Yom Kippur 5762: “A Just Justice Shall You Pursue”
(by Rabbi Howard L. Apothaker, with news and resources off the Internet, NYT, et. al.)
This sermon is copyrighted to Rabbi Howard L. Apothaker, Ph.D.
NO REDISTIBUTION OR REPUBLICATION IS PERMITTED.
Last week, we heard the President’s reassuring words: “Tonight, we are a country awakened to danger and called to defend freedom. Our grief has turned to anger and anger to resolution. Whether we bring our enemies to justice or bring justice to our enemies, justice will be done.” For a moment, I thought I understood. And then I thought again. What is this justice? What is justice in our tradition, Jewish and American?
Justice, to be sure, can imply retribution, an eye for an eye. And this being Yom HaDin, the Day of Judgment, it is the day on which justice should be rendered and one’s fate sealed for the coming year.
On the other hand, isn’t the whole point and the whole purpose of our prayers on Yom Kippur is to persuade G-d to move from the Kisei Din, the Chair of Justice, to the Kisei Rachamim, the Chair of Mercy? Don’t we — at least symbolically, if not actually — try to persuade G-d to give us the benefit of the doubt, to allow us to slip out without notice, when judgment comes?
Over the last several millennia, humanity has developed a large and growing body of profound writings, words that encapsulate the hopes, aspirations and potential of the human soul. Across the globe, religious traditions rightly exult in the majesty and depth of their sacred writings: the Bagavad-Gita, the Rig-Veda, the Dammapada, the Tao Te Ching, the Iliad — these, when interpreted for humane purposes, are the spiritual heritage of our humanizing inclinations and the crowning achievements in written form of religious art and passion.
Yet there is something additional in Scripture, conspicuous in a way unequalled by the others, with such unique emphasis and in such a profound measure: a passion for justice, justice, we assert, for the poor, for the weak and for the despised.
Unlike the Buddhist ideal of a “bodisatva,” the enlightened being who is so pure that he can step over a beggar without remorse, our spiritual forbears, Moses and Jeremiah, consider justice and compassion to be the sine qua non of any true religiosity. One cannot claim to love G-d and not be passionate about, and pursue, justice. That idea, and its legacy throughout our history, may be the primary Jewish contribution to the human enterprise.
Justice, to be sure, is not inherent in human nature. Indeed, we may even view justice as contradictory our basic instincts. The need to survive, to reproduce, to protect, to gain power — these are the fundamental drives, the elementary instincts of the human species. Justice, on the contrary, is a compromise with power. It requires those who have power to share it with those who do not in the interest of some higher, non-Machievellian purpose.
In part, Hebrew Scriptures tells the tale of a quest for justice. G-d punishes Cain for killing his brother, Abel, out of jealousy, and then — and this is important for our context today — protects Cain from vigilante justice by setting a sign upon him. When, during Noah’s time, we hear that “the wickedness of humanity was great in the world,” G-d decides to destroy humankind and start all over, with this tsaddik b’doro, beginning with this righteous man of his generation and his family as progenitors.
G-d appoints Abraham, according to Scripture, “to the end that he may command his children and his household after him that they may keep God’s way, to do righteousness and justice.” Immediately upon telling Abraham that he and his people must be just, G-d informs Abraham of his plan to destroy all the residents of Sodom and Gomorrah because “their sin is exceedingly great.” Abraham protests this divine notion of collective guilt (Ah! And hasn’t this idea also been in the news recently?) and asks God: “Will you indeed sweep away the righteous with the wicked?”
Abraham, takkeh, rebukes God, saying, “Halilah,” it would be profane of You, G-d to be so unjust. Now, if an attorney were ever to use a comparable word to Halilah to a judge in a courtroom, s/he would be held in contempt. Still, this story is an exemplary one in our tradition: Abraham addresses the Divine in demanding justice from the self-proclaimed “G-d of justice” for the people of Sodom and Gomorrah.
Strangely, justice in most of these cases does not mean prosecution or retribution. It fact it means fairness. The Bible includes specific rules regarding distributive justice for the less fortunate, such as the requirement that fallen fruit and the corner of the field be left for the poor and the stranger, that wages not be withheld even overnight, and that no stumbling block be place before the blind.
The Prophets demand justice with that meaning.
- Amos rails against those who “trample upon the poor” and “turn justice into wormwood.” He rejects burnt offerings and solemn songs, insisting that “justice well up as waters and righteousness as a mighty stream.”
- Isaiah too rejects empty prayers and “vain oblations,” warning the Israelites to “seek justice, relieve the oppressed, judge the fatherless, plead for the widow.”
- Jeremiah preaches primarily against religious sins, but he includes injustice between man and his brother — “woe unto him who builds his house by ... injustice — and he cries out to God, ”Wherefore does the way of the wicked prosper?“
- So also the psalmist sings, “Happy are they that keep justice, that do righteousness at all times.”
So this day, this Yom HaDin, we would have God, first, soften on retribution, and, second, expect of us distributive justice. But justice in the court was demanded too, not in the sense of retribution, as has been in the news, but justness in legal and administrative life. Rabbi Shimon ben Gamliel cautioned to “take care not to subvert justice, for if you subvert justice, you shake the world.”
This Jewish emphasis on justice led to the creation of the first system of criminal trials, which placed a heavy burden on the prosecution. An accused could not abdicate his right against self-incrimination. In capital matters, too, the court went out of its way to afford every possible defense to the accused.
The idea of justice even influenced Jewish prayer. The Kol Nidre service is set before the heavenly and earthly courts. Rabbi Isaac of Berdichev wrote a famous prelude to the Kaddish that takes the form of a lawsuit against G-d for unjustly abandoning the Jewish people. And Elie Wiesel recounts the trial of G-d by the doomed rabbis of Bikenau in which G-d lost, was condemned by the court, and then everyone convened for minchah and prayed.
Historian Gerson Cohen describes this unique preoccupation during the Talmudic age and throughout Jewish history as “obsessive concern of the Jew with justice and fair play.” It is not surprising then that even non-Jewish commentators have viewed the Jewish tradition as the bedrock of modern justice. As Profesor Arthur Goodhart of Oxford University wrote in the 1940s: “The passion to shape the forms of justice has been one of the dominant forces in the life of the Jewish people from the time of the tablets to the days in which we now live.”
With the words of our Haftarah this morning, our tradition rings clear, insisting that justice is an eternal religious obligation, at the very core of what it means to be a Jew.
Does Isaiah not say it? “Is this not the fast I have chosen: to unlock the shackles of injustice, to loosen the ropes of the yoke, to let the oppressed go free...to share your bread with the hungry, to house the homeless; to clothe the naked ... to satisfy the needs of the afflicted.”
For all these reasons, the midrash too affirms the centrality of justice as a Jewish calling for us. We cannot consider ourselves pious Jews without a firm commitment to making the world a more just and righteous place.
Though the cynic might say that justice brings “to me my just rewards and to my enemies their just desserts,” how we treat the weakest in our midst (the ‘widow,’ the ‘orphan,’ and the ‘elderly,’ to use the scriptural image) is still at the irreplaceable core of our Jewish identity.
These days, you hear of the difference between the equality of opportunity, which almost all support, and its contrast with the equality of result or outcome, which has gotten a bad rap in the news.
This distinction may in fact be a false one: first, still because equal opportunity is still an illusory, a fact which none less than Secretary of State Colin Powell noted at last year’s Republican National Convention; and second, and, for now, more importantly, not all of the community of compassion are pursuing equal results; rather, in many place, it is just plain decency that they, and we, are after.
For example, when we give the widow, orphan and elderly equal opportunity in the face of those more economically, socially and physically able, do we then wash our hands and proclaim that “equality of opportunity” is enough? The playing field, of course, is not fair. . . . Thus Isaiah tells us to learn these things well: “Seek justice, school oppression, defend the fatherless, plead for the widow.”
And what does it mean to “pursue” justice. We are not merely enjoined to favor justice, to vote for justice, to applaud justice, to wait for it to “trickle down.” We are urge to pursue it aggressively, to work for it, to strive for it, to diligently seek it.
We note, of course, as well: Judaism does not ask us to turn the other cheek to the aggressor lest we thereby encourage aggression and reward injustice. Injustice is to be resolutely and firmed resisted with every means at our disposal.
We are human. We can make mistakes. In the 1980’s, our president appeared on national television with a group of dark-haired, bearded men and told the public they were freedom fighters “equivalent of our founding fathers.” Osama Bin Laden was one of them. When we fail to stand up for justice with judiciousness, we have failed in our obligation to pursue justice.
And that brings me to my next point. For another interpretation of “justice, justice you shall pursue,” means that justice must be pursued justly. Thus, I squirmed, if a little bit, at first to the establishment of a Department of Home Security. Like others, I immediately recalled the House Un-American Activities Committee.
America’s last national alarm about terrorism at home took place during the Red Scare of the 1920s. After an Italian anarchist blew himself up outside the house of Woodrow Wilson’s attorney general, and other politicians received mail bombs, the government became convinced that Bolshevik agents were conspiring to overthrow the U.S. government. The immigration laws of the 1920s — that kept Jews from immigrating to this country, leaving them, to die in Europe, were established as one of the consequences.
We, most of us from the former Soviet Republics, my friends, were viewed as the problem then. We, who came from Eastern Europeans descent, were those who were not trusted. And so we needed our defenders of justice. Editorialists at the time warned that “the new inquisitors” were committing unlawful searches, seizures and mass arrests without warrants. Let us not now join forces with those whom we oppose.
Thus, “justice, justice” means pursuing justice justly.
Doing otherwise in the name of country is McCarthyism.
Doing otherwise in the name of community is mafianism.
Doing otherwise in the name of G-d is macabre theism, no better than today’s religio-fascism that profanes God.
In the tape at the Holocaust museum is a survivor who tells of watching another inmate in the camp praying. “Why are you praying?” he asks. The man answers, “I am thanking God.”
The first man is stunned. “For what could you be thanking God? What is there to thank G-d for in this hell?”
And the second man calmly responds: “I am thanking G-d that he did not make me like them.”
We must be careful. It is our job to defend this country and keep it worth defending. The aim of this war is to fight them without becoming them.
It is precisely because the terrorists in the recent attacks violated all principles of decency and law, that we must hold fast to ours. As the Supreme Court said in a 1967 decision that invalidated an anti-Communist law, “It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties — the freedom of association — which makes the defense of the Nation worthwhile.”
Legal writer and analyst, Jeffrey Rosen, observes us, “Galvanizing acts of terrorism tend to provoke sweeping increases in domestic surveillance that change the character of civic life without [necessarily] deterring or preventing future terrorist attacks. Thus, as we accede to greater government powers for surveillance and detention, I side with the president when, again in his national address, he urged: “I ask you to uphold the values of America.” That means that we understand what justice has meant, to us as Americans and to us as Jews — virtually the same thing.
To be a Jew is to show mercy, even to the undeserving: to the poor, even if irresponsibility has contributed their own state; to the politically inconsequential, even if historically, they have been an enemy of our people, and, of course to those who more recently have earned that dubious distinction; to the accused, for justice protects him against the power of the state.
In response to the distorted parochialism of his day, Dr. Martin Luther King said: “We have made it clear that we cannot be the victims of the notion that you deal with one evil in society by substituting another evil.” We cannot substitute one tyranny for another.
“Since the days of Moses,” said one, “justice speaks with a Hebrew accent.” Let it be then, in the Prophet Isaiah’s words that “the holy G-d be sanctified by [our pursuit of] justice“ (Is. 5:16). It has been our obsession, our preoccupation, our own thunderous summons: Justice, justice you shall pursue that you may live.” Zochreinu LeHayyim, on this Yom HaDin, this Day of Judgment, let be remember that we live by justice and justness.
“Yizkor Mountain”
(by Rabbi Howard L. Apothaker, with thanks to tip by H. Cohn.)
Someone told me to read it, K2, a play about two men on the second highest mountain in the world. “Read it on faith,” I was told, and when I did, its message jumped out at me as so appropriate for this hour of Yizkor.
The play takes place on a stage looking like a ledge of the second tallest mountain the world, K-2. The date is September 4, 1977. The music plays and the lights begin to come on. The walls of a mountain before your eyes, a mound of snow on the ledge. The mound begins to move and a man’s head and then the rest of a man’s body rises from the mound. Taylor sits looking into the bright, glimmering sun for a long moment and begins to giggle softly. He begins digging into the mound around him feverishly.
“Harold, wake up. Harold ... morning ... Harold ... made it!” (Breaths) “Harold ... alive ... alive ... Harold!”
Then before long Harold responds with a grunt. From that moment on the play is a compelling interaction between those two men, Taylor and Harold. Most of their dialogue is what one might expect from two men whose hobby is mountain climbing. Their language is rough, unrepeatable here. With slight emendations, though, I can share some of the dialogue. There on the ledge of K2, 1,250 feet below the summit on the eastern face of the mountain, Taylor speaks in halting phrases trying to get enough oxygen. He says, “Gonna make it now buddy... We’re alive...History...History. Buddy! Nobody has ever spent a night, no bags, no tent, this high up...except us...You and me Harold...History Harold...History at 27,000 feet. We’re gonna get off this mountain.”
And then as Taylor and Harold sit chewing their beef jerky Taylor asks, “How’s the foot? Harold, can you feel the foot?” They each take some oxygen from their tank, get a little giggly, and Taylor asks, “You gonna be alright?” Harold replies, “Yeah ... hunkey-dorey.”
Taylor begins to unzip the leg of Harold’s mountain climbing suit. He delicately peels back the heavy woolen sock from Harold’s foot and you see that the entire leg is black, all the way up to the hip. “No wonder you fell. You were climbing on one leg for G-d’s sake...can’t do anything for it now. Have to get you off as fast as for it now. They might be able to save it Harold. The quicker we get to base the better chance you got. Just hang in there alright? Harold, please hang in there alright.”
They go about planning how to get down from the mountain ledge to which they have fallen and discover that the ropes and other equipment are up above. Everything they own is at the summit above them. Taylor says, “There’s no rope. There’s no rope in here. I forgot my back-up rope!”
More “language” before he decides that they’ll have to work with what they have. So Taylor plans on how he will go up the ledge to get the rope that they need to get both of them down. Harold warns him that the sun beating on the wall will make the wall too unstable for climbing. “It’ll melt right out from under your hands.”
They discuss their alternatives. Taylor, knowing that in Harold’s everyday life he is a physicist, asks his partner what the odds are of two climbers on a 600 foot, 80 degree ice wall coming off their rope, one kicking the other in the head, both of them falling onto a four foot wide ledge and then surviving the night at 27,000 feet with a temperature of around minus 115 degrees Fahrenheit in nothing but Emergency High Altitude Suits, Korea Boots and a couple of ponchos. Harold replies there are no odds. Their survival has been too improbable.
Taylor makes ready to go up the icy wall to get the rope, using whatever instruments he has found in his pack. He asks Harold to keep him entertained. “Tell me stories you’ve never told before, big entertaining lies about your life, or interesting trivia... yeah, better yet, interesting trivia.” Taylor drives in the stake inches at a time and makes his way up the wall of the mountain, a step at a time. The scene is filled with suspense, as Taylor loses his footing every now and then.
And all the while Harold talks. He tells Taylor how he got interested in physics in the seventh grade when he came across a book explaining Einstein’s Unified Field Theory, and for him it was like finding God, a believable God, a fluid, flexible, mutable, ever changing, always constant God.
And there on the mountain Harold tells Taylor about his discovery. He recounts how all through college he wandered, always seeking to escape from the emptiness that plagued him. He became a hippie, then a bum and finally he confronted the truth that there were no answers to the questions he had been asking. Some things were NOT understandable. There was a time and place for nothing more or less than faith. And so he went back to school and earned his Ph.D and ended up as a researcher at the Livermore Center.
While Harold is telling Taylor the story of his life, his journey, revealing himself and his doubts and his discoveries, Taylor is making his way up the wall, occasionally responding to Harold. Finally Taylor returns to the ledge and before long he begins reflect on his life. He is an assistant D.A. He tells Harold of the frustrations he faces day after day working with the lowest type criminal. He lashes out at Harold for being one of those “bleeding heart liberals,” who has encouraged giving bigger and better free lunches, while not realizing that what those free lunches have produced are “men who have the reflexes of a rattler, the strength of a rhino and the compassion of a pit bull.”
They talk to one another about their families. Soon it becomes clear that they will not both make it down. They try to avoid that truth but it faces them nonetheless.
And all the while your are sitting on the edge of your mental seat, bathed in the cold that emanates from that mountain, to see if Taylor will make it down or will end up as Harold with broken bones. They become afraid. And in their fear they get angry at one another. They get on one another’s nerves. They become downright hostile to ones another.
Finally Harold speaks to Taylor and says, “Taylor... you’ve got to start thinking about getting off this mountain seriously Taylor ... Taylor ... I’m not going to make it. That’s obvious if you stop and think. I’ve got severe frostbite over almost a third of my body. I’ve got pulmonary complications that are accelerating rapidly. I think I got concussion from that chunk of ice. I’m going to die Taylor...alright? Now I don’t mind if you want.... But if you stay Taylor, I want to make my peace, OK? I want to do it right ... understand? I want to let it go with a little grace.... I want to say goodbye to what I love, to the closeness, to the warmth, to feeling, to being able to feel, for being alive. I want to thank life for not being a rock...Don’t you see it, Taylor ... It’s too beautiful. It’s too holy.... I’ve enjoyed it too much I don’t want to forget to say thank you just because I’m scared ... so if you really want to live, Taylor, go, please go.”
Taylor tries to convince Harold that he is not going to die. Harold tells Taylor that he, at least, must make it back so that he can tell Cindy and Eric, Harold’s wife and son, what took place. He recounts for Taylor the things most significant, because he wants to send a message with Taylor to his loved ones. He has a message for his son, Eric. “Tell him, Taylor, that life’s about holding on. Whether you understand it or not, it doesn’t matter, it’s about holding on. Tell him. Will you do that for me Taylor?”
Taylor as first refuses to let Harold stay on the mountain to die but soon he must make a decision. Taylor decides to venture down.
Harold talks to him for what may be the last time. “I want to touch Cindy... and comfort her ... I want to hold her and tell her I love her and I think of her, that I cared till the last second. And I want her to know that I know ... I messed up, took our love for granted... was livin’ on the inside... of our happiness. I want to apologize to her ... for being smug a little.... I want Eric to know his daddy was his daddy... I want him to now ...I...I..I.. grieve that I want to hug him one more time hello and goodbye ... that’s what I want.... And I can have it all back ... if you live with what you’ll have to live with ... I can have it all Taylor... if you just go-back.”
Taylor descends. The lights dim and the play ends.
This past week, I have continued to hear the last conversations among people, on cell phones, as they felt their fates may have been sealed. Think of what you said to your loved one today. Was it:
- Did you take out the garbage?
- It’s late; don’t you think you ought to get your tuchas out of bed?
- It’s too loud; turn it down so I can go to sleep!
What might we say? What would what one called our “irreducible self” say. Before we go down to the valley let us look at our conversations with our others. Say now in your heart what you would say. (Pause)
Let not our best intentions die atop a mountain.
Let us share with what really matters to us.
Let us imagine how precious is each moment while yet atop the mountain. Amen.