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03.10.2019 20:00    Comments: 0    Categories: Weekly Parashah      Tags: torah  shabbat  parasha  berechit  

The Right to a Hearing in Jewish Law

Parashat Bereshit is a primary theological source on the development of humanity, beginning with the creation of the world and continuing through the ways of early man at the dawn of civilization.  The events narrated in this reading are indicative of a direct and unmediated tie between G‑d and man.  The Lord, Creator of all, is the master, the one who sets the rules of what is permitted and what is forbidden, and He is the one who judges those who violate the rules.  All this is done in direct conversation with man.  The weekly reading also describes the sin of Adam and Eve in eating from the Tree of Knowledge, and later on also the sin of Cain, murdering his brother Abel.  In both instances the Lord appears and begins a dialogue with the sinner before punishing him.  After Adam sinned it says, “The Lord G‑d called out to the man and said to him, ‘Where are you?’” (Gen. 3:9), and after the murder of Abel, “The Lord said to Cain, ‘Where is your brother Abel?’” (Gen. 4:9).  These two verses raise a question of principle regarding the significance of the Lord thus addressing the sinner:  Did He not know where Adam was hiding?  Did the Lord not know where Abel was?  In general, when the Lord knows the answer, is there still place for Him to address man in this way?  Rashi, aware of this difficulty, identifies an important principle in the Lord’s action, which principle recurs several times in Scripture with respect to sinners and accused.  Rashi says:  “He [G‑d] knew where he was, but he [asked this in order] to open up a conversation with him so that he should not become confused in his reply, if He were to pronounce punishment against him all of a sudden.”

The reader of the narrative about Adam and Eve eating from the Tree of Knowledge assumes that they could expect to be punished for their sin, and therefore the preface of the conversation between G‑d and man, beginning with the question, “where are you?,” appears superfluous.  According to Rashi, however, the object of this “superfluous” preface is to teach us that punishment cannot be meted out to a person with there being a preliminary legal proceeding and without giving the sinner a chance to have his argument be heard.  In the story of Cain, Rashi adds another level, explaining:  “thus entering a friendly conversation with him:  perhaps he might repent and say, ‘I have killed him, and sinned against You.’”

In this case, too, the question asked by G‑d seems superfluous, for He knows where Abel is.  Here, however, Rashi adds that the object of giving the accused the right to a hearing is in order to check out his position:  to see whether he regrets his actions, or is indifferent to their consequences, or stands firm in his ways.  Each stance can have a bearing on his punishment.

These events and the Lord’s handling of them provided the ground on which the right to a hearing developed.[1] This right instructs the authorities to give anyone who might be injured in any way (in body, loss of liberty, property, business, status, or damage to any interest which is the person’s right) a chance to voice himself before a decision is taken regarding his affair.[2]

The prevalent view in Scripture,[3] the Talmud[4] and posekim[5] is that any person is presumed honest.  What is more, there is presumption of honesty even in cases of past offenses, where there might be a suspicion that the person has again committed the same offense.[6] The presumption of a person’s honesty stands even when there are rumors that he was the one who killed another person.[7] This being the approach, there are no shortcuts in the process of convicting and punishing the accused, and he must be given the right to a hearing.

The importance of this right was well-put by Rabbi Moses Isserles, a.k.a. Rema, who even explained the underlying reason in one of his responsa:

Clearly one cannot deliberate a matter without hearing the claims of the defendant, for the Torah says, “Hear out your fellow men.”  Even though this is a plain matter, we can learn it from the ways of the Lord, blessed be He, for all His ways are just and His ways are pleasant ways and all His paths, peaceful.  He began conversation with Adam, asking, “Who told you that you are naked?” and said to Cain, “Where is your brother Abel?” in order to hear his arguments; all the more so for the common man.  The Sages deduced likewise from G‑d saying, “I will go down to see…” (Gen. 18:21), teaching the judges not to reach a judgment until they have heard and understood.  Even when it is clear to the judge that the defendant will be found guilty, nevertheless he has to hear out his arguments first.[8]

The right to a hearing and to plead one’s case goes hand in hand with legal procedure, making deliberations more efficient and to the point, or saving valuable court time when a person has a choice of accepting a charge or alternatively proving and explaining that the suspicions against him are based on an erroneous perception of reality.  Thus Rabbi Shabtai Cohen (17th-century Lithuania), for example, ruled:

The defendant is entitled to say:  First tell me what your case is against me, for after I know what you are claiming, perhaps I will comply with your wishes and the case will not have to come to court at all.  As long as [the plaintiff] does not want to reveal to him the substance of his claim, he [the defendant] is not obliged to face him in court at all.  (S. C., Hoshen Mishpat 11.1)

Shabtai Cohen’s remarks express the principle that the defendant must know why he is summoned to court and what claims are being made against him.  Furthermore, a party cannot be forced to appear in court without knowing what charges are being brought against him.

In this connection the question arises to what extent the accused or a party in a civil case must be allowed to voice his claims?  Where does the boundary pass?  May one set limits on or curtail the defendant’s arguments?  In his preface to the Mishnah, Maimonides discusses the role of dayanim and the legal system, and in this connection he states:  “The defendant must be allowed to defend himself, even if his words are lengthy and stupid.”  In other words, according to Maimonides a healthy legal system is one which allows the accused to make his arguments heard, even if they are “lengthy and stupid.”

From all this we learn how very important is the right of a person to a hearing, before any decision prejudicial to him is made.  This is so important that the Lord Himself did not punish the sinner—Adam or Cain—without first giving him a chance to defend himself against a prejudicial action or punishment.[9]

Translated by Rachel Rowen

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