Parashat Vayeshev

רבי מאיר אומר: לא נאמר בוצע אלא כנגד יהודה, שנאמר "ויאמר יהודה אל אחיו מה בצע כי נהרג את אחינו„ וכל המברך את יהודה הרי זה מנאץ, ועל זה נאמר :ובצע ברך נאץ ה

R Meir said “[The saying that arbitration is bad] was only said concerning Yehuda, as it says ‘Judah told his brothers ‘What gain is there in killing our brother,’’ and all who praise Yehuda revile Gd, and on this is the verse ‘He praises the taker and reviles Gd’.

The Gemara in the beginning of Sanhedrin grapples with the role of arbitration in Jewish thought. On the one hand, arbitration means foregoing justice. Justice is condemning the guilty and giving the oppressed their due. In arbitration, the guilty doesn’t wholly lose, and the oppressed doesn’t wholly win. Justice is laying out all the facts and proving the truth. Arbitration does not demand the judges find the truth, only for the parties to agree to the settlement. Justices have official standing and are empowered to enforce the law of the land. Arbitrators are outside the legal hierarchy and rule as seems fair. Allowing arbitration bypasses justice.

But against that, arbitration has a major benefit. With strict justice, there is always a loser. There is always strife over the verdict. Arbitration allows the opportunity to find something equitable to everyone. Perhaps the opportunity for justice is lost, but peace might be worth justice.

Even if arbitration has its place in Judaism, the Talmud states one arbitration that emphatically is not a model to be followed. This was Yehuda, who stood between the brothers and Yoseph and asked what gain is in killing him, using a similar word for gain that the Talmud uses to refer to mediation. Murder is bad. Letting their brother go home and the problem fester is unadvisable. Better to send him far away and make a profit beside. One who praises Yehuda for this arbitration is said to revile Gd. 

The commentaries argue exactly what praise one might say about Yehuda that is described in such harsh language. But it seems to me that the praise might be that he saved his brother’s life, that he made the best of a difficult situation. He permanently removed Yoseph from danger at the hands of his brother. At the same time, he prevented, or thought he prevented, Yoseph from ever ruling over any of them. In essence, he found a compromise between two bad outcomes, one his brothers would accept. One might be tempted to praise this.

But Yehuda saved his brother’s life by condemning him to unjust servitude. One can ask is that such a problem? What is the difference between what Yehuda did and acceptable arbitration? In every arbitration, there is an innocent party that does not gain the full measure of justice they are due. The perfect is sacrificed for the achievable. Isn’t that what Yehuda did? True, Yoseph was sold, but the other outcome was possible death. Isn’t death worse?

There are two flaws in this logic. The first is that Yehuda is self-interested in setting up this dilemma. Are slavery and death really the only two outcomes, or did Yehuda’s self-interest blind him from seeing other ways to save his brother? The second is that every arbitration may be a sacrifice of the just, but but the sacrifice is only allowed for the sake of peace. Here, there is no peace. Yoseph is still a slave, separated from his father for eternity. Selling Yoseph was the only solution from Yehuda’s perspective, but it perpetuates injustice and achieves no peace in return. It cannot be considered worthy of praise. It cannot be the model for justice. Holding it up as one reviles Gd.