Israel, but before the judges, those appointed only chapters prior in the Yitro story. But what precisely is presented to Israel and its judges? What is the scope, nature and goal of civil law as promulgated by God?

Throughout human history, the realm of law has been given multiple purposes. In some societies, the law is a statement of a society’s values, how one ought to live; among this set of ideals is an account of how society deals with those who violate the law, and the creation of an administrative or executive system. In other societies, there is less of an idealistic view of the law, and law’s function is simply to create order.

The goal of law is not to educate but simply to discipline, to put into line those who diverge from its norms, with the goal of creating a safe, organized society.

What is the perspective of Jewish law on this issue? Among the most celebrated legal systems, Jewish law finds its source in ancient times with biblical law, flourishes in a vast talmudic literature, and continues to be the subject of tomes upon tomes of commentaries, codes, and responsa until the present day.

At times Jewish Law was the primary governing code of Jewish society; although in the modern, post-emancipatory period this has largely not been the case. Jewish law is still widely practiced—at least in its ritual sense—and Jewish courts still function for certain areas of law, in the Diaspora and especially in the Land of Israel.

What perspective might this long-standing legal system hold on the function of law? For this complex issue, the adage of “two Jews, three opinions” holds true. Overall, Jewish Law offers no obvious or straightforward answer. Still, we will endeavor to provide at least a partial response to this question, doing so on the basis of two leading fourteenth century scholars of Jewish law and thought: Rabbi Jacob ben Asher of Toledo, known as the Ba’al ha-Turim (d. ~1343), and Rabbi Nissim ben Reuven of Gerona, known as the Ran (d. 1376).

The Tur

The Tur’s influential legal work, the Arba’ah Turim, is a synopsis and doctrinal work on talmudic and post-talmudic literature. It formed the basis—in both structure and content—for Rabbi Yosef Caro’s Shulhan Arukh and the majority of successive material on the Jewish law code. Befitting the Tur’s role as a codifier, the clearest formulation of his view of Jewish law is not an explicit or frontal treatment of the issue of the nature of the Jewish judicial system per se.

Rather, at the beginning of Hoshen Mishpat, his code of Jewish civil law, he offers a homily or disquisition of sorts on the importance of having a justice system. He begins by citing the statement from Avot 1:2 that “the world stands on three things: on law (din), truth (emet), and peace (shalom),” explaining, on the basis of Rabbenu Yonah, that these are not the purposes for which the world was created but are rather the means through which the world is sustained.

The homily traverses the highlights of biblical history, emphasizing that the accomplishments of all of its great protagonists are precisely based on their imposition of law on the world. Invoking Genesis 19:19, the Tur argues that “God only knew Abraham, calling him friend, because he walked in the way of justice and trained his children in that way.” Not only does this hold for many other leaders throughout Jewish history, but the inverse is also true: those who fail to impose justice on the world will be punished for that negligence.

In addition, he notes that the commandment to appoint judges—based on “Appoint for yourselves judges and officers” (Deuteronomy 16:18f)—applies not only to judges but also to the enforcers, the officers with rods who stand before the court and enforce their word. This verse even extends to an obligation for the court to possess proper implements available for court use by these officers.

The Ran

Another theorist of Jewish law, the Ran, published no code of Jewish law. Instead, he published a host of commentaries on talmudic tractates and the Rif’s legal summaries, a series of responsa, as well as a volume of lengthy homilies entitled Derashot ha-Ran.

The Ran’s famous eleventh homily deals with the obligation to create a justice system, following that same biblical verse charging Israel with appointing judges (Deuteronomy 16:18-20). He argues that, in actuality, there exists a dual rather than a singular system, one based on a rule of the judge and the other based on the law of the king (Deuteronomy 17:14-20). Judges, and the courts, are enjoined to apply the law according to their pristine truth (mishpat tzedek or mishpat amiti) on the basis of the Torah’s stated rules, while the king, or some executive body serving in his place, is charged with ensuring an orderly society (tikkun seder medini).

The two groups are supposed to complement one another: the goal of the courts is to live up to the Torah’s theoretical ideals and to bring the divine bounty (shefa) into the world through their implementation. As the societal effects of this limited application of the law are limited, and do not necessarily ensure that society is properly organized, the role of the king is to fill the void and take all necessary actions to ensure a safe and healthy society.

The approaches of the Tur and the Ran are directly opposed to one another on their understanding of the goal of justice (mishpat, or din). The Tur has a very pragmatic view that law creates order while the Ran has an idealistic or metaphysical view of law as bringing a perfect, theoretical divine vision of societal justice into the world. In several cases, they treat the same talmudic proof texts in fascinatingly divergent fashion, such that studying the two in tandem is a productive endeavor.

Furthermore, the fact that their presentations on this matter have the same starting points and yet diverge so significantly from one another gives reason to consider whether this might be seen as an explicit polemic by the Ran against the Tur’s earlier position. I will now explore three distinct places in their important remarks on the legal system where there is a clear divergence between the two that may point towards intentional disagreement.

Universalism

The Tur’s account of law strikes a highly universalist note. For example, the Mishnah from Avot that he explicates establishes that justice is a pillar upon which the entire world stands. He offers a historical trajectory of law that begins with the creation of the world and explains, among other things, why the (pre-Jewish) generation of the deluge failed to properly dispense justice and caused the world to be destroyed. The judge is lauded for his efforts “to break the outstretched arms of evil doers, taking from them their spoils and returning it to its owns,” which “upholds the world.”

There is nothing specifically Jewish about this account of the value of law and the judge, although of course Halakhah charges Jewish society to ensure the rule of law.

Louis Jacobs, in a helpful article on this passage of the Tur (from which Tur translations in this article are taken), notes the generalizing, universalistic strand at play here:

[Tur] observes the non-dogmatic basis of the majority of these laws [of Hoshen Mishpat]. Justice, truth and peace are necessary if human society is to endure. No appeal to revelation is required. The appeal is to the innate good sense of human beings as human beings, not as Jews who believe in revelation.

This, of course, is consistent with his position that the goal of Jewish law courts, just like any law court, is to ensure law and order. This is a challenge to society for all times, for all peoples, and Jews participate in it like any other nation.

On the other hand, the Ran goes out of his way to mention that the court’s role is a special one, unique to the Jewish people and Jewish law. He acknowledges that “the human species” and “every nation” has a need for some form of governance, so as to avoid anarchy and destruction.

However, this aspect of governance is not the goal of mishpat, or Jewish law in its classical sense. The Ran is careful to attribute such a role to the king, who does whatever is necessary to create order, regardless of its coherence with Torah, rather than to the Jewish courts, which rule on the basis of Halakhah. While the king is recruited to fill a role “like all the other nations around” Israel (Deuteronomy 17:14, I Samuel 8:5), Jewish law is particularly Jewish, its basis in the Torah, which “is unique among all the laws of the nations of the world as to its laws and commandments.”

Whether the charge to impose mishpat is a global challenge that Jews face like all others, or whether it is a specific challenge of mapping God’s law onto this physical world is an open debate between the Tur and the Ran.

Rectifying the State of Nature

As he lionizes the commandment of justice (mishpat or din) and its significance, the Tur establishes that the world is maintained by justice, that the practice of law by judges upholds the world:

וכאן אמר העולם קיים פירוש אחר שנברא מתקיים על ידי אלו שעל ידי הדיינין שדנין בין איש לחבירו העולם קיים כי אלמלא הדין כל דאלים גבר

But here (Avot 1:2) it says ‘the world endures’, meaning, after it has been created it endures because of these three. The world endures because of the judges who adjudicate between man and his fellow, otherwise whoever is the more powerful would prevail.

The mishnah lumps justice (din) together with truth (emet) and peace (shalom) because all three of these institutions are critical for the maintenance of the world. Truth is necessary because, as the talmudic dictum goes, “falsehood has no legs” (see b. Shabbat 104a), and without truth society would fall apart. Similarly, peace is indispensable for a functioning society, as is clarified by another Mishnah in Avot (3:2):

הוי מתפלל בשלומה של מלכות שאלמלא מורא מלכות איש את רעהו חיים בלעו

And so too, with regard to peace, as the sages say (Avot 3: 2): “Pray for the peace of the ruling power for were it not for the fear of the ruling power man would swallow up his neighbor alive.”

One can see the close relationship between these factors—both truth and peace are said to be a major stabilizing factor (ma’amad gadol) necessary for keeping the world steady. And the description of society sans justice and sans peace is also similar—without justice we are in a Hobbesian scenario where “whoever is the more powerful would prevail”; without peace we face a world where “man would swallow up his neighbor alive.”

It is the force of the justice system, accompanied by both truth and peace, that allows humanity to exit the state of nature and have a stable, safe society.

Like the Tur, the Ran is aware of the need for justice and for societal order. However, he has a very different view of the relationship between filling this need and Jewish law as it was given. He writes:

ידוע הוא כי המין האנושי צריך לשופט שישפוט בין פרטיו, שאם לא כן איש את רעהו חיים בלעו, ויהיה העולם נשחת. וכל אומה צריכה לזה ישוב מדיני … וישראל צריכין זה כיתר האומות

ומלבד זה צריכין אליהם עוד לסיבה אחרת, והוא להעמיד חוקי התורה על תלם … והשם יתברך ייחד כל אחד מהענינים האלו לכת מיוחדת, וצוה שיתמנו השופטים לשפוט המשפט הצודק האמיתי … ומפני שהסידור המדיני לא ישלם בזה לבדו, השלים האל תיקונו במצות המלך

It is known that the human species needs a judge to judge between its individuals, because without this ‘man would swallow up his neighbor alive,’ and the world would be destroyed. And every nation needs this political organization … and Israel needs it like all other nations.



And in addition to this they have another need, for another purpose, namely to establish the Torah laws on their foundation … And the Name, blessed be He, assigned each of these matters to a distinct group, charging that [Israel] appoint judges to judge the truly just law … And because political order would not be accomplished with this alone, God supplemented his establishment [of the institution of the courts] with the commandment [to appoint] a king.

The lack of order that is inherent in the human condition must be dealt with by any organized society, whether gentile or Israel. And, the Ran argues, God does provide Israel with the tools for establishing a society immune to the plague of people eating each other alive, paraphrasing Avot 3:2.

However, by contrast to the Tur, it is not the court and the true justice system that can restore order, but the king and political institutions! The challenge of the state of nature depicted by the Ran is identical to that of his predecessor the Tur, but his solution is opposite—it is precisely not the justice system but their counterpart, a political or executive branch, that is to maintain political order in society.

How Does Mishpat Bring God into the World?

Possibly the sharpest distinction between the two approaches is their understanding of the goal of mishpat, of law as it is adjudicated by the judges. Both Tur and Ran will cite a key talmudic statement about the value of justice, mishpat. The Mishnah in Shabbat (10a) writes:

כל דיין שדן דין אמת לאמיתו אפילו שעה אחת – מעלה עליו הכתוב כאילו נעשה שותף להקדוש ברוך הוא במעשה בראשית

Any judge who judges the law in real truth—even for one moment—the verse considers him to be a partner with the Holy One, blessed be He, in Creation.

As noted above, the Tur sees the role of justice—more specifically, of the judges—as the simple but crucial job of removing conflict and injustice from society. God created the world to be well-maintained and just, and the Torah’s legal system—just like any legal system—is meant to support such a world. This “mere” maintenance of a moral society is seen by the Tur as a great accomplishment.

Not only does the Tur depict justice (din/mishpat) as a core factor in maintaining the world, but it offers a judge the possibility of partnering with God in creating a just and ordered world, the completion of the divine will. For this reason, justice is a great mitzvah, commanded multiple times in the Torah and attributed to many biblical heroes, as well as the messiah himself. Lack of justice led to the destruction of Jerusalem, while restoring justice will lead to its rebuilding and hasten the redemption.

However, Tur offers a most prosaic explanation of this statement:

וזהו כוונת רבותינו ז”ל באמרם כל הדן דין אמת לאמתו כאילו נעשה שותף להקב”ה במעשה בראשית כי הקדוש ברוך הוא ברא העולם להיות קיים והרשעים שגוזלין וחומסין מחריבין אותו במעשיהם וכמו שמצינו בדור המבול שלא נחתם גזר דינם אלא על הגזל דכתיב כי מלאה הארץ חמס וכתיב בתריה הנני משחיתם את הארץ נמצא שהדיין המשבר זרועות רמות הרשעים ולוקח מידם טרף ומחזירו לבעלים מקיים העולם וגורם להשלים רצון הבורא יתברך שמו שבראו להיות קיים והרי כאילו נעשה שותף להקב”ה

This is the meaning of the rabbinic saying (Shabbat 10a): ‘Whoever renders a just and true decision it is as if he had become a partner with God in the work of creation’. For the Holy One, blessed be He, created the world that it might endure and the wicked who rob and plunder destroy it by their deeds, as we find in connection with the generation of the deluge. Their fate was sealed only because of the robbery of which they were guilty, as it is written: ‘for the earth is filled with violence through them’ (Genesis 6:13), the verse concluding: ‘and behold, I will destroy them with the earth’. It follows that the judge who shatters the high hand of the wicked, taking from them ill-gotten gains and returning these to their rightful owners, causes the world to endure, thus bringing to fruition the divine will for the world to endure. Thus the judge is a partner of the Holy One, blessed be He.

The Tur thinks very pragmatically here. As the Mishnah from Avot teaches, the world is upheld through justice (din) in a most pragmatic way, by maintaining an ordered society. Since God created the world with an interest in it maintaining its existence, upholding justice and ensuring iniquity is wiped out and society is ordered literally fulfills this divine will, rendering the judge who does this a partner with God.

While the Tur, in a sense, offers a mundane or pedestrian understanding of this passage, the Ran takes a much grander perspective, one that points to mystical or metaphysical benefits that a person attains based on their judging properly. The Ran writes:

והשותפות הזה רומז למה שאמרנו, שכמו שמעשה בראשית, נראה בפועל התחתונים שמאתו נתהוה כל מה שנתהוה, כן כל דיין שדן דין אמת לאמיתו, ממשיך השפע ההוא, יושלם מצד דינו לגמרי תיקון מדיני או לא יושלם

This partnership hints at what we have said, that just like in the creation of the world it was revealed that everything that came into being came from Him, so too any judge who judges the law with real truth continues this divine overflow, which is completed whether or not there is any ordering of society.

For the Ran the goal of applying Jewish law is bringing God into the world through implementing God’s law. This not only is important in itself, but also because it causes God’s will to be manifest in the world. The judge, then, is partner to God in the sense that he serves as a conduit bringing God’s law from the theoretical realm into the practical, day-to-day world.

If we consider these two approaches, the question might be whether the purpose of the law is to serve the world, or whether the purpose of the world is to serve as a canvas on which the law can play itself out. Is the point of Jewish law an instrumental one, as a structure facilitating societal function, or is it inherently valuable, and applying it is important regardless of worldly impact, as it serves to bring God’s overflow into the world. These are truly two distinct and opposite purposes, as one talmudic source is pulled to two opposite extremes.

Divergence or Polemic?

To this point we have seen the Tur’s and the Ran’s differing positions on the nature and goal of justice play themselves out in various areas: is the category of mishpat essentially universalist or particularist? Does it respond to the state of nature or not?I Is it about maintaining order in the world or whether it is about bringing God’s ethereal law into this world? How does judging properly make a judge into a partner with God in Creation? It is clear that these approaches diverge on these important questions, offering two distinct theories of the nature of law.

However, I would like to raise the possibility that we have on our hands more than a mere disagreement on this question, that the Ran may have been formulated as a response of sorts to the Tur.

The Tur’s Arba’ah Turim began to be disseminated in 1340, three years before his death, and seven years before the Ran began his tenure in Barcelona in 1350. It is clear that at least some of Ran’s Derashot date to at least the 1360s, as he refers to the black plague (of 1351-53) as having taken place thirteen years prior in his tenth derasha. Even as the Ran does not generally quote the Tur in his legal writings, he may very well have been aware of this homiletic introduction when offering his own disquisition on varying legal institutions.

The Ran’s language may point to the possibility of a polemic, as well. He cites two key sources that the Tur invokes—both Avot 3:2’s description of the world as descending into the chaos of “man swallowing man alive” and b. Shabbat 10a’s note that one who judges truthfully is a partner with God. In both cases, as discussed above, he offers a divergent interpretation, explaining how these sources can be integrated into an alternative account of din.

Furthermore, in the latter case the Ran goes out of his way to note that the judge is considered a partner with God in Creation for bringing God’s justice into the world “whether or not there is any ordering of society.” This language is not directly relevant for his point, and may have been included as part of a polemic against the Tur’s position on law. The Ran’s very distinction between a king and judge, dichotomizing the roles, serves the purpose of attacking the Tur’s position perfectly, as it agrees on the practical needs of society while completely detaching them from any justice-oriented function.

These indications are insufficient to constitute hard proof to this contention that the Ran’s essay is a polemical response. There are alternate explanations: he may simply be citing the key sources on law in rabbinic literature, and distinguishing the role of court from the king, without having the Tur’s position in mind. Still, one wonders whether the Ran might be challenging the Tur in this connection, using the latter’s recent and widespread introduction as the perfect target for a polemic on the nature of Jewish law.

Whether or not a polemic is at work here, these great fourteenth century Jewish legalists offer clear and distinct presentations of alternate views of the nature and function of Jewish Law and Judaism’s justice system.

Many thanks to my colleagues Yaakov Taubes and Jesse Abelman for their helpful comments on an earlier version of this article.