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

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