Benjamin Barer
Parshat Shoftim opens with a short set of instructions for the establishment and maintenance of a judicial system, focused on the appointment of local judges (Deuteronomy 16:18-20). These instructions culminate with the verse tzedek tzedek tirdof (Deuteronomy 16:20), or “justice, justice shall you pursue,” which has become one of the more well-known verses in the Torah. Today it can be found emblazoned on the materials of almost every justice-oriented Jewish organization, and is often quoted as a shorthand for the core Jewish value of justice more generally. But what, exactly, does the “pursuit” of justice entail? And where ought the pursuit of justice take place?
Somewhat surprisingly, given how central the verse is to (many) contemporary conceptions of Judaism, the rabbis do not explore this topic at great length. Instead, the verse is quoted just a single time in the Babylonian Talmud.[1] Located in Tractate Sanhedrin, the discussion comes on the heels of a discussion of whether monetary cases should have the same stringent levels of interrogation (derishah ve-hakirah) as capital cases. Then the Gemara states:
1. Like Reish Lakish, as Reish Lakish objected: it is written: “judge your kinsman fairly” (Lev. 19:15), and it is written: “Justice, justice shall you pursue” (Deut. 16:20). How can this be [ha keitzad]!? Here [it is talking about] fraudulent judgment, here [it is talking about] judgment that is not fraudulent.[2]
2. Rav Ashi said: our Mishnah is like it was taught [previously]—one [verse] for judgment and one for compromise [pesharah], as it is taught in a beraita: “Justice, justice shall you pursue”—one [mention of tzedek] for judgment and one for compromise. How? [If] two boats are passing in a river, and they meet each other. If they both continue [trying to] pass, both drown; if they go one after the other, both will pass. And similarly, [if] two camels that were rising the ascent of Beit Horon, and they meet each other. If they both continue [trying to] pass, both fall; if they go one after the other, both will ascend. How can this be [ha keitzad]!? [If one is] laden and [one is] not laden—the one that is not laden should give way for the one that is laden. [If one is] near and [one is] not near—the one that is near should give way for the one that is not near. If they are equally close or equally far, you must throw (hatel)[3] a compromise between them, and they will charge money one to the other.
3.Our rabbis taught: “Justice, justice shall you pursue” – walk after a beautiful court: After Rabbi Eliezer to Lod, after Rabbi Yohanan ben Zakkai to B’ror Hayyil…Our rabbis taught: “Justice, justice shall you pursue” – walk after [i.e. pursue] the Sages to [The] Yeshiva; after Rabbi Eliezer to Lod; after Rabbi Yohanan ben Zakkai to B’ror Hayyil; after Rabbi Yehoshua to Peki’in; after Rabban Gamliel to Yavneh; after Rabbi Akiva to Bnei Brak; after Rabbi Matya to Rome… (Sanhedrin 32b)[4]
In quick succession, the Gemara offers three different explanations for what tzedek tzedek tirdof really means. In section (I), picking up on the Gemara’s discussion of whether a “fraudulent case” is an important distinction with regards to strict interrogation, our verse in Deuteronomy, as opposed to the verse in Leviticus, is understood to apply to pursuing justice even more than usual when any fraud is detected (or suspected).[5] In section II, we are introduced to pesharah, or compromise, and the verse, with its repetition of the word tzedek, is understood to refer to two separate areas of justice—the letter of the law and compromise. In the third and final section, the verse is understood to refer to pursuing not justice itself, but a court where we are likely to find justice meted out in the most appropriate (or “beautiful”) way.
So what does pursuing justice entail? And who is commanded to pursue justice through the imperative of tzedek tzedek tirdof? In classic rabbinic style, the Gemara does not answer this question definitively so much as gesture at the realms in which the rabbis believe this pursuit to be most necessary. The three areas the Talmud chooses to focus on are instructive.
First, the Gemara suggests that the doubling of the word tzedek means that extra attention should be paid to how we pursue justice when confronting deceit, potential or actual. This seems to be a task exclusively for judges, and in a justice system that aspires to the highest levels of moral uprightness and zeal for truth in its judges, this is unsurprising. The verse, then, is calling on judges (and those who hold them to account) to pursue justice no matter the cost, for as long as it takes.[6]
Second, justice also includes compromise, or pesharah, and must be pursued both within and outside of formal court proceedings. This is a fascinating expansion, as justice (and especially the term din or judgment) is often synonymous with court-ordered justice. But the rabbis are fully aware that much of the conflict resolution in any society occurs outside of formal court systems.[7] The cases brought to exemplify this reading of the verse are notable in various ways, but what cannot be missed is that they take place far from a courtroom. The first case is focused on transportation on a narrow mountain road, with the second focused on the same dynamic, but at sea. Thus, the verse does not just obligate judges. Each and every one of us is being asked to fulfill the verse in our daily interactions with each other.
There is a linguistic anomaly, though, that requires some further thought to understand how far outside of the courtroom the sugya is traveling. The Talmud says that where two ships passing are equidistant from each other, you must throw (hatel) a compromise (pesharah) between them. The verb associated with pesharah in the Gemara, hatel, is unusual. The verb is in the imperative form, and the compromise is to be made “between them,” i.e., the two parties, which implies that someone must be able to impose the desired compromise besides the two parties directly involved. If a third party is required, then we have not in fact left the realm of court-mediated justice at all, despite the initial conflict arising far from court. However, this verb – hatel – is nowhere else associated with pesharah. In earlier sources[8] and elsewhere in the Bavli,[9] only one verb is used to describe the action of compromise – “osin pesharah” – and they made (or should make) a compromise. No courts, no higher authority imposing a compromise—just the two parties figuring out how best to live together without dragging each other to court. Why, then, would the Bavli change the language— both from the Tosefta in which these cases of the camels and boats first appear (Bava Kamma 2:8), and from all other instances of pesharah? The Tosefta’s account of these cases reads as follows:
…If they were both laden, both driven, or both empty, they [should] make a compromise [pesharah] between themselves. And similarly [with] two boats that were approaching each other, one not laden and one laden, the one that is not laden should move for the one that is laden. If both were empty or both were laden, they [should] make a compromise between themselves. (emphasis added)
I have yet to find any commentators, traditional or modern, who address this oddity.[10] My intuition is that the Bavli is uncomfortable with the power that this interpretation of tzedek tzedek tirdof gives to each and every one of us, especially in the context of a wider discussion about the various powers of the Sanhedrin. By giving one instance of tzedek to amha, the average Jew, the rabbis are ceding some (half?) of the power that they want to claim. So rather than copy the Tosefta’s language, they adjust it ever so slightly to maintain the final word in all conflict resolution, even that which arises in the most deserted corners of the country. And the Bavli buttresses this intuition by the repeated refrain of the stam, the anonymous voice of the Talmud, who interjects twice in the discussion with “how is this possible?” (ha keitzad)—language usually used to point out a contradiction.[11] In other words, the stam might be wondering: can we really be raising interpersonal compromises to be on par with the rabbis’ authoritative, legislated method of dispute-resolution?
Which brings us to the final way in which the Gemara imagines this verse applying to the lives of ordinary people. The Sages turn the audience of this verse away from judges and toward every member of the community, and argue that the verse’s emphasis should be turned from the repetition of tzedek and placed on the verb tirdof—you must pursue justice even if that means traveling to Rome to resolve your disputes, because that is where the great Rabbi Matya held court.[12] While the power to adjudicate disputes is here returned to the courts, the subject of the verse tzedek tzedek tirdof is understood to be all Jews, broadening its interpretation from the focus on the rabbinic class that is assumed to be the audience earlier.[13]
So how should we understand this ubiquitous verse today? Like many such slogans, tzedek tzedek tirdof can become vague, or even cheapened, from its ubiquitous use by any group that strives for “justice,” however loosely defined. The Gemara wants us to meditate on that question, even and especially when we think we already know the answer. The real-world applications may not always be clear, but the sugya leaves us with a few guideposts. Pursuing justice must include:
- Being hyper vigilant about the presence of fraud in the judicial system.
- Acknowledging that there is something undesirable in resolving all conflict in court, and striving to build a society in which conflicts are resolved amicably without recourse to systems that hold the power to coerce those deemed guilty, except when necessary.
- Identifying the most able judges from hundreds of miles around, discipling ourselves to them and seeking out their wisdom when conflicts do require expert mediation.
Despite its single appearance in the Talmud, then, tzedek tzedek tirdof is understood to be central, in that it points to many different aspects of the kehillah kedoshah, the sacred society, that we should strive to build around us. It is far from an empty slogan—it is a call to interrogate both the formal court system and our daily interpersonal relationships, in order to ensure that both are operating with justice as their guiding principle. Putting the Gemara’s three explanations together, we might say the following: when we find ourselves in a dispute where someone must forgo their needs in favor of another, we are called upon to do so graciously, and then to seek out those courts whose reputation for virtue proceeds them. Finally, those “beautiful” courts must constantly be living up to the highest standards for truth, exposing fraud and twisted justice in order to be centers of righteousness for miles around.
[1] The verse is again quoted on Ketubot 103b, but the discussion there is clearly derivative of the sugya in Sanhedrin.
[2] Despite the order of the quoted verses, many commentaries understand the first “here” to refer to our verse, Deuteronomy 16:20, and the second “here” to Leviticus 19:15. See below n. 5.
[3] Koren/Steinsaltz reads hatel as “impose”; Artscroll reads “arrange” and Soncino reads “make.”
[4] Translation by the author, based on the Vilna edition of the Talmud.
[5] See the discussion amongst the Rishonim, especially Rashi s.v. merumeh, Tosafot s.v. kan be-din merumeh and Tosafot Ha-Rosh. Rashi trusts the judges to root out fraud when detected; Tosafot prefers that judges adjourn a case suspected of fraud; Rosh synthesizes the two by arguing that the case proceeds if the defendant is suspected of fraud, but is adjourned if the prosecution is suspected of fraud.
[6] The extra level of interrogation is elsewhere removed due to concerns of finding judges sufficiently learned and/or witnesses willing to endure the stricter pursuit of truth. See, for example, the discussion immediately preceding our Gemara, as well as the parallel in the opening sugya of the tractate, on 2b-3a.
[7] Rambam, for one, finds compromise praiseworthy, though he understands pesharah as mediated by a court or judge. See Mishneh Torah Hilkhot Sanhedrin 22:4.
[8] See, for instance, t. Bava Kamma 2:8, t. Bava Metzia 3:2, y. Bava Kamma 15a (3:5).
[9] Berakhot 10a and Ketubot 95a-b.
[10] Saul Lieberman’s Tosefta Ki-Fshutah notes the change in language from the Tosefta to the Bavli, but says nothing further (2:10 n. 61).
[11] The Practical Talmud Dictionary by Yitzhak Frank notes that this phrase is used rhetorically to point out a contradiction, and should be punctuated with an interrobang, which combines the functions of a question mark and exclamation point.
[12] In classic midrashic style, this rereads the audience from the original context of the verse which, as noted at the top, appears to be addressing the judges themselves.
[13] The focus on who the audience of the verse is in each section of the Gemara draws on the commentary of Maharsha, s.v. beit din yafeh.
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