November 8, 2011 | 2:58 pm

Putting the “J” Back In Orthodoxy

Posted by Rav Yosef Kanefsky

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“Shall the Judge of all the earth not do justice?”

By humbly but firmly addressing this remarkable question to God, our father Avraham installed justice as a primary Jewish value. Everything, even the Divine intention, needs to be measured by the yardstick of justice. One can see the influence of Avraham’s position manifest in a variety of decisions later rendered by the Sages. The Torah rules, for example, that the “rebellious son” is to be judged, and ultimately executed, based upon his projected future malfeasance (“nidon al shem sofo”). One imagines that the Sages’ conclusions that this law was intended for academic but not practical purposes, was motivated by the fact that by normative legal standards, it is unjust to punish someone for sins he has not yet committed. (In the Midrash, God Himself explains His decision to save the young Ishmael from dying of thirst, in exactly this way.) Similarly, the Sages’ insistence that all of the Biblical “eye for an eye” legislation must be read non-literally, explicitly derives from the inherent injustice of the literal application (Who’s to say that the victim’s eye and the perpetrators eye are of equal value?)

The primacy of justice as a religious value is in great evidence in the writings of the prophets of course, chief among them Isaiah, who declares the sacrificial rituals in the Temple to be of no value (or worse) as long as the widow and the orphan cannot find justice in that society. “Zion will be redeemed through justice”, Isaiah declares. Justice is a primary value, and its absence calls the value of our other forms of religious devotion in sharp question.

It has struck me recently though that while, as an Orthodox community, we are able to speak with clarity and passion about Torah and Mitzvot, about Hesed (kindness), and Tzniut (modesty / humility), we just don’t talk a lot about justice. We seem to feel uncomfortable around the term, associating it with center-left politics and with liberal forms of Judaism. Our shuls tend not to have social justice activities, and our schools, even when providing instruction in texts such as Parshat Mishpatim or Bava Metzia, focus entirely on conveying information, rather than on analyzing the material for how they are wrangling with questions of justice.  Perhaps we even fear that there is something dangerous or subversive about raising the issue of justice when we are engaged in the study of God’s law. How would we, for example, discuss with today’s fifth graders, the justice of a master not being liable when he mortally strikes his slave, as long as the slave did not succumb to his injury within the first 24 hours? The Torah’s explanation that “he (the slave) is the master’s property” probably would not suffice all by itself.

Our demotion of justice from being a first-tier value has not come without consequences for us. It has, for example, warped our communal conversation about Shalom Rubashkin, as at the same time that we decry the injustice of his sentencing, we have still not developed the language with which to describe the injustices he visited upon the workers in his factory. It hampers our ability to fully confront the phenomenon of agunot, as our conversation is often limited only to the halachik details of the laws of divorce or to the fruitless game of he said / she said, because the plain and open cry of “injustice!” doesn’t seem to have sufficient currency to sway Orthodox public opinion. (Calling out the injustice cannot alone solve the problem of course, but it would go a long way toward shaming people into compliance.)

On the occasions that we have in fact assigned justice its proper place, we have achieved important things. The prevalence in Modern Orthodox circles of daughters reciting kaddish for parents, and of daughters marking their Bat Mitzvah in their shuls – each being practices which were met with considerable objection at first -  is the result of the simple triumph of justice. Justice, one of our basic religious values.

Let’s learn again how to use this powerful word. Let’s take the example of our father Avraham. And let us bring closer the day when Zion will be redeemed through justice.

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