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.