Torah Emet
10-5770 Mitzvah N-71
January 24, 2010
Negative Mitzvah 71 – This is a negative commandment: A judge should not accept a bribe.
Hafetz Hayim – As Scripture says: “And you shall take no bribe” (Ex. 23:8). Even to render a true judgment a judge must not accept a bribe. The judge is duty bound to return it. And even a bribe of words (flattery) is forbidden. Whoever gives it violates the prohibition against putting a stumbling block before the blind (see Lev. 19:14; we will cover this in a few weeks) As for payment for being idled, since it is evident that he is interrupted from his work while he is occupied with the judgment, it is permissible for him to take a fee from both litigants equally.
Almost every legal system forbids a judge to accept a bribe. Unfortunately, this is a law that all too often is honored in the breach. The very essence of a corrupt society is that it looks the other way when a judge accepts a bribe. Once justice can be bought, it is only a matter of time before all officials of the government can be bribed and soon all members of society are only looking out for themselves, and getting what they want, to the detriment of those who do not have the money or the clout to buy the correct decision.
There are some interesting extensions of this law as described above. While it notes that a judge must return a bribe, it is also a part of the legal system, should a judge accept the bribe inadvertently. That is, he takes a gift from a friend only to discover the next day or so that the friend is appearing before him in court. In this case the gift must be returned and the judge may recluse himself because there may still be the appearance that he has been tainted by the bribe (or the friendship). This is true even if the judge is being bribed to give the “correct” verdict. If the judge is ready to rule and then there is an attempt by a litigant to “pay” for that same verdict, the judge still cannot accept the bribe since it still gives the appearance that the verdict has been “bought”. This law also applies if the bribe is words of flattery. The judge must not accept anything that could, in any way, affect the verdict of the case.
In a few weeks we will see that the one who attempts to bribe a judge is also guilty of a sin, if for no other reason, he is attempting to make the judge sin. This reflects a cynical view that any person has their “price”, that is, if we give them enough money, they will do whatever we request. This may or may not be true in every case, for there are honest people who will always resist this kind of bribe; but the law does not rely on it. It is a sin to offer the bribe as it is a sin to accept it.
The final clause deals with court costs. Jewish courts really don’t cost the litigants at all. Justice is not only blind, but it must be open to all no matter how much they can pay. The court would meet in the market or at the city gate and the rabbis would sit in judgment and rule on any case that was brought to their location. We do have to remind ourselves that rabbis, in ancient times, were not paid to be rabbis. Jewish law forbids making a crown out of Torah. Rabbis are not to be paid for their services. Rabbis in the ancient world all had jobs; some were landowners and farmers, others had occupations that involved skilled or unskilled labor. This work was their sole means of support. If a case would take along time, the rabbis on the court would be away from their jobs for a long time. This would mean that they would suffer a financial loss. To prevent this potential loss from limiting the ability of a rabbi to adjudicate a case, the litigants could be required to equally pay for the time the rabbis sit in judgment.
Courts of law are crucial to creating a civilized society. Bribes are one of the main ways the law can be subverted; thus it is a serious crime to accept a bribe.
Sunday, January 24, 2010
Monday, January 18, 2010
9-5770 Mitzvah N-69; 70
Torah Emet
9-5770 Mitzvah N-69; 70
January 18, 2010
Negative Mitzvah 69 – This is a negative commandment: Do not be unjust in rendering justice.
Hafetz Hayim – As Scripture says: “You shall do no injustice in judgment” (Lev. 19:15). This means not to declare the guilty innocent or the innocent guilty. Included in this prohibition is the rule not to delay the verdict. After it has become evident to the judge where justice lies, if he dwells at length on clear matters in order to cause one of the litigants distress, this is in the general category of injustice.
Negative Mitzvah 70 – This is a negative commandment: Do not show honor to an eminent man in a court judgment.
Hafetz Hayim – As Scripture says: “nor shall you favor the person of the mighty (Lev. 19:15)” This means that if people come before a judge in a lawsuit, one great and one small (in importance etc.) he is not to honor the great one and is not to treat him cordially. He is not to greet that one to any greater extent than the other one. It applies everywhere and always.
One of the hallmarks of a courtroom is the pageantry and the formal process that are required when court is in session. The judge only enters when all are present in the room. All rise when he or she enters and only sit after the judge sits. The attorneys are always called “counsel” and the litigants are referred to in the third person as plaintiff and defendant. Woe to the person in court that breaks with protocol. There can be swift justice for those who do not follow the rules and then ignore the judge’s instructions to bring “order to the courtroom”.
These two Mitzvot come to teach us that not only do the “visitors” to the courtroom have to follow the rules, so to, the judges must follow proper courtroom etiquette. Since there were no jury trials in Israel, all cases were heard by one, three, twenty-three or seventy-one judges (rabbis), the judges must not “adjust” a verdict in order to accomplish any other objective. This applies all the more to changing a verdict because of any outside influence. Once it is determined who is guilty and who is innocent, there can be no changing the verdict for any reason. This is a most obvious form of injustice. While a judge has great leeway in trying to discover the truth, once the truth is determined, the judge must find according to the law, and not according to any other process.
In addition, once the truth has been determined, the ruling should be given quickly and without long, complicated opinions. A judge should not make the litigants wait a long time to discover their verdict. This applies especially if the judge knows that one of the litigants needs to know the verdict quickly and the judge just wants to make that person wait. This too is injustice since it involves the judge using personal preferences to “afflict” one of the parties to the case.
This leads the Hafetz Hayim to introduce a whole string of Mitzvot that relate to these kinds of injustice based on passages in the Torah. Mitzvah 70 deals with the case when an important person is one of the litigants. The judge must not make obvious or subtle gestures to acknowledge the importance of that person, nor make any comment on the lower status of the other litigant. This would give the appearance that the judge would be favoring the important person, even if he had no intention of favoring anyone. Any action that would acknowledge the importance of one litigant over the other leaves the impression that the judge might favor one over the other.
It may also be true that the judge may intend to do justice, but by acknowledging the important litigant, that judge may then unconsciously favor the testimony or the argument of the one who is more important. There can be no favoritism at all, not even the appearance of favoritism. Procedure is to be followed without respect for the persons in the court. This is hard under the best of circumstances, and when there is acknowledgement of the inequality of the litigants, it points to possible injustices that cannot be tolerated. Both parties to the lawsuit are to be treated the same.
I should also add that this also applies outside the courtroom. If the judge has any connection to the important man outside of the court, he must step out of the case and turn it over to a more impartial judge. There is still the appearance of injustice if at night the judge is buddies with a litigant, and the next day that “buddy” appears in court looking for justice. Judges must be above all doubt.
9-5770 Mitzvah N-69; 70
January 18, 2010
Negative Mitzvah 69 – This is a negative commandment: Do not be unjust in rendering justice.
Hafetz Hayim – As Scripture says: “You shall do no injustice in judgment” (Lev. 19:15). This means not to declare the guilty innocent or the innocent guilty. Included in this prohibition is the rule not to delay the verdict. After it has become evident to the judge where justice lies, if he dwells at length on clear matters in order to cause one of the litigants distress, this is in the general category of injustice.
Negative Mitzvah 70 – This is a negative commandment: Do not show honor to an eminent man in a court judgment.
Hafetz Hayim – As Scripture says: “nor shall you favor the person of the mighty (Lev. 19:15)” This means that if people come before a judge in a lawsuit, one great and one small (in importance etc.) he is not to honor the great one and is not to treat him cordially. He is not to greet that one to any greater extent than the other one. It applies everywhere and always.
One of the hallmarks of a courtroom is the pageantry and the formal process that are required when court is in session. The judge only enters when all are present in the room. All rise when he or she enters and only sit after the judge sits. The attorneys are always called “counsel” and the litigants are referred to in the third person as plaintiff and defendant. Woe to the person in court that breaks with protocol. There can be swift justice for those who do not follow the rules and then ignore the judge’s instructions to bring “order to the courtroom”.
These two Mitzvot come to teach us that not only do the “visitors” to the courtroom have to follow the rules, so to, the judges must follow proper courtroom etiquette. Since there were no jury trials in Israel, all cases were heard by one, three, twenty-three or seventy-one judges (rabbis), the judges must not “adjust” a verdict in order to accomplish any other objective. This applies all the more to changing a verdict because of any outside influence. Once it is determined who is guilty and who is innocent, there can be no changing the verdict for any reason. This is a most obvious form of injustice. While a judge has great leeway in trying to discover the truth, once the truth is determined, the judge must find according to the law, and not according to any other process.
In addition, once the truth has been determined, the ruling should be given quickly and without long, complicated opinions. A judge should not make the litigants wait a long time to discover their verdict. This applies especially if the judge knows that one of the litigants needs to know the verdict quickly and the judge just wants to make that person wait. This too is injustice since it involves the judge using personal preferences to “afflict” one of the parties to the case.
This leads the Hafetz Hayim to introduce a whole string of Mitzvot that relate to these kinds of injustice based on passages in the Torah. Mitzvah 70 deals with the case when an important person is one of the litigants. The judge must not make obvious or subtle gestures to acknowledge the importance of that person, nor make any comment on the lower status of the other litigant. This would give the appearance that the judge would be favoring the important person, even if he had no intention of favoring anyone. Any action that would acknowledge the importance of one litigant over the other leaves the impression that the judge might favor one over the other.
It may also be true that the judge may intend to do justice, but by acknowledging the important litigant, that judge may then unconsciously favor the testimony or the argument of the one who is more important. There can be no favoritism at all, not even the appearance of favoritism. Procedure is to be followed without respect for the persons in the court. This is hard under the best of circumstances, and when there is acknowledgement of the inequality of the litigants, it points to possible injustices that cannot be tolerated. Both parties to the lawsuit are to be treated the same.
I should also add that this also applies outside the courtroom. If the judge has any connection to the important man outside of the court, he must step out of the case and turn it over to a more impartial judge. There is still the appearance of injustice if at night the judge is buddies with a litigant, and the next day that “buddy” appears in court looking for justice. Judges must be above all doubt.
Monday, January 11, 2010
8-5770 Mitzvah N-66; 67; 68
Torah Emet
8-5770 Mitzvah N-66; 67; 68
January 11, 2010
Negative Mitzvah 66 – This is a negative commandment: Do not have pity on a poor man in a court trial.
Hafetz Hayim – As Scripture says: “neither shall you favor a poor man in his cause.” (Ex. 23:3). And it further states, “You shall not respect the person of the poor (Lev. 19:15) [This means] that the judge should not say, “He is an indigent man, and we have a duty to sustain him. I will declare him right in the court case so that he will be sustained with ease.” It is in force everywhere, at every time.
Negative Mitzvah 67 – This is a negative commandment: Do not pervert justice for a sinner on account of his wickedness.
Hafetz Hayim – As Scripture says: “you shall not pervert the judgment of your poor in his suit (Ex: 23:6) and the meaning of “your poor” is a person who is poor in Mitzvot. It applies everywhere and always for both men and women.
Negative Mitzvah 68 – This is a negative commandment: Do not pervert justice for a proselyte or an orphan.
Hafetz Hayim – As Scripture says: “You shall not pervert the judgment of a convert or an orphan” (Deut. 24:17) If a judge transgressed and did deal unjustly with the case of a convert or the case of an orphan, he would violate two prohibitions (you shall do no injustice in judgment – (Lev. 19:15 see next Mitzvah in the next lesson #69) and this prohibition). It applies everywhere and always for both men and women.
I would have thought that all of this would fall under one single prohibition about ruling in a court case based on who the litigants are, rather than on the facts of the case. The Torah, however, lists all of these cases separately so each one is a mitzvah in its own right. We will see next week the general law, but here we have some specifics. These represent cases where one might have a reason to consider who is standing in front of them.
In the first case, one of the litigants is a poor man and the other is more wealthy; (he may or may not be “rich” but he has a lot more than the poor man has). The judge might consider that the wealthy litigant can afford to lose the money and the poor man will not have to beg for his meals for a while. It is a kind of “Robin Hood” idea. Take from the rich and give to the poor. This is not allowed in Jewish Law. If the law says that the rich man is right and the poor man wrong, the judge must rule against the poor man. He can ask the rich man not to oppress the poor man by demanding his payment right away, but if the wealthy man is right, it is not permitted to rule against him.
In the second case, one of the litigants is a wicked man. He may or may not be willing to give up his life of sin. In any case, he is currently “poor in Mitzvot.” A judge may not rule in the case in order to give the sinner what the judge thinks he deserves. If the sinner is right, and the other litigant is in the wrong, a judge must not rule against the sinner. The sinner may later do something that will get him in trouble for his own actions, but justice will have to wait. No matter what the morality of either of the litigants, the judge must rule on the facts of the case and not on the “lifestyle of the litigants.
Finally, the orphan and the convert were always susceptible in court to other litigants. They were usually poor and could not mount a proper defense of their position. They also did not have enough experience in Jewish courts to get justice. It is not the role of the judge to do any social engineering. It does not matter if the orphan or convert is wise to the world of the court, or not. If the facts of the case are that they are guilty, then they must pay what the court decides. A judge can not protect them if they have acted inappropriately. I heard a story where a Rabbi was called to judge between a man and his servant girl. As he left for court, his wife also prepared to go to court as well. “Why are you going to court?” asked the Rabbi, “Why should you bother with this trivial case?” The wife replied, “I am going to make sure that the poor servant girl gets a fair hearing and is not cowed into admitting what may not be true. I am going to defend the servant girl.” It is one thing to make sure that the poor, orphan, convert and sinner do not have an advantage in court due to their position in society. But it is also the community’s obligation to make sure that they do have proper representation in the court.
These Mitzvot all insure that everyone, the poor, the wealthy, the powerful and the weak all get a fair trial and a proper day in court. After that, the ruling of the judges must follow the law. The law must not respect the person of either litigant, for good or for ill.
8-5770 Mitzvah N-66; 67; 68
January 11, 2010
Negative Mitzvah 66 – This is a negative commandment: Do not have pity on a poor man in a court trial.
Hafetz Hayim – As Scripture says: “neither shall you favor a poor man in his cause.” (Ex. 23:3). And it further states, “You shall not respect the person of the poor (Lev. 19:15) [This means] that the judge should not say, “He is an indigent man, and we have a duty to sustain him. I will declare him right in the court case so that he will be sustained with ease.” It is in force everywhere, at every time.
Negative Mitzvah 67 – This is a negative commandment: Do not pervert justice for a sinner on account of his wickedness.
Hafetz Hayim – As Scripture says: “you shall not pervert the judgment of your poor in his suit (Ex: 23:6) and the meaning of “your poor” is a person who is poor in Mitzvot. It applies everywhere and always for both men and women.
Negative Mitzvah 68 – This is a negative commandment: Do not pervert justice for a proselyte or an orphan.
Hafetz Hayim – As Scripture says: “You shall not pervert the judgment of a convert or an orphan” (Deut. 24:17) If a judge transgressed and did deal unjustly with the case of a convert or the case of an orphan, he would violate two prohibitions (you shall do no injustice in judgment – (Lev. 19:15 see next Mitzvah in the next lesson #69) and this prohibition). It applies everywhere and always for both men and women.
I would have thought that all of this would fall under one single prohibition about ruling in a court case based on who the litigants are, rather than on the facts of the case. The Torah, however, lists all of these cases separately so each one is a mitzvah in its own right. We will see next week the general law, but here we have some specifics. These represent cases where one might have a reason to consider who is standing in front of them.
In the first case, one of the litigants is a poor man and the other is more wealthy; (he may or may not be “rich” but he has a lot more than the poor man has). The judge might consider that the wealthy litigant can afford to lose the money and the poor man will not have to beg for his meals for a while. It is a kind of “Robin Hood” idea. Take from the rich and give to the poor. This is not allowed in Jewish Law. If the law says that the rich man is right and the poor man wrong, the judge must rule against the poor man. He can ask the rich man not to oppress the poor man by demanding his payment right away, but if the wealthy man is right, it is not permitted to rule against him.
In the second case, one of the litigants is a wicked man. He may or may not be willing to give up his life of sin. In any case, he is currently “poor in Mitzvot.” A judge may not rule in the case in order to give the sinner what the judge thinks he deserves. If the sinner is right, and the other litigant is in the wrong, a judge must not rule against the sinner. The sinner may later do something that will get him in trouble for his own actions, but justice will have to wait. No matter what the morality of either of the litigants, the judge must rule on the facts of the case and not on the “lifestyle of the litigants.
Finally, the orphan and the convert were always susceptible in court to other litigants. They were usually poor and could not mount a proper defense of their position. They also did not have enough experience in Jewish courts to get justice. It is not the role of the judge to do any social engineering. It does not matter if the orphan or convert is wise to the world of the court, or not. If the facts of the case are that they are guilty, then they must pay what the court decides. A judge can not protect them if they have acted inappropriately. I heard a story where a Rabbi was called to judge between a man and his servant girl. As he left for court, his wife also prepared to go to court as well. “Why are you going to court?” asked the Rabbi, “Why should you bother with this trivial case?” The wife replied, “I am going to make sure that the poor servant girl gets a fair hearing and is not cowed into admitting what may not be true. I am going to defend the servant girl.” It is one thing to make sure that the poor, orphan, convert and sinner do not have an advantage in court due to their position in society. But it is also the community’s obligation to make sure that they do have proper representation in the court.
These Mitzvot all insure that everyone, the poor, the wealthy, the powerful and the weak all get a fair trial and a proper day in court. After that, the ruling of the judges must follow the law. The law must not respect the person of either litigant, for good or for ill.
Monday, January 4, 2010
7-5770 Mitzvah N-65
Torah Emet
7-5770 Mitzvah N-65
January 4, 2010
Negative Mitzvah 65 – This is a negative commandment: A judge must not hear the argument of one party to a lawsuit when the other party is not there.
Hafetz Hayim – As Scripture says: “You shall not take up a false report.” (Ex. 23:1). A litigant (party to the dispute) is likewise adjured not to present his statement to the judge before his fellow-litigant comes; we read the text (Lo tissa) “you shall not take up” as though it were “Lo tassi” “you shall not cause to be taken up.” Included in this prohibition is the rule not to accept and not to relate evil slander and not to give false testimony. It is in force everywhere, at every time for judges and litigants, both male and female.
The law here is rather straight forward; it is how we get to the law that is of interest to me. It is important that both parties for a lawsuit should be present in court so that each one can hear the claims against the other and properly offer a rebuttal when it is their turn. This makes logical sense as well as legal sense. To have one party state its case without the other party present, is a form of collusion between the judge and the one litigant against the other. It is as if the judge is being manipulated by or is prejudiced to the litigant giving his testimony in secret. That seems to be rather clear as far as the conclusion of the mitzvah is concerned.
The interesting part is how the Hafetz Hayim learns this lesson by “misreading” the actual text of the Torah. We are being asked to understand what is written in one construct as if it were written in another. One gives us a plain meaning; the other is causative. The actual written difference is minimal but the change in meaning is great. Without the switch, the mitzvah seems to be saying that we must not slander another person or give false testimony. With the change it becomes a directive to judges and litigants that they can not bring up any matter in a false manner that is without the other party in attendance.
We can ask, at this point, which came first, the need to find a scriptural basis for testimony in the presence of both litigants, or that someone read into this verse from Exodus and came up with the idea that testimony must be done publicly in this manner. I am not sure that it really matters at this point. Through the magic of hermeneutics, a new law has come out of a simple verse and its plain meaning is extended.
This is the kind of interpretation of Torah that the Karaites, during the middle ages, objected to. If it was not in the plain meaning of the text, then it should not be considered “Torah” or law. The only problem was (and still is) it is impossible for anyone to just rely on the plain meaning of the text of the Torah alone, without interpretation. Even the Karaites had their own forms of interpretation that often went far beyond the simple meaning of the text.
7-5770 Mitzvah N-65
January 4, 2010
Negative Mitzvah 65 – This is a negative commandment: A judge must not hear the argument of one party to a lawsuit when the other party is not there.
Hafetz Hayim – As Scripture says: “You shall not take up a false report.” (Ex. 23:1). A litigant (party to the dispute) is likewise adjured not to present his statement to the judge before his fellow-litigant comes; we read the text (Lo tissa) “you shall not take up” as though it were “Lo tassi” “you shall not cause to be taken up.” Included in this prohibition is the rule not to accept and not to relate evil slander and not to give false testimony. It is in force everywhere, at every time for judges and litigants, both male and female.
The law here is rather straight forward; it is how we get to the law that is of interest to me. It is important that both parties for a lawsuit should be present in court so that each one can hear the claims against the other and properly offer a rebuttal when it is their turn. This makes logical sense as well as legal sense. To have one party state its case without the other party present, is a form of collusion between the judge and the one litigant against the other. It is as if the judge is being manipulated by or is prejudiced to the litigant giving his testimony in secret. That seems to be rather clear as far as the conclusion of the mitzvah is concerned.
The interesting part is how the Hafetz Hayim learns this lesson by “misreading” the actual text of the Torah. We are being asked to understand what is written in one construct as if it were written in another. One gives us a plain meaning; the other is causative. The actual written difference is minimal but the change in meaning is great. Without the switch, the mitzvah seems to be saying that we must not slander another person or give false testimony. With the change it becomes a directive to judges and litigants that they can not bring up any matter in a false manner that is without the other party in attendance.
We can ask, at this point, which came first, the need to find a scriptural basis for testimony in the presence of both litigants, or that someone read into this verse from Exodus and came up with the idea that testimony must be done publicly in this manner. I am not sure that it really matters at this point. Through the magic of hermeneutics, a new law has come out of a simple verse and its plain meaning is extended.
This is the kind of interpretation of Torah that the Karaites, during the middle ages, objected to. If it was not in the plain meaning of the text, then it should not be considered “Torah” or law. The only problem was (and still is) it is impossible for anyone to just rely on the plain meaning of the text of the Torah alone, without interpretation. Even the Karaites had their own forms of interpretation that often went far beyond the simple meaning of the text.
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