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19.02.2020 16:29    Comments: 0    Categories: Weekly Parashah      Tags: torah  shabbat  parashah  exodus  mishpatim  

On Judges Keeping an Open Mind

Parashat Mishpatim includes, among other things, a series of civil laws, some of which regulate relations between one person and another, such laws concerning the Hebrew slave, tortes and theft, and some of which have to do with the courts.  One of the commands in this week’s reading cautions, “From a false matter keep far” (Ex. 23:7)—a verse that provided the Sages a broad base for bringing up numerous interpretations, some concerning judges and legal procedure[1] and others pertaining to internal relations among several judges sitting together on a case.[2] Other interpretations extrapolated from this verse guidance on the relations between a dayan (judge) and his disciple[3] and the relations between a disciple and his rabbi-dayan.[4] Some concern the litigants or witnesses who appear in court,[5] and others, legal strategies that the litigants are forbidden to use in court.[6]

Of all these interpretations, the Sages’ exposition focusing on the responsibility of the judge on the bench deserves special attention:  to what extent is he obliged to treat the parties equally[7] and rule impartially,[8] constantly striving for truth and justice?  Just what do we mean?  Among the Sages’ interpretations of the verse, “From a false matter keep far,” is one that says, “Our Rabbis taught:  How do we know that a judge should not appoint an advocate for his words?  Because it is said:  From a false matter keep far” (Shevuot 30b).  The Rishonim (early halakhic authorities) differed regarding the words of the Talmud.  Rashi understood this injunction as meant to caution a judge against himself:

If he is sitting on a case, and his heart troubles him, telling him that he is mistaken, he should not continue to hold on to his notion and bring evidence in support of it, being afraid to change his position; rather he should change his position regarding all parties and should bring forth true justice.

According to Rashi, the words of the Talmud apply to a judge sitting on a case; to a judge whose opinion on the case at hand has begun to crystalize, but his heart troubles him, meaning “it pounds at him from within,”[9] such that he has a creeping awareness that his initial understanding and inclination towards one of the sides was mistaken.  In such a case, the judge is forbidden to act as advocate (Heb. sanigaron)[10] for his words; that is, the judge is forbidden to hold fast to his initial idea, since it has turned out to be wrong.[11]

The verse, “From a false matter keep far,” cautions against this, for “striving for the truth is the objective of the judicial process, and therefore this first principle should be given preference.  If you take away the truth, or if you diminish the power of the court to clarify it, the resultant legal decision will be wrong.  In such a case, what point is there in the entire legal proceeding?!”[12]

From this we see that the judge must hand down a true ruling, and therefore he must depart from his premature notion and rule in accordance with the truth, in accordance with what becomes clear to him in the course of the hearing.  This approach is also taken by Meiri, who holds:[13] “If the judge sees that he has uttered something wrong and he recognizes his error, he should not become an advocate for it, meaning that he support it with evidence and arguments; rather, he should go back to what his mind inclines him to hold as the truth.”[14]

Rabbi Isaiah Miterani (Rid, 12th-century Italy) adds another level to Rashi’s interpretation.  He holds that aside from prohibiting rigidness of thought when arriving at a ruling, there is another prohibition here that applies to the way a ruling is to be written:[15]

Whence do we know that a judge should not appoint an advocate for his words?  From the verse, “From a false matter keep far.”  He explains that if a judge is ruling on any case and errs, he should not proceed to bring evidence in support of his words because he is ashamed to admit [his error]; rather, he should admit that he erred, even though he does not wish to rule as he says, and he should not give justification for them, so as not to lead disciples astray by them.

From this we learn that a judge sitting in judgment is obligated by the truth and by nothing else.  The requirement that a judge avoid being rigid in his thought and avoid fixating on one view stems according to some of the Rishonim from the verse, “From a false matter keep far.”  This was well-put by Justice Menahem Elon, when he said:[16]

That which is new is not proscribed; moreover, by virtue of our very position and role we are commanded to incorporate the new into the old, and at times are even commanded to clear out the old to make room for the new.  When does this apply?  When the time demands it, and when the matter at hand demands it.  Then it is befitting, with careful consideration and the requisite caution, to innovate and even depart from existing rulings.

Elsewhere, the picturesque language of Justice Cheshin helps us understand the Sages’ warning to the judge not to “appoint an advocate for his words”:[17]

The deliberations are done.  The parley is through.  All that could be said and that should be said has been said.  All that could and should have been written has been written.  Shortly the decision will be handed down.  And I, a small camp, said to myself at this moment betwixt and between:  let me withdraw into myself, and once more ponder back and forth in my mind, to make sure that from lack of flexibility I have not stumbled.  Therefore, I went back to the beginning and began proceeding slowly, setting forward one foot at a time, probing the ground cautiously, lest I trip and trip up others.  Thus I proceeded, step by step, turning things over and over in my mind, looking around me, weighing and summing.  At the end of the road I found myself in a familiar place, where I had been at the outset:  my position remained unchanged.”[18]

Now perhaps we can understand more clearly what Rav Huna meant when he said, “The people of Israel were exiled from their land for no other reason than that they transgressed the verse, ‘From a false matter keep far.’”[19]

Translated by Rachel Rowen

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