Rabbi Elliot Cosgrove
September 10, 2005

If someone had told you two weeks ago that the death of the Chief Justice of the Supreme Court would play second fiddle in the New York Times to another news story, you may not have believed it to be possible. There we were on Monday, September 5th, faced with that very situation. The front page of the New York Times chronicled the carnage and clean up efforts of Hurricane Katrina, and the column covering the death of Chief Justice Rehnquist, who had served the court for 34 years-nearly two decades as Chief Justice, was relegated to the far left of the page, not to be picked up again until page A15. And as this past week unfolded in the papers, the two stories lay uncomfortably next to each other-raw photographs of Katrina’s path of destruction and despair appeared alongside discussion of Justice Rehnquist’s funeral, his legacy and the inevitable political intrigue that would ensue over who would fill the, now multiple, court vacancies. I was particularly struck by Thursday’s paper that lead with an article called “The Corpse on Union Street.” The article, by Dan Barry, chronicled a day in the life of a corpse, a man who was bludgeoned to death and left on the street, and the procession of policeman, soldiers and national guardsman who walked past the body. Barry writes: “That a corpse lies on Union Street may not shock; in the wake of last week’s hurricane, there are surely hundreds, probably thousands. What is remarkable is that on a downtown street in a major American city, a corpse can decompose for days, like carrion, and that is acceptable.” (NYT, 9/8/05) Like Huck Finn and Jim stumbling on an abandoned corpse off the Mississippi river, the article intuits that an abandoned corpse signals the lowest point a society can reach, really a far deeper abandonment, not just of a human body but of a body of justice, a society which has lost its bearings. Whether it is due to war, natural catastrophe or other catastrophe, to live in a society strewn with corpses is to live in a society gasping for justice. And so it was, and continues to be: our national papers, our national conversation, is infused with competing images: judges and corpses, one embodying the highest court of law and ideals of justice, the other the nadir or absence of that very justice.

Now, if I had told you that, in this very week, in our Parasha of Shoftim, we would find these exact two images-judges and corpses- juxtaposed, you would find it, as I did, altogether eerie. And yet there it was, the opening words of our Parasha:

“You shall appoint magistrates and officials for your tribes, in all the settlements that the Lord is giving you, and they shall govern the people with due justice. You shall not judge unfairly, you shall show no partiality…Justice, justice shall you pursue, that you may thrive and occupy the land that the Lord your God is giving you.” (Deut 16:18-20)

It is in these initial verses that the mechanisms for judicial appointments and principles of judicial propriety are laid out. And as the parasha unfolds, the entire system of public leadership opens up. The duties, qualities and checks and balances to the Biblical threefold system of Judge, Prophet and King are systematically outlined. The system of justice leads to the highest point of all the Torah, the book of reference on all judicial matters.

And then, at the close of the parasha, we read of one of the most enigmatic rituals of the entire Torah, the “egla arufah.” This ritual describes the appropriate social response when a corpse is found lying in the open. In Hebrew, a corpse is called a halal, a special word to describe a dead body bearing marks of human violence (Tigay 191). Normally, when a halal is found within city limits, the elders of that city are called upon to investigate, to punish the perpetrator, or if the crime is left unsolved, ritually to purge the community of the bloodguilt in its midst. In the case of our parasha, the halal lies in the open beyond the walls of a city. The Torah legislates that the neighboring towns must first ascertain, by measurement, which town stands in closest proximity to the corpse. The elders of that city must then take an eglah arufah, a heifer that has never pulled a yoke, and, in the presence of a wadi, break the heifer’s neck. The priests then come forward and wash their hands over the heifer and recite an oath and declaration before the assembled community: “Our hands did not shed this blood, nor did our eyes see it done” (Deut. 21:7-8). At the conclusion of this elaborate act, the city is absolved of bloodguilt.

And so we are left with an intriguing question: Why, in a parasha filled with laws regarding public officials, should this mysterious ritual be included? Indeed, over the centuries, commentators have theorized on the literary location and meaning of this ritualistic act. Most conclude, sensibly, that the symbolic act of washing hands over the wadi seeks to absolve the city elders of culpability, that somehow the act and oath are a declaration of innocence. Maimonidies, on the other hand, interprets the act very differently. He notes that in this ritual, unlike other rituals-like the Yom Kippur ritual for example, a hand is not placed on the sacrificed animal and sins are never transferred to an animal being sacrificed. Maimonidies reasons that the point of the ritual can not be transference of guilt; rather, he argues that the aim is not to excuse anyone but, just the opposite, to insist on accountability. He writes in his Guide to the Perplexed: “The elders of the place call upon God as their witness, according to the interpretation of our Sages, that they have always kept the roads in good condition, have protected them, and have directed every one that asked his way; that the person has not been killed because they were careless. As a rule, the investigation, the procession of the elders, the measuring, and the taking of the heifer, make people talk about it, and by making the event public, the murdered may be found out, and he who knows of him, or has heard of him…(Guide III: 40).

I believe that Maimonidies’ understanding of the ritual not only makes a good deal of sense but it also explains why the event is there in the first place, why it is alongside the appointment of judges and magistrates. The trajectory of the parasha begins with the highest standards of justice and ends with the failure of that system; in essence, the halal in the open is an egregious breach of societal governance. By interpreting the eglah arufah ritual as one of public accountability, it seems that the Torah is arguing that that the loss of life should serve to shock the complacency of a community and to insist on “severe self-scrutiny.” Maimonidies argues that this ritual, situated at the lowest ebb of a society’s being, is actually the mechanism intended to redeem that society, to force a process of introspection towards realizing the very system of justice, equity, accountability and mutual responsibility by which civil society is founded.

Let me be clear about what I am saying and what I am not saying. It is nothing but an unfortunate coincidence that the death of Chief Justice Rehnquist and the tragedy of Katrina occurred during the same week. There is no connection between a natural disaster and the passing of one of our country’s great leaders. But what I am saying is that to live in the week gone by is to allow for the possibility that tragedy can clarify a value system. Like the eglah arufah ritual, we should be roused from our slumber. We may use this moment to ask whether our roads are always in good condition, whether we have protected them and our levees, whether our government has done everything in its power to be sure that nobody has been killed through carelessness and neglect. The very moral challenge of having a corpse in our midst insists that we ask whether our government, advisors and all who exercise just and rightful authority are, in fact, administering all affairs of state fairly, protecting and upholding the very ideals that we aspire towards.

I do believe that the present moment is not one for investigations and recriminations but for action, compassion and wildly courageous acts of philanthropy. And yet, for a moment, as we seek to find meaning in a world that is sometimes without meaning, let’s not be afraid to let our highest selves, ideals and values carry the day. The question of who is appointed to the Supreme Court is a critical one because it bears the potential to shape the moral conversation of a country not just this week but in the decades to come. I know very little about Anglo-American law, but in Jewish law, the most critical ingredient is not necessarily what is written in the books but the interpretive act of how a judge chooses to read the law. Our parasha makes this eminently clear with the enduring image of the king sitting on his throne with a copy of the torah at his side for consultation. Neither the king, nor the law code, but the interpretation of the latter by the former is what the law is. As Oliver Wendell Holmes wrote famously in 1872 on the subject of jurisprudence: “It is not the law that determines the outcome in a particular case; it is what judges say is the law..the only question for the lawyer is, how will the judges act?” And if the making of law can indeed be traced back to judicial behavior, well then, it seems rather straightforward to preach to you this morning that, if you care about direction of our country, you should care deeply about the justices appointed to these open posts.

Tragedy, however painful and unwanted, does bear the potential to offer moral clarity. It was President Lincoln who, standing at the very site where so many corpses laid untended at Gettysburg, did not shy away from a bold insistence that the legacy of the fallen could give rise to a government truer to its core ideals. We know the words well: It is rather for us to be here dedicated to the great task remaining before us, that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion; that we here highly resolve that these dead shall not have died in vain; that this nation, under God, shall have a new birth of freedom, and that government of the people, by the people, and for the people, shall not perish from the earth.

Today, let us too make sure that the dead shall not have died in vain. Let us know that the tears we shed bear the potential to clarify our moral vision, to give ourselves over to our highest ideals and to expect that our highest appointed officials do the same. “Justice, Justice, you shall pursue.” The calling is as true today as it ever was.