Two ways of pursuing justice

This week, Jews around the world will read the Torah portion known as Shoftim (Judges). This particular section of Deuteronomy instructs the Israelites to establish judges and officers in their communities, and includes the famous injunction, “Justice, justice shall you pursue.”

Like many, I have long been fascinated and perplexed by this command. Why is “justice” repeated twice? And why are the people instructed to pursue justice rather than to achieve it? The answers that immediately spring to mind — the second “justice” is for emphasis, and the command to “pursue” a nod to the idealism of the rule — do not fit comfortably with the larger text of the Torah. The direct repetition of a word, for example, is not common in Biblical text, and traditional exegesis demands that the second use carry a separate and independent meaning. Over the years, I have heard and read many thoughtful takes on the issue. Perhaps, for example, the repetition of “justice” captures substantive and procedural justice, or justice for the individual and for the community, or social justice and justice under the law.

The term “pursue” is equally difficult. Granted, it is impossible for any society to actually achieve perfect justice; perhaps dogged pursuit is all that can be expected of us. But the Torah includes other commands that are equally inconsistent with human nature. “Do not covet,” for example, is an impossible task for mere humans to adhere to, yet it comes with no qualifying language. So why say “pursue” here?

These questions pop into my mind every year around this time, a natural consequence of reading Shoftim around the start of the new law school year. But this time, there was another reason to take a close look at the Biblical injunction to pursue justice. It came in the form of an extraordinary recent episode of Bari Weiss’s new podcast, Honestly. In this episode, Weiss and guest podcaster Kmele Foster examine the “Central Park Karen” story from last summer. They reveal that the simple, straightforward story that was presented to the public is in fact complex, nuanced, and oftentimes messy. And it raises all sort of difficult questions about how our society metes out justice, both in and out of court.

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The opioid crisis and the state courts

The Indianapolis Star has published an interesting op-ed from Indiana Chief Justice Loretta Rush and Tennessee State Court Administrator Deborah Taylor Tate, exploring (at a high level) how the national opioid epidemic has affected state courts. A snippet:

[O]ne fact remains: the state court justice system is now the primary referral source for addiction treatment in the country.

This reality has put enormous strain on our nation’s state courts, many of which have been overwhelmed by growing dockets and shrinking resources. In a recent survey of chief justices and state court administrators, 55 percent ranked the opioid epidemic’s impact on the courts as severe. The survey results are unsurprising, given the complexity of opioid cases: it takes an enormous amount of time to figure out what’s best for people who are addicted, how to care for their children, and what resources are available for them. And those who are placed in a treatment program with court oversight may remain involved with the court for years.

The courts are often the place of last resort for problems facing society, and have no choice but to address those problems creatively and (usually) with limited budgets. The opioid crisis is certainly playing out that way.

A discouraging survey on lack of confidence in the Kenyan courts

A new study reveals that nearly half of Kenyans seek to resolve their legal disputes outside of court, either through informal means or by not pursuing a claim at all. The reasons are discouraging but unsurprising:

The top reason given for inaction was the belief that acting would not help, a view that was held by a third of the respondents.

The second most frequent rationale was that the other party was more powerful (20 per cent) than the complainant. Three in 10 Kenyans from the lowest income group say they did nothing because the other party was more powerful compared to one in 10 people in the highest income group. The numbers imply that the justice system is not seen as an equalising force by a sizable part of the population and that the experiences of those who sought legal services differed depending on income levels.

The study also found that 2 out of 3 Kenyans believe their court system generally protects the interests of the rich and powerful above all others, and only 1 in 3 felt that they can rely on the courts for fair justice.

Access to justice was hindered in other ways as well. Nearly 1 in 5 Kenyans said that they have no idea how to even initiate a legal claim. And those can file a claim may have to wait an eternity for resolution, since 1 in every 6 cases currently pending in the Kenyan courts is more than ten years old.

These problems are not unique to Kenya, of course. Every court system faces the considerable challenge of providing equal justice in a society that is inherently unequal. But the survey nevertheless brings those challenges into stark relief once more.