Devarim begins with Moses’ review of the history of the wilderness years, including an event we first learned about in parshat Yitro. Moses found himself overwhelmed by the work involved in resolving disputes and administering justice, so, taking his father-in-law’s advice, he appointed judges and officers to help him. The Torah says:
“I charged your magistrates at that time as follows: ‘Hear out your fellow men and decide justly between any man and a fellow Israelite or a stranger. You shall not be partial in judgment; hear out small and great alike. Fear no man, for judgment is God’s. And any matter that is too difficult for you, you shall bring to me and I will hear it.’”
Rashi teaches that hearing out small and great alike encompasses three principles: Let a case involving a small coin be as important as a case involving 100 maneh (a large sum); if the former came first, you should not postpone it to hear the latter. You should not say, this man is poor, his opponent wealthy and commanded to support the poor; I will decide in favor of the poor man and thus he will be supported in dignity. And you should not say, how can I tarnish the honor of this wealthy man because of a dinar (a single coin); I will decide in his favor [in open court], and when he goes outside, I will tell him to pay the poor man, for he owes him.
Here and elsewhere the Torah says the court must adopt a standard of equal justice — everyone, regardless of position or circumstances, is to be treated equally. Disputes must be decided solely on the facts.
This is the essence of fairness — or is it? It turns out that fairness isn’t a simple concept. In fact, many public policy issues being debated in America today are really controversies about how to define fairness.
Think about affirmative action. One position is that what’s required is equal opportunity: considering everyone — regardless of race, sex, religion, national origin, etc. — according to the same criteria and choosing the most qualified. The opposing position is that the system is inherently subjective, and therefore those who would have been excluded in the past need special consideration to ensure that everyone is represented equally in the outcome. What’s fair?
Then there are hate-crime laws. Shouldn’t painting a swastika on a synagogue or burning a cross on the lawn of an African-American family be treated as more than simple vandalism? But suppose a thug assaults another man, causing serious injuries. If the thug and his victim are of different races and the thug shouts racial epithets while he beats his victim, should he receive a harsher sentence than a thug who is of the same race as his victim and shouts race-neutral obscenities? What’s fair?
Should workers who are in the United States illegally be given a path to citizenship or should they be deported? Should parents who send their children to private schools receive a tax deduction to offset the property taxes they pay for public schools they don’t use? What’s fair?
Clearly, fairness is not a simple concept. Which is why the Torah instructs the judges to execute justice — equal treatment — rather than fairness. Moreover, justice — equal treatment for each litigant regardless of circumstances — is a goal we can achieve. But fairness? How can a court hope to carry it out if we can’t even define it?
Fortunately, there’s no need for despair, because the Torah provides for much more than litigation in court. We are commanded to give tzedaka to the poor; pursue hesed, acts of kindness; feed the hungry; comfort mourners; visit the sick; and see to it that widows, orphans, and strangers are not oppressed.
Justice — equal treatment for all in a court of law — is necessary for a good and decent society, but so is compassion. In the words of the prophet Isaiah in this week’s haftara, “Learn to do good. Devote yourselves to justice.”