JUSTICE

Good evening.

At the outset, thank you so much for inviting me to share my thoughts with you tonight, with such a distinguished panel. Thank you, Tobbi for initiating the invitation.

I was inspired by the title next to my name in your announcements and my mother even believed you.

No word in the history of humanity – not even the word "God" – has incited so much hatred, conflicts, disputes, destruction and bloodshed, as did the word "Justice".

You will note that the bible never offers the reasoning or logic of a commandment or a law. No explanation why not to murder, why stealing is forbidden? but there was one - and only one - exception. The law defending justice. כי השוחד יעוור עיני חכמים ויסלף דברי צדיקים. As bribery will blind the eyes of the of the wise and distorts the words of the righteous. Bribery's aim is one. To counter justice. The collapse of justice is the threat to the stability of society.

What is justice?

Well, I assume I was not invited to talk about how justice is defined in a dictionary, but I will tell you that such definition does not give any clue as to how justice works, who is right, and who is wrong.

To be just – you will find in one dictionary – is to be fair. Fair? To whom? To society? To the victim? To your partner in crime when you share the loot?

The Greek philosopher Aristotle saw justice as representing the personality of "the good man", the one who walks in the Golden average path [a middle way] in many ways by Maimonides as well. Thus, Aristotle will not be able to define righteousness on very precise and clear terms, as each case, every event, will necessitate thinking, and different implementations of justice.

The English philosopher Thomas Hobbes had a different definition. He believed that by nature a human being is evil, and a man surrenders some of his liberties and thus signs a covenant with society. This covenant is "justice". A human gives up some of his or her desires in consideration for society's protection.

It is interesting to note that while earlier in the history of philosophy, the question was who? Who was a righteous man? Later the question converted to what? What is a righteous deed?

Justice changed, it is dynamic and it alters to meet new thinking, new developments, new technological inventions, which by themselves result in a change of society. Sometimes it is a peaceful change, like the change of the political strength of The Monarch in England, from the time of Queen Victoria, to the present Queen Elizabeth II, in a sense, Mahatma Gandhi's none violent fight for the independent of India, the collapse of communism and the Berlin Wall. And even the non violent fight in the name of justice to the death.

A classical example that comes to mind is the apologetica of Socrates. This famous apology consists of everything but a request for forgiveness. It did contain expressions of what this philosopher believed was just and right [with some references to his ego]. This apologetica resulted in his execution. He did not fight for his justice, but was ready to be executed for its sake without a fight.

However many a times the change of justice was soaked with blood, like the Bolshevik Revolution headed by Lenin and the murdering of Czar Nicholas, and his family; the coming to power of the National socialists in Germany, and most of the dictators known to us today.

Even in the past when privileges were distributed only to the few, many in society actually believed this was the ultimate justice. We mentioned Czar Nicholas the II. Well, his German wife Alexandra - influenced by the Siberian monk Rasputin, was convinced that all political powers should remain in the hands of her husband, as this is God's justice. She detested the Duma - The Russian "parliament" - where the people had a say. Only the Czar may decide, as this is God's will, thus this is justice.

How many people in the past defined justice in a manner unacceptable to twentieth or twenty first's century thinking that "Might was Right". No, I am not referring only to philosophical ideas, like that of Machiavelli whose book The Prince makes one feel disgusted and relieved. Disgusted, as to the liberty he took in offering so many immoral recommendations, and relieved as he did so, and so we do not have to. Or Karl Marx in any of his writings, but also the implementation of the same philosophy. Nabuco, Alexander The Great, following his father Philip, Julius Caesar, Elizabeth The I and Marry Queen of Scots, Napoleon Bonaparte, Prince Metternich and the "Iron Chancellor" Von Bismarck, Kaiser William the second, Benito Mussolini or Adolph Hitler, or each one of the 13 heads of state in Syria from the date of independence up to Basher El Assad's father, Hafez, who slaughtered one another, or Saddam Hussein for that matter and so many more.

Some caused destruction and so much suffering actually believing this was just. As the utter devastation caused to Russians by the revolution initiated by Lenin. Some tried to minimize the cost to society of implementing their justice. The young Turks' revolution against the Sultan, The young officers in Egypt ousting King Farouq.

Justice, in other words is not definite. It is self contradictory And as we will see later, it changes, it moves along, advances one way or another, for better, and yes, for worse.

Most if not all of us here tonight are religious people. We all believe in God, we all aspire to the perfection of justice available to us by the word of God.

But you will find something amazing. Even in Religious jurisprudence you will note that justice is not perfect. The implementation of justice according to Jewish law is subject to assumption. Yes, assumptions which are not necessarily correct as a matter of fact, but based on which, we implement the law in Jewish and all western jurisprudences.

Allow me to introduce you to a number of examples.

המוציא מחברו עליו הראיה. he who claims from his colleague has to substantiate his claim by evidence. In other words, if I hold this table, it is assumed mine even if it is actually not, and only because I say it is, and if you claim to the contrary, you have to prove your claim.

Well now, nobody knows that the table is mine. We only assume it is, as I hold it. And we, all members of society – adopting Thomas Hobbes' understanding of justice – surrender many rights, including the right to assume that this table is not mine, by adopting this dictum, all for the benefit of society.

This formula – this assumption - was adopted in Roman law and inherited by all modern jurisprudences.

Another example. A man is assumed innocent until proven guilty. Yes, even in Jewish law, this is the case. Moreover, in capital cases in Jewish law, as reflected in tracted Sanhedrin if someone was found not guilty and left the courtroom, no additional evidence can be introduced to substantiate guilt. But if unfortunately found guilty, and on his way to the gallows, the court will return back to hear evidence in support of the accused.

This assumption result in non perfect justice.

Moreover, when evidence is brought, how convincing is it? Well, one judge will be convinced, the other will not, or the jury will not reach a solution, and the guilty will walk a free man. Indeed, by halacha justice should not be definite. If all members of the Sanhedrin found an accused guilty, he will not be executed. At least one member of the Sanhedrin must disagree.

The USA legal justice was severly challenged in the case of the sportsman OJ Simpson who was found by the jury not guilty of murdering his wife, notwithstanding many evidence to the contrary [or may be in this case justice fell victim to protest?]

And yes, judges make mistakes because there is no perfect criteria for justice, because justice necessitates evaluation of witnesses, a very subjective issue. Yes, this could result in innocent people being punished and the guilty going free.

Many years ago, a soldier by the name of Rachel Heller was raped and murdered. Yossi Beranes was found guilty of the crimes and sentenced to life in jail. His appeal to the supreme court was dismissed by a forum headed by Judge Haim Cohen. Years later it was the same Haim Cohen who headed the fight for the retrial of Beranes, as he became convinced that the wrong man seats in the wrong place for the wrong crime. Beranse was released, but the damage to him and to justice was done.

Let me share with you an interesting dispute between the civil law and Jewish law in amajor aspect of justice, regarding somebody, who is known in jurisprudence as "the reasonable man".

The reasonable man is the criteria, how you should behave in a certain situations. You should behave like "the reasonable man". If you deviate from this behavior - unintentionally - you will be found negligent.

But what is or who is this "reasonable man"?

Many years ego, new refrigerators were purchased in Israel, and people were in a habit of throwing the old refrigerates into empty fields.

Two young children played with such a discarded refrigerator, entered it and shut the door. They could not open it from inside and suffocated to death.

The owner of the refrigerator was brought to court for manslaughter. The prosecution claimed that he was negligent in throwing the refrigerator in an open field. He did not act like "the reasonable man". He should have anticipated the outcome.

In his defense, the accused brought a line of witnesses who confirmed in their testimony to have acted exactly like him in throwing their old refrigerators to the fields. "We all did it" - they testified. thus this is how the reasonable man acts. This was the norm.

The same judge Cohen refused the argument, claiming that the reasonable man is not the majority of people, but an artificial person created by the court mirroring how people should behave.

Jewish law would differ. Jewish law would seek to find out how people would actually behave. That is why you do not impose a ruling on the public if the public cannot abide by it.

Let me point to another Assumption in Jewish law which also apply in every real democracy.

אחרי רבים להטות – Follow the majority. But is the majority always right? Of course not. Do they always make the right decision? We all know they do not, we do not have to be Bernard Shaw or Lady Astor to appreciate that there are major problems in democracy. If a member of Congress shifts his support to the other party in midterm, after benefiting from the voters of one party, we assume that this shift is supported by the voters, and thus this senator still "represents".

In the Knesset, the issue of who is a Jew will be resolved by a majority of its members. Did I say, majority of the members? Does it make sense to have 12 Arab representatives in the Knesset, determine who is a Jew?

In England at least once, Margaret Thatcher returned to office as Prime Minister supported by a majority of conservatives in The House of Commons, but only by the minority of the British voters as whole, who supported the Labor.

Bush Vs. Gore in the year 2000 Florida election. Was it just that Bush was nominated? Did his election mirror the vote of the majority? Or was it a coincidence that those judges nominated by Republican presidents ruled in favor of Bush, those nominated by democrat presidents supported Al Gore? Alas, the former were the majority. Or was it justice at its best, a dispute in substance, not political solidarity?

Now, there are a number of levels to justice.

First, There is the personal justice, between man and himself, or between man and his conscience, between man and his God. "Reward and punishment" in all religions is based on the Godly justice. And the biggest challenge to it is reflected, inter alia in the dictum צדיק ורע לו, רשע וטוב לו A righteous man who suffers, and an evil man who has it good.

Second, There is a social justice. This group is divided into 2 sub categories.

Between man and man, regular civil disputes, torts, breach of contracts, unjust enrichment,

The other sub category is justice between man and society. The criminal codes are to address this issue. This is one criteria of justice where humanity failed. The fact that there is a policeman is an insult to society. The fact that we need policemen is the statement by society that justice has to be enforced, that not all wish justice to prevail. And justice does fail. Let me tell you a story.

Years back the Knesset Anti Drug committee debated the permission of a use of a certain drug in Israel. Why? The epidemic is to large and unenforceable.

Someone whose name I will not mention asked the following question.

He said, if the committee thinks that this drug is healthy, contributes to the human body, then allow it, and this will demonstrate our advancement.

But if we are to allow it because we cannot fight it, at least let us face the mirror and say we failed, that justice was not done. It was not done, because justice's aim is to keep us safe, even against ourselves, and if we fail, we did not do justice.

During prohibition in the USA, people actually believed that alcohol was wrong. But justice gave in to desire. The present administration in Russia is trying to fight the drinking problem in that country, no justice there.

Every law assumingly represents justice, it is part of that same famous Hobbsian convention to keep society safe and have society guard the safety of the individual.

In this regard it is interesting to absorb an element of justice of the underworld. The origin of these laws are based on the time of prohibition in the USA, when the Italian mafia started to grow and gain strength. There were laws. What one could do, and what he could not. This was justice. And if you failed to obey the criteria, many a times, you did not see the light of day the next morning. You could redeem yourself, only if you killed someone from an opposing group. And yes, that was justice.

And there is Justice Vs. Justice in the same country, or the same society, where civil rights are to be surrendered for security. If an Israeli is called upon to serve in the army and be away from home, obeying orders, or if people's liberty in The USA is compromised for the sake of security. The justice of liberty bows to the justice of security.

Well now. Do we know the definite justice? Look around you. The world developed. 200 years ago women could not vote in America. But men thought they should not, that this was just and fair. Then justice changed, after many fights, originated by inter alia by Sussan Brownell Anthony and Elizabeth Caby Stanton.

Many in the South of the USA thought slavery was just. Lincoln thought otherwise, and Justice changed following the civil war.

Segregation was considered just and fair. "I have a dream" cried Matin Luther King, and changed the concept of justice in this regards.

Justice developed with the world. Labor Laws, equality before the law, one man one vote, social security, these are all comparatively new developments to justice. Yet until today there are immunities. With all due respect to president Chirac, he would have been seating elsewhere if he was not immune to criminal proceedings. The Queen of England would have had to answer for changing her version regarding the accusation against Princess Diana's butler, who stole or did not steal gifts from her estate.

Thirdly, there is justice amongst nations, what is known as Public International Law, mostly unenforceable.

The principles of neoconservatives in America were changed, as reflected in F Fukuyama's America At A Crossroad.

Now, FF claims, that "Ambitious social engineering should be approached with care and humility". Why? After all, the neoconservatives were just trying to rearrange Iraq, to convert it to full fledged democracy. A just cause, we believe. Yet this great thinker says that should be done with humility. Calling for the alteration of justice to meet the special requirement of the people of Iraq.

Let me explain.

Woodrow Wilson was a righteous man and an intellectual. He believed justice between nations should be restricted to what is going on between the nations. One nation should not interfere with internal affair of another. Was this justice? Well, not so. Why?

The USA learned the hard way that internal affairs of a state have direct and immediate effects on the international arena. An internal crisis in a petroleum exporting country will effect the economy of other nations. [Look at Venezuela, not to mention the revolution in Iran, the invasion of Kuwait, and could you imagine what would happen to world economy if The Wahhabis were to betray their allies, the Royal House of Saud?].

President George Bush actually believes he is fighting a moral fight and therefore justified battle. Well, why don't you read Bob Woodward's latest and see that some American think otherwise.

And sometimes, justice gives way to justice in other matters as well. International law is to force justice between nations. A nation must respect the sovereignty of another nation. This "justice" was justly compromised not only in order to guarantee safety of nations - The second war in Lebanon, the toppling of the Taliban in Afghanistan or the toppling of Saddam Hussein. A unique case was the challenge of "democracy" in Panama. Moriel Norjega, the president of Panama was also the largest drug dealer in the world – competing only with Haffez el Assed and his crony Genral Cna'an in the Ba'aka valley in Lebanon. The USA decided to put a stop to his "side business" and bring him to justice. In 1989 invaded Panama City, and actually kidnapped the president from his palace and moved him to a new less comfortable residence in Miami where he still resides under guard. Criminal justice was done and International justice had in a way to give way

There are three kinds of conflicts inviting justice. There is a conflict between two parties where one knows that he is wrong and one knows is right.

There is another conflict, where both sides think they are right

and there is a third conflict with a party who thinks that he and only he is right, and if you do not follow his justice, you are a heretic and should be punished.

Do you think Hitler would have been able to conquer Germany if he did not believe he was right? If the German man in the street did not believe in his justice? One dangerous element comes to mind when you read Mine Kampf: conviction in his justice.

Do not misunderstand me, many people knew Hitler had nothing to do with Justice. First and foremost "Hitler's Pope" who while the Cardinal of Germany before becoming a Pope actually liquidated the power of the Catholic political parties in Germany as a show of solidarity with the Fuhrer.

But the man in the street believed it just, to consider the Jew an enemy of humanity. To address the Slavs as untermention - subhuman.

And, no, The victory of the Allies in 1945 did not end the various conflicting definitions of justice.

The Russians believed in the justice of Stalin, and Chaussesku of Romania knew he was right. Idi Amin in Uganda had Godly aspiration of justice, and the North Korean believed in the justice of old Kim, calling him the beloved leader, and actually crying in his funeral, although they knew people were disappearing, children were dying from starvation.

And lately, the fundamentalism, whose justice is the dangerous of them all, where there is no room for negotiation, no tolerance for the other and is worthy of sacrificing one's body and sole with the killing of the heretics. Even if the disputant is not Jewish or a Christian but an Islamite who does not attend to the understanding of the Wahabby's or maybe the Shiite, he is looked upon as a Heretic and therefore should Justly die.

The Moral police in Saudi Arabia actually believe they enforce justice. The Shahid from Gaza, actually believes that blowing up himself in a bus full of children meets the criteria of justice delivered by God, and 9/11 to those associated with the crimes, and to the many who supported it [even dancing in schools around NY] was God's justice delivered.

Disagreements about justice are inevitable even in western society. In the House of Lords in London, in the Supreme Court of the USA or the one in Israel, you will many a time find disagreements about a case. The judges disagree about justice. Sometimes, the disputes are severe.

Last, please remember this. Apart from God, there is another "something" that many a time resolves such disputes as to where justice lies. The problem is that its decision is made late, it might change something in the future, but cannot amend the dispute itself. It is called "The Minister of History".

Many will disagree with me. Indeed, some will agree with the Prussian conservative von Ranke' who said 200 years ago "the idea that one could write history as it actually happened is a fallacy". Mark Twain agreed by going even further, saying that "The recording angels doubtless had convictions which the Satan would seem prejudices". Respectfully, with today exposures and technology, I will take issue with this approach, but it is beyond our scope, and Rabbi Quint is a very powerful chairman, he would want me to stick to the subject.

When you look at any event from a historical prospective justice makes sense. This is so, because you apply the criteria's of today to the event of the past.

Thus although Henry VIII and his cronies believed him right, we all assume today that he thought of nothing but himself when initiating the church of England.

And although the German people supported their Kaiser when he decided to go to war in WWI [by the way, one less known reason was that he was insulted as he was not greeted by a military parade in France] today, most German will agree he was a lunatic with inferiority complexes, and that the first world war was unnecessary and unjust.

[Yet until today, no Turk is allowed to dispute the official Turkish version of the Armenian Holocaust during the First World War]

Jewish history witness the alteration of justice, which was not eternal. Take for example the origin of the disputes between Hassidim and Mithnagdim. At the beginning, Mithnagdim would not marry into Hassidic families. This was justice. Things have changed.

Many people who originated in the Labor movement will until today believe that the Sazzon [delivering members of Etzel to the British authorities, knowing that the captured could die] was just. But many admit it was a grave error. Who is right in the Altelena crisis? Was the acceptance of the compensation from Germany to which Menachem Begin objected, stating "Blood will be shed" Just? Well, even he understood later that this bending of justice was necessary.

But although justice could differ, if you keep it within boundaries, such disputes are healthy and developing, as Aroch Hashulchan – one of the codifiers of Jewish law – wrote, such disputes, as reflected by Tannaim, and Emoraim, are Harmony in music.

And there is a message from our Sages.

The House of Hillel and The House of Shamai were probably the most famous disputants in the history of JUSTICE