In this sidra Moses recapitulates, in his address to the children of
Israel the history of their fathers’ wanderings. He begins from the
moment, thirty-eight years previously, their parents had stood on the
threshold of the promised land which they had forfeited on account of
their misconduct. Moses describes how he had prepared the children of
Israel, at that time, for the entry into their patrimony by appointing
leaders and officers. Here is the message he gave their judges:
And I charged your judges at that time, saying: Hear the causes
between your brethren, and judge righteously between a man and his brother,
and the stranger that is with him. Ye shall not respect persons in judgement;
ye shall hear the small and the great alike; ye shall not be afraid
of the face of any man; for the judgement is God’s. (1, 16-17)
Besides the general rule to deal justly, many detailed regulations
of judicial procedure are derived from every word and turn of phrase
in the above text. In the first verse the word “hear” as well as the
unusual adverbial qualification “between” are the subject of exegesis.
Said R. Hanina: This constitutes an admonition to the court not to
hear the words of one litigant before his opponent has arrived, and
an admonition to the litigant that he should not present his case to
the judge before his opponent arrives. Apply the text: “Hear the cause
between your brethren”. (Talmud, Sanhedrin 7b)
The hearing of the litigant in the absence of the other may give rise
to partiality, since the one cannot correct the impression given by
the other. But even if both are present there are still dangers to be
avoided in the interests of justice. These may also be deducted from
the wording of our text as the author of Or Ha-hayyim observes:
What is the point of the text telling us to hear the cause between
your brethren? Surely without hearing them out, there can be no case!
Why is the unusual infinitive form shamo’a (hear) used instead of the
imperative shim’u (hear ye)? The implication to be drawn, however, is
that the judges must be patient and hear them out. If one of the litigants
wishes to bring more evidence or arguments, the judges should not cut
him short but they must ‘hear’ continuously. Further, if the case has
been tedious and longwinded the judges should not adjourn the case till
much later, but they should hear it out, till the end, without intermission.
The Torah thus prohibits the injustice of protracted legal proceedings
and demands swift justice.
This same text also teaches the judge to go behind the words of the
litigants and get at the truth, and though the arguments and evidence
of one superficially appear to be decisive, if he feels they are not
in good faith, he should use his own judgement. Hear the cause between
your brethren implies that he should pay attention to every nuance of
their utterances and all that takes place in court between them in arriving
at the truth.
The word “hear” is understood in the sense of “pay attention” “grasp”.
The equal treatment to be accorded to both litigants can be distilled
from the word “between”.
The judge must not serenely look at one and avert his gaze from the
other, but his hearing must be “between”, equally balanced – if he looks
at one he should look at the other, if he averts his gaze, it should
be from both or from neither…A certain pious and scholarly judge R.
Moses Berdugo would avert his gaze from both, because he felt that if
he gazed at one of them his opponent was bound to be flustered for the
moment. He said that the text “hear the cause of your brethren” implied
that it was the duty of the judge simply to hear, and nothing more,
and let the words of the litigants reach his ears without making the
slightest differentiation between them both. In this way you will “judge
righteously between a man and his brother”. (Or Ha-hayyim)
Here we have the affirmative formulation of justice. The next verse
gives us the negative formulation followed once again by an affirmative
demand:
Ye shall not respect persons;
Ye shall hear the great and small
The demand to mete out impartial treatment to both parties recurs in
all the four Biblical contexts dealing with judicial matters:
Thou shalt not pervert the judgement of thy poor in his causes;
neither shalt thou favour a poor man in his cause. (Exodus 23, 6, 3)
Ye shall do no unrighteousness in judgement; thou shalt not
respect the person of the poor, nor favour the person of the mighty,
but in righteousness shalt thou judge thy neighbour. (Leviticus 19,
15)
Thou shalt not pervert judgement; Thou shalt not respect persons.
(Deuteronomy 16, 19)
Our sages have taught us not to regard any text in the Torah as merely
repetitive, and they elicit for us the separate and exclusive messages
of each word and phrase. Here we shall deal with the implications of
the repeated references to favouring the “poor” and “mighty”. The word
“poor” does not only mean the destitute in worldly goods. Here is the
interpretation of our Sages on the text in Exodus 23:
If a disreputable and a decent person stand before you in
judgement do not say, Since he is a disreputable person, I shall view
his cause unfavourably but “thou shalt pervert the judgement of thy
poor” –he who is poor in good works (mitzvot). (Mekhilta Ex. 23, 6)
The judge has to limit his considerations to the parties standing before
him in court and take no account of a person’s past, but weigh up the
matter objectively on the basis of the facts presented to him. We find
a similar duplication in the case of the admonition not to favour the
poor man. In Exodus we are bidden not to favour the poor man in his
cause; in Leviticus not to respect to person of the poor nor favour
the person of the mighty. Malbim who specialises in clarifying the subtle
differences in apparently synonymous expressions in the Torah directed
his genius to explaining our text:
The phrase nesi’at panim (“lifting up the face” translated in our text
by “respect the person”) implies overlooking some transgression or unsavoury
matter cf.: “peradventure he will (yisa panai) accept me” (Genesis 32,
21)… “See I have accepted (nasati panekha) thee concerning this thing
also that I will not overthrow the city” (ibid. 19, 21). The word “favour”
comes from a Hebrew root meaning external beauty (hadar) referring to
whatever is attractive in man’s eyes; cf. “the fruit of a goodly (hadar)
tree…” “The majesty (hadrat) of the king is in the multitude of people”
Proverbs 14, 28; “the beauty (hadar) of the old men is the hoary head”
(ibid. 20, 29) etc.
It is the way of the world to make allowances for poverty and to pay
respect to external appearances. the Torah therefore forewarned us against
both these pitfalls. But it could be argued that though forbidden to
make allowances for the poor and give him respect, so that his opponent
should forego some of his claim. For this reason the Torah states that
it is forbidden, too, to favour i.e. to honour the poor in his cause.
The Torah was not concerned, in this context, with protecting the weak
but with upholding justice, since as it concludes in our sidra: “the
judgement is God’s” The implication of this cryptic expression is to
be found in Jehoshaphat, king of Judah’s words to his judges:
Consider what ye do; for ye judge not for man, but for the
Lord; He is with you in giving judgement. Now therefore let the fear
of the Lord be upon you; take heed and do it; for there is no iniquity
with the Lord our God, nor respect of persons, nor taking of tribes.
(2 Chronicles 19, 6-7)
The commentary to Rashi on Chronicles explains the significance of
the above as follows:
Do not say: What difference does it make if we are partial
to our friends or pervert the judgement of the poor and favour the rich?
Surely the judgement is not God’s. For this reason it states that it
is “for the Lord”. If you have convicted the innocent it is as if you
have deprived your Creator of something and perverted the judgement
of heaven. Therefore “consider what ye do; ye judge not for man, but
for the Lor”. Perhaps you will then argue, why should I take upon myself
all this responsibility and trouble (to suffer punishment if I make
a mistake)? The text adds: “with you in giving judgement”; in other
words, it is your bounden duty to deliver judgement on the basis of
the facts in front of you.
The administering of justice is a Divine charge entrusted to man by
God, both a duty and a privilege.
Questions for Further Study:
“Between…the stranger” (gero) (Deuteronomy 1, 16); this refers
to his opponent in court who heaps up (oger) arguments against him.
Another explanation: even with regard to living accommodation (ger sojourner,
one who sojourns), in the sharing out between brothers, even of an oven
and cooking stove. (Rashi)
What difficulty did Rashi find and why was not one explanation sufficient?
“Ye shall hear the great and small alike” – that the case
involving a peruta should be as important to you as one involving a
hundred, so that if it comes first, do not put it off till the last.
Another explanantion: Do not say, this one is poor and the other rich,
and it is a sacred duty to support the poor. I shall acquit the poor
man so that he can make a decent living. Another explanation: That you
should not say, How can I slight this rich man for the sake of a denar?
I shall acquit him and when he goes out I shall say to him: Give him
what you owe him. 4| (Rashi)
What difficulty, in the text, prompts Rashi’s explanation?
Why was Rashi not satisfied with his first explanation?
What are the exact implications of the phrase: “make a decent living”?
What common denominator is shared by the last two explanations? Why
was not one of them sufficient?