Ensuring an Atmosphere of Fairness
Bein Adam
Le-chavero:
Ethics of Interpersonal Conduct
By Rav Binyamin Zimmerman
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This week’s shiurim are dedicated by Leonard Balanson
in memory of Rose Balanson z”l
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Shiur #2: “Be-tzedek Tishpot Amitekha” — Ensuring an Atmosphere of
Fairness
Just for Judges?
Parashat Kedoshim
begins with a general commandment for the Jewish people, “Kedoshim tihyu,”
“You shall be holy,” followed by an extensive list of mitzvot aimed at
providing the foundation for this life of kedusha, holiness.
(See year 1 of this series, lesson 21.) In its listing of interpersonal laws
that inspire a character of kedusha, one verse (15) seems to stand out as
being directed specifically to judges.
Do not perform iniquity (avel) in justice.
Do not give special consideration to the poor, and do not show
preferential honor to the great.
Judge your comrade righteously (be-tzedek).
A rudimentary reading of the
verse seems to indicate that its instructions are directed to the courts,
commanding them to judge fairly. The
first clause, “Lo taasu avel ba-mishpat,” and the last, “Be-tzedek
tishpot amitekha,” utilize the same root as that of the word shofet,
judge. All together, the verse
begins with a reference to justice, and after ordering one not to favor either
the weak or the mighty, it concludes with the requirement to judge others in
righteousness.
However, the placement of this verse in the context of interpersonal laws does
leave one to wonder if in fact it is really directed to the judges or at least
to them alone. After all, the Torah
deals with the laws of judges in a number of Torah portions — Yitro,
Mishpatim, Shofetim, etc. — but this verse appears in a listing of various
interpersonal responsibilities in Parashat Kedoshim. In all of the Torah’s mentions of
judgment, it is clear that the job of the judges is to adjudicate honestly and
fairly; if so, what is added in these verses, and what is to be gleaned from its
appearance in Parashat Kedoshim, if the Torah is just reiterating
the need for honest courts?
The commentators on the verse are bothered by a second issue as well. What is added by the final clause of
“Be-tzedek tishpot amitekha,” “Judge your comrade righteously”? After all, isn’t it evident from the
beginning of the verse that one must judge properly and must not pervert
justice?
The Communal Responsibility for a Just Judicial System
A number of commentators on the verse reflect on the unique language of the
verse as being an address to the judges of society. Rabbeinu Bachya (ad loc.)
explains that the concluding clause of the verse comes to clarify that a society
which judges righteously will ensure God’s presence in its midst.
“Judge your comrade righteously” — your judgment should be righteous and not
perverted. He who judges righteously
consolidates the throne of the Heavenly King… and he who perverts justice
blemishes the royal throne and offends the King.
The Midrash states that the Shekhina abides with the righteous
judge… but God abandons the one who judges unrighteously…
In fact, the requirement to
set up a system of justice is incumbent upon all; it creates a communal
responsibility to ensure that the courts are judging properly. All society has a stake in the courts
being a place of unalterable truth, and therefore is highlighted in our daily
prayers, in the blessing of “Hashiva shofeteinu,” “Restore our judges,”
where we request of God to reinstate the Jewish judicial system.
A similar idea is presented in the commentary of the Meshivat Nefesh on this
verse. He notes that all of the
various commandments in this chapter are expressed in the singular, while our
verse opens in the plural, “Lo taasu avel ba-mishpat.” What is the reason for this
discrepancy? He explains:
It seems that this verse is a warning to the community: they must not appoint a
judge who is not well-versed in the law, for if they do so and he errs, the
punishment will be upon the community.
In other words, there is a
communal responsibility not only to establish a judicial system but to maintain
high standards for the judges. The
entire community, not only particular litigants, has an obligation to guarantee
that there will be proper legal recourse for everyone.
Rav Hirsch (ad loc.) further stresses the importance of communal
responsibility for a judicial system in his commentary on the beginning of this
verse:
Verses 15 and 16 caution us against misusing our authority and against being
remiss in our duties when the happiness and dignity of others have been
entrusted to us.
First comes a warning to the community; the community, through its judicial
institutions, is in a position of power vis-Ã -vis the individual. This position is not to be misused
for injustice and caprice. For this is
the essence of the word “avel”: the misuse of power and wealth… and the
misuse of authority and high position… “Avel
ba-mishpat” is the abuse of the institutions of justice.
This is the meaning of the
beginning of the verse according to Rav Hirsch: the institution of mishpat
must be kept as a mechanism to achieve the highest purpose of society.
It must not be abused to pervert the law.
This is why the institution of the beit din, the Jewish court of law,
remains relevant today; indeed, the best choice to adjudicate a dispute between
two Jews is a din Torah, a proceeding conforming to halakhic guidelines.
One often finds that individuals who are wronged by prominent members of the
community or by prestigious organizations find it difficult to air their claims
before a beit din; indeed, individuals who do so may be looked at askance
for wanting to bring their claims to a beit din in the first place. Other members of the community may
contribute to this negative feeling. Those
who feel bad for the victim may believe that even if the case is brought to
beit din, the unfortunate individual has little chance against his abusers,
and so there is nothing to be done.
After all, it is sad, but not their problem.
According to these commentators’ understanding of the verse, nothing
could be further from the truth. The
community, including each and every individual member, has a responsibility to
ensure that there is support for every wronged individual, in the form of an
honest legal system, trustworthy and knowledgeable judges, and communal backing
for one hurt by others, no matter who that individual may be.
Were we to stop here, we might explain that the placement of this verse,
charging judges to carry out justice, in
the interpersonal section of Parashat Kedoshim serves to inform us that a
life of holiness requires that one make certain that there is a just system of
legal recourse for anyone who has been hurt by others.
However, further analysis of
the verse and its context would seem to indicate that one’s interpersonal
responsibilities are not limited to ensuring that there is an adequate address
in the form of a just legal solution for one who has been trampled by another. Not all cases can be adjudicated in
court, nor do people always wish to raise their issues with others in the
courtroom, even if their case is simple and straightforward. For this reason, the individual and
community must ensure that there is not only a reliable system of justice in the
courtroom, but outside of it as well.
The best way to accomplish this is by learning from the professional
judges how to maintain balanced dealings with others and by knowing when and how
to act as a judge outside of the courtroom.
Analyzing the verse a little further will enlighten us as to how the
Torah guides us to honesty outside the courthouse as well.
The Instructions to the
Judges
The aforementioned verse begins with a general commandment not to pervert
justice, but it continues with specifics, “Do not give special consideration to
the poor, and do not show preferential honor to the great.” Rav Hirsch continues his comments by
explaining that although the first part of the verse is directed towards the
community, the second part of the verse is directed towards judges:
These statements caution against partiality toward one of the litigants…. That
is to say, in forming your judgment and in giving your verdict, pay no attention
to the personalities of the litigants; consider only the issue in dispute… A litigant’s previous record of
uprightness or wickedness must not affect his standing in the minds of the
judges; such a reputation must not influence their decision.
The most righteous person may be in the
wrong in this case, and the most wicked may be in the right.
The judge must make justice
his guide and not pay attention to the stature of the litigants.
Other commentators see the inclusion of a verse directed to judges as a
necessary outgrowth of the events in the previous verses: The Alshikh explains that the verse
here comes after the Torah’s discussion of labor laws, because in the event that
there is a dispute between the owner and the worker, the judges must not display
partiality to either the poor, usually the worker, or the wealthy, usually the
employer.
In fact, the Talmud (Shevuot 30a) expounds “Be-tzedek tishpot amitekha,”
as directing the judge to ensure that nothing he does will unduly affect the
outcome of the case:
“Be-tzedek tishpot amitekha” —
do not allow one litigant to sit while the other stands, one to state all his
claims while the other is told to be brief.
The Panim Yafot (ad loc.)
explains that the word “avel” in the verse is meant to tell the judge
that his responsibility goes beyond the proper adjudication of the case based on
that which he has heard: if he is responsible for one litigant’s feeling of
disorientation and intimidation, undermining his ability to articulate his whole
case properly, then the judge is held responsible. The responsibility for righteous
judgment also includes the requirement to create an atmosphere in which the
litigants realize there is no favoritism.
Again, this section of the verse might appear to be uniquely directed towards
the judges duly appointed, enjoining them to ensure that justice be served
through the courtroom, a deeper look at the Torah’s conceptualization of
mishpat may prove otherwise.
Courtroom Lessons for
Life
The beit din is not only an institution aimed at achieving a just
verdict; it is also the place of understanding God’s prerogative on the issues
in dispute. Through the judges’
analysis of the halakhic sources, they are able to crystallize the words of God
— the word of God is the law (see year 1, lesson 12).
For this reason, the standards of honesty
in the courtroom are quite exacting; this ensures that it is only a place of
uncompromising truth. This is part
of the backdrop that requires that all precautions be taken to ensure that no
avel of any kind be performed in the administration of justice.
I recently read of a din Torah between a caterer and the host who hired
him. They went to the beit din due
to a disagreement over who had rights to ten meals that were ordered and never
served. Rather unusually, both were
“fighting”, amicably, about who had the privilege of being able to pay for the
ten meals that were not served to the guests but to the needy. The caterer, seeing that ten meals
were extra, had given them to the needy, and when informing the host that he
need not pay for ten meals, the host demanded the right to pay for the meals
that he had ordered even though they had been given to the needy. The host felt it was his mitzva, and
he was unwilling to allow the caterer to shortchange him for the mitzva. Not knowing who was in the right,
they asked the beit din to inform them of the divine outlook on the case,
in the form of a verdict.
All disagreements in beit din should be of this type, but alas, they
often are not. Nevertheless, this
case serves to illustrate that the ideal goal of the court is to act as the
representative of God, informing the litigants of how the Torah requires they
proceed.
What does the verse’s requirement entail?
The courtroom demands an extreme standard of honesty which doesn’t allow
for any ulterior considerations, even those which may be admissible outside of
the courtroom. The Sifra (Kedoshim
2:4) therefore writes:
Do not say: this man is a poor man, so both I and the rich man are obligated to
support him; therefore, I will decide in his favor, so that he will get what he
needs without feeling the shame of accepting charity.
The Midrash goes on to define
the responsibility to judge one’s comrade righteously as:
Do not allow one to state all his claims while the other is told to be brief. Do
not allow one litigant to sit while the other stands
The Rambam (Hilkhot
Sanhedrin 21:1-3) codifies this mitzva as an obligation to give equal
treatment to both parties, in a way that both have equal speaking time, equal
seating, etc. The requirement goes
so far as to demand that:
When one of the parties is elegantly dressed and the other is wearing shabby
clothes, prior to the proceedings, the judge must order the former either to
provide the latter with equally fine garments or to dress like his adversary.
In essence, the responsibility
mandated by the verse is to ensure that one’s actions remove any chance of the
appearance of favoritism.
Thus, one must strike a balance: on the one hand, one must maintain the honesty
so thoroughly required by the beginning of the verse, but one must also fulfill
the end of the verse, which expresses the need for often going above and beyond
in the possibilities entertained to ensure that one will not jump to
conclusions.
While this is certainly applicable in court, it has implications for daily
disagreements. It has significance
as well as for one who is trying to educate youngsters, often one’s own
children. One must treat others with
fairness, hearing both sides of the story without jumping to conclusions.
The Or Ha-chayim understands the plural opening of the verse in a similar
regard. Not only are the judges
required to maintain honest conditions in order to arrive at the truth, so are
the litigants. The Or Ha-chayim
states that a litigant must not use illicit means to prove his case, even if,
objectively speaking, he is in the right.
In a similar vein, if a litigant realizes that the judge has ruled in his
favor based on a mistaken assumption or the like, he must be forthcoming and
honest in revealing the reality of the situation.
This idea is expressed clearly in a responsum of the Rashba (3:81), who is
dealing with the question of a possible Talmudic precedent for presenting a
false case in court in order to win the money one is rightfully owed. The Rashba responds:
God forbid that a descendant of Avraham tell a lie, even in order to avoid
losing money, as it says (Tzefanya 3:13) “The remnant of Israel will
neither perform iniquity nor speak untruth.”
Moreover, we have seen in the fourth chapter of Shevuot that it is
forbidden even to convey the truth in a way differing from the way it actually
happened… The Torah says, “Distance
yourself from dishonesty” (Shemot 23:7).
The Rashba goes on to explain
that the seeming precedent is inapplicable — firstly, because of the Rashba’s
understanding of the case; secondly, because even if dishonest means may
sometimes be employed outside of the courtroom, they have no place in either the
claims of the litigants or the testimony of the witnesses.
All the more so, they certainly have no
place in the actions or verdicts of the judges.
The Keli Yakar elaborates on the unique role of truth in the courts in his
explanation of this verse. He
explains that the term avel refers to a forced judgment; it takes into
account elements that are generally positive but have no place in the courtroom. He comments on the unique formulation
of the verse, “Lo taasu avel ba-mishpat”, do not perform iniquity in
justice, and explains that the Torah seeks to forbid iniquity that may arise in
a just situation.
It refers to an act which, on its own terms, is righteous and just but
nevertheless is defined in this context as iniquity… for instance, that which
Rashi mentions, that the judge must not say “This man is a poor man, so both I
and the rich man are obligated to support him; therefore, I will decide in his
favor, so that he will get what he needs without feeling the shame of accepting
charity.” True, the wealthy individual is
obligated to support the poor, but if done in the context of mishpat it
is avel. Though elsewhere it
is obligatory, in the place of mishpat, where justice must be served, it
is iniquity; rather, the judgment should be declared properly, and as an act of
charity the wealthy should provide for the poor in another venue.
These directives concerning
the judges ensure that the proper individuals are appointed and that they will
maintain a strict regimen of honest analysis and judgment. However, it is not sufficient to
leave this stress on true judgment and interaction to the courts. The obligations upon judges are a
guide as to how all of society must create an atmosphere of truth and honesty. While the extreme conditions of
honesty maintained in the courthouse may brook no exceptions, as expressed by
the Rashba and Keli Yakar, they still act as the guiding light for all fair and
honest ethical interaction.
It is probably for this reason that the Keli Yakar understands that the plural
used to open this verse requires that the judge himself must not maintain any
double standards, holding others to criteria he does not see himself as
obligated to satisfy.
It says “Lo taasu” in the plural… This
is a warning to the judge that he should not permit for himself that which he
forbids for others… Therefore, it says to
the judges: don’t do yourselves that which you forbid in mishpat, because
that is true avel.
The debilitating dishonesty of
the double standard is certainly not only relevant to judges; it is an
unfortunate reality of much personal interaction.
Certainly, a judge who is openly adamant about the illegality of an act
that he himself does is deplorable, but how many of us can say that the double
standards that we maintain are any less objectionable?
The exact same phrasing, “Lo taasu avel ba-mishpat,” appears regarding
the requirement to maintain genuine weights and measurements in business later
in the chapter (v. 35), for the requirements of honesty are not restricted to
the courtroom. This interplay between honest judgment and equally impeccable
behavior outside the courtroom is expressed in the commentary of the Alshikh. He
notes that Rashi (based on Bava Batra 89b) explains that the word
mishpat in this instance refers to weights and measurements, i.e., anyone
who cheats in weights and measurements is just like a judge handing down a
verdict which is a miscarriage of justice.
The courtroom is a microcosm of truly honest and respectable dealings with
others, and the Torah demands that we apply the lessons in our own macrocosm, in
order to create a holy society. Perhaps
for this very reason, the directives to the judges are found in Parashat
Kedoshim, because ignoring the judges’ charge is liable to create difficulty
for the community as a whole.
Prohibitions for Judges
that Apply to All
The notion that the directives to judges obligate everyone in a certain sense
does not seem to be without basis.
After all, a number of laws from the courtroom are the direct sources for laws
outside it, be it in the courtrooms of our minds or the courtrooms of our
dealings with others. One prime
example of this idea is the prohibition of “Do not bear a false report” (Shemot
23:1). The Rambam (Hilkhot
Sanhedrin 21:7) states:
It is forbidden for a judge to hear the words of one of the litigants before the
other comes or if the other is not present.
Even hearing one word is forbidden as it states (Devarim 1:16):
“Listen among your brethren.” A
judge who listens to [only] one litigant violates a negative commandment, as it
states: “Do not bear a false report.”
Included in this negative commandment is the prohibition of listening to
malicious gossip, speaking malicious gossip and bearing false testimony…
How could a prohibition
requiring the judges to be honest also serve as the basis for not speaking
negatively or maliciously about others?
Clearly, the judges must maintain strict honesty without reservations,
but all of society must learn from them how to maintain honest dealings with and
treatments of others.
In fact, the most explicit mention of a commandment directed towards judges but
obligatory upon all of society is the concluding clause of the very verse we are
discussing, “Be-tzedek tishpot amitekha.”
In Shevuot (ibid.), the Talmud continues by noting that
this verse not only obligates the judge to be fair and balanced; it is binding
upon every individual who sees his companion perform an action of questionable
propriety.
“Be-tzedek tishpot amitekha” — the verse tells us that you
must judge your friend favorably.
The specifics of this
requirement need further study, as may be found in our next lesson, but the
application is clear. Not only must
the judge in the courtroom be careful in his judgments of the litigants; every
individual who sees another act must exercise the same care and caution before
passing judgment.
The Keli Yakar (loc. cit.) points out that it is particularly because of
the wording of “amitekha” that the Sages understood that the verse must
be referring to a situation outside of the courthouse, in the courtrooms of each
individual’s mind.
All in all, while we hold judges to a higher standard, there is no doubt that
their administration of justice is the moral benchmark for our behavior in all
facets of life. If the judge must be
careful not to show favoritism or give an unfair advantage to another based on
his actions, the same holds true for us as well.
If the judge must be careful not to hold a double standard, then we must
question our internal barometers to see if we fall prey to that same character
defect. If the judge must ensure
that the litigants speak properly, then we must be careful that our words are
proper as well.
Next week, we will see how, just as the judge must ensure an honest proceeding,
we as well must maintain standards of balance between honesty and naivety, while
giving others the benefit of the doubt.
This is the holiness embodied by the arbiters of mishpat, a
holiness that should permeate the very fabric of our interactions with all our
amitim, our comrades.
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