One of my earlier High Holiday sermons investigates the themes of peace and justice on the Day of Judgment and Forgiveness.
Justice of the Peace
In an interview with the online Jewish magazine Tablet, Harvard professor of government Michael Sandel poses a moral dilemma. Say you’re driving a trolley on a track, and you see five workers on the track in front of you, wearing sound-proof work masks and oblivious to the oncoming train. You know that you won’t be able to stop the train in time to save their lives, but you also know that you can divert the train to an alternate track to spare the lives of the five workers. However, one oblivious worker crouches with his back to you on that alternate route. What do you do? Do you allow a tragic accident to kill five innocent workers, or do you take an active step to kill one innocent person in their place?
Many, if not most, people would choose to divert the train in order to reduce the total number of deaths. Keeping that in mind, consider this variant on the dilemma: This time, you’re not driving the trolley; rather, you’re an observer on a bridge overlooking the train tracks. Once again, a trolley is heading toward five unsuspecting workers, though this time, there’s no alternate track. Instead, you know for a fact that if you were to push the person next to you over the bridge and onto the track, it would slow the trolley down enough to save the five workers. The question is the same: Do you allow a tragic accident to kill five innocent workers, or do you take an active step to kill one innocent person in their place?
Philosophers of ethics and morality have spent many hours debating the proper course of action, and they raise many vital questions. Is there a difference between killing and letting someone die? Is there a difference between the loss of one life and the loss of five lives? Is there a difference between an observer and a participant? Ultimately, these questions address our basic beliefs about justice and peace. Although we will rarely if ever have to make such a painful and difficult decision, getting in touch with our fundamental ethics is important for structuring our lives in a fulfilling and meaningful way.
Most of the time, we allow the laws of our society to govern our lives, trusting that these laws are reasonable expressions of our society’s understanding of justice. I obey the speed limit not because I consider it ethically wrong to drive too fast but because I have faith in the system of government that establishes safety standards for our roads. And in the event that I am issued a speeding ticket, I’ll pay the fine because it is my civic duty to admit that I’ve broken a societal standard and that I should compensate the system that has invested itself in keeping me safe. Wherever we go, the American legal system is there to watch us and watch out for us, attempting to maintain harmony among its citizens.
Of course, the Jewish tradition has its own legal system based on interpretation of Torah, which may differ at times from the American model. If I’m walking by a store with goods displayed on the sidewalk, I don’t steal any because it’s against the law and because our religious system tells me that it’s wrong. However, what if I spot a wallet lying on the ground outside that same store? According to common law, I’m not required to go out of my way to return it to its rightful owner; however, the Jewish laws of justice impel me to pick up the wallet and try to find the owner in order to return it to her. Jewish law forbids adultery and coveting and gossip; none of these is illegal in the United States. As Jews, we have access to an ancient legal tradition that compels us to act according to moral and spiritually upright standards even if our secular environment may not take those considerations into account.
In the case of the trolley problem, we might turn to one of these legal systems to provide guidance. Let’s suppose that, in this situation, it is against American law to push the man off the bridge or to change tracks, the justification being that to do commit either of these acts is to murder one innocent person, which is more criminal than allowing the accidental deaths of five. For some, this might make the solution simple: Keep the train going forward and avoid any risk of being sued. For others, even a legal ruling like this would not be satisfactory. They would question, in this instance, whether the legal system got it right, whether the legal system correctly applied our concept of justice. In other words, they would want to make sure to do the just thing, not just the legal thing. Thus, they might turn to Jewish law as an alternative source of wisdom. Perhaps our tradition can guide us in a way that our secular understandings cannot. We still might look for the legal boundaries of our actions, but perhaps religious law is more directly just than our secular law. To my knowledge, there’s no direct solution to the trolley problem in either legal system, but we recognize that these two worldviews give some structure to our ability to decide what to do in difficult situations.
This is our framework of justice. Our secular and religious laws have been laid out according to particular moral systems, and we follow the laws because we identify with and agree to abide by those systems. However, we saw on Rosh Hashannah when we discussed the midrash about Abraham and Isaac’s interactions with Satan on their way to Mount Moriah that the distinction between right and wrong can often be very difficult to make. Although law codes clearly lay out what’s right and what’s wrong, nevertheless, doing what is truly just in a complicated situation can be extremely challenging. It was for this reason that Moses himself, the only prophet to speak face-to-face with God, initially served as the arbiter of all Israelite concerns. Wanting to apply pure justice in every situation, Moses used his prophetic gift to ensure that the Israelites were judged fairly. However, when Moses’ father-in-law, Jethro, saw Moses overworking himself, he urged Moses to “seek out from among all the people capable men who fear God, trustworthy men who fear ill-gotten gains…. Have them bring every major dispute to you, but let them decide every minor dispute themselves” (Exodus 18:21-22). Moses knows that only through divine intervention can true justice be brought to bear in every case, but Jethro reminds him that he will not be around forever and that regular people are going to have to be trusted to interpret the laws themselves. Moses concedes his ultimate authority, and in doing so, makes room for everyday interpretation of the law.
Of course, Moses still urges us to work diligently to ensure that our application of the law is just and righteous. Moses instructs the Israelites in the book of Deuteronomy:
You shall appoint magistrates and officials for your tribes, in all the settlements that the Eternal your God is giving you, and they shall govern the people with due justice. You shall not judge unfairly: you shall show no partiality; you shall not take bribes, for bribes blind the eyes of the discerning and upset the plea of the just. Justice, justice shall you pursue, that you may thrive and occupy the land that the Eternal your God is giving you (16:18-20)
Moses lays out high expectations for our execution of justice, especially given his knowledge that none of us can act completely fairly all the time. Nevertheless, the ideal remains that the world should be just, with each person acting and being treated according to a system of fairness.
Yet on Yom Kippur, we beg God not to act according to principles of justice. On the Day of Atonement, we acknowledge that we have not been able to live up to the ideal standards of righteousness that have been set before us, and we ask that we be forgiven for our shortcomings. If all were entirely fair, we would be held accountable for our failures, but on Yom Kippur, we pray:
אבינו מלכינו, חננו ועננו כי אין בנו מעשים, עשה עמנו צדקה וחסד והושיענו.
Our Father, our King, be gracious and answer us, for we have little merit. Treat us generously and with kindness, and be our help.
On Yom Kippur, we recognize God’s divine justice, yet we petition God’s divine mercy. Although we deserve harsh judgment based on our failures of justice, we pray for God’s compassion and temperance. We gratefully remember that God does not approach the world thinking only of justice, for in the bible, God is not only referred to as Elohim—a title that evokes divine justice—but also by God’s very name, yud-hey-vav-hey—a title that evokes God’s mercy. The account of God’s creation of the earth and sky (Genesis 2:4) uses both names, and a midrash understands this story as:
A parable of a king who had cups made of delicate glass. The king said: If I pour hot water into them, they will [expand and] burst; if cold water, they will contract [and break]. What did he do? He mixed hot and cold water, and poured it into them, and so they remained unbroken. Likewise, the Holy One said: If I create the world with the attribute of mercy alone, its sins will be too many; if with justice alone, how could the world be expected to endure? So I will create it with both justice and mercy, and may it endure! (Genesis Rabbah 12:15).
Thus the world is not ordered only according to principles of justice. Yes, our judges are commanded to pursue justice diligently, and yes, justice is an exalted value of our people. But pure justice is not the end of the story. Although Moses led us from Egypt as the champion of legal justice, he is not the only leader of the People of Israel. His brother, Aaron, the father of the priesthood and forebear of religious leadership for millennia to come, offers an alternate paradigm of approaching the world. From Aaron’s perspective, the greatest value is not justice but rather peace.
A midrash is told that:
Moses used to say, “Let the law pierce the mountain” [meaning that the law must prevail, even if it involves great loss or difficulty]. But Aaron loved peace, pursued peace, and made peace between man and man, as is said, “The law of truth was in his mouth, and unrighteousness was not found in his lips; he walked with [God] in peace and uprightness and did turn many away from iniquity” (Malachi 2:6) (B. Sanh 6b, as quoted in The Book of Legends p. 94).
Thus, while Moses was ultimately concerned with the fulfillment of the law, Aaron’s highest priority was peace among the people of his community. There are a number of stories about Aaron bringing peace to strangers and couples, and he is often shown as a compassionate listener and mediator. One such story is found in the 9th-century rabbinic work Avot de-Rabbi Natan:
Two people were quarreling with one another. Aaron went and sat with one of them. He said to him: “My son, look what your friend has done – his heart is distraught and he has torn his clothes (because of his grief at fighting with you). He is saying: ‘Woe is me! How will I raise up my head and look at my friend? I am embarrassed in his presence because I am the one who wronged him.’” And Aaron sat with the man until he removed the jealousy from his heart.
Aaron then went and sat with the other party and said to him: “My son, see what your friend has done – his heart is distraught and he has torn his clothes. He is saying: ‘Woe is me! How will I raise up my head and look at my friend? I am embarrassed in his presence, because I am the one who wronged him.’” And Aaron sat with the second man until he also removed the jealousy from his heart.
At last, when the two men who had been quarreling met, they embraced and kissed one another (Avot de-Rabbi Nathan 12:3)
In our tradition, Aaron represents the ultimate peacemaker, erasing conflict and easing pain. Of course, Aaron’s desire to be at peace with those around him could be the root of his building the golden calf; his pursuit of peace leads him to his greatest transgression of the law. While Moses is on Mount Sinai, “The people gathered against Aaron and said to him, ‘Come, make us a god who shall go before us, for that man Moses, who brought us from the land of Egypt—we do not know what has happened to him’” (Exodus 32:1). Aaron gives in to their demands, perhaps because he can’t stand their fear and doubt; he seeks to give them the peace of mind they require in order not to lose all hope of a safe return from the desert, and he therefore fashions the golden calf to calm them down. Naturally, Moses, the tablets of the law in hand, is furious. He confronts Aaron, and the competing values of justice and peace come head to head. From our perspective, it’s impossible to determine who “wins” the confrontation – Moses’ law remains supreme while Aaron’s family is entrusted with administering Judaism in perpetuity. So we are left in a quandary: Should our highest priority be to hearken to the words of Deuteronomy, צדק צדק תרדף – Justice, justice shall you pursue? Or, do we rather incline our hearts to a line of Psalm 34 (15): בקש שלום ורדפהו – Seek peace and pursue it.
The great 1st-century scholar Hillel throws his lot in with Aaron. He tells his disciples, “הוי מתלמידיו של אהרן אוהב שלום ורודף שלום אוהב את הבריות ומַקְרִבַן לתורה – Be as students of Aaron, the one who loves peace and pursues peace, the one who loves all of God’s creation and who brings all he meets closer to Torah” (Pirkei Avot 1:12). During the Days of Repentance, when we are seeking to make peace between ourselves and those whom we have wronged, we also focus our hearts on this message of reconciliation. And during Yom Kippur itself, we ask God not to deal justly with us but rather to “Grant us peace,” God’s “most precious gift.” We pray that as our names are inscribed in the Book of Life, the Author of the Book will look favorably upon us with mercy and disregard the demands of justice. At this season, peace trumps justice.
With that in mind, how are we to address the trolley problem? Do you push the man off the bridge, halting the train and saving five lives at the expense of one? Is that action just? Is it peaceful? Even if it’s acceptable in both American and Jewish law to push him, perhaps mercy does not allow us to. We can’t solve the trolley problem now, but we recognize the deeper question in the background: What is the basis of our moral compass: the laws of the land or the laws of the heart? How will we approach the difficult decisions of the year ahead? When faced with the tough questions—how much can we donate to a charity, how do we resolve conflict in our families, what do we hope to achieve at our places of work—will we be more like Moses or more like Aaron? Will we dedicate ourselves to reaching always for ultimate justice, or will we make our highest priority the pursuit of peace?
As we seek forgiveness for the shortcomings of the past year, we commit ourselves to improving our performance in the years ahead. While we will continue to reach for ideal achievements of justice, we recognize that often, it will be impossible to live up to Moses’ standard. We still pray for the strength to act according to the demands of justice, and we ask also for the compassion to know when we should treat others with kindness and mercy instead. Ultimately, let us act as we hope God does on Yom Kippur by directing our hearts toward reconciliation so that we may build for ourselves a year of fellowship, forgiveness, and peace.
G’mar chatimah tovah, may you be inscribed for goodness in the Book of Life.
 cf. Baba Metziah 31a
 Avot de-Rabbi Natan 12
 Legends of the Jews 3:329
 http://www.jewishvirtuallibrary.org/jsource/judaica/ejud_0002_0013_0_13492.html, with slight modifications
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