A Judicial System Alone is not Enough
“It is the business of the legislature to follow the spirit of the nation, when it is not contrary to the principles of government; for we do nothing so well as when we act with freedom, and follow the bent of our natural genius.”
Thus wrote the enlightenment French judge, historian and philosopher Montesquieu (1689 - 1755.) Montesquieu, perhaps the most associated philosopher with the idea of the separation of government branches and the importance of checks and balances in Democracy, was one of the most influential thinkers on the United States’ founding fathers. It is said that Montesquieu was cited by them more than any source except for the Bible.
Enacting rule over a nation which is based on a just justice system is at the core of our portion, Shoftim.
שֹׁפְטִ֣ים וְשֹֽׁטְרִ֗ים תִּֽתֶּן־לְךָ֙ בְּכל־שְׁעָרֶ֔יךָ אֲשֶׁ֨ר יְהֹוָ֧ה אֱלֹהֶ֛יךָ נֹתֵ֥ן לְךָ֖ לִשְׁבָטֶ֑יךָ וְשָׁפְט֥וּ אֶת־הָעָ֖ם מִשְׁפַּט־צֶֽדֶק׃
“You shall appoint magistrates and officials for your tribes, in all the settlements that your God יהוה is giving you, and they shall govern the people with due justice.”
לֹא־תַטֶּ֣ה מִשְׁפָּ֔ט לֹ֥א תַכִּ֖יר פָּנִ֑ים וְלֹא־תִקַּ֣ח שֹׁ֔חַד כִּ֣י הַשֹּׁ֗חַד יְעַוֵּר֙ עֵינֵ֣י חֲכָמִ֔ים וִֽיסַלֵּ֖ף דִּבְרֵ֥י צַדִּיקִֽם׃
“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.”
צֶ֥דֶק צֶ֖דֶק תִּרְדֹּ֑ף לְמַ֤עַן תִּֽחְיֶה֙ וְיָרַשְׁתָּ֣ אֶת־הָאָ֔רֶץ אֲשֶׁר־יְהֹוָ֥ה אֱלֹהֶ֖יךָ נֹתֵ֥ן לָֽךְ׃ {ס}
“Justice, justice shall you pursue, that you may thrive and occupy the land that your God יהוה is giving you.”
These famous lines are here to teach us something which is rather profound and that is very much still true in our time.
A justice system alone is not enough. A branch to enforce what comes out of it is not enough either. History, ancient as well as recent, showed us that the most monstrous acts could be done by societies with clear rules and regulations, by governments which held legislators, officers and judges. The words “Justice, justice shall you pursue” were hanging over the door at Ruth Bader Ginsburg’s office, put by her to remind her that justice alone is not enough, that justice has to be enacted in a just way.
It is interesting that Montesquieu in his most known work The Spirit of Law (1748) touched on this very point. Yes, he did write about the separation of government branches but the main idea coming out of The Spirit of Law is that what matters for the freedom of citizens under a certain rule is not necessarily the form of their government but rather, their spirit.
“Mankind are influenced by various causes: by the climate, by the religion, by the laws, by the maxims of government, by precedents, morals, and customs; whence is formed a general spirit of nations….when these manners and customs are to be changed, it ought not to be done by laws; this would have too much the air of tyranny: it would be better to change them by introducing other manners and other Customs.”
What Montesquieu is essentially saying here, is that no system, as sophisticated as it may be, even with all the checks and balances in it, can work or will work if the people in that society are not ready for it. It is the spirit of the people, rather than the system itself, which makes or breaks a thriving and successful society.
Ramban in Hilchot Sanhedrin in Misneh Torah, writes the following:
בֵּית דִּין שֶׁל שְׁלֹשָׁה אַף עַל פִּי שֶׁאֵין מְדַקְדְּקִין בָּהֶן בְּכָל אֵלּוּ הַדְּבָרִים צָרִיךְ שֶׁיְּהֵא בְּכָל אֶחָד מֵהֶן שִׁבְעָה דְּבָרִים וְאֵלּוּ הֵן. חָכְמָה. וַעֲנָוָה. וְיִרְאָה. וְשִׂנְאַת מָמוֹן. וְאַהֲבַת הָאֱמֶת. וְאַהֲבַת הַבְּרִיּוֹת לָהֶן. וּבַעֲלֵי שֵׁם טוֹב.
“We are not careful to demand that a judge for a court of three possess all these qualities. He must, however, possess seven attributes: wisdom, humility, the fear of God, a loathing for money, a love for truth; he must be a person who is beloved by people at large, and must have a good reputation.”
What the Rambam is saying here, is that the appointing of Judges upon the nation is only the beginning. A judge should hold certain attributes:
Wisdom, humility, fear of God, loathing for money, love of truth and being beloved by others. Those are not attributes which could be taught in law school or forced upon anyone.
The Rambam continues to show how each and every one of these traits is supported by a verse in the Torah and in fact is embedded in the spirit that the nation should eventually possess.
Like Rambam Montesquieu wrote that to form and hold a successful republic for example, the people should possess the spirit of humility and love of others, the lack of vanity and the ability to live simply.
Any system which enact law contradicting the people’s spirit smells of tyranny.
The Torah proves Rambam's point, showing that the liberated Israelites, a nation which held the spirit of slavery, could not handle the burden of freedom, could not operate within the new justice system no matter how much help, protection and care they received. It would only be their children, the generation which was born free, that would move forward to enact the rules given to their parents..
In our time we witness time and time again how when nations under Western thought fail to impose their way of living, no matter how just and enlightened it may seem, upon nations who do not hold a similar spirit.
To my mind Montesquieu has so much more to contribute to our conversation than the basic principle which he is most known for, a principal which he himself claimed was not for everyone.
As we approach yet again times of reflection and soul searching, let us pay attention to our collective spirit and strengthen it to the point that will allow us to form the most just justice system that we can think of.
