Parashat Shofetim 5769/ August 22, 2009
the weekly Torah reading by the faculty of
Due Justice and True Justice
Dr. Amihai Radziner
This week’s reading begins with the requirement to set up a legal system. The Torah emphasizes that one must have equitable justice and actively pursue it.
You shall appoint magistrates and officials for your tribes, in all the settlements that the Lord your G-d is giving you, and they shall govern the people with due justice ( mishpat tzedek). 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 (tzedek), justice shall you pursue, that you may thrive and occupy the land that the Lord your G-d is giving you (Deut.16:18-20).
Although it is difficult to give a single definition of the term tzedek in Scripture,  nevertheless here it clearly means a demand for true justice, not influenced by external factors such as bribery. But if we examine the tannaitic works of midrash halakhah on these verses, we come up with a more complex picture, which we shall touch on briefly here.
Midrash Tannaim Deuteronomy, on verse 18, reads as follows:
Due justice (mishpat tzedek) – the Holy One, blessed be He, said to the judges: If you do true justice on earth, I shall show mercy (tzedakah) to you from Heaven, as it is said (Ps. 85:12): “Truth springs up from the earth; justice looks down from heaven.” But if you pervert (n-t-h) justice, you steer (n-t-h) yourselves towards Gehenna; therefore it is said, “You shall not judge unfairly (lo tateh mishpat).
Another interpretation: they shall govern the people with due justice – they should find for (exonerate), not against (convict).
The first interpretation indeed supports a parallel between due justice and true justice; that is, justice which shows no partiality. The second interpretation, however, seems to say the opposite; it instructs the judges (and therefore is formulated in the plural, like the verse that is being interpreted) to pass judgment in favor, not against, ostensibly even when it seems to them that they should find against. How can this be called due justice?
This calls to mind a midrash halakhah on Leviticus. The verse, “You shall not render an unfair decision: do not favor the poor or show deference to the rich; judge your kinsman fairly” (Leviticus 19:15), is interpreted by Sifra ( Kedoshim ch. 2, 89a):
Judge your kinsman fairly – you should not let one litigant speak all he needs, while to another you say, “Cut your words short”; you should not make one litigant stand while the other sits…
Another interpretation: Judge your kinsman fairly – judge every person favorably (to be innocent).
Here, too, one can view one of the interpretations as requiring the judge to strive to do justice in the sense being impartial and unprejudiced, and another interpretation that actually calls for judging him innocent. Note that the second interpretation in Sifra appears to be relating to a general moral stand and directs its instruction towards every person,  whereas Midrash Tannaim clearly relates to the judicial process in court.
Similar interpretations can be found in the second midrash halakhah on Deuteronomy, in the interpretation of verse 20 (Sifre Deuteronomy, par. 144, pp. 199-200):
Justice shall you pursue – Whence do we know that if a person leaves the court having been found innocent one cannot bring him back to trial and find against him? We learn it from “justice, justice shall you pursue.” If the court found against him, whence do we know that he can be brought back to trial and found innocent? For it says, “justice, justice shall you pursue.”
Another interpretation: Justice, justice shall you pursue – pursue the court that judges well; the court of Rabban Johanan ben Zakkai and the court of Rabbi Eliezer.
The same duality can be seen here. The second interpretation calls for true justice, and therefore calls on the plaintiff to bring his case to a court of quality where, presumably, he will receive more equitable justice than he would receive in a court in which the judges are less experienced. However the first interpretation here is puzzling: why should someone return to court only in the case of favorable evidence which comes to light after conviction, and not in the opposite case? If there is an accused who has been exonerated by mistake because of lack of evidence against him, would not truth demand that he be convicted once proof has been found?
The explanation for the duality that we see is simple. The second interpretation deals with civil law, for it refers to a situation in which one can choose one’s court and to tannaim who were active at a time when the rabbinical courts no longer had the authority to judge criminal cases, whereas the preceding interpretation deals with criminal cases. The law cited in that interpretation appears in the Mishnah, Sanhedrin 4.1, as one of the differences between legal procedure in civil cases as opposed to criminal cases: “Cases concerning property may be retried whether the verdict was for acquittal or conviction, but capital cases may be retried for [obtaining an] acquittal, but must not be retried for [procuring a] conviction.” This mishnah lists many other differences between the two types of cases, indicating that in civil cases finding for and finding against are of equal weight, whereas in capital cases every effort is made to arrive at acquittal of the accused.
In view of this we can now understand the remarks in Midrash Tannaim. The second interpretation refers to criminal cases, and in these the judges are called upon to find favorably for the accused,  whereas the first interpretation relates to civil cases,  as does the first interpretation in Sifra, which mentions two litigants, i.e., a civil case.
Thus we see that in discussing the Torah’s call for “true (tzedek) justice” midrash halakhah distinguishes between two meanings of the word “tzedek”: 1. Truth – an interpretation which is specific to civil cases; 2. Righteousness, innocence – an interpretation which is specific to criminal cases. What does this signify?
There can be no doubt that this distinction follows from the unequivocal separation that the tannaim made between civil cases and criminal cases. In civil cases, unlike criminal cases, there are two litigants, and one cannot find in favor of one litigant without finding against the other. The plain sense of the Torah’s injunctions is that the judges must not be biased in their judgment, favoring one side over the other, be it the rich or the poor. Since there is no litigant who from the outset is preferred over the other, the only thing that should guide the judges in their decision is the truth; and this is clearly the meaning of tzedek in this context in Scripture.
In criminal cases, however, one has a different situation. The laws of procedure and evidence in such cases were developed by the tannaim in such a manner that it was almost impossible to punish criminals. There are many sources attesting this fact and explaining its significance, both in the writings of the Sages and from later rabbinic literature, and extensive research has been done on the subject, although we cannot go into greater detail here. The results of the great effort made by the tannaim to establish a legal system in which it is virtually impossible to punish offenders in criminal cases, whatever the significance of this approach, ostensibly contradicts not only the plain fact of the Torah listing many capital offenses but also the simple meaning of tzedek in the legal context of the Torah, i.e., truth. Therefore the tannaim proposed an alternative meaning for tzedek: merit, righteousness, innocence, favor. Thus the Torah’s demand that justice have the quality of tzedek could be reconciled with the way in which the Sages formulated criminal law.
How did they do this? Perhaps they relied on the meaning of the nouns tzaddik (a righteous person) and tzedakah (charity, charitable act). Even in Scripture the word tzaddik has several different meanings; it means being perfect, straight, and true,  but also has the meaning 'innocent,' or 'in the right'.  The word tzedakah also has many meanings in Scripture, and clearly zekhut (favor, merit) is one of the things it denotes in its broad spectrum of meaning. 
So I would argue that the tannaim attempted to reconcile their general view regarding criminal law with the Torah’s demand that there be “true justice.” Since they thought that human courts should seek to avoid issuing the death sentence, this attitude led them to interpret the word tzedek differently from its plain sense in the Scriptural verses cited, but in a way closely allied to the meaning of similar words. The general moral instruction of Joshua ben Perahya, “Judge every human being favorably,” became a legal instruction given the judge in criminal cases, commanding him to make every effort to find the accused innocent, i.e. tzaddik or righteous.
 See Jacob Licht, “Tzedek, Tzedakah, Tzaddik,” Encylopedia Mikrait vol. 6, pp. 678-685.
 So too in the Mishnah, Avot 1.6. Also see the stories in Shabbat 127b and in Avot de-Rabbi Nathan version A, 8 (Schechter edition, p. 37), and version B, 19 (p. 40).
 The verb le-hakhri'a (= to determine, decide, tip the scale) in the context of earthly courts (as opposed to the heavenly court) appears in all of talmudic literature only once more, there too in the context of criminal law (Tosefta Sanhedrin 9.4 [Zuckermandel edition, p. 429]).
 In tannaitic and amoraic literature admonishment of judges not to be biased in their judgments appears almost exclusively in the context of civil law. This is clear, in view of what has been said, for only in civil cases is there a demand that justice be “true.”
 For example, Deut. 4:8; Isaiah 41:26.
 The following is an example of this word meaning 'innocent': “Abraham came forward and said, ‘Will You sweep away the innocent ( tzaddik) along with the guilty?’” (Gen. 18:23); and an example of it meaning exonerated: “When there is a dispute between men and they go to law, and a decision is rendered declaring the one in the right and the other in the wrong” (Deut. 25:1).
 For example, take the first occurrence of this word in Scripture: “And because he put his trust in the Lord, He reckoned it to his merit (tzedakah)” (Gen. 15:6).