American expert in constitutional law Albert B. Blaustein died in August 1994. While most people are not familiar with his work, his expertise made him invaluable in consulting on the drafting and implementation of the constitutions of Fiji, Liberia, Zimbabwe, Bangladesh, Cambodia, and Peru.
He once described a constitution to New York Times reporter Linda Greenhouse as “more than a structure and framework of government. It is…a nation’s frontspiece” meaning “a rallying point for a people’s ideals and aspirations, as well as a message to the outside world as to what the country stands for.” As such, constitution must be autochthonous, meaning “arising from itself.” It must represent the values of the people. This, in fact, is what the Torah represents, if we can read the passages beginning in Exodus 21 as the Israelite constitution.
One value is mercy, but not unconditional mercy. In his Guide of the Perplexed (Book II, Chapter 39) Maimonides contrasts the law in the Book of Deuteronomy 23:16 with the law in Exodus 21:14. In the Book of Deuteronomy a runaway slave is not to be returned to his master. Once the slave has reached freedom it would be cruel to return him to bondage. Yet in the Book of Exodus, Maimonides points out, “we are not to give succor to a malicious felon who asks for refuge.” As the text puts it: “You shall take him from My altar that he may die.” In this case, “no mercy shall be shown to such a person. He shall be handed over to the legal authorities.” The contrast is crucial. The slave committed no wrong. He is a victim of circumstance whereas the felon has intentionally violated the rules. Hence, Maimonides concludes, “mercy shown to villains is a disservice to all society.”
Sometimes the important value of mercy can be misplaced. The Torah is intent on presenting a framework in which the complexities of life are not served by the application of simplistic bromides or misapplied principles. Trumping mercy is justice. And it is justice and fairness that become the hallmark of interpersonal relationships in Judaism.