Misphat Vs. Tzedek-resource File 6j4024

MISHPAT vs. TZEDEK

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HOW DO YOU DEFINE JUSTICE introduction

>> Justice only has value when it is lived out in daily life. <<

Judaism weaves the ideal of justice into the very fabric of creation. Like all ideals however, justice has value only when it is lived out in daily life. In many cases the pursuit of justice comes at a price, and each individual needs to determine whether he or she will pay that price. Classical Jewish sources have provided Jews with guidance on such matters throughout the generations. In this chapter and those which follow, we will probe the meaning of some of these texts. The Hebrew word tzedek is usually translated as “justice,” yet, like many translations, this one is not completely satisfactory. There are nuances of meaning that are important to understand as Hebrew has several words that are related to the concept of justice. In this section we will use the word tzedek in its Hebrew form and use a variety of texts to explore the richness of the concept without restricting it into a single English word. The framing exercise and six texts presented below explore Jewish perspectives on the idea of justice. TEXT 1: Betrothal (Hosea, Ch. 2) TEXT 2: These are the Mishpatim (Exodus, Ch. 21) TEXT 3: Liability (Mishna, Bava Kama 8:1) TEXT 4: When Breaking the Law is Keeping the Law (Babylonian Talmud, Sanhedrin 46a)

TEXT 5: Beyond the Letter of the Law (Babylonian Talmud, Bava Mitzia 83a) TEXT 6: Right of Way (Babylonian Talmud, Sanhedrin 32b)

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EXERCISE

> Ask the participants to define justice.

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> Is it a system of laws? A way of behaving? An attitude? All of the above?

Mishpat/Tzedek

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Framing

> Who is responsible for justice? Preserving it? Defining it? Enforcing it?

> Ask the participants to talk about the last time they were involved in an act of justice. You may get answers which anticipate the paragraph below, indicating the two different forms of justice: tzedek and mishpat. If not, acknowledge the answers you get, and then ask the participants to keep their minds open for an addittional way to understand the concept of justice.

Text Exploration TEXT 1

• Betrothal

A traditional siddur (prayerbook) provides an interesting age from the book of Hosea that is supposed to be recited when a Jew puts on a set of tefillin. The Jew who says these words does so while tying the bands of the tefillin around his or her fingers, transforming the bands into a celestial wedding ring. In the age, it is God who speaks these words to the Jews. In the prayer book, it is the Jews who speak these words back to God.

‫כב‬-‫ כא‬:‫הושע פרק ב‬ ְ ְ ‫ְו ֵא ַרשְׂ ִּת‬ .‫וּב ַר ֲח ִמים‬ ְ ‫וּב ֶח ֶסד‬ ְ ,‫וּב ִמ ׁ ְש ּ ָפט‬ ְ ‫ ְלעוׄ ָלם; ְו ֵא ַרשְׂ ִּתיך ִלי ְּב ֶצ ֶדק‬,‫יך ִלי‬ ְ ‫ְו ֵא ַרשְׂ ִּת‬ .‫הוה‬ ָ ְ‫י‬-‫ ֶאת‬,‫ ֶבּ ֱאמוּ נָ ה; ְויָ ַד ַע ְּת‬,‫יך ִלי‬ I betroth you to me forever; I betroth you to me in tzedek (righteousness) and in mishpat (justice) and in chesed (kindness) and in rachamim (mercy). I betroth you to me with emunah (faith); and you shall know God. Hosea 2:21-22

t Why, of all the concepts and sentiments and values that could claim a place in this pledge of Jewish commitment, do you think our tradition places the concept of “justice” at the center?

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t What is the common thread among the five characteristics listed?

Why do you think they were chosen? Are there others that you would add if you were rewriting the text?

What the Text Means to Me s Many Jews recite this age daily. What could be the impact of saying these words every morning?

s Do you have anything that you say daily or as part of a routine? What is it? Why do you say it so often, so regularly? What does it do for you? If the recitation is said by others at the same time, how does that affect the group? Participants can imagine the pledge of allegiance, singing the national anthem before ball games, a team cheer or chant, an honor pledge before a test, ha-motzi (the blessing before eating bread) and the like. Explore with them the impact of saying something by rote in a prescribed moment. What impact might such an affirmation have on a person when regularly recited? While participants’ answers will vary, you may want to tease out the idea that this type of ritual can serve as a behavioral com, reminding individuals of the core values which they would like their lives to represent. Regular affirmation of an idea is likely to have that idea become part of a person’s internal belief structure. Whereas individuals may agree with a statement on an intellectual level, the idea takes on deeper signnificance if it is regularly expressed, especially if done in a public forum. Be prepared for a student to offer the legitamate challenge that making something “routine” or reciting something by rote actually strips it of meaniing. You may choose to address this type of response by probing further, exploring how routine actions and deep intentionality can coexist. TEXT 2

• These are the Mishpatim

Let’s look at an idea called mishpat. The word ”mishpat” is drawn from the same root as the word “to judge” [‫]שפט‬. The following text, found in the book of Exodus, is from the first body of legislation presented in the Torah.

‫כד‬-‫ כג‬,‫יט‬-‫ יח‬,‫ יד‬,‫שמות פרק כא׃א‬ .‫ מוׄת יוּ ָמת‬,‫מ ֵּכה ִא ׁיש ָו ֵמת‬...‫ם‬ ַ ‫יה‬ ֶ ֵ‫ ִל ְפנ‬,‫ ֲא ׁ ֶשר ָּת ִשֹים‬,‫ ַה ִּמ ׁ ְש ּ ָפ ִטים‬,‫ְו ֵא ֶּלה‬ ָ .‫ ֲא ֶשר יָ נוּ ס ׁ ָש ָּמה‬,‫ושַׂ ְמ ִּתי ְלך ָמקוׄ ם‬--ׄ‫דו‬ ְ ָ‫ ְו ָה ֱאל ִֹהים ִא ָ ּנה ְלי‬,‫ַו ֲא ׁ ֶשר לֹא ָצ ָדה‬ ֵ ‫ ְל ָה ְרגוׄ ְב ָע ְר ָמ‬,ּ‫ר ֵעהו‬-‫ל‬ ֵ ‫יָ זִ ד ִא ׁיש ַע‬-‫ְו ִכי‬ ...‫ ִּת ָ ּק ֶחנּ ו ָלמוּת‬,‫מ ִעם ִמזְ ְּב ִחי‬--‫ה‬ ,‫ ְּב ֶא ֶבן אוׄ ְב ֶא ְגרֹף; ְולֹא יָ מוּת‬,ּ‫ר ֵעהו‬-‫ת‬ ֵ ‫א ׁיש ֶא‬-‫ה‬ ִ ‫ ְו ִה ָּכ‬--‫יבן ֲאנָ ׁ ִשים‬ ֻ ‫ְו ִכי יְ ִר‬ ‫ ַרק‬:‫ונִ ָ ּקה ַה ַּמ ֵּכה‬--ׄ‫ו‬ ְ ‫מ ׁ ְש ַענְ ּת‬-‫ל‬ ִ ‫ ַע‬,‫יָ קוּ ם ְו ִה ְת ַה ֵּל ְך ַּבחוּ ץ‬-‫ ִאם‬.‫ְונָ ַפל ְל ִמ ׁ ְש ָּכב‬ ...‫ ְו ַר ּפֹא יְ ַר ּ ֵפא‬,‫ׁ ִש ְב ּתוׄ יִ ֵּתן‬ ,‫ ׁ ֵשן ַּת ַחת ׁ ֵשן‬,‫ ַעיִ ן ַּת ַחת ַעיִ ן‬.‫ ַּת ַחת נָ ֶפ ׁש‬,‫ונָ ַת ַּתה נֶ ֶפ ׁש‬--‫ה‬ ְ ֶ‫ יִ ְהי‬,‫אסוׄ ן‬-‫ם‬ ָ ‫ְו ִא‬ ,‫ ַח ּבוּ ָרה‬,‫ ּ ֶפ ַצע ַּת ַחת ּ ָפ ַצע‬,‫ ְּכ ִו ָ ּיה ַּת ַחת ְּכ ְו ִָ ּיה‬.‫ ֶר ֶגל ַּת ַחת ָר ֶגל‬,‫יָ ד ַּת ַחת יָ ד‬ .‫ַּת ַחת ַח ּבוּ ָרה‬ 30

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These are the mishpatim that you shall set before them… He who fatally strikes a man shall be put to death. If he did not do it by design, but it came about by an act of God, I will assign you a place to which he can flee. When a man schemes against another and kills him treacherously, you shall take him from My very altar to be put to death… When men quarrel and one strikes the other with stone or fist, and he does not die but has to take to his bed—if he then gets up and walks outdoors upon his staff, the assailant shall go unpunished, except that he must pay for his idleness and his cure… If damage ensues, the penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, burn for burn, wound for wound, bruise for bruise.

Mishpat/Tzedek

Exodus, 21:1, 12-14, 18-19, 23-24

t Leaving aside your personal opinions about capital punishment, what distinction do you think the Torah is making between premeditated and accidental killing?

t How does the text understand an individual’s responsibility for any damages caused?

t Based on your reading of this text, what is your understanding of the term mishpatim? What principle of law or social value is expressed through the Torah’s instructions?

The Torah here indicates that there is an important distinction between a premeditated murder and an accidental killing. At first glance, the outccome of one’s actions do not appear as significant a factor in determining punishment as does the motivation behind those actions. If one kills uninttentionally, then the system provides a form of protection—a designated area of refuge. In contrast, a planned murder is severely punished. The text expresses the idea that a person is responsible for the outcome of his or her actions—an eye for an eye—regardless of motive or any other circumstances. Mishpatim then can be understood as powerful principles of law which apply uniformly for all individuals to uphold a standard of justice and fairnness in the world. A person’s personal circumstances or socio-economic status does not give them any special consideration. Mishpatim represent the idea of retributive justice or “equal justice under the law.”

What the Text Means to Me s Do you agree with this approach to justice? s Do you think it reflects an enlightened ideal or a primitive perspective?

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s What might alternative approaches look like? s Is there a place for mishpat in the way contemporary society is organized?

TEXT 3

• Liability

The rabbis of the Mishna, relate their own understanding of the value of mishpat:

‫ א‬:‫ פרק ח‬,‫מסכת בבא קמא‬ ,‫ ְּב ִר ּיפוּ י‬,‫ ְּב ַצ ַער‬,‫ ְּבנֶ זֶ ק‬:‫ ַח ָ ּייב ָע ָליו ִמ ּׁשוּ ם ֲח ִמ ׁ ָּשה ְּד ָב ִרים‬- ׄ‫חוׄבל ַּב ֲח ֵבירו‬ ֵ ‫ַה‬ ַ ‫ ְּבנֶ זֶ ק ֵּכ‬.‫ וּבוֹ ׁ ּ ֶשת‬,‫ְּב ׁ ּ ֶש ֶבת‬ ‫ רוׄ ִאין‬,ׄ‫יבר ֶאת ַר ְגלו‬ ֵּ ‫ ׁ ִש‬,ׄ‫ ָק ַטע ֶאת יָ דו‬,ׄ‫ימא ֶאת ֵעינו‬ ֵּ ‫יצד? ִס‬ ּ ‫אוׄתוׄ ְּכ ִא‬ .‫ ְו ׁ ָּש ִמין ַּכ ָּמה ָהיָ ה יָ ֶפה ְו ַכ ָּמה הוּ א יָ ֶפה‬,‫ילוּ הוּ א ֶע ֶבד נִ ְמ ָּכר ַּב ּׁשוּ ק‬ ּ ‫ ַו ֲא ִפ‬,‫ ְּכ ָואוׄ (אוֹ) ְּב ַשׁ ּפוּ ד אוׄ ְּב ַמ ְס ֵמר‬- ‫ַצ ַער‬ ‫ילוּ ַעל ִצ ּיפוׄ ְרנוׄ ָמקוׄ ם ּׁ ֶש ֵאינוׄ עוׄ שֶׂ ה‬ ּ ‫ אוׄ ְמ ִדין ַּכ ָּמה ָא ָדם ַּכ ּיוׄ ֵצא ָּבזֶ ה רוׄ ֶצה ִל‬,‫ַח ּבוּ ָרה‬ - ‫ ִר ּי ּפוּ י‬.‫יטוׄ ל ִל ְהיוׄת ִמ ְצ ָט ּ ֵער ָּכ ְך‬ ‫ ׁ ּ ֶש ּלֹא ֵמ ֲח ַמת‬,‫ ַח ָ ּייב‬- ‫ ִאם ֵמ ֲח ַמת ַה ַּמ ָּכה‬,‫ִה ָּכהוּ ַח ָ ּייב ְל ַר ּ ְפאוׄתוׄ; ָע ָלה ּבוׄ ְצ ָמ ִחים‬ ָ ְ‫יתה ְונִ ְס ְּת ָרה ָחי‬ ָ ‫ ּ ָפטוּ ר; ָח ְ ּי‬- ‫ַה ַּמ ָּכה‬ ‫יתה ָּכל‬ ָ ְ‫ ָחי‬,ׄ‫ ַח ָ ּייב ְל ַר ּ ְפאוׄתו‬- ‫יתה ְונִ ְס ְּת ָרה‬ ּ ‫ רוׄ ִאין אוׄתוׄ ְּכ ִא‬- ‫ ׁ ֶש ֶבת‬.ׄ‫ ֵאינוׄ ַח ָ ּייב ְל ַר ּ ְפאוׄתו‬- ‫צוׄ ְר ָּכ ּה‬ ,‫ילוּ הוּ א שוׄ ֵמר ִק ּׁישוּ ִאין‬ .‫ ַה ּכֹל ְל ִפי ַה ְּמ ַב ֵ ּי ׁיש ְו ַה ִּמ ְת ַּב ֵ ּי ׁיש‬- ‫ ּבוׄ ּׁ ֶשת‬.ׄ‫ׁ ֶש ְּכ ָבר נָ ַתן לוׄ ְּד ֵמי יָ ד ׁו וּ ְד ֵמי ַר ְגלו‬ Whoever wounds his fellow is liable for five things: for damage, for pain, for healing, for loss of time, and for shame. For damage, how? If one blinded another’s eye, cut off his hand, broke his foot, we consider him as if he were a slave sold in the market, and we appraise how much he was worth [before the injury], and how much he is now worth [after he was injured]. Pain? If someone burned him with a spit, or with a [white-hot] nail, even on his fingernail, a place where it produces no wound, we assess how much a person in his situation would be willing to accept to undergo such pain [Alternatively, how much would someone pay to avoid this type of pain as a punishment]. Healing? If one struck another, he is obligated to heal him. If swelling appeared on it from a result of the blow, he is liable; [if swelling appeared] not as a result of the blow, he is exempt. If [the wound] healed and opened again, he is obligated to cure him [a second time]. Loss of time? We consider him as if he [had an easy job, like] the caretaker of a cucumber field, since he has already paid him compensation for his hand and compensation for his foot. Shame? Everything is in accordance with the person causing the indignity and the insulted party. If one insults a naked person, if one insults a blind person, or if one insults a sleeping person, he is liable, and if a sleeping persf son caused the indignity, he is exempt. If one fell from a roof and injured and shamed [someone], he is liable for the injury and is exempt for the shame, as it is written, “And she puts forth her hand, and takes him by the secret part” (Deuteronomy 25:11) he is not liable for shame unless he intended. Mishna, Bava Kama 8:1 32

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t What, if anything, surprised you about this text? Why? 3 Mishpat/Tzedek

t According to this Mishna, how do you think the rabbis understood the concept of mishpat?

t Do you think their interpretation is true to the values expressed in the book of Exodus?

t How is compensation for “shame” treated differently than physical and monetary damages?

t What is the benefit of having the laws determine how a wrong can be righted?

The rabbis of the Mishna refuse to read Exodus 21 literally: they choose to understand, “an eye for an eye,” as a formula for monetary compensation. The rabbis realized that a law which enforces a literal interpretation of “meassure for measure” does nothing to improve society or increase the amount of good in the world. They also boldly articulate five dimensions of injury for which one must be compensated—extending the scope of one’s responsibbility far beyond what is evident from a simple reading of the biblical text.

What the Text Means to Me s Did you ever make a mistake or do something wrong and try to make up for it? What did you do? What did you do to make things right? How was it received?

s Did someone ever wrong you and then try to make up for it? Did you feel satisfied at the end?

s What difference do you think it would make in the situations you

have reflected upon if your behavior and the behavior of others was strictly governed by these principles? Is this ideal? Is it realistic?

TEXT 4

• When Breaking the Law is Keeping the Law

)‫ א‬,‫ מסכת סנהדרין פרק ו (דף מו‬- ‫תלמוד בבלי‬ ‫ ּׁ ָש ַמ ְע ִּתי ׁ ּ ֶש ֵּבית ִּדין ַמ ִּכין ְועוׄ נְ ׁ ּ ִשין ׁ ּ ֶש ּלֹא ִמן ַה ּתוׄ ָרה‬:‫יעזֶ ר ֶּבן יַ ֲעקֹב אוׄ ֵמר‬ ֶ ‫ַר ִּבי ֱא ִל‬ ”.‫ ֶא ָּלא ְּכ ֵדי ַל ֲעשׂ וׄת ְסיָ יג ַל ּתוׄ ָרה‬,‫ְולֹא ַל ֲעבוׄ ר ַעל ִּד ְב ֵרי תוׄ ָרה‬ Rabbi Eliezer ben Ya’akov said: “I have heard that the court may pronf nounce sentences even where not [warranted] by the Torah; yet not with the intention of disregarding the Torah but [on the contrary] in order to safeguard it.” Babylonian Talmud, Sanhedrin 46a

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t What is the difference between the “letter of the law” and the “spirit of the law?”

t Can you describe a situation in which breaking the law or ignoring the law is, in fact, the best way to keep the law?

t Can you imagine a legal system which does not allow such lenienct cies? What would that be like?

What the Text Means to Me s Did you ever have to do something that seemed “wrong” but nonett theless was the right thing to do?

s How do you know when the “spirit of the law” should override the “letter of the law?”

s Is Rabbi Eliezer ben Ya’akov talking about mishpat or another form of justice? Explain.

TEXT 5

• Beyond the Letter of the Law

Consider the following text which explores the practical application of taking liberties with respect to specific social regulations in order to live according to society’s core values.

)‫ א‬,‫ מסכת בבא מציעא (דף פג‬- ‫תלמוד בבלי‬ ‫ ׁ ְש ַקל‬.‫יתא ְּד ַח ְמ ָרא‬ ָ ‫יה ָהנְ הוּ ׁ ְשקוּ ָל ֵאי ָח ִב‬ ּ ‫ַר ּבה ַּבר ַּבר ָחנָ ן ְּת ָברוּ ֵל‬ ֲ .ּ‫ימיְ יהו‬ ַ ‫ ַהב ְלהוּ ְ ּג ִל‬:‫יה‬ ַ ‫ִל ְג ִל‬ ‫ ִּדינָ א‬:‫יה‬ ּ ‫ ֲא ַמר ֵל‬.‫ ָאתוּ ֲא ַמרוּ ְל ַרב‬,ּ‫ימיְ יהו‬ ּ ‫א ַמר ֵל‬ְ ,‫ אין‬:‫יה‬ ֲ ?‫ָה ִכי‬ ּ‫ ֲא ַמרו‬.ּ‫ימיְ יהו‬ ַ ‫ יָ ֵהיב ְלהוּ ְ ּג ִל‬.”‫טוׄבים‬ ִ ‫“ל ַמ ַען ֵּת ֵל ְך ְּב ֶד ֶר ְך‬ ּ ‫א ַמר ֵל‬‫ זִ יל ַהב‬:‫יה‬ ּ ‫ ֲא ַמר ֵל‬.‫ ְו ֵלית ָלן ִמ ֵידי‬,‫ ְו ָכ ֵפינַ ן‬,‫ ְו ָט ְר ִחינַ ן ּכוּ ָל ּה יוׄ ָמא‬,‫ ֲענִ ֵ ּיי ֲאנַ ן‬:ּ ‫ֵליה‬ ּ ‫ ְ“ו ָא ְרחוׄת ַצ ִ ּד‬,‫ ִאין‬:‫יה‬ .”‫יקים ִּת ְשׁמֹר‬ ּ ‫ ֲא ַמר ֵל‬- ?‫ ִּדינָ א ָה ִכי‬:‫יה‬ ּ ‫ ֲא ַמר ֵל‬- .ּ‫ַא ְג ַריְ יהו‬ Some porters broke a barrel of wine belonging to Rabbah Bar Bar Hanna. Rabbah seized the porters garments [in payment for his loss incurred by them]. The porters went and complained to Rav. Rav told Rabbah: “Return their garments.” Rabbah said: “Is that the law?” Rav responded: “No. But ‘follow the good way’” (Proverbs 2:20). The garmf ments were returned, but the porters observed, “We are poor men. We worked all day and we were not paid. Are we to get nothing for our labors?” Rav ordered Rabbah to pay the porters. Rabbah asked: “Is that the law?” Rav replied, “No. But be sure to walk on the paths of righteousnf ness.” (Proverbs 2:20b) Babylonian Talmud, Bava Metzia 83a

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t Who is “right?” 3 Mishpat/Tzedek

t Why does Rav rule the way he does? Upon what basis? t Who is on the side of mishpat here, and who is on the side of tzedek? t Do the porters “deserve” the kindness of Rav? Is that important? t Is Rav referring to two different standards when he instructs Rabbah? Why? Which one do you find more compelling?

What the Text Means to Me s Who do you : Rabbah or Rav? Why? s What would you have done if you were Rabbah? TEXT 6

• Right of Way

)‫ ב‬,‫ פרק ד (דף לב‬- ‫ מסכת סנהדרין‬- ‫תלמוד בבלי‬ ‫עוׄברוׄת‬ ְ ‫יצד? ג ּׁ ְש ֵּתי ְס ִפינוׄת‬ ַ ‫ ֵּכ‬.‫ ֶא ָחד ְל ִדין ְו ֶא ָחד ִל ְפ ָּׁש ָרה‬:”‫“צ ֶדק ֶצ ֶדק ִּת ְרדֹף‬ ֶ ֶ ‫עוׄברוׄת ׁ ְש ֵּת‬ ְ ‫ ִאם‬,‫ַּב ָ ּנ ָהר וּ ָפ ְגעוּ זֶ ה ָּבזֶ ה‬ ‫ ְּבזֶ ה ַא ַחר‬,‫טוׄבעוׄת‬ ְ ‫יהן‬ ֶ ‫ ְשׁ ֵּת‬- ‫יהן‬ ְ ‫יהן‬ ֶ ‫ ׁ ְש ֵּת‬-‫זֶ ה‬ ּ‫ ְו ֵכן ׁ ְשנֵ י ְ ּג ַמ ִּלים ׁ ֶש ָהיוּ עוׄ ִלים ְּב ַמ ֲעלוׄת ֵּבית חוׄ רוׄ ן וּ ָפ ְגעו‬.‫עוׄברוׄת‬ ‫ ָהא‬.‫יהן עוׄ ִלין‬ ֶ ֵ‫ ׁ ְשנ‬- ‫ ְּבזֶ ה ַא ַחר זֶ ה‬,‫יהן נוׄ ְפליִ ן‬ ֶ ֵ‫ ׁ ְשנ‬- ‫יהן‬ ֶ ֵ‫ ִאם ָעלוּ ּׁ ְשנ‬,‫זֶ ה ָּבזֶ ה‬ ַ ‫ֵּכ‬ ‫רוׄבה‬ ָ ‫ ְק‬.‫ ִּת ָּיד ֶחה ׁ ּ ֶש ֵאינָ ּה ְטעוּ נָ ה ִמ ּ ְפנֵ י ְטעוּ נָ ה‬- ‫יצד? ְטעוּ נָ ה ְו ׁ ֶש ֵאינָ ּה ְטעוּ נָ ה‬ ָ ‫רוׄבה ִמ ּ ְפנֵ י ֶשׁ ֵאינָ ּה ְק‬ ָ ‫ ִּת ָּיד ֶחה ְק‬- ‫רוׄבה‬ ָ ‫ְו ֶש ֵאינָ ּה ְק‬ ,‫יהן ְקרוׄבוׄת‬ ֶ ‫ ָהיוּ ׁ ּ ְש ֵּת‬.‫רוׄבה‬ .ׄ‫ וּ ַמ ֲעלוׄת שָׂ ָכר זוׄ ָלזו‬,‫יהן‬ ֶ ֵ‫ ַה ֵּטל ּ ְפ ׁ ָש ָרה ֵּבינ‬- ‫יהן ְרחוׄ קוׄת‬ ֶ ‫ׁ ּ ְש ֵּת‬ Rav Ashi expounded upon the verse, “Tzedek, tzedek you shall pursue” (Deuteronomy 16:20): The first [mention of tzedek] refers to a decision based on strict law; the second, to a compromise. How so? For example: Where two boats sailing on a river meet, if both attempt to simultf taneously, both will sink; whereas, if one makes way for the other, both can [without mishap]. Likewise, if two camels meet each other while on the ascent to Beth-Horon; if they both ascend [at the same time] both may tumble down [into the valley]; but if [they ascend] after each other, both can go up [safely]. How then should they act? If one is laden and the other unladen, the latter should give way to the former. If one is nearer [to its destination] than the other, the former should give way to the latter. If both are [equally] near or far [from their destination], make a compromise between them, the one [which is to go forward] compensf sating the other [which has to give way]. Babylonian Talmud, Sanhedrin 32b

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t What is the “right” thing to do in these situations? Who has the right of way?

t Why should the one boat or camel cede to the other if they have the same right as the other?

t What do they gain?

What the Text Means to Me s Who do you think is better? The one who yields his right of way (and goes second) or the one who claims his (and goes first)?

s What would you do if you were the camel driver?

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Consider the following case studies: 3

This organization almost awarded cost of living increases but has decided it can’t do that for the year ahead. One person suggests that everyone be given a 2% raise that year, half of the 4% standard federal-recommended cost of living increase (COLA). That seems the right way to go—treating everyone the same.

1

Another person said that is not fair: management will be the winners, for 2% of their salaries is much larger than 2% of maintenance staff and secretary salaries. The person who proposed the 2% raise argued that nonetheless, each household has its share of on-going expenses. That is, those with larger incomes have lifestyles that incur larger expenses and those with smaller incomes have lifestyles that accommodate lesser expenses. A 2% increase in relation to each household is therefore a fair and just way to go.

Case Study

An organization’s budget must be cut by 5% and the management team is exploring ways to do so. Jobs and salaries will almost surely be affected.

Mishpat/Tzedek

The Cost of Living

Opponents to this position argued that maintenance, blue collar and secretarial staff often live much closer to the economic brink, often with little savings. They have fewer discretionary expenses that can be cut, and little capacity to get loans to tide them over. Therefore, the organization should offer a full 4% cost of living increase for the lower-echelon staff and a 2% increase for the higher. (Even with this formula, the total COLA for the higher staff is 5 times as great as the COLA for the lower staff.) As a group, outline the arguments on both sides and debate the issue.

• • •

How do the concepts of tzedek and mishpat help us understand the competing approaches to this issue? What do you think the organization should do? Is there a right answer to this? Is there a Jewish answer?

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Fairness in School Funding

Case Study

In many states today, local schools are funded by local property taxes. (That is, each home owner pays a tax based on the value of his or her property. That money gets funneled back into the local school district.) This means each household can choose the quality of education that the children receive by choosing where to live. It also means that the more prosperous the neighborhood, the better funded is its school. School districts in wealthier neighborhoods often spend thousands of dollars more per child than school districts in economically depressed neighborhoods.

2

Is this a fair system? Why or why not? Would you define “fairness” differently if you lived in a wealthy neighborhood than if you lived in a poor one? In the past twenty-five years, at least 2/3 of the states in this country have determined that this system is unfair, and have struggled to fix it. One solution was to pool all the state’s property taxes in one pot and dole out an equal amount of dollars per student throughout the state. That sounds good because it makes everyone equal. Is this mishpat, tzedek or neither? Read the following paragraph: “I am not convinced that spending the same amount on each child is the fairest approach to school funding. The truth is that parents spend considerably different amounts on their children’s education—whether in public or private schools—depending on income. Providing the same amount of state and local aid to the child of wealthy parents as to poor parents simply exacerbates the gaps and ignores the fact that one child is likely to have more unmet needs than the other. I am more in favor of providing whatever level of funding is adequate for each child to meet his or her needs and to attain high standards than I am to providing the same amount to each child, rich or poor.” (Mr. Michael Casserly of the Council of Great City Schools) Is this mishpat, tzedek or neither?

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TZ E D E K, TZ E DAKAH, & CHESED

> >>>> 4

introduction We explored two kinds of justice in a previous section. Mishpat is even-handed or retributive justice, that is, justice by the book. Tzedek is situational or distributive justice, that is, justice that is tailored to respond to the particular circumstances of a particular situation, especially those that lead to social, economic and political inequities.

>> Although it is often translated as ‘charity’, tzedakah is not equivalent to charity. <<

Mishpat is generally about assessing behavior and determining how to treat the aggrieved and the offender equally. Tzedek is more about creating a system for the fair distribution of goods, services and opportunity on this earth. In this section we will further explore the idea of tzedek as we compare it to the more popular concept of tzedakah. The two share the same root, tz.d.k., meaning the right thing to do. Although it is often translated as “charity,” tzedakah is not equivalent to charity. Charity comes from the Latin word caritas, which means “love.” The concept of charity in English is considered voluntary because it comes from the heart. Christianity teaches that charity is something which people should give when their hearts move them to do so. Thus, even though we emphasize in this chapter the distinction between tzedek and tzedakah, we should not lose sight of the significance of their semantic connection. These two concepts are distinct but they are also closely related in that tzedek and tzedakah both represent modes of responding to injustice in the world. The framing exercise and five texts presented below expand our understanding of justice and examine Jewish perspectives on responding to injustice in our world. TEXT 1: Eight Levels of Tzedakah (Maimonides, “Laws of Gifts to the Poor” 10:7-14) presents a classic formulation of the hierarchy of giving and makes the claim that certain types of giving are valued over others. Our conversation continues with an examination of the concept of chesed which similarly describes a response to human needs. Chesed, however, is not

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