We Are All Judges: Why Breaking Unconscious Patterns Creates a More Just World
Yonah Lavery-Yisraeli on the wisdom Jewish interpersonal law offers to everyone
Conflict is not a sad fact of life. Conflict is the venous return of all our efforts and wishes: we send out an action, or a word, or a thought, and it returns to us a strange thing, because it has been changed in the course of its travels. We should not wish for it to stay forever in its aortic state, freshly enriched with our good intentions, because the whole purpose of circulation is to distribute and nourish. That means, necessarily, to challenge, to deplete, to transform. So, I do not think we should wish for a lack of conflict. We should wish that we become wiser through conflict, which is a part of human existence.
Jewish interpersonal law—what we might call civil and criminal law, as opposed to lifecycle ritual—takes circulation as its founding image. Healthy venous return is not unassisted. Rather, valves in the lower half of our body boost blood back into our hearts which would otherwise pool and stagnate. We must see where to place such valves in our interpersonal relationships, where to be those valves, what power is needed in the assist, what subtlety. Traditional insights give us the awareness we need to process these questions. They give us the gift of realizing situational options, so we are not simply carried along by unconscious conditioning. Reacting out of unconscious patterns makes us poor judges, and we are all judges whether we wish to be or not: first (ideally) of ourselves and then of others.
We observe disputes from the most intimate family arguments to broader community conflicts, and we are asked to select winners and losers. Most of us do so intuitively, yet our intuition itself is fed by broader life circumstances and cultural trends which we had no hand in making and which, if we give ourselves space to consider, we might not even particularly approve of. This is why we need to be prompted to reflect in ways that might not naturally occur to us in a stressful moment of decision and to break our conditioned response to our own behavior or that of other people. Our relationships are governed, but what they are governed by is in our power to choose.
The Hebrew name for the legal category of interpersonal law is Hoshen Mishpat, literally, “breastplate of law.” The reference is to a jeweled garment laid over the heart of the High Priest, set with twelve stones inscribed with the names of the Twelve Tribes. More than an ornament, it was a device for decision-making. According to tradition, when uncertainty arose in ancient days, divine intelligence would light up different stones, or perhaps letters on the stone, communicating to an anxious people what their next step should be. The point is that the world lies before us, already whole, but non-directive. To make a wise decision involves circulating the attention to places it would not necessarily have gone of its own accord. Although in modern times we seem convinced that the endless accumulation of data will yield answers, the metaphor of the breastplate challenges us to consider that we often have enough jewels already. The trick is to cease to be their hoarder, and instead to become their reader, and so pick out a coherent way forward when conflict arises.
Aharon wearing the hoshen mishpat (right).
Hoshen Mishpat's rules for judges are absorbed in how to construct the arena of dispute to maximize clarity. A simple example is to schedule proceedings for daylight hours, preferably before anyone has gotten the chance to get hungry. This rule has been most enthusiastically endorsed by my students who have worked overnight shifts at the emergency room. “From what I’ve seen, your sense of self preservation at 10 am has nothing in common with your sense of self-preservation at 2 am,” one of these medical Talmudists told me. My lower-stakes memories of everything from urban strolls to childhood sleepovers are forced to agree with her. Cycles of light and satiety have an outsized impact on our caution and curiosity, both necessary tools for effective evaluation. One might wonder how much detail on issues of time, condition, and venue we really need—perhaps the bare generalities are sufficient. Yet, it can be beneficial to be needled into thoughtfulness. Surprise or even initial scorn for an issue raised by Hoshen Mishpat might indicate more about us now than about the law then. Perhaps grounds for a late-Antiquity concern have long since expired; this is not an impossible conclusion even for the most traditional rabbis. But a scornful reaction might also indicate the literature has touched on a problem so pervasive that it is invisible to us. We will be able neither to contract nor release our muscles of wise discrimination if we prevent the circulation of our attention to the problem.
And speaking of details, another section of Hoshen Mishpat’s rules for judges asks arbitrators to take careful stock of their demeanor. This helps us raise the questions: are we telling one party, tacitly or explicitly, to relax and talk at their leisure, while directing the other party to be guarded, alert, brief? Even the self-aware among us might be surprised when our friends and family tell us how they know when we are growing impatient or annoyed. Is it possible to govern signals so covert we often do not realize that we are sending them? Yet once a respected tradition tells us we cannot continue to rely on what demeanor naturally suggests itself to us in a given moment, we are pushed to make an effort.
I am reminded of when my son tried a new treat at the home of a rabbinic judge, and could not say what it tasted like. “Is it like apples?” asked the judge, as my son shook his head. “Like carrots? Like potatoes? Like peanuts?” Although the food, Bamba, is famously peanut-based, I was fascinated by how the judge gave nothing away—not even that a single right answer to the question exists. He succeeded, not by keeping his tone clean of emotion or inflection, but by the opposite. He did it by engaging with the same energy and authentic interest every time he asked a question, as if anything were possible.
For me, witnessing this exchange was a profound moment of shimush, or judicial apprenticeship. I learned not only that it is possible to ask repeated questions without herding the respondent this way or that, but that it is important to practice, even in those moments in life where there is no obvious benefit to doing so. And the greatest jewel of all is that trick, not of pretending that anything is possible, but of remembering that anything is possible. Who knows what genetic, culinary, or linguistic irregularities could have been uncovered if my son had actually tasted apples, and had been given the space to say so? The advice Jewish law gives to the face and speaking style of a judge thus acts as a trailhead to deeper and wilder territory: the relaxation of even the most well-informed assumption in order to engage more vividly with what is actually present.
Of course, there are other roles we play in life besides that of the judge. We witness conflict, and we participate in it. Here, too, Hoshen Mishpat is interested in developing our wisdom. But it is critical to note that becoming a wiser witness or litigant is not synonymous with becoming victorious. For example, there is a good deal of material on how litigants should act after losing a case. If there is no new evidence to present, the key is to resist the temptation to turn one’s ire on the judges themselves. Rather, if the outcome feels unjust, it is better to ask the judges to put their reasoning down in writing. A necessary first step in the appeals process? Yes, but not only.
R. Yehoshua Falk was a 16th Century Polish rabbi who, among his other works, composed a foundational commentary on the Shulhan Arukh’s Hoshen Mishpat section. At some point in his life, he was successfully sued, and demanded that the judges present him with their written arguments. The judges were presumably mystified by his request, as when he received their summary, he saw that the source they cited was his own commentary. He is reported to have been “amazed at himself,” and became newly enthralled with the words of the Talmudic sage Rava, “No one sees the reason they should lose their own case” (Ketubot 105b). A wise litigant is not always the one who manages to fight off a threat to any assets, but rather the one who is able to see those aspects of the conflict which had previously been concealed behind the veil of one’s own drive for self-preservation.
At this point, we can step back and notice that Hoshen Mishpat pushes us to examine conflict factor by factor. In a world where we are pushed instead to adjudicate team by team, this is antivenom. Our sensitivity to social allegiances has become so exquisitely acute that most of us routinely screen out information as well as human connection based on cultural team. It is not enough to simply tell ourselves to stop it, because what pursuit of justice can we imagine any more that is not either an affirmation of our current allegiance, or for that minority with an appetite for boundary-crossing, their equally useless inversion? What we can do is cultivate our independence by pushing ourselves toward critical familiarity with those factors which, like body systems, make up a conflict before we see and pre-judge its supposedly familiar face.
Making strange, like all the techniques we have discussed, works best when practiced consciously and regularly in everyday scenarios, before emergency shoos us back to our conditioning. I am reminded that Hoshen Mishpat is usually learned at the same stage in life that one is seriously introduced to Kabbalah. The fine-tuning of attention encouraged especially by Lurianic Kabbalah mirrors and reinforces what a scholar learns in Hoshen Mishpat, as one might be trained to recite a Torah verse letter by letter over the course of a week, or to break through mundane familiarity with a key word by converting it to Atbash (a monoalphabetic substitution cipher originally used to encrypt the Hebrew alphabet). It becomes easier to internalize that our deepest convictions about the world and how to fix it must be held lightly, must not be prevented from transforming in the impact of direct encounter. Such mystification can be surprisingly practical. For example, studies have shown that avoiding familiar but partisan terms for public policy, replacing them with functional, down-to-earth descriptions of what such policies do, reduces team-based defensiveness and allows participants in a discussion to collaborate on solutions ("Partisan Language in a Polarized World"). On the scale of interpersonal disputes, non-violent communication does a similar type of Atbash by sidestepping references to exhausting patterns (“You always,” “I never”), instead asking people to clarify their immediate observations and, separately, feelings.
We judges of kitchen and office and schoolyard and screen would do well to take another cue from Kabbalist's by playing with anagrams. When we read in strife an invitation to resift, we remember to engage and inquire, to pour our attention through fresh pathways. We can understand our own discomfort as the pins and needles of a newly awakened limb, namely, a fresh perspective. Allowing such circulation grants us inner mobility in a time when we are often frightened into clamping shut, not merely establishing boundaries but militarizing them in order to have as little possible contact with those whom we consider repugnant. The Rabbinic scholars who sought to “open the heart” (פתיחת הלב) to aid their learning did not understand an “open heart” to be serene, omnidirectional approval—that posture is, after all, another manifestation of avoidance. They rather knew it to be a state in which attentional blood courses down all arteries, and in which one’s innermost chambers are able to receive the estranged communication of all veins.
Do we dare to open?
With what might be a surprising emphasis on the physical, some traditional suggestions for opening the heart involve spicy foods, stuff that twists open the head and chest like a red-hot tap. This suggests that though we have developed a fear of conflict, we can develop an appetite for digesting it with wisdom. Surely many of us have started to feel the effects of a culture so conflict-avoidant that even the closest relationships have become insecure, prone to collapse the moment that subsurface disagreement is detected. We must find our way back to more nourishing connections. Though an instant paradigm shift would be too big a bite, we can see the skills Hoshen Mishpat develops as enabling deeper forms of engagement—helping us appreciate the heat of refining fire.
Here it must be emphasized that the challenge is to understand conflict, not loss itself, as vital. It does no good when people strive to outdo one another in martyrdom. Instead, we accept that there is no way to widen our perception except through the challenge of losing one’s own case. Our grip on individual agenda releases to free our broader ability to connect and communicate. The way the Mishnah (Avot 1:8) articulates this nuance is by saying that prior to trial, we see both parties as wicked. Post-trial, we see both parties as worthy (זכאין), a word which in Hebrew also signifies legal victory. Wise conflict develops fresh worth for all sides; those who have not gone through it, though their claims be iron-clad, are not merely untested but even morally compromised, as their eyes have not yet been opened to a contrary perspective. Thus, the points on which they, too, lose, are suppressed by the need to win, which in order to justify its intensity disguises itself as the need to survive.
But what of the role of the ocean of legal material Hoshen Mishpat constitutes? The twenty-seven chapters on laws of jurisprudence and the eleven chapters on laws of testimony function only as the smallest of quays to this sea, which incorporates subjects such as theft, loans, residential water disposal, compensation for assault, and one of Hoshen Mishpat’s unique interests, assessing the integrity of argumentation. The table of contents alone wears out the swimmer-student like a riptide. Are these—to put it bluntly—too many laws? Many would say so.
But reader, you are already adrift in an ocean of law even if you do not know its name.
What seems like spontaneous response is nothing more than obedience to those currents and conditions which remain unexamined. Do you feel in your bones that she is a liar, that he is always is to blame? Rather, you have been told such things, by speakers half-remembered and in lessons often utterly submerged. We must drag all such programming into the full sensitivity of awareness.
Hoshen Mishpat, the "breastplate of law," confronts us with an impossible wealth of scenarios, but by breaking down the most recognizable human story to its bare elements, we dismantle and remake our intuition. Rather than being lost in too many rules, interpersonal law provides more flexibility and freedom; the laws help govern the space where anything is possible. That is why the point is not to win or be right—it is to transform. Through such laws, we become wiser, confronting with conscious tools life's continual conflict, and we become genuinely responsive rather than reactive, blood pumping to awaken the fallen-asleep heart and mind.
Rabbi Yonah Lavery-Yisraeli learns and teaches at Bet Midrash Hukkim Hakhamim. Currently living in Queens, NYC, Lavery-Yisraeli is an internationally exhibited visual artist. She can be reached at yonah.lavery@gmail.com.
