Do We Prioritize the Vulnerable in Justice?

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In Jewish law, we are told that it is unjust to be biased and be swayed by poverty, to favor the case of the poor over the rich in a dispute. Within the realm of a formal court’s judgment this is crucial (Exodus 23: 3, 6). However, does this notion still apply today, where the disparity of wealth between the poor and the rich has become so large that the poor often can no longer properly advocate for themselves?

This notion of equality before the law is mostly a fallacy today in America, since the poor have such a serious disadvantage in the courtroom. The New York Times reported that more than 90% of criminal cases are never tried before a jury; most people charged with crimes just plead guilty, forfeiting their constitutional rights. The prosecution usually promises to give a deal to those who plead guilty and go all-out against anyone who tries to go to trial. It is simply cheaper to plead guilty than to try to pay for legal counsel.

Every individual should have the same fair opportunity before the law, because we must be committed to truth and justice. But this is not the reality today. Even if it were true, Judaism teaches that we must go over and above the law (lifnim mishurat hadin) to support those more vulnerable (Bava Metzia 83a). Furthermore, we learn that G-d created and destroyed many worlds that were built upon the foundation of din (judgment), and then G-d finally created this world built upon rachamim (mercy) (Rashi to Genesis 1:1). Our world can’t exist on pure judgment, rather, as fallible beings we rely upon the grace, empathy, and kindness of G-d and man.

We must be moved toward mercy for those who are suffering, and this must affect how we build society. President Obama explained the importance of empathy in jurisprudence when choosing Supreme Court justices: “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives. I view the quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.” Law is not only about principle, it is also about life.

This is all the more true outside of the courtroom. Within the realm of Jewish grassroots activism, we learn that our primary responsibility is not equality, but to prioritize our support for the vulnerable.

Numerous Jewish teachings remind us that our primary responsibility is to protect and prioritize the most vulnerable individuals and parties: “G-d takes the side of the aggrieved and the victim” (Ecclesiastes 3:15). When there is conflict, G-d simply cannot withhold support for the one suffering.

Rav Ahron Soloveichik writes: “A Jew should always identify with the cause of defending
the aggrieved, whosoever the aggrieved may be, just as the concept of tzedek is to be applied uniformly to all humans regardless of race or creed” (Logic of the Heart, Logic of the Mind, 67).

This is what it means to be Jewish, to prioritize the suffering in conflict.

This point is made time and time again by the rabbis. The Talmud, based on the verse “justice, justice, you shall pursue” (Deuteronomy 16:20), teaches that the disadvantaged should be given preference when all else is equal. The Rambam teaches that even if the disadvantaged arrive later than other people, they should be given precedence (Sanhedrin 21:6, Shulhan Arukh CM 15:2).

Thus, in a court of law, all parties are ideally treated equally, as we are guided by the Jewish value of din (judgment); today, however, justice does not prevail. Further, in activism we must favor the vulnerable, since we are guided by the Jewish value of chesed (empathy, loving kindness). In life, we must learn to balance all of our values: love, justice, mercy, etc. In justice, we do not just choose one guiding principle: As Isaiah Berlin teaches, moral life consists of embracing a plurality of values.

We must always be absolutely committed to the truth and be sure that our justice system is fair for all parties. Yet we also, as changemakers, have a special and holy role to give voice to the voiceless and to support the unsupported in society. This is the role of Jewish activism. The rabbis teach that “Even if a righteous person attacks a wicked person, G-d still sides with the victim” (Yalkut Shimoni). All people deserve our love and care but we must follow the path of G-d and make our allegiances clear: with the destitute, oppressed, alienated, and suffering.