Shoftim: The Axe of Justice 

There is a  hidden thread  in the parsha.  The obvious theme involves authorities: judges,  [police] officers, the priesthood, a king, a prophet, town elders.  The hidden message is the axe of justice. 

The parsha opens with

שֹׁפְטִ֣ים וְשֹֽׁטְרִ֗ים תִּֽתֶּן־לְךָ֙ בְּכׇל־שְׁעָרֶ֔י  You shall set up judges and law enforcement officials for yourself in all your cities

The fourth sentence in this chapter seems a non-sequitor: 

לֹֽא־תִטַּ֥ע לְךָ֛ אֲשֵׁרָ֖ה כׇּל־עֵ֑ץ אֵ֗צֶל מִזְבַּ֛ח 

You shall not plant for yourself an asherah, [or] any tree, near the altar of the Lrd, your Gd, which you shall make for yourself.

Three sentences later, we return to the activity of the legal system. 

At the end of the parsha,  the tree reappears , in a very unusual verse: 

כִּֽי־תָצ֣וּר אֶל־עִיר֩ יָמִ֨ים רַבִּ֜ים לְֽהִלָּחֵ֧ם עָלֶ֣יהָ לְתׇפְשָׂ֗הּ לֹֽא־תַשְׁחִ֤ית אֶת־עֵצָהּ֙ לִנְדֹּ֤חַ עָלָיו֙ גַּרְזֶ֔ן כִּ֚י מִמֶּ֣נּוּ תֹאכֵ֔ל וְאֹת֖וֹ לֹ֣א תִכְרֹ֑ת כִּ֤י הָֽאָדָם֙ עֵ֣ץ הַשָּׂדֶ֔ה לָבֹ֥א מִפָּנֶ֖יךָ בַּמָּצֽוֹר׃

When you besiege a city for many days to wage war against it to capture it, you shall not destroy its trees by wielding an ax against them, for you may eat from them, but you shall not cut them down. Is the tree of the field a man, to go into the siege before you?

The tree has returned; this one  has an unknown provenance, it has a clear  potential function in the situation, but it is off limits, it is is a foil to to the forbidden tree near the altar, it may not be felled

The use of the wood to make a battle ax ( or the use of an ax to fell the tree for its wood) echoes to the middle of the parsha.  There, the complexities of the legal systems are exemplified by the negligent homicide, typified by the poorly secured ax blade: 

וַאֲשֶׁר֩ יָבֹ֨א אֶת־רֵעֵ֥הוּ בַיַּ֘עַר֮ לַחְטֹ֣ב עֵצִים֒ וְנִדְּחָ֨ה יָד֤וֹ בַגַּרְזֶן֙ לִכְרֹ֣ת הָעֵ֔ץ וְנָשַׁ֤ל הַבַּרְזֶל֙ מִן־הָעֵ֔ץ וּמָצָ֥א אֶת־רֵעֵ֖הוּ וָמֵ֑ת ה֗וּא יָנ֛וּס אֶל־אַחַ֥ת הֶעָרִים־הָאֵ֖לֶּה וָחָֽי׃  a man goes with his neighbor into a grove to cut wood; as his hand swings the ax to cut down a tree, the ax-head flies off the handle and strikes the other so that he dies. That man shall flee to one of these cities and live.—

  The last scenario in the parsha deals with the unsolved murder.  The ax in this ritual is hidden.  The crux of the ceremony is the decapitation of a calf: 

וְהוֹרִ֡דוּ זִקְנֵי֩ הָעִ֨יר הַהִ֤וא אֶת־הָֽעֶגְלָה֙ אֶל־נַ֣חַל אֵיתָ֔ן אֲשֶׁ֛ר לֹא־יֵעָבֵ֥ד בּ֖וֹ וְלֹ֣א יִזָּרֵ֑עַ וְעָֽרְפוּ־שָׁ֥ם אֶת־הָעֶגְלָ֖ה בַּנָּֽחַל׃

and the elders of that city shall bring the calf down to a rugged valley, which was neither tilled nor sown, and there in the valley, they shall decapitate the calf.

Rashi cites the details: 

וערפו AND THEY SHALL STRIKE OFF [THE HEIFER’S] NECK — i.e. one breaks its neck with a hatchet. (Sotah 46a).

Humans and trees have a relationship that stretches to the Garden of Eden.  Calling one the Tree of Life casts the other, the Tree of Knowldge ( or, perhaps Artistry), as its alternative ... death. Trees are representative of an alternative natural world  that lives on a different physiochemical economy and on different time scales.  In an anthropocentric world view,  trees are fundamental providers of oxygen, food, and the raw materials for comforts... and killing. The judges appointed at the start of our parsha cannot take on the tree's perspectives: life that continues for hundreds of years, the dead are fertilizer. new leaves will sprout next year.  They must have a human perspective.  Every person has a unique, fragile and limited life.  The society of humans set laws and interprets Divine laws in this human context.  Is the tree of the field a man? Is a person a tree of the field?

When the ax head flies off the handle because it was not perfectly secured, how do we judge human responsibility for  the fatal error? Not with the passion of the avenger, nor with limitless mercy.  We are to treat it with the uncertainty and ambivalence of internal exile. The refuge cities must be close enough and accessible enough for the killer to have a good chance of escaping  the passion for retribution, but it cannot be a certainty.  The ax wielder must remain removed from most of society until the most public of deaths substitutes for  the fate that might have been appropriate for all the banished. This indecisive  penalty replaces the necessary uncertainty of the judgement. Yes...but.

When the municipal elders carry out the decapitation ritual of the unsolved murder they recite the formula: 

וְעָנ֖וּ וְאָמְר֑וּ יָדֵ֗ינוּ לֹ֤א (שפכה) [שָֽׁפְכוּ֙] אֶת־הַדָּ֣ם הַזֶּ֔ה וְעֵינֵ֖ינוּ לֹ֥א רָאֽוּ׃כַּפֵּר֩ לְעַמְּךָ֨ יִשְׂרָאֵ֤ל אֲשֶׁר־פָּדִ֙יתָ֙

And they shall make this declaration: “Our hands did not shed this blood, nor did our eyes see it done.Absolve, O LORD, Your people Israel whom You redeemed, and do not let guilt for the blood of the innocent remain among Your people Israel.” And they will be absolved of bloodguilt.

 This is the antithesis of Cain's query, "Am I my brother's keeper." The declaration of the elders assumes the correct answer: YES. It also states regret at the failure to do the job.  There weren't enough street lights or police; there weren't enough social workers or schools; there weren't enough masks or vaccines; misinformation was out of control.  WE HAD NOT DONE OUR JOB. We did not secure the ax  securely enough to the handle. This death of the  stranger had an element of negligence. May the ritual substitute for the true  punishment: exile. 

Trees

BY JOYCE KILMER

I think that I shall never see

A poem lovely as a tree.

A tree whose hungry mouth is prest

Against the earth’s sweet flowing breast;

A tree that looks at God all day,

And lifts her leafy arms to pray;

A tree that may in Summer wear

A nest of robins in her hair;

Upon whose bosom snow has lain;

Who intimately lives with rain.

Poems are made by fools like me,

But only God can make a tree.

---------------------------------------

 (I add the line)

And what I make from that tree

Will both liberate and enslave me.