Parashat Bo. Justice or Mercy?

In his book “A Theory of Justice” published in the 1970s, Prof. John Rawls of Harvard University set out an elaborate principle of “justice as fairness”, a win-win way of thinking about the distribution of goods in society that influenced a generation of liberal students and leaders. A just public policy should be designed to achieve an outcome in which the starting position of everyone is improved. Even students like me who had fundamental differences with Rawls still had to learn to articulate his way of thinking to get an “A” in political science.

Yet justice is not just distribution, it is retribution. One problem with A Theory of Justice was that it required that all sectors accept at the starting point in time a “Veil of Ignorance” that hides all that came before. For Rawl’s distributive formula to work, people had to agree to ignore past injustice, and make their present situation their only reference.

One of the limitations in Rawls, similar to a long line of liberal philosophers before him, was in ignoring the role of memory. He invented the veil of ignorance in order to convince many of the best and brightest that it is actually possible to forget the past. He tried to reinvent justice, but justice by definition must try to account for the past. That is why it is indeed so difficult to impose, and retribution is at the heart of the ethical dilemmas in the Exodus, found in this week’s Torah Portion, “Bo”.

The Torah states that Moses, after turning their water into blood, filling their hair with lice, killing their cattle and crops, and doing a variety of other nasty things, not surprisingly became a very big man in the eyes of the Egyptians. By the time he sent the Israelite women to “borrow” gold and jewelry from their Egyptian neighbors, all they really had to say was “Moses sent me” and they were happy just to give it all away. In the end, the payoff didn’t even help them. Their first-born was killed anyway. Retribution was complete.

But doesn’t justice still have to be fair? The Egyptians were guilty of enslaving the Jews and murdering male Jewish children, but why kill their first-born? What did they do? How can we explain slaughtering innocent babies or the sons of handmaidens? That suffering is endemic to the world or that there is always collateral damage? I wish it were that simple. The Bible itself provides contradictory answers. While in several places (found in Exodus, Numbers and Deuteronomy) it is taught that God punishes descendants to the third and fourth generations, in other places in the Book of Deuteronomy and then the Book of Ezekiel there are explicit teachings NOT to punish children for the sins of their parents, as God did to the Egyptians.

Similarly, suffering caused in the name of justice bothered many rabbis throughout the ages. The ancient custom until today is to sing an incomplete “Hallel” (Psalms of Praise) on the last six days of Pesah, because the joy is not be complete if Egyptians suffered as a result of our being freed. “Do not rejoice at the downfall of your enemy.” (Proverbs 24). When drops of wine are spilled at the Seder, one common explanation is that it is to remind participants that the cup is never full and so they should moderate their joy just a bit. In the real world, just outcomes often cause suffering, and not everyone who suffers is evil. That may be why the Sages had to divide God’s transcendent justice into two parts: retribution and mercy.

The inherent tension between Justice and Good can be observed in the founders of the Jewish nation: Abraham argued with God against the killing of the just along with the wicked when informed of the impending destruction of Sodom and Gemorrah. Moses, on the other hand, used force and collective punishment to succeed in his mission of creating a Holy nation.

How can we negotiate this ethical tension in modern Israel? There have been many attempts, but here I’ll provide just one inspiring example. In 1956 another Moshe, Moshe Dayan, eulogized Roi Rotberg, an IDF reserve officer ambushed by terrorists in the fields of his Kibbutz near the Gaza Strip. You can read this iconic (and short) eulogy here. Dayan, commander of the IDF, empathized with the Gazans across the border. He could not blame them for their hatred of the Jews who had displaced them. The response to the terror from Gaza over 60 years ago that Dayan offered his generation of Israelis was to demand continued vigilance and sacrifice in defending their homes, without losing their humanity.

This response represents Dayan’s search for resolution of the ethical tension found already in Torah, so challenging to realize, and as relevant for Israelis today as it was at the funeral of Roi Rotberg in 1956.