Yom Shlishi, 18 AdarI 5781
Tuesday, 2 March 2021
Parashat Mishpatim 2013

Parashat Mishpatim
Rabbi Judith Rosen-Berry

8 February 2013

Ve’eileh mishpatim - “these are the rules” via Jacque Derrida’s “The Force of Law: The Mystical Foundation of Authority”.

In the extraordinary context of the Exodus narrative the Torah portion ‘mishpatim’ sets out ‘the rules for the forming of a just society’. The importance of this task for us is illustrated in the aggadic teaching of Yalkut Shimoni 1:271 where we find· written, ‘In time to come, when there will no longer be an altar, building a just society will be the equivalent of bringing sacrifices’. Perhaps there is nothing new here for Liberal Jews but I wonder whether in our reading or interpretation of this parashah we too easily glide over the problematic relationship between law and justice? That is, justice as incalculable and heterogeneous, and law as a system of coded and regulated prescriptions.

Jacques Derrida addressed the complexity of the matter when he wrote: ‘How are we to distinguish between the force of law of a legitimate power and the supposedly originary violence that must have established this authority and could not itself have been authorized by any anterior (prior) legitimacy so that, in this initial moment, it is neither legal nor illegal – or, [as] others would quickly say, neither just nor unjust?’ (J. Derrida, ‘The Force of Law: The Mystical Foundation of Authority’, 6)

Maybe if we believed that these laws, that these mishpatim, were God given then the ‘originary violence’ that Derrida draws our attention to would have different significance. But for most progressive Jews the establishment of law originates with us so its relationship to violence should be constantly reviewed and critiqued.

We understand that the authority of law/rule is questionable and, to a certain extent, illegitimate because the authority that supposedly grounds law is legitimised only when law is instituted. That means that the authority upon which rules/laws (mishpatim) are established is, strictly speaking, non-legal because it exists prior to law. Therefore the original act of instituting the law is ‘an illegitimacy, a violence’ (ibid. 6). As Derrida explained: ‘Since the origin of authority, the foundation, or ground, the position of the law can’t by definition rest on anything but themselves, they are themselves a violence without essential ground’ (ibid. 14). This does not exactly mean that the origins of law are illegal, [but] because they are prior to law, they are neither legal nor illegal. Therefore the legitimacy of law is (always) undecideable.

Now, returning to the earlier distinction made between law and justice. Again I turn to Derrida for insight. Law, for Derrida, is merely the general application of the rule, while justice is an opening of law to the other, to the singularity which law cannot account for. For a decision to be just then, it must be different each time. It cannot be the mere application of the rule – it must continually reinvent the rule. So, as Derrida stated ‘[justice] must conserve the law and also destroy it or suspend it enough to have to reinvent it in each case, re-justify it’ (ibid, 23).

In this de-constructive light justice becomes the experience of the impossible. It is always incalculable. It is the promise of something yet to come which must never be totally grasped or understood, because if it is it would cease to be justice and simply become law. As Derrida said: ‘There is an avenir for justice and there is no justice except to the degree that some event is possible which, as an event, exceeds calculation, rules, programmes, anticipations’ (ibid, 27).

Justice then, is an event that opens itself to the impossible. For Derrida justice occupies a dimension that cannot be reduced to law or institutions, and it is for this reason that justice opens up the possibility for a transformation of law. This transformation does not necessitate an absolute rejection of the existing (legal/religious) order. Rather, it is a re-founding of it in a way that unmasks the violence and lawlessness of its origins and (some might argue) lack of legitimate ground. Thus leaving it open to continual and unpredictable reinterpretation freeing us from what has become limited and determined. This is the kind of radically ‘deconstructive’ venture that I see Liberal Jews pursuing (avenir). But meanwhile enjoy reading mishpatim and Shabbat shalom to you all.