Balancing justice and charity.
This post presents a philosophical idea inspired by the text of today’s Daf. The Daf is one page in the Talmud that tens of thousands of people study each day. I explain the connection to the text in a comment below. My purpose is to show that there are underlying philosophical assumptions in the Talmud that can have great significance for anybody today trying to understand our complex reality.
We often see the role of the legislative process as creating laws, and the judicial branch as tasked with applying them. While this view is perfectly valid, there are other ways to look at this distinction.
Another perspective is that the mission of the legislative branch is to create the rules of the game that will help coordinate our efforts to cooperate on the goals that we share. The task of the judicial branch is to resolve otherwise violent conflicts, either between two members of society, or between the executive branch and a participant.
Violent conflict gives the upper hand to the stronger party. Justice, on the other hand, is supposed to evaluate the evidence impartially and guarantee that the fact that one party has more power, in any form, plays no part in deciding the final outcome. Neither side must have any advantage, whether rich or poor, educated or ignorant, powerful or weak, a member of the majority ethnicity or a minority. None of these should affect the judicial reasoning in any way.
The legislative process, on the other hand, is not required to be so even-handed. If most of the members of society have, as one of their personal goals, the desire to help the poor, weak or unfortunate, then the legislative process should create rules that will enable society to coordinate special help for those in need.
One question that the legislative process must face is whether the judicial system can ever, in practice, achieve the ideal of perfect fairness between the parties. The rich might hire better lawyers, the educated might be able to make a better case, and human judges are never free of all prejudices.
When faced with this reality, there are two alternatives: One of these is for the judicial system to ignore its own failings, to do its best to achieve the ideal of fairness, and never to give any side an advantage, even if the weak and poor might lose out in the process.
The other alternative is for the legislative process to accept that human judicial processes are necessarily flawed. The law must intervene and force the legislative process to be “unfair” in such cases where being unfair is more likely to create justice. This might mean that, for example, a wealthy protagonist might face the frustration of seeing advantages being given to the other party that would not be given to them.
Both alternatives are bad, but perhaps a dynamic tension between these two perspectives will yield a better outcome than dogmatically supporting one side or the other.