Torah portion: Justice and mercy

Judaism understands both mercy and justice to be divine attributes, and yet these two traits stand in direct contradiction. To be merciful requires a suspension of what justice demands. To be just requires a suspension of the compassion that leads to mercy.

On the High Holy Days, we imagine God switching back and forth between sitting on one throne of justice and one throne of mercy. Of course, for our own benefit, we hope that God spends more time on the throne of mercy. Yet, in this week’s Torah portion, Shoftim, the law emphasizes that justice ought to override mercy.     

“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” (Deuteronomy 16:19). 

The text recognizes that we may be too lenient and overlook the need for justice on account of a favored relationship or, more crassly, money. In case we did not internalize the importance of justice over mercy, the text asserts in the very next verse: “Justice, justice shall you pursue.” Mercy is nowhere to be found.  

Rabbinic tradition is less clear about the triumph of justice over mercy.  Both have their important roles to play. On the one hand, in the Mishnah, we are told to judge each person presuming that they have merit (kaf zechut). The rabbis tell us to give someone the benefit of the doubt. But the Mishnah also shares with us a teaching from Rabbi Akiva: “Do not allow sentimentality in making judgments.”

It’s confusing. What does our tradition want from us?  In our attempt to tap into the divine part within ourselves, should we lean toward justice or mercy in our own lives?  

In the biblical era, when family ties and tribal pacts were more likely to inform a legal decision than were the facts, impartiality must have been a deeply difficult feat. And so, our laws demanded a suspension of favoritism and mercy.  

But by the time we reach the early rabbis, tribalism did not define us in the same way. We were not fighting a culture in which family ties and pacts mattered more than the welfare of the whole. We were able to allow for mercy and compassion without endangering the integrity of the system.  Like our early rabbis, we are in the position not just to judge the act, but also to understand the context in which a crime happened.

That context is why we find it important to bring a 90-year-old Nazi to justice despite his frailty and inability to cause further harm. That context is also why we refuse to demand life in prison for two preteens who murdered their abusive guardians.  

We can find a thousand technical reasons to rationalize why one deserves mercy and the other deserves justice: Differences in motivation and moral consciousness certainly factor in.  

But we answer a more fundamental question with these decisions of mercy and justice. What impact does this decision have? Not on the accused, but on us as a society? What would it say about us to lock up two children escaping abuse because the system failed them? What would it say about us to forgive genocide because too much time has passed?  

What does it say about us when we put away nonviolent offenders for life? What does it say about us when we give nominal fines to the banking institutions whose irresponsibility devastated our economy and many lives along with it?    

Both excessive mercy and fanatical justice can destroy the fabric of society.  Our decisions of when we apply mercy and when we apply justice say a lot about who we are and what we value. So, our divine responsibility is to wrestle between the two — to think about the values at stake.  

Like God, we must switch back and forth between the throne of mercy and the throne of justice. We cannot let ourselves get too comfortable in one position. We must constantly ask ourselves: What does this decision say about me and the values of my community? 

Rabbi Sarah Bassin is the associate rabbi at Temple Emanuel of Beverly Hills.