Evolving Justice

I was recently called to jury service in Los Angeles. As imperfect as this complicated, human system of law may be, the jury selection made me proud to be an American, especially as the judge instructed the potential jurors about the meaning of “presumed innocent.”

At the beginning of jury selection, when the judge in the courtroom asked the thirty-four potential jurors how many of us thought the defendant was probably guilty, a majority raised their hands. He told us this is a common answer and understandable, but explained that in the United States every judge, every jury, must learn to presume innocence. Of course, we can easily find reminders of the difficulty of presuming innocence—from Guantanamo Bay to political scandals to the halls of justice everywhere—especially when fear and anxiety play a role.

I can’t help but think of our right to a fair trial, "a jury of our peers," and a presumption of innocence as we open our Torah scrolls this week to Parsahat Pinchas. The parashah is named for the grandson of Aaron who, in a short narrative at the very end of Parashat Balak, took the law into his own hands by running a spear through the Israelite Zimri and his Midianite paramour, Cozbi, for their public display of affection (Numbers 25:5-9).

“What a good idea,” God seems to say. Inspired by the zealous Pinchas, God says, “Assail the Midianites and defeat them” (25:17). God rewards Pinchas, saying, "I grant him My pact of friendship [literally, "covenant of peace," b’riti shalom]. It shall be for him and his descendants after him a pact of priesthood for all time" (25:12-13).

I’m hardly the only Jew disturbed by the actions of Pinchas or by God’s approval of him. Rabbis of the Talmud have a long discussion (Babylonian Talmud, Sanhedrin 82a), concluding that had Pinchas brought his case to a rabbinical court, the court would have told him: 'The law may permit it, but we do not follow the law!' "¹ Numerous commentaries also ameliorate the reward of priesthood that God bestows on Pinchas and his descendants, suggesting that perhaps God does so in hopes that demands of the priesthood will make Pinchas less violent, and (or) allow him to atone for the lives he took.²

My favorite bristling at the violence of the story comes in the form of a visual midrash in the Torah scroll itself. Torah scribes scrupulously follow thousands of rules when writing a Torah scroll, among them that no letter may be broken . . . with one exception: the letter vav in the word shalom when God grants Pinchas, "My pact of friendship/b’riti shalom." Why is this vav alone to be written with a break in it? No one knows for sure, but many align with the suggestion that the letter vav, with its slight curve at the top, and straight up and down line, resembles a spear, perhaps the spear of Pinchas. The broken spear-shaped vav here in the word shalom invites us to see the imperfection/corruption of peace brought by the sword (suggesting that “the pen is mightier than the spear”³?). Add to that another nearby visual midrash: in Numbers 25:11 the letter yod in Pinchas’s name is written smaller than the other letters. "When we commit violence, even if justifiable, the yod in us (standing for the name of God and for Y’hudi, "Jew") is diminished thereby."⁴

Lest we think that God and the Israelites, here at the end of their forty years in the wilderness, are tumbling irreversibly toward violence as a way to cope, along comes the first appearance of the daughters of Zelophehad—Mahlah, Noah, Hoglah, Milcah, and Tirzah (Numbers 27:1-11). These five sisters boldly stepped up before Moses and everyone at the entrance to the Tent of Meeting and asked for an inheritance, since their father died leaving no son. Moses brought their claim before God. Still no jury, but this time God sounds more like a “justice of the peace,” saying, “the plea of Zelophehad’s daughters is just: you should give them a hereditary holding among their father’s kinsmen; transfer their father’s share to them” (27:7). As we shall see next week, some of this decision is modified later (in Parashat Ma-sei), but through reasoned argument, careful listening, and balanced judgment, rather than through violence (see 36:1-12).

Here in Parashat Pinchas, the very next scene after God delivered this new inheritance law (27:11), brings another pivotal moment in which God and Moses seem to be intentionally moving the people toward more human, law-based leadership, and away from divine rule and intervention. God delivers a death sentence to Moses: “you too shall be gathered to your kin, just as your brother Aaron was” (27:13). Moses responds to the information with surprising calm: “Let the Eternal One, Source of the breath of all flesh, appoint someone over the community” (27:16).

The moment contains even more drama than we might at first realize. Contemporary commentator Jacob Milgrom points out that Moses, sensing a growing distance between himself and the Eternal One, here speaks to God in the third person, and in fact, never again speaks directly to God.⁵

As the end of the fortieth year and the end of Moses’s life draw near, God chooses Joshua as successor to Moses. “Invest him [Joshua] with some of your authority,” says God to Moses (27:20). By making it clear that Joshua will not have the direct access to the Divine that Moses did (27:21), God poises the Israelites at the borders of both the Promised Land and a more human rule of law (if not yet juries of our peers).

Will the plan work? That remains to be seen.

1. Etz Hayim Torah and Commentary (New York: The Rabbinic Assembly, 2001), produced by The Jewish Publication Society (JPS),  p. 918
2. Ibid., p. 918, quotes Rabbi Abraham Shmuel Binyamin Sofer (K’tav Sofer, 1815-1879) and Naphtali Zvi Yehudah Berlin, author of Ha-amek Davar (1817-1893) in considering these two interpretations of God’s “rewarding” of Pinchas
3. Based on “The pen is mightier than the sword,” Richelieu, (1839), act 3, scene 2, Edward Bulwer-Lytton
4. Etz Hayim Torah and Commentary (New York: The Rabbinic Assembly, 2001), produced by The Jewish Publication Society (JPS),  p. 918
5. The JPS Torah Commentary, Numbers, commentary by Jacob Milgrom (Philadelphia: JPS, 1990), p. 234, no.16

Rabbi Lisa Edwards, Ph.D. is the leader of Beth Chayim Chadashim Los Angeles. Founded in 1972 as the world’s first lesbian and gay synagogue, today BCC is an inclusive community of progressive lesbian, gay, bisexual, transgender, and heterosexual Jews, and their families and friends. Rabbi Edwards’ writing appears in books including Kulanu: All of Us (a URJ handbook for congregational inclusion of gay and lesbian Jews) and The Torah: A Women's Commentary, published by URJ Press and Women of Reform Judaism.