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What Does It Mean To Be A Fair Judge?

What Does It Mean To Be A Fair Judge?


Daniel Loewenstein

Writer

In Parshat Shoftim, we're given a detailed list of instructions as to how to establish a justice system. Yet there are seemingly random topics woven into these instructions, like idolatry, and how to properly offer an animal to God. Is there a reason for these odd interludes? Are they telling us something important about the justice system?

Join Daniel Loewenstein and Beth Lesch as they consider what true justice in the Torah really is.

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Transcript

Daniel: Hi, everyone and welcome back to Parsha Lab. I'm Daniel Loewenstein.

Beth: I'm Beth Lesch.

Daniel: Beth, it's so exciting to be learning with you again.

Beth: Yeah, I'm looking forward to it, Daniel. Thanks for having me.

Daniel: Just a reminder to all you listeners out there, if you're not already subscribed, please subscribe and if you are subscribed, please also feel free to rate us with five stars, which will help other people find us, too. So, Beth, today we're going to be looking at Parshat Shoftim and we're going to start with the very beginning.

Beth: Sounds good. Show me where to go.

Judging People Fairly in the Bible

Daniel: Beth, we are going to start with Chapter 17 Verse 2. The Torah says, "ki yimatzei b'kirb'cha b'achad sh'arecha," if you find in your midst by one of your gates, "asher Hashem Elokecha notein lach," that God your God gives to you, "ish oh isha asher ya'aseh et hara b'einei Hashem Elokecha," someone, a man or a woman, who is doing something evil in the eyes of God, la'avor brito, to violate his covenant.

"Vayeilech vayavod Elohim acheirim," so this person goes and worships foreign gods, "vayishtachu lahem," and bows to them, "v'lashemesh oh layarei'ach oh l'chol tz'va hashamayim asher lo tziviti," worships any of the heavenly bodies that they were not commanded to worship, "v'hugad l'cha v'shamata," so you're informed and you hear about it, "v'darashta heiteiv," so you should investigate well and, "v'hinei emet nachon hadavar," and you discover that it's true. Beth, how would you translate nachon hadavar?

Beth: I would translate it as the matter is correct, as in you find that you can verify what it was that you were told.

Daniel: Great. I would say either correct or established. It's true; it's correct; it's established. We've established the fact that this person has in fact violated God's covenant.

"Ne'estah hato'eivah hazot b'Yisrael," this abomination has been committed amongst Israel. Then, "v'hotzeita et ha'ish hahu oh et ha'ishah hahi," that man or woman will be taken out. "Asher asu et hadavar hara hazeh el sh'arecha," they're taken out to the gate. "Et ha'ish oh et ha'ishah uskaltem ba'avanim vameitu," they'll be put to death by stoning.

"Al pi shnayim eidim oh shlosha eidim yumat hameis." In order to convict someone we need either two witnesses or three witnesses. "Lo yumat al pi eid achad." A person can't be killed by one witness. One can't be convicted of a capital crime by one witness. "Yad ha'eidim t'hiyeh bo b'rishonah," and the hands of the witnesses will be the first, presumably the first to throw the stones, "l'hamito," the first ones to put him to death. "V'yad kol ha'am b'achronah," and the rest of the nation afterwards, "u'viarta hara mikirbecha," and you should destroy evil from your midst.

So Beth can you give us a quick ballpark summary of what we just read?

Beth: Sure, Daniel. Here's what we've heard so far. We've heard these instructions that God is giving to the judges, the shoftim, that in the prior chapter He appointed. He says, first of all, if you see anyone who goes and serves other gods, you hear about it, those people have committed a crime. They need to be punished for that crime. There needs to be some kind of trial at which evidence of their crime is brought forward. You need to make sure that we have at least two witnesses who are testifying in fact to what they did and ultimately if they are found guilty, then they're put to death by stoning and both the witnesses and the rest of the people participate in that.

Daniel: Great. Something that struck me as odd here is the fact that this whole judicial process, this whole capital crime process we're talking about here, seems to be specifically framed in the context of trying someone for committing idolatry, for worshiping foreign gods.

Beth: Yeah, I see that.

Daniel: The Torah does not have a problem lumping a whole bunch of different kinds of laws together. The very next law is, "ki yipalei m'mcha davar lamishpat bein dam l'dam bein din l'din u'bein nega l'nega." If you are having trouble knowing a certain law, whether it's a law about dam or din or nega, whatever those happen to be, then you should go and consult with the judge or the kohen or whoever it is who can give you insight into the law that you're confused about. Why is this specifically being framed over here in the context of the court case, the witnesses? Why specifically framed in the context of idol worship?

Beth: Yeah, Daniel, it's interesting and I don't know quite what to make of it. Because there are a lot of crimes that could potentially be committed. There are a lot of ways in which a person could transgress a matter of Torah and the Torah doesn't give come and give us the court proceedings for each and every one of those things.

Daniel: We're presuming here that this, I mean, I'm presuming that this is generalizable to other laws, other violations as well.

Beth: Right, but not to all violations, because the punishment seems to be a fairly serious punishment, but it is surprising that the Torah would go out of its way to spell this out for just one mitzva in particular, when there's 612 others that you're left to wonder about.

Daniel: Right. So this question was nagging at me and I spent a little bit of time looking over the context here and also for some other language parallels. I came up with two different insights or avenues of thought that I would like to share with you and hear your feedback, if that's okay.

Beth: Sounds great. I want to hear what you found.h

Connections to the Law of Two or Three Witnesses in the BIble

Daniel: Okay. The first one I actually think is pretty cool. I'm not exactly sure what to make of it, but I have an idea. Of all things I think it's a parallel to Genesis Chapter 41. It's the story of Pharaoh's dreams and Joseph interpreting the dreams.

Beth: Right, right. Pharaoh had those dreams about the cows, about the stalks of corn, and Joseph came around and interpreted them and it ended up predicting years of famine and years of plenty.

Daniel: So if you look in our section of the text over here, in Deuteronomy Chapter 17 Verse 4, two things I want to draw your attention to. Number one, v'hugad l'cha. If a person is worshiping foreign gods, v'hugad l'cha. What does v'hugad l'cha mean?

Beth: It was told to you.

Daniel: It was told to you; you were informed about it. Which isn't necessarily the language that you'd expect.

Beth: Especially because of the next word, which is v'shamata. It was told to you and you heard about it. So you could delete either one of these phrases and it would still make sense. They sound like two separate stages of hearing and comprehension.

Daniel: Right, and then after v'darashta heiteiv, that you should investigate well, then we're told nachon hadavar, the matter's established. So wouldn't you know it that the first time that the phrase nachon hadavar occurs in the Torah is in...

Beth: Is in Genesis Chapter 41.

Daniel: That's right. If you look at verse number 32, over there...

Beth: "V'al hishanos hachalom el Pharaoh pa'amayim ki nachon hadavar mei'im ha'Elokim u'm'maheir ha'Elokim la'asoso." Regarding the fact that Pharaoh had this dream twice you now know that nachon hadavar, that the thing is established. The thing is correct. It's definitely going to happen from God. God is going to hasten to make it happen.

Daniel: Beth, think about this. In our case, in Deuteronomy Chapter 17, how many witnesses do you need?

Beth: You need two of them.

Daniel: Two of them, right? So how many pieces of evidence do you need to establish that a person has committed this crime?

Beth: Interesting. In other words, if you only hear an account of the crime once, then you can't rely on that, but if you hear an account of the crime twice from two separate witnesses, then you can conclude nachon hadavar.

Daniel: Just like here.

Beth: Yeah, that's really cool. I'm with you, Daniel. What else?

Daniel: So if you go back in Genesis 41 to Verse 25, this is sort of more of a side detail than a main piece of evidence, you'll find that when Joseph is explaining to Pharaoh what his dreams mean, he says that God is telling Pharaoh his plan. The word that he uses is "et asher ha'Elokim oseh higgid l'Pharaoh."

Beth: Interesting, Daniel. So here it's God who is being higgid l'Pharaoh, He is the one who is telling Pharaoh the dream. The parallel back in Deuteronomy is that it was the witnesses who were the ones who were telling the judge the testimony. That seems to be the exact same parallel that we had set up with that other verse, with Verse 32. When God tells Pharaoh a thing twice you know that it's nachon hadavar. When the witnesses tell a judge something twice you know it's nachon hadavar. So, very cool. I see the parallel working in both places in the same order.

Daniel: Right. So when I first encountered this I really had no idea what to make of it and I'm not sure that I do now either, but one thing that occurs to me is that both of these situations seem to be pretty high stakes. What Joseph is about to tell Pharaoh to do is to overhaul his entire economic system. There's going to be a surplus. Don't let your people enjoy the surplus – take it all away from them. Store it. If they come after you, if they yell at you about wanting the freedom to enjoy the blessings of their crops, ignore them, because we need to prepare for the future.

You could say that a person might feel like that they want to waver. They're not sure, you know. This isn't something that you rush into, but what Joseph seems to be telling Pharaoh here is, no. Once it's established, we have our two confirming pieces of evidence, so now we need to take the decisive action. Even if it's uncomfortable, even if it seems extreme, this is what we need to do to make sure that society is protected.

Beth: Daniel, I see what you're saying because back in Deuteronomy it's also a very high-stake situation. We're talking about putting someone to death because there are whispers and rumors that he might have done something wrong, that he might have been engaged in idol worship. It would be a very scary society if people were put to death at the drop of a hat, without judges confirming that in fact there was good reason to believe that they were guilty of the crime. So there too you need to really be able to feel confident in acting on the information that you're being given before going ahead and executing the sentence.

Daniel: Right, and another thing that I think is interesting is on the flip side, that when you are sure, that when you have your two confirmed pieces of evidence that let you feel confident in the knowledge you have, so then there seems to be a similar aspect of protecting society by taking decisive action and not waffling.

Beth: That's right; that's right. Both of these are situations in which because an action was taken, an action that could potentially have been criticized had it not been well-founded, society was saved as a result. In the first case, society ended up having storehouses of food during a time of famine to get them through seven years of hardship.

So too, in the case of Deuteronomy, we're talking about taking a person who is engaged in idolatry, who has the potential to be a very negative spiritual influence on the collective as a whole, we're talking about taking that person and killing that person so that they're no longer able to exercise that same spiritual influence. One of them is a case of material ill and the other is a case of spiritual ill.

Daniel: Right and I think that line "u'bi'arta hara mikirbecha," at the end of the section in Deuteronomy, also lends itself towards that interpretation. You're doing a national service by removing the negative influence.

Beth: Yeah, Daniel. It's interesting. I'm used to looking at these laws in Deuteronomy as describing the fate of an individual. An idolater goes astray; he gets killed. But you are pointing out to me these resonances that I had been overlooking, about how really this might be a matter that affects the entire people. That's part of what was going on and part of what the Torah wants to draw our attention to.

Daniel: That may be one of the reasons why this law is framed in context of an idolater.

Beth: So you say that because an idolater is a great example, is perhaps a paradigmatic example, of a crime that could have ill effects on the entire people?

Daniel: Yes. In fact, I wasn't planning on getting into this, but you actually find a very similar language of "darashta heiteiv v'hinei emet nachon hadavar" in a case a little bit earlier in Deuteronomy, about the city that goes astray, the ir hanidachat, which is definitely about removing a major negative subtle influence.

Beth: I hear that, Daniel, but I could think of a lot of different kinds of crimes that would transcend the individual fate of the perpetrator and could have a very negative effect on the society at large. You know, a murderer you could say the same thing about, perhaps more so. Let's go back to that original question of yours. Why does this verse single out the case of the idolater in particular?

Daniel: I'm happy at this point to move to my second theory. I think that there's a possibility to look at the case of the idolater, again, like you said, as a paradigmatic example of the person who leads society astray, but you're asking a good question. There are other people who lead society astray also, who could be negative influences and maybe the answer's a good answer. Maybe the answer's a bad answer. Take it or leave it.

What Is the Bible Saying About Judging Righteously and Justice?

Beth, my second avenue of thought also brings up a couple of other questions, which I think are really questions you can't get away from if you look through the beginning of the parsha, even earlier than where we started. The very beginning of Parshat Shoftim starts in Chapter 16 Verse 18 and we're told we need to appoint judges and officers. Then we're told not to pervert justice, not to take bribes, to pursue justice, "tzedek tzedek tirdof." Then we get to Verse 21. Can you read Verse 21 in Chapter 16?

Beth: You got it. "Lo sita l'cha Ashera kol eitz eitzel mizbei'ach Hashem Elokecha asher ta'aseh lach." You shouldn't plant for yourself any kind of idolatrous tree near the altar of God that you're going to make for yourself. So it seems like this isn't the first mention that we get in Parshat Shoftim about avoiding idolatry. Indeed, we were warned about it just at the start of the parsha in Chapter 16.

Daniel: Right, but right before that is a bunch of judiciary laws. Appointing justices and officers and don't be perverted by all the different things that could pervert justice. Oh, also don't plant an Asherah.

Beth: Right. These verses make it sound as if there is some connection between the appointing of judges and idolatry. It doesn't sound like idolatry is just the first case example of a crime. I almost wonder if there's a concern that in appointing judges and officers, that that could lead to a form of idolatry. That people might forget that God is the ultimate judge, not these people on earth who are supposed to be deciding things in His name. So we get these two commandments together to try to keep that in mind.

Daniel: Interesting. I'd love to maybe explore that possibility in a minute, but before we do I just want to finish reading the next two verses as well. Because I think it compounds the question a little bit.

Beth: "Lo sakim l'cha matzeivah asher sanei Hashem Elokecha." You shall not set up for yourself a matzeivah, a pillar that Hashem your God will hate.

Daniel: I think some of the commentators explain that both the law of not establishing an Asherah and not establishing a matzeivah, though you might think that they're about idol worship, they're actually about practices that you might think are good. Like, I want to build a private altar to God in my backyard because I want to sacrifice things to him, but no. You need to use the main one or you need to use the special kind that He prefers and not something that He doesn't want.

Also, Asherah, some commentators claim that it was an idolatrous practice to put nice trees around their worshiping places as a form of beautification. We shouldn't do that, because that's something that they did. Even though you might intuitively think why not make a house of God beautiful?

Let's read one more verse.

Beth: Now we're at the first verse in Chapter 17. "Lo tizbach l'Hashem Elokecha shor v'seh asher y'hiyeh vo mum kol davar raki to'avas Hashem Elokecha hu." You shouldn't sacrifice to God an ox or a sheep that has a mum, that has some kind of blemish in it, any evil thing, any bad thing. Because it is an abomination to Hashem.

Daniel: Right. Just to sum up, the very beginning of the parsha is all about appointing officers and judges and the pursuit of justice. Then we get this little interlude about the Asherah and matzeivah and not offering animals that have a blemish. Then we're back to justice, but in the context of idol worship, that we have a court case about how to judge someone who worships idols.

Then, as you continue through the rest of the beginning parsha, we have laws about who to go to clarify the law and about listening to the legislative bearers of the Torah and about appointing a king. It seems like it's all very governmental, very legislative, except for these little interludes here in the beginning.

Beth: Yes, that's right. Just to jump in, now that you've brought my attention to Verse 1 in Chapter 17, this idea about not sacrificing a blemished animal to God, now I'm starting to understand why the commentators might read the Asherah or the matzeivah as being things in the service of Hashem, not being idolatrous. Because one idea is that you shouldn't take an animal which is blemished and use that, direct that towards your service of God. So too, maybe the Asherah and the matzeivah, it's a person who's taking something and directing it in the service of God. Nonetheless, the Torah is saying, don't do that. Don't serve God in quite that way.

Daniel: While that makes sense in the terms of the internal logic of those three verses, it doesn't really make sense in context, at least not at first blush.

Beth: Meaning, if you're just going to look at those two verses about the matzeivah and the Asherah in a vacuum?

Daniel: Right. If you did that, then they could work with each other, but they don't seem to match what comes before them and what comes after them. Beth, I have a theory and you'll let me know if you think it's good or not. I think the most exciting part of it to me is thinking about the implications of the theory. So here goes.

One of the laws in the beginning of the parsha talks about the fact that we shouldn't pervert justice, we shouldn't grant any special favoritism or recognition to someone, we shouldn't accept bribes. So maybe when we're told don't plant these fancy Asherah trees and don't make matzeivot, maybe what the Torah is saying is, you shouldn't try to bribe human officers and also don't bother trying to bribe God either.

Beth: You know, Daniel, that's a really interesting suggestion. In other words, the verses before are talking about the fact that yes, you've got these people, judges and officers who are in a position of power over the rest of the people. There is a vertical relationship going on. They are deciding the fate of the people, but at the end of the day they're supposed to be treating all people alike and they're supposed to be cleaving as closely as possible to this abstract thing called justice.

So too, there's this sense that there is a vertical relationship between people and God. That God is supposed to judge all people alike and that God is supposed to adhere as closely as possible to an abstract concept of Godly justice and that we have no place in trying to sway that.

I think it's a really interesting suggestion. I think it's a neat way of weaving a link between the opening verses of the parsha and then Verses 21 and 22 about the Asherah and the pillar. I don't see as many textual clues in that verse about the Asherah and the matzeivah as I would like to link it back to this idea of what you're pointing at, but I think I understand what you mean now when you say, whether the textual connection is really there robustly or not, isn't it an interesting thought to ponder.

Daniel: Yeah, the evidence for the theory is totally context and I'm completely owning that. I'm happy for anyone to suggest some alternative that has a firmer textual grounding, but let's move to the beginning of Chapter 17 now. The verse about the mum, the blemish in an offering to God and how you can't offer that. Let me ask you a question. What do you think is the right mindset of a faithful follower of God who chooses not to offer a blemished animal to God?

Beth: You've got a guy who is bringing a sacrifice to God. He's got two animals on his farm that he can bring. One has a blemish and one doesn't. He chooses to leave the blemished animal home and to bring the healthy animal with him to the altar. What's his mindset when he does that? Well, a couple of things come to mind.

For one thing, I think that that guy is, he's sacrificing his own material interests as a gesture of showing how important it is to him to serve God properly. Because that blemished animal, maybe he... I can imagine him saying to himself, I've got two animals here. The one that's healthy I can do all kinds of things with it. I can cook it into a meal for my family. I can sell it on the open market and make a quick buck. The blemished one, great, an animal's an animal. I can take that one to the altar and give it to the kohanim and have my sacrifice to God and make a profit on the side. Instead he's saying, no, God doesn't want a blemished animal. It's somehow not proper for me to bring that as my sacrifice. So I'm going to take this animal that could otherwise bring me material benefit and I'm going to serve that up to God.

Daniel: Right. I was almost thinking about it as like a little kid who's making an art project to bring to his parents. If the kid really, really loves his parents, then he's going to do everything he can to make sure that it's perfect. If the kid could not care less about whether he lines everything up properly and makes it as beautiful as possible, that may be a sign that there's some sort of lack of appreciation for his parents.

Beth: I think that's right. I think we would tend to think of it as a kid who puts a lot of effort into an art project that he intends to display to his parents. There's a very strong relationship between him and his parents and he cares what his parents think of him and he wants his parents to be proud of him.

Daniel: Here's my suggestion to you, okay. Are you ready? If you have that kind of love and that kind of zeal for God, how are you going to feel when you hear that there is someone who is practicing idolatry, someone who is betraying God?

Beth: I think that if you heard that there was someone who was betraying your God, this God that you love, this God that you want to bring your beautiful art project to, you would be – number one – you would be in dismay. How could a person possibly consider turning his back on such a wonderful God? But also, you would feel a need and an urge to go and defend your God.

Daniel: Right. I think so too. I think that it's very likely in that situation that you be hot-headed, you'd feel impassioned and maybe you'd be quick to judge.

Beth: Interesting. I think I see where you might be going with this. The laws that we get just a little bit further on, which outlined the judicial proceedings for an idolater, at the outset we might have read those as being actually quite harsh. I mean, we're talking about a death penalty for someone who does idolatry. But what you're saying is, yeah, it is harsh, but maybe it's a due punishment. Maybe it's an appropriate punishment. Maybe in some sense it's actually a protection, because if there wasn't a proper court procedure in place, then you'd have vigilante killings of idolaters in violent ways by the roadside.

Daniel: Or at least sham court proceedings.

The Bible's Lesson on Judging Others and Justice

Beth: This takes us back to the opening verses of the parsha that you really have to treat everyone equally. You really have to not let yourself as a judge be biased by either the person and his reputation or even by the crime. It's justice that you have to hold yourself to as a standard and nothing else.

Daniel: Right. I think that there's an interesting emotional resonance between this law of the blemish in the sacrifice and the law of the idolater, in the sense that they both have the word to'eiva describing them. If you look at Verse 1, you'll see that you can't offer a blemished animal because it's a to'eiva. It's something that God is disgusted by, probably because it shows a lack of concern. Meaning, the emotion you're supposed to have for God is supposed to be one of love and passion, right? And that would evoke the same sort of revulsion to idolatry.

Yet, a person who's supposed to be in this loving, zealous mindset for God still is told make sure that you're doreish heiteiv. Make sure that you listen. Make sure you have the two witnesses. Even if you're zealous for your God and want to defend his honor and want to be completely intolerant of betrayal, make sure you get your facts straight first. Don't jump in; don't let your emotions overrule justice and hearing out the proper case.

Beth: Daniel, it's a really interesting suggestion. I'm thinking about in our society, what are the kinds of crimes and what are the kinds of trials that capture the front page? There are crimes that the law books may assign equal punishments to, but in the court of public opinion, in the court of emotions, people are likely to get more hot-headed about one than the other.

I guess what you're painting for us is a society, a snapshot of Israelite history, in which according to your theory, the kind of crime that would incite passions higher than that of any other, is a crime of idolatry. That someone who God forbid commits a murder, someone who God forbid harms a child – you could imagine any number of things that would capture a headline – but there's something about this society and perhaps this society's sense of closeness with God that predisposed them to react in a very violent way, more so than to any other crime.

Daniel: You know I hadn't even thought about it that way, actually. I think that's actually really compelling and really interesting. Or at the very least, that's what we are supposed to feel. We're being warned to temper passions that we're supposed to have.

Beth: Yeah, yeah. Daniel, I hear what you're saying. Maybe the Torah is pushing us in two directions at once. It's saying that I assume that you members of an ideal society are going to feel this kind of zeal on My behalf. If you feel this zeal on My behalf, when you feel this zeal on My behalf, I don't want you to act on it in a violent way. I want you to follow the court procedures I set out for you. It raises two possibilities in my mind.

One, do I need to be working on cultivating my sense of zeal, that somehow my sense of zeal is lacking and needs to be there so that I can then work on tempering it with justice? Or, maybe you can say the opposite? Maybe you can say, the Torah was given to a generation of people who may have felt that way and maybe various times throughout Jewish history, zeal has been a more readily accessible emotion and experience than in other times, but at the end of the day the goal is to get to tempering. If I'm at a place now of tempered feelings, then that's where I need to be. I don't need to go back and work on my zeal.

I don't know, Daniel. What do you make of all this?

Daniel: I really resonate with what you said before about the court of public opinion and what makes the headline. I really do think that a good indicator of where society is in terms of its moral emotions is what kinds of things do make headlines. I tend to side with more the first direction you suggested. Which is if zeal for God isn't the kind of thing that is at the forefront of our minds, maybe we're missing something.

Beth: Daniel, I appreciate you putting this in the context of relationship. I appreciate you bringing this back to the example of a child wanting to show a beautiful piece of art to his parents, a practitioner of the faith wanting to bring a perfect animal to his God to sacrifice. I think that when we hear stories about people who practice religion differently than we do we often have no trouble mustering negative feelings, even aggressively negative feelings, but is it zeal?

Meaning, is it because we're thinking about the fact that our God, our beloved God that we are in a relationship with, is being disrespected by this person's practice? Or is it because we are excited because we think we've got a handle on the religious truth and we're just so angry and so upset to see someone disrespecting it? How often do we perceive that kind of slight really in the context of relationship and really act on behalf of God and not on behalf of self-righteousness?

I think the answer is not very often. It's a charge that I want to give myself when I feel myself experiencing these emotions of zeal, or what I would call zeal, to really try to probe that emotion and figure where that is coming from. Is that coming from the emotion that the Torah wants us to cultivate? Which is I want to go defend someone that I love. I'm angry and hurt to see other people not respecting the relationship.

It's really interesting food for thought. I'm glad you brought all this to my attention. Like you said, I'd want to see a little bit more evidence before I put my money on the line here, but it definitely brought up a lot of very real conversations.

Daniel: Yeah, thank you so much. Also, thank you to all of our listeners for joining us. If you have any thoughts of how to make sense of this, please email us at info@alephbeta.org. We love your comments.

Also, again, if you have not subscribed, please go ahead and do so. If you want to give us five stars, again it will help other people find us. Thanks so much and we'll catch you next time on Parsha Lab.

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