Category Archives: personal conscience

The Grand Subpoena: To Attest and To Protest Too

“Attest” and “protest”: on these two stands of human conscience the civilized world depends. They are central to this week’s reading, Atem Nitzavim.., “You stand…,” a reference to the way we rise in a courtroom to offer testimony — to tell, as the saying goes, “the truth, the whole truth and nothing but the truth.” We “attest,” that is, to the truth; but in so doing, we also “protest” the trashing of those truths by people who find them inconvenient.

It is not just truths that are at stake, says Shimon ben Gamaliel (Avot 1:18), but justice and peace as well, for truth, justice and peace are the three things on which humanity stands or falls. At our best, Maimonides explains, we human beings naturally strive for intellectual and moral perfection (truth and peace), but these rely on the prior existence of justice.

Failed attestation gets its fair share of recognition, because the lies we tell, the rancor we cause, and the injustices we engender are seen and heard; they leave a trail to be investigated, reported, and disseminated for discussion.

Failed protestation, by contrast — the failure to protest the moral outrages that other people perpetrate — more easily goes unattended, because observers taking notes on the large but finite number of things that people actually did say or do can hardly know, much less include, the infinity of things they didn’t. A news report on some public statement by the president, say, is simply incapable of including everything that the entire cabinet or congress did not say in response.

But our moral accounting sheet has both columns: “attestation,” the active stands we take, by word or deed; and “protestation,“ the passive stands we failed to take, when other people were saying or doing what we knew to be wrong. The first, Yom Kippur will soon remind us, are sins of commission; the latter are sins of omission.

Commentators regularly observe that the word “you” (atem) in “You are standing” (atem nitzavim) is followed by “all of you” (kulkhem) — leaders and followers, household-heads and their entire families. The Torah, seemingly, cannot close without each and every Jew being subpoenaed to stand before God. This was, says Ramban, a renewal of the Sinai covenant, but with everyone on hand, not just Moses alone atop the mountain. Kli Yakar goes further: it was an altogether new covenant, he says, because the old one failed, in that the people who were not personally alongside Moses at the time felt no responsibility for it.

In particular, says Or Hachaim, their failure lay in the second column of moral responsibility: protestation. Hard as it may be to speak truth, act justly, and seek peace, it is infinitely harder to go public against those who don’t: we risk displeasing them; we may even benefit from their actions; and besides, no one will notice, much less report, if we simply choose to turn our backs, keep silent, and go about your business. The Talmud, however, warns expressly that those who fail to protest against the sins of their household, city, people, and nation are punished for those sins, as if they had done them themselves (Shabbat 54b).

Don’t we hold the average collaborators of the Shoah guilty of this very sin? Not that they all personally dispossessed, enslaved, and ultimately murdered their Jews, but that they failed to protest when others did so.

Rosh Hashanah falls just one day after Atem Nitzavim this year. However much we gobble up apples and honey while wishing each other sweetness, we should remember that on Yom Kippur, just ten days later, we will stand, “all of us,” to be held accountable for the balance sheet that measures how we did in humanity’s search for truth, justice and peace. The easy part is what, in word or deed, we wrongly attested to. The hard part, but no less important, is what we should have protested, but didn’t.

 

 

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Government of Checks and Balances: But With an Interesting Twist!

Americans are not the first to devise a constitution calling for the separation of powers. The Torah too legislated institutionalized checks and balances – but with an “interesting twist.”

In keeping with antiquity, the executive branch was a monarchy, but in Israel’s case, a limited monarchy, a king who was subject to the rule of law, and chosen from among the people (Deut. 17:15)  — lest he rule with no empathy for the ruled. Also, he could not use his position to amass excessive wealth, especially horses – what we would call his own private militia, a natural proclivity of kings, says Ramban. Kings had to maintain their own written reminder of these limitations (17:18-19), which, says the Talmud (San. 21a), they were to carry with them wherever they went.

Ancient Israel had yet to envision a democratically elected legislature, but its priestly class was a legislature of sorts; it could not actually vote in new laws (as we do) because the Torah was assumed to have all the laws the people needed. But priests could “interpret” old laws to get new ones, a practice the Rabbis extended, with their doctrine of an “oral Torah” that supplemented the written one.  Like the king, priests too were hemmed in by limitations: having no landed patrimony of their own, they were supported by, and dependent on, the Temple offerings brought by the people (18:1).

The Torah also demands an independent judiciary with the necessary complement of law-enforcing officials, including police with punitive authority to enforce the law (Rashi, 16:18). Hence this portion’s name (16:18), Shoftim (“Judges”) but, more properly, Shoftim v’shotrim, “Judges and Officials” — what the celebrated TV series called “law and order.”

In matters of punishment, however, the people are to appeal to the “judge,” not the “police” (17:9). The judge decides what the police can do – a principle important enough for the Torah to demand it explicitly in every generation (17:9). Worrying about romantics who might bypass the judiciary of their time as being inferior to the judges of “the good old days,” the Torah expressly empowers judges of every era. “They are all we have,” says Rashi; “We must obey them.”

So there you have it, all in this week’s portion: an executive (a king, but chosen from the people, for the people); a legislature (a priesthood, dependent on support from the people they serve); and a judiciary (with attendant police power, but no independent police force that might abuse its power).

Still, even a good system of checks and balances can break down, so we get this “interesting twist”: a fourth element called “prophets.” All ancient people had prophets, but not like Israel’s, individuals who operated outside the system to bring conscience to bear on everyone else. Institutionalized power abhors conscience, however; it prefers the predictability of routinized bureaucracy. So in time, prophecy came to an end: in the commonwealth established after the return from Babylonian exile, the priests and monarch simply declared prophecy over and done with.

The Rabbis too distrusted individuals claiming direct revelation from God.  But anticipating history’s need for independent conscience, the Rabbis gave us an alternative to prophets: every single citizen, you and me. They then demanded that the citizenry be informed: hence the centrality of study in Jewish culture.

And finally, the Rabbis demanded responsible exercise of that informed conscience by every single person. When the Torah says, “Establish law and order,” it adds “at your gates” and “for yourself  [singular]” (16:18) – leading Sefer Yetsirah to identify “the gates” as the gateways to every person’s senses, our eyes, ears, nose and mouth. The ultimate gatekeepers of justice are informed citizens, who monitor what is said, heard, seen, and even smelled.

The biblical prophets are gone, leaving every single one of us to take their place. Even the best of governments fail if we do not attune our senses to catch the telltale signs of moral rot right in our own back yard.