How to Preserve Your Assets
Judah said to his brothers, "What gain will there be if we kill our brother and cover up his blood? Come, let us sell him to the Ishmaelites — but let our hand not be upon him, for he is our brother, our own flesh." (Genesis 36,26-7)
The word for gain in Hebrew, betza, also means compromise. The Talmud interprets the verse in this light: R' Meir says: This verse about a compromiser was stated in reference to Judah ... and anyone who praises Judah for this is considered a blasphemer, and concerning him it is written, one who praises a compromiser has blasphemed God (Psalms 10,3) (Sanhedrin 6b)
Explains the Yad Remah [a famous medieval talmudic commentator]; Judah is referred to as a compromiser because he reasoned that if he would tell the brothers to return Joseph, they wouldn't listen. So he proposed that Joseph should be sold -- a proposal that is midway between returning him and killing him. He was faulted because he should have realized that just as they listened to him and agreed to his compromise, they would also have listened to him had he insisted on his return.
On the other hand, other references refer to the imposition of this 'compromise' as one of the prime reasons for Judah's ascendancy to the Jewish kingdom. (Tosefta, Brachot 4,18) Jacob himself praised Judah for this compromise and singled it out as a regal quality: Judah -- you, your brothers shall acknowledge; your hand will be at your enemies' nape; your father's sons will prostrate themselves to you. A lion cub is Judah; from the prey, my son, you elevated yourself. (Genesis, 49,8-9) Rashi comments: You, my son, [who is inherently like a lion] rose above the act of tearing your prey [Joseph] of which I had suspected you; to the contrary, you were the one who saved him. Gur Aryeh adds: Jacob had suspected Judah more than the others, because he, as the one destined for kingship, would be the one that felt most threatened by Joseph's dreams.
To appreciate this particular compromise, and the association between the apparently disparate phenomena of royalty and compromises, we must delve into the halachic background of compromise.
COMPROMISE IN THE EYES OF HALACHA
The sages of the Talmud debate the permissibility of encouraging compromise once a dispute has arrived in court. Rabbi Elazar taught that while it is highly praiseworthy to attempt to settle disputes peacefully through compromise, this is only before they get to court. This was the character trait of Aaron who was famous as a lover of peace, a pursuer of peace and the creator of peace, as it is written, the teaching of truth was in his mouth, and injustice was not found on his lips; he walked with me in peace and with fairness, and turned many away from iniquity. (Malachi 2,6)
Once a dispute arrives in court, however, the character of Moses the law-giver must assume control; the law should be carried out strictly to the letter even if following the strict dictates of the law necessitates 'boring through mountains' [the talmudic image for sticking to the strict letter of the law at all costs] in the process, as it is written, for the judgment is God's (Deut. 1, 17).
The other opinion in the Talmud, which is the halacha, is that judges are also allowed, and indeed, positively encouraged to help the parties arrive at a compromise even after they have brought their dispute to court, but only as long as the Torah legal position remains unclear. Once the decision is clear, even if there has been no final ruling, it is forbidden to request or even encourage the parties to compromise. [See Sanhedrin 6b]
To appreciate the problem here, we must understand that there is a serious philosophical problem in the relationship between law and compromise.
THE PHILOSOPHICAL PROBLEM OF COMPROMISE
Secular law is man made and therefore cannot be held to the standard of absolute right and wrong. Secular law is viewed by the secular legal system itself as a means of settling social disputes in a rational way, so that the burden of misfortune that is generally behind most disputes can be made tolerable for everyone to bear.
Thus for example, an accident caused by a defect in a motor vehicle is always held to be the responsibility of the manufacturer even when there was absolutely no negligence on his part, simply because the manufacturer is the party who is most capable of spreading the social cost. If we hold him liable for a million dollars, he can raise the price of all the cars he sells by a few cents and the social cost of the accident can be paid for in a painless way. Holding the victim himself responsible, even if he was the negligent party, would mean ruining his life by making him bear the enormous cost of the injuries caused by the accident single-handed. The rulings of secular law are in themselves arrived at through the methodology of compromise.
But the Torah is absolute. God gave us the laws of the Torah expressly so that we should be able to decide who is in the absolute right and who is in the wrong in all human disputes. The judge under the Torah system is imbued with the power of determining and imposing God's law in disputed matters, and establishing absolute justice.
To highlight the magnitude of the philosophical problem in this clash of concepts we have only to refer to yet another connotation of the word betza in Hebrew -- theft. Jeremiah exhorts: For from their simplest to their greatest people they all extort booty [betza], from prophet to priest all deal in falsehood. (Jeremiah 6,13)
Every compromise is a type of theft; by the rules of absolute justice the asset belongs to A, and yet we are awarding a portion of it to B. In doing so we seem to be doing both of them an injustice. We are stealing from A, and we are allowing B to enjoy someone else's property, an activity that should cause him spiritual harm.
To sum up: while the aim of compromise is peace and harmony, the goal of justice is truth. How can we comprehend compromise as a judicial function in the context of a legal system that is aiming to achieve absolute justice?
COMPROMISE AS A FUNCTION OF REGAL POWERS
The answer lies in the concept of royalty. All of us exist in a dual capacity. On the one hand we are individuals, with our own individual rights and obligations, but on the other hand we are also one of the appendages of the Jewish people. The world often looks different from a collective perspective than from the individual viewpoint.
Let us try to bring this down to earth a bit with the aid of some examples. Imagine that Albert Einstein was guilty of criminal negligence. He was driving his car one morning, and started thinking about physics, got totally lost in the world of quanta, and ran down a little girl on her way to school. As a society and as individuals we have a conflict of interests when we attempt to deal with this situation. As individuals who are parents of little girls, we want to put such drivers behind bars and stamp out the carnage on our streets. As members of society, we need Albert Einstein to keep being abstracted by ideas about quanta. Einstein's theories have improved our lives in countless ways.
Or imagine that the department of Justice brings a justified anti-trust action against Microsoft. Justice should apply equally to all and the law says that Microsoft should be broken up. But high-tech companies, which are the driving force of the economy, are in a delicate situation. Most of them have not yet shown any substantial returns, but they still need large inputs of capital in order to help them and the economy develop and grow. If we break up Microsoft, the Nasdaq will crash, high-tech companies will fold on mass, people will be thrown out of work and the economy will go into recession.
The king rules over us all in our capacity of appendages of a single corporate body. The judge settles disputes between individuals. From the perspective of royalty, justice has a different face and appearance then it does from the perspective of the trial judge who is looking at individual interests. The dispute in the Talmud whether judges are allowed to institute compromises is really a dispute about the nature of the powers invested in the Torah judge. Do Jewish judges wear two hats, one hat as representatives of Jewish royalty, and a second hat as what we commonly think of as judges, or are they merely judges.
THE CONDEMNATION OF JOSEPH AS AN ACT OF JUSTICE
Now let us look once again at the story of Judah and the sale of Joseph. Two years ago, in the essay on Vayeshev, we explained at length that his brothers decided to kill Joseph not out of spite, but because they felt he was an incarnation of Esau and threatened them all. They felt that he was attempting to throw at least some of them out of the Jewish people by persuading their father Jacob to cut them out of his blessing and award him, Joseph, absolute power over the future of the Jewish people. He was obsessed by his desire to rule, and he had his father half way convinced that his teenage daydreams were really the stuff of Divine prophecy. [See Seforno 37,18]
Thus they judged him guilty of attempting to destroy the budding Jewish people from within, which is termed rodef under Torah law. [A rodef is a person who is pursuing someone to kill him.] The rules of the Torah dictate that one must kill the rodef before he has the opportunity of carrying out his design. Judah participated in this group decision. The sole dissenter was Reuben as the Torah points out. Benjamin was a non-participant as he was too young to be present.
WHEN JUSTICE IS CLEAR, WHY COMPROMISE?
But if Judah himself agreed with the judicial verdict to kill Joseph, why did he come up with his compromise? What is even more perplexing is that we find that the brothers demoted Judah for not having overruled their verdict altogether. It was at that time that Judah went down from his brothers and turned away towards an Adulamite man whose name was Hirah. (Ibid., 38:1) Rashi: Why is this passage juxtaposed at this point, interrupting the narrative of the episode of Joseph? To teach you that Judah's brothers took him down from his position of greatness when they saw the distress of their father. They said, "You said to sell him. Had you said to return him, we would also have listened to you."
How can we understand this change of heart? Was their decision right or wrong? If it was right when it was reached, than it was still right. What does Jacob's distress have to do with the proper determination of what is just or unjust?
Once again, the answer is royalty. As we have pointed out, there are two ways to look at every question. When the brothers decided that Joseph was guilty and had to be executed, this determination was reached on considerations of pure justice, which is the way the world looks from the perspective of the individual. They were not content to take the drastic step of actually carrying out the sentence of execution until the problem was studied from every perspective. They didn't want to kill Albert Einstein.
Judah was their king. They asked him to consider the problem from the perspective of someone who carries the responsibility for the well being of the entire collective on his shoulders.
THE THINKING BEHIND JUDAH'S PROPOSAL
The commentators explain the thinking behind Judah's proposed compromise. Judah was afraid that killing Joseph would wipe out one of Israel's major assets. Joseph had many flaws, but he was also the Albert Einstein of the brothers. Jacob's love for Joseph was not only based on the fact that he was his beloved Rachel's son. Now Israel loved Joseph more than all his sons since he was a child of his old age; (Ibid., 3) literally a ben zekunim in Hebrew. Rashi quotes the rabbinic interpretation: Joseph was intellectually gifted, and of all his sons, he was the only one who was capable of absorbing all that Jacob had learned in the Yeshiva of Shem and Ever.
Judah was a believer in Divine Providence. He thought to himself that from the standpoint of the collective it was wiser to sell Joseph into slavery than to kill him. If indeed, he was an irreplaceable asset, than God would see to it that Joseph would somehow survive, that Providence would arrange to put him through the experiences he required to learn to correct his faults, and that he would be restored to usefulness as an asset to the Jewish people. If he could not be corrected, then Providence would arrange matters in a way that Israel could prosper without the addition of his immense talents, and as they had reached a Torah judgment that he should die, they could safely rely on God to execute the sentence.
THE SIGNIFICANCE OF JACOB'S DISTRESS
Then they faced the phenomenon of Jacob's distress. The brothers didn't only believe in God, they also had immense faith in Jacob's wisdom and character. They knew that Jacob could surmount the human distress of the personal tragedy involved in the loss of Joseph. Like all believers in human immortality Jacob would reconcile himself to what was after all a temporary separation from his beloved son. The Torah forbids excessive mourning on this very ground; that death constitutes only a temporary separation. [see Nachmanides, Deut.14,1]
The fact that Jacob was inconsolable demonstrated to them that the loss of Joseph was indeed irreparable. All his sons and all his daughters arose to comfort him, but he refused to comfort himself and said, "For I will go down to the grave mourning for my son." (Ibid., 37:35) Rashi: Jacob explained that the death of Joseph indicated that he had failed spiritually and would have to go to Gehenom. God had revealed to him that as long as none of his sons died in his lifetime he would not have to endure Gehenom.
Jacob's mission was the establishment of the base of a successful and viable Jewish nation. His refusal to be comforted was proof to the brothers that in Jacob's opinion, whose wisdom they trusted, without the input of Joseph's genius the Jewish people were not in fact viable.
This was their rationale for demoting Judah. No one had changed his opinion. From the point of view of justice Joseph deserved his sentence. Justice can never afford to consider the loss of human potential involved in the execution of the guilty. The rulings of Torah justice are always absolute. The law must be followed even if it means burrowing through the greatest mountain, even when this mountain represents the enormous power of priceless human potential.
But Judah was the king. As a proper monarch it was his responsibility to arrive at the correct determination of what is required for the survival of the collective. His failure of vision demonstrated his lack of suitability for the position he had to occupy.
When we regard a fellow Jew judgmentally, we are guilty of an error that Joseph's brothers, for all the iniquity of their horrendous deed, cannot be faulted for. They realized that every Jew is a potential Einstein, or the founder of the Jewish Microsoft and before you can finally judge him, you must be certain that you aren't discarding a precious Jewish asset. The value of every Jewish individual as a necessary appendage of the Jewish people always transcends his individual inequity. We should aim to bring them all home safely to our Father instead of focusing on casting them out.