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Judgment day
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Judgment day

Does the punishment fit the crime?

“Legal systems should punish the guilty commensurate with their crimes,” law professor Thane Rosenbaum noted in the New York Times after the massacre in Oslo, Norway.

This intuitive principle of moral justice may seem obvious in the abstract.

But when it comes time to apply it to our own fate — which is “inscribed” on Rosh Hashana and “sealed” on Yom Kippur, according to the High Holy Days liturgy — it can fall prey to all kinds of skepticism.

For one thing, there is the argument that eschews belief in an Ultimate Judge, which was famously articulated by the late astrophysicist and skeptic Carl Sagan. 

There is no “compelling evidence,” Sagan argued, that could justify belief in a “God” who “sits on a throne” in solemn judgment of His people.

This statement would certainly be news to the celebrated American thinker, William James, whose pragmatist philosophy recognized that justification for any belief — whether it is a belief in God, democracy, love, justice, or anything else — depends upon its likely consequences over time.

So long as it impels believers to lead a more moral and meaningful life, James would argue, there is abundant justification for belief in the traditional imagery of the High Holy Day liturgy, including the evocative “opening” and “closing” of the gates of God’s Court during Yom Kippur’s Ne’illa service, at which time our penitence is most especially called for.

In this way, James’ pragmatism — which is as authentically American as it is timely — belies the skeptics, while encouraging people of faith to justify their own religious convictions by engaging in true self-reflection on the High Holy Days and g’milut hasadim (deeds of loving kindness) the year round.

Still, a dyed-in-the-wool skeptic might retort that moral justice is a mere “myth,” as God’s power to deduce Right from Wrong is entirely unavailing to human beings, who cannot even agree on what moral justice is, much less how to apply it in real life.

But this argument fails as well. As Deborah Lipstadt shows in her recent book, The Eichmann Trial, people are quite capable of following their intuitive sense of right and wrong when they put their minds to it. Thus, the various legalistic defenses put forth by Adolph Eichmann — the Nazi stooge who was part bureaucrat, part mass-murderer — did not confuse anyone:  Eichmann was ultimately convicted, and executed.

It was the only time Israel ever resorted to capital punishment, and the world generally supported the decision.

Even Hannah Arendt — who coined the easily misunderstood phrase “the banality of evil” in reference to Eichmann’s atrocities — agreed Eichmann had to be put to death, if only because no one could reasonably “be expected to share the world” with him after what he had done.

Alas, the skeptic might discharge one final salvo, pointing out the vast majority of legal cases are not as one-sided as the Eichmann trial.

Yet this cynicism too is misplaced. The fact that most real-world disputes involve difficult facts and conflicting moral principles does not in any way disprove the existence of moral justice.  Rather, it merely proves that true moral justice — like the modern view of God — is necessarily complex. 

Perhaps paradoxically, Hollywood movies have exhibited some of the more poignant demonstrations of this truer, more complex notion of moral justice.

Consider A Few Good Men, and Jack Nicholson’s uncanny portrayal of the fictional Colonel Jessup, who is goaded on cross-examination by a Navy lawyer into admitting that he ordered the violent form of discipline known as a “Code Red,” which killed a younger Marine.

Jessup’s testimony makes it clear to all that the two low-ranking Marines on trial for murder did not intend to kill the Marine, and they are understandably acquitted on the murder charge.  Nevertheless, the jury also finds the defendants guilty of “Conduct Unbecoming a Marine,” meaning that they will be dishonorably discharged from the military.

The moral of the verdict is clear: Sometimes doing the right thing is not easy, and doing the easy thing is not right.

For Jews, the High Holy Days — particularly the Day of Atonement — presents us with the opportunity to contemplate this same lesson.

But whether we choose to take advantage of that opportunity is entirely up to us.

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