Moses appointed police officers over the tribes but did not mention any judges. One might think, if we cannot have judges, at the least our society should have police. But, actually this is wrong. Police cannot be the law – they must merely enforce the law.
This week’s parsha is Shoftim (Devarim 16:18-21:9), which is the Hebrew word for judges opens with these famous words:
|שֹֽׁפְטִ֣ים וְשֹֽׁטְרִ֗ים תִּתֶּן־לְךָ֙ בְּכָל־שְׁעָרֶ֔יךָ אֲשֶׁ֨ר יְהֹוָ֧ה אֱלֹהֶ֛יךָ נֹתֵ֥ן לְךָ֖ לִשְׁבָטֶ֑יךָ וְשָֽׁפְט֥וּ אֶת־הָעָ֖ם מִשְׁפַּט־צֶֽדֶק:||18 You shall set up judges and police for yourself in all your cities that the Lord, your God, is giving you, for your tribes, and they shall judge the people with righteous judgment.|
|לֹֽא־תַטֶּ֣ה מִשְׁפָּ֔ט לֹ֥א תַכִּ֖יר פָּנִ֑ים וְלֹֽא־תִקַּ֣ח שֹׁ֔חַד כִּ֣י הַשֹּׁ֗חַד יְעַוֵּר֙ עֵינֵ֣י חֲכָמִ֔ים וִֽיסַלֵּ֖ף דִּבְרֵ֥י צַדִּיקִֽם:||19 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.|
|צֶ֥דֶק צֶ֖דֶק תִּרְדֹּ֑ף לְמַ֤עַן תִּֽחְיֶה֙ וְיָֽרַשְׁתָּ֣ אֶת־הָאָ֔רֶץ אֲשֶׁר־יְהֹוָ֥ה אֱלֹהֶ֖יךָ נֹתֵ֥ן לָֽךְ:||20 Justice, justice shall you pursue, that you may live and possess the land the Lord, your God, is giving you.|
Jewish tradition seems clear: both judges and police are needed and both judges and police are instruments of justice. Every society needs both to determine the law and enforce it.
Yet, Jewish tradition inverts the order from what we in America would have imagined. We are conditioned to believe that the proper order should be to police and then judge; arrest and then determine punishment based on law.
It is this exact question which motivates Rashi to say Shoftim are judges who decide the law, and shotrim are merely those who enforce a judges’ decision. Famously Bartenura asks “why does Rashi bother to explain the obvious here?” noting that earlier (Devarim 1:15) Moses appointed police officers over the tribes but did not mention any judges. One might think, if we cannot have judges, at the least our society should have police. But, actually this is wrong. Police cannot be the law – they must merely enforce the law.
Jewish tradition makes a deeply important point and one that resonates mightily with our society: Police – agents of law enforcement – need to be subservient to law and not independent of our judges. An ethical society has judges who review cases without favoritism, and apply the law fairly by police. Verse 19 this week, mandates basic fairness and verse 20 inspires us to tirelessly pursue the grandest form of justice we can – at all times, everywhere.
But, why should this be connected to the land or Shmita? The answer of course is clear. Even our land has to be governed with Justice. The fruit trees, earth, and animals also demand a just society. This Shmita year, we have an opportunity to step back and explore the connection between our modern society – our understanding of Justice, policing, judging – and Jewish tradition.
Michael J. Broyde is a professor of Law at Emory University and the Projects Director of its Center for the Study of Law and Religion. He is an ordained rabbi as well.