66 | SEPTEMBER 2 • 2021
I dedicate this essay to the memory
of my late friend, David Dolinko.
We were schoolmates from second
or third grade through high school.
He went on to earn a Ph.D. in
philosophy, then a law degree and
served as professor of law at UCLA
for many decades. He wrote about
the philosophical underpinnings of
laws punishing criminal behavior.
David was among the most brilliant
thinkers I’ve ever met — which says
a lot, since my life has been blessed
by encounters with a collection of
extraordinary, brilliant thinkers.
D
oes the impulse to act with mercy
contradict strict justice?
Apparently yes, according to
Rabbi Yehudah as recorded in the Talmud.
Rabbi Yehudah audaciously answers an
astonishing question, “What does God do
every day?” Rabbi Yehudah’s description of
the Divine schedule: “The day has 12 hours.
During the first three, the Holy Blessed One
sits occupied with Torah.
During the second three,
he sits and judges the entire
world. When he sees that the
world deserves destruction,
he stands up from the throne
of justice (Hebrew “din”) and
sits on the throne of mercy
(Hebrew “rachamim”). …
During the fourth, he sits and plays with the
leviathan (Avodah Zarah 3b).
”
Similarly, various rabbis assert that when
we sound the shofar, God moves from the
throne of justice to the throne of mercy
(Vayikra Rabbah 29: 3, 4, 6 and 10). God can
sit on the throne of justice at one moment
and on the throne of mercy, but not on both
at once. The two thrones are distinct.
In the Selichot, the penitential prayers
that appear so prominently at this time of
year, we repeatedly refer to God as “King
sitting on a throne of mercy.
” The prayer
implies that same God could also sit on the
throne of justice.
Maimonides, of course, warns us not to
take literally any description of God as sit-
ting, or standing, and not to indulge in the
idea of the throne as anything but a meta-
phor for rulership (Guide of the Perplexed
1:9). I leave that thought for another dis-
cussion. Today I want to focus on the two
thrones.
Apparently “the throne of mercy” cannot
also serve as “the throne of justice” because
justice and mercy remain incompatible.
Even if we allow the thrones as metaphors,
the notion that God relates to us sometimes
in one mode and sometimes in its opposite
seems highly problematic.
Kabbalistic texts also make a sharp dis-
tinction between the sephirah (attribute of
God) of chesed (kindness) and the sephirah
of gevurah (power). According to Reshit
Hokhmah, a 16th-century source, “Chesed is
Pure Kindness, though only to the meritori-
ous, as is the reward of the righteous in Gan
Eden. Gevurah is Pure Judgment and retri-
bution to the guilty, as is the punishment of
the wicked in Gehenom” (1:9).[i].
But what can we do? Mercy and
justice negate each other. They can-
not coexist without breaking the law
of contradiction. So, we speak of the
One God, just and merciful, as if
relating to us from different sephirot,
or sitting on different thrones. We
have to, because justice contradicts
mercy, and mercy contradicts justice.
But what if they do not?
JUSTICE VS. MERCY
How do justice and mercy really
relate to each other? My late friend,
David Dolinko, with modesty
typical of him, called his inquiry into the
question, “Some Naive Thoughts about
Justice and Mercy” (core.ac.uk/download/
pdf/159587369.pdf).
He states the paradox in these words:
Mercy is ordinarily conceived as a vir-
tue, as a free gift rather than something
to which one has a right or entitlement,
and as something distinct from justice (to
which, of course, one does have a right). In
appropriate cases, mercy “tempers” justice,
producing a different outcome than justice
alone would call for. Yet, isn’t a deliberate
departure from the requirements of justice
an injustice?
The conflict between mercy and justice,
according to Dolinko, arises primarily in
the context of punishment. According to
justice, the offender deserves some pun-
ishment, but one may, mercifully, mitigate
the punishment. If one mitigates the pun-
ishment, though, one has departed from
justice. Why does the offender deserve
punishment?
Dolinko answers: Punishment itself, of
course, has long been a source of contention
— why is it ever justified? The principal
answers that legal philosophers have given
As We Are Judged on Rosh
Hashanah, Will We Receive
Divine Justice or Divine Mercy?
SPIRIT
A WORD OF TORAH
Louis
Finkelman
Contributing
Writer
continued on page 68