Law Without a Land
On Shabbat Shoftim, "Judges," our attention is automatically drawn to the Jewish judicial and legal system. If we ask how law as a whole comes to be, then one answer is that it arises when a society develops and articulates standards of behaviour. Another view is that law comes into being when a society recognises and adopts the standards laid down by its monarch or lawgiver.
The second concept is the traditional Jewish one: the Divine Monarch posited His standards and Israel said, "Na'aseh v'nishma," - "We will do and we will obey." But the legal historian might find something missing in this way of putting the case. Where were the Israelites when they accepted the Divine Torah? In a wilderness, a no-man's land. They knew that one day they would have a territory of their own, but in the meantime they were without a land. Can there be a society without a land, a law without a territory?
History constantly proves that the answer is yes. The whole idea that a nation is defined by a territory and vice-versa is only about two centuries old. Human experience constantly demonstrates that a group of people with a sense of belonging define and protect themselves by agreeing on their codes of conduct. Examples? Religions, professions, military and other institutions.
The Jewish people prove that assertion to be correct. For most of their history, many Jews lived outside the Land of Israel, but their legal system operated in both the "religious" and general arena. They had a considerable degree of legal autonomy in many places and at many times. Indeed, some of their internal legal institutions and procedures moulded the law of other societies, especially in the field of commercial law. When emancipation arrived in continental Europe, many Jews wanted to be "modern" and flocked to the civil courts. Today, there is a contrary trend, with many Jews finding that Halachah is a superior legal system and seeking the opportunity to apply it as far as possible in the context of modern society. The interface of Jewish and general law has become one of the most exciting areas of legal study.
Just Means and Ends
It is one of the most famous verses of the Torah: "Tzedek tzedek tir'dof." - "Justice, justice shall you pursue." (Deuteronomy 16:20) Doubling the word "justice" means, says Bachya ben Asher, "Justice, whether to your profit or loss, whether in word or action, whether to Jew or non-Jew." Or, as another view has it, "Justice - by just means."
This raises the old issue of whether the ends justify the means. If the ends are just, does it matter how we get there? Judaism is not too impressed with the person who performs a mitzvah by means of a sin. Hence, if you are anxious to make a blessing over the lulav, but you steal the lulav, or you wish to benefit a charity, but you embezzle the money in order to do so, then your intentions may be good, but your methods are both illegal and immoral.
But what about what Reinhold Niebuhr calls "moral man and the immoral situation"? May the moral man ever act immorally? The Torah shows that he may. For example, Jacob gains the birthright and blessing of his brother by using some guile. It seems that an emergency can be an exception to the rule, but only if it is clear that the whole enterprise is in jeopardy, and when all other options are not viable, and when what is at stake is of tremendous seriousness (Norman Frimer in Tradition vol. 13 part 4 and vol. 14 part 1, 1973). Yet, the general rule remains that justice must be pursued justly.