The law and the future

The first reference to writing in the Torah is an act of memorialization. It comes immediately after the Jewish people in the wilderness successfully fought off Amalek: “Then God said to Moses, ‘Inscribe this in a document as a reminder, and read it aloud to Joshua: I will utterly blot out the memory of Amalek from under heaven!’” (Exodus 17:8)

The account of Amalek in Exodus reads like an official record. It begins dryly and objectively, “Amalek came and fought with Israel at Rephidim.” What follows is a description of a military campaign: how Joshua led an army against the ambush while Moses watched and prayed from a nearby hilltop, appealing for heavenly assistance.

Recalling the incident again in Deuteronomy, Moses provides a far more visceral account. Speaking to a generation born largely after the attack, to children and grandchildren of survivors, he says, “Remember what Amalek did to you on your journey, after you left Egypt — how, undeterred by fear of God, he surprised you on the march, when you were famished and weary, and cut down all the stragglers in your rear.”

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The Israeli scholar Nechama Leibowitz was brilliant at analyzing moments like this, where two Jewish texts relate the same information in different language. Here, she noted, “Moses speaks as a historian in Exodus… but as a lawgiver and moralist in Deuteronomy. The difference between the two passages becomes clear if we bear this in mind. Where the Almighty is setting forth His program for the future there is no need to dwell on the cruelty of Amalek. The divine will stands in need of no motivation. But in (Deuteronomy) where Israel is commanded a specific precept, that of remembering and blotting out Amalek, the awesome character of the task requires explaining for them…”

All throughout the Pittsburgh synagogue shooting trial this past summer, I kept noticing similarities between the ongoing judicial proceedings and the perpetual work to chronicle the past.

Before the trial, I never fully appreciated the importance of documentation in the American judicial process. In the early “discovery” phase of the trial, all the parties to a case jointly compile a body of evidence. Evidence can be physical objects collected from the scene, or photographs of the scene, or documents created by the parties or about the parties. Even when the evidence is voluminous, it is rarely sufficient on its own. Each side also calls witnesses, who first provide depositions and later give testimony.

The opposing legal teams use this body of evidence to make their competing cases about the events in question. The jury decides which case is more compelling.

At the heart of this process is a remarkable idea: All parties are working with the same body of evidence. Each legal team highlights, refutes, or ignores information for its purposes, but neither party is able to produce private documentation for its use alone.

A similar mechanism propels the creation of history.

Just as investigators collect evidence that will be used in criminal proceedings, archives collect artifacts, photographs and documents of the past events. When those inanimate materials don’t sufficiently capture the human experience, archives might also commission memoirs or oral histories — almost like calling witnesses to the stand.

There is no tidy discovery phase in history (to the dismay of many historians), but there is a collective body of material. It’s the archival record. It isn’t perfect, and it isn’t comprehensive. Some experiences were never documented. Some documentation wasn’t preserved. Some archives are hard to access. But years from now, when we are all gone, and our memories have mostly departed with us, these records will remain to tell the story of our experiences. Our records become a shared body of evidence of our past.

Historians use the archival record to make various cases for how the past unfolded, just as legal counsel use the shared body of evidence to make a case in court.

The jury is you. Every time you read a history book, or watch a history program, or attend a history lecture, or even listen to an acquaintance sharing some historical curiosity, your mind makes a reckoning: Do I buy this explanation for how the world came to be? And if so, what are the consequences of accepting this version of the past?

There are always consequences. This is why Leibowitz calls history a “program for the future.” History does so much more than recall the past. History makes a case for how the future should unfold. History turns an experience into a mission. History is a forward-looking form of justice — different from legal justice, but equally vital to society.

The archival record is not bound by the need for a legal conviction. It is free to wander. It can collect things that would be irrelevant to the judicial process, things that might seem inconsequential today but could hold great use for the future. The things we choose to keep, the things we choose to preserve, the things we choose to remember — they are never inconsequential and never unbiased. They always reflect our values.

In the Amalek story, the Almighty created this archival record with a single divine document that read, “I will utterly blot out the memory of Amalek from under heaven!”

In our world, we need a multiplicity of voices, as many as possible. The past five years in this community have yielded such a vast range of human experience: every odd-colored shade of grief, gratitude, joy, dread, kindness, frustration and love. And the experience is constantly evolving as it encounters the times. How differently we all might have experienced the current events in Israel without our past experience of Oct. 27.

The trial documented its part of that story. The media documents its part of that story. The rest falls to us. Failing to provide future generations with the full measure of your life during this time would be a missed opportunity — and beyond that an injustice. PJC

Eric Lidji is the director of the Rauh Jewish Archives at the Heinz History Center and can be reached at rjarchives@heinzhistorycenter.org or 412-454-6406.