Divine Justice

In Shemoth (Exodus) 23:7 we read:

 

"...[A]n innocent man (naki) and a righteous man (tzadik) do not kill, for I will not allow a wicked man (rasha) to be righteous (tzadik)."

 

In general, when the Torah uses the words tzadik and rasha in terms of courts of law, these words don't take on their typical meanings of "righteous" and "wicked" as in the sagacious tzadik with his long beard and the greasy rasha with his clawed fingers, sharp teeth and furrowed uni-brow.  Rather, in this context these terms refer to the status of the litigants of a court case.  One that is considered innocent or justified by the court is referred to as the "tzadik," while the one indicted by the court is called the "rasha."  Accordingly, the verse would read as follows:

 

"Do not kill an innocent man nor one acquitted [by the court], for I will not allow a guilty man to be exonerated."

 

A few questions arise:

 

1. Why does the Torah need to prohibit the killing of an innocent man?

 

2. What is the difference between an innocent man and one acquitted by the court?

 

3. What does the second part of the verse have to do with the first?

 

Thankfully, Rashi already came along to solve these difficulties for us.  In his comments to this verse he explains:

"Do not kill an innocent man nor one acquitted by the court" - How do we know that if one exits the court convicted and someone says, "I have evidence he is innocent," that we return [the convicted man] to court [for a retrial]?  Because the Torah states, "Do not kill an innocent man." (I.e. Since it is obvious that the Torah is not prohibiting killing an innocent man, the verse means that we will not uphold a guilty ruling so long as evidence can be produced to the contrary, even after the trial has adjourned.)

Rashi continues:

And how do we know that if one exits the court acquitted and someone says, "I have evidence he is guilty," that we do not return [the acquitted man] to court [for a retrial]?  Because the Torah states, "Do not kill one acquitted [by the court]." (I.e. Since it is obvious that we would not kill one acquitted by the court, the Torah is teaching us that once acquitted, one's ruling can no longer be overturned.]

This may be all fine and good for the litigant, but what about injustice?  Just as we are willing to entertain in the first case that the one pronounced guilty was perhaps innocent, and therefore we accept evidence to the contrary, why are we not so concerned in the second case?  What if this man is truly a criminal?  Therefore, Rashi explains the end of the verse:

"for I will not allow a guilty man to be exonerated" - "You should not return [the acquitted man to court for a retrial], for I will not exonerate him according to My laws.  If he has left your auspices an innocent man [although he is in fact guilty], I have many agents to put him to death in the form fitting his guilt."  [I.e. Even if the court misses his guilt and pronounces him innocent, if he is truly guilty, we can rely on Divine Providence to arrange his proper punishment.]

In fact, Rashi provides for us a graphic example of this type of Divine justice earlier in this same parshah.  In 21:12-13 we read:

"One who strikes his fellow, so that [the stricken man] dies, [the one who struck him] shall be put to death.  But if he did not intend [to kill], yet G-d brought it about through him, I shall set for you a place whence he shall flee."

Rashi comments:

"yet G-d brought it about through him" - To what does this verse refer?  To two men, one who killed unintentionally and one who killed intentionally, with no witnesses to the matter.  [Therefore, the intentional killer] was not killed, and [the unintentional killer] was not exiled.  The Holy One Blessed is He then brought them together to one inn.  The intentional killer sat beneath a ladder, and the unintentional killer ascended the ladder and fell upon the intentional killer, killing him.  Witnesses then testified against him, causing him to be sentenced to exile.  In the end, the one who killed unintentially was exiled and the one who killed intentially was killed [each in accordance with his just deserts].

Similarly, in Devarim (Dueteronomy) 19:16-19 we read:

"If there arise a false witness against a man to testify against him falsehood, the two men, those who have the quarrel, shall stand before HaShem, before the Kohanim and the judges that will be in those days. The judges shall examine the matter thoroughly, and behold, the witness is a false witness!  He has testified falsely against his brother!  Then you shall do to him as he intended to do to his brother, and you shall eliminate the evil from your midst."

Rashi there comments:

"[you shall do to him] as he intended" - but not as he did.  From here [our Sages] said: If the witnesses [succeed in having the accused] killed, they are not killed. (Makoth 5B)

This seems very odd!  Certainly if they can be killed for their intent, they should be killed for there actions!  And besides, how can we let these men go free once we know they killed someone through false testimony?  Here, the Ramban offers a deep explanation:

This is because even the verdict of the false witnesses themselves is through the decree of the Lord, for they are two against two.  [I.e. The Torah accepts the testimony of two witnesses, and here two witnesses have testified that the accused is guilty.  These witnesses are in turn only found false by the testimony of a second pair of witnesses that comes and places the original witnesses elsewhere at the time of the crime, thus invalidating them.  The difficulty with this scenario is that ultimately we have two sets of seemingly acceptable witnesses testifying contradictory testimony!  What makes either one more believable than the other?  We should believe neither set!  Nevertheless, the Torah here has decreed that the second set is believed over the first for reasons beyond our grasp.  This is the decree of the Lord.]  Indeed, when two witnesses come and testify about Reuven that he committed murder, and two others come and falsify [the original witnesses] with their testimony, Scripture commands that [the original witnesses] be killed, for through the merit of Reuven  who was "innocent and righteous" did this event come about.  If he was wicked, deserving of death, HaShem would not save him from the court, as it says, "for I will not allow a guilty man to be exonerated" (Shemoth 23:7).  But if Reuven is killed, we should think that all that the original witnesses testified about him was true, that he died because of his iniquity, and that if he was innocent HaShem would not have abandoned him into their hands, as the verse states: "He shall not abandon him into his hand, nor shall he cause him to be convicted when he is judged" (Tehilim/Psalms 37:33).  Furthermore, HaShem would not allow the righteous judges that stand before Him to spill innocent blood, for judgment belongs to G-d and "in the midst of judges shall He judge" (Tehilim 82:1).  Indeed, all this raises the greatness of the judges of Israel, with the promise that the Holy One Blessed is He concurs with them and is with them in judgment.  This is the meaning of [verse 17], "The two men, those who have the quarrel, shall stand before HaShem," for those that come before the Kohanim and the judges stand before HaShem, and He will guide them along the true path.

Indeed, the Ramban in his comments here in Parshas Mishpatim (21:6) explains that this is the reason that the word for judges, "elohim," is one of the names of G-d.

 

What I meant to bring out from these sources is that while no system of justice is perfect, since it is facilitated by men, the Torah system has the advantage of being ultimately guided by HaShem Himself, and indeed we must view the all the events that transpire on earth as being guided by the One above, and have faith that we will ultimately see justice prevail, either here on earth, or ultimately in the World to Come.  We must know that there are consequences to all our actions both good and bad, and that is part of a world-view that includes and all-good Creator and Sustainer.  May we merit to perfect our actions, ourselves, and our world, and to see the restoration of HaShem as the One True Judge and King on earth, speedily in our days.