Shiur #02: Ensuring an Atmosphere of Fairness
Bein Adam Le-chavero: Ethics of Interpersonal Conduct
By Rav Binyamin Zimmerman
This week’s shiurim are dedicated by Leonard Balanson
in memory of Rose Balanson z”l
Shiur #2: “Be-tzedek Tishpot Amitekha” — Ensuring an Atmosphere of Fairness
Just for Judges?
Parashat Kedoshim begins with a general commandment for the Jewish people, “Kedoshim tihyu,” “You shall be holy,” followed by an extensive list of mitzvot aimed at providing the foundation for this life of kedusha, holiness. (See year 1 of this series, lesson 21.) In its listing of interpersonal laws that inspire a character of kedusha, one verse (15) seems to stand out as being directed specifically to judges.
Do not perform iniquity (avel) in justice. Do not give special consideration to the poor, and do not show preferential honor to the great. Judge your comrade righteously (be-tzedek).
A rudimentary reading of the verse seems to indicate that its instructions are directed to the courts, commanding them to judge fairly. The first clause, “Lo taasu avel ba-mishpat,” and the last, “Be-tzedek tishpot amitekha,” utilize the same root as that of the word shofet, judge. All together, the verse begins with a reference to justice, and after ordering one not to favor either the weak or the mighty, it concludes with the requirement to judge others in righteousness.
However, the placement of this verse in the context of interpersonal laws does leave one to wonder if in fact it is really directed to the judges or at least to them alone. After all, the Torah deals with the laws of judges in a number of Torah portions — Yitro, Mishpatim, Shofetim, etc. — but this verse appears in a listing of various interpersonal responsibilities in Parashat Kedoshim. In all of the Torah’s mentions of judgment, it is clear that the job of the judges is to adjudicate honestly and fairly; if so, what is added in these verses, and what is to be gleaned from its appearance in Parashat Kedoshim, if the Torah is just reiterating the need for honest courts?
The commentators on the verse are bothered by a second issue as well. What is added by the final clause of “Be-tzedek tishpot amitekha,” “Judge your comrade righteously”? After all, isn’t it evident from the beginning of the verse that one must judge properly and must not pervert justice?
The Communal Responsibility for a Just Judicial System
A number of commentators on the verse reflect on the unique language of the verse as being an address to the judges of society. Rabbeinu Bachya (ad loc.) explains that the concluding clause of the verse comes to clarify that a society which judges righteously will ensure God’s presence in its midst.
“Judge your comrade righteously” — your judgment should be righteous and not perverted. He who judges righteously consolidates the throne of the Heavenly King… and he who perverts justice blemishes the royal throne and offends the King. The Midrash states that the Shekhina abides with the righteous judge… but God abandons the one who judges unrighteously…
In fact, the requirement to set up a system of justice is incumbent upon all; it creates a communal responsibility to ensure that the courts are judging properly. All society has a stake in the courts being a place of unalterable truth, and therefore is highlighted in our daily prayers, in the blessing of “Hashiva shofeteinu,” “Restore our judges,” where we request of God to reinstate the Jewish judicial system.
A similar idea is presented in the commentary of the Meshivat Nefesh on this verse. He notes that all of the various commandments in this chapter are expressed in the singular, while our verse opens in the plural, “Lo taasu avel ba-mishpat.” What is the reason for this discrepancy? He explains:
It seems that this verse is a warning to the community: they must not appoint a judge who is not well-versed in the law, for if they do so and he errs, the punishment will be upon the community.
In other words, there is a communal responsibility not only to establish a judicial system but to maintain high standards for the judges. The entire community, not only particular litigants, has an obligation to guarantee that there will be proper legal recourse for everyone.
Rav Hirsch (ad loc.) further stresses the importance of communal responsibility for a judicial system in his commentary on the beginning of this verse:
Verses 15 and 16 caution us against misusing our authority and against being remiss in our duties when the happiness and dignity of others have been entrusted to us.
First comes a warning to the community; the community, through its judicial institutions, is in a position of power vis-Ã -vis the individual. This position is not to be misused for injustice and caprice. For this is the essence of the word “avel”: the misuse of power and wealth… and the misuse of authority and high position… “Avel ba-mishpat” is the abuse of the institutions of justice.
This is the meaning of the beginning of the verse according to Rav Hirsch: the institution of mishpat must be kept as a mechanism to achieve the highest purpose of society. It must not be abused to pervert the law. This is why the institution of the beit din, the Jewish court of law, remains relevant today; indeed, the best choice to adjudicate a dispute between two Jews is a din Torah, a proceeding conforming to halakhic guidelines.
One often finds that individuals who are wronged by prominent members of the community or by prestigious organizations find it difficult to air their claims before a beit din; indeed, individuals who do so may be looked at askance for wanting to bring their claims to a beit din in the first place. Other members of the community may contribute to this negative feeling. Those who feel bad for the victim may believe that even if the case is brought to beit din, the unfortunate individual has little chance against his abusers, and so there is nothing to be done. After all, it is sad, but not their problem. According to these commentators’ understanding of the verse, nothing could be further from the truth. The community, including each and every individual member, has a responsibility to ensure that there is support for every wronged individual, in the form of an honest legal system, trustworthy and knowledgeable judges, and communal backing for one hurt by others, no matter who that individual may be.
Were we to stop here, we might explain that the placement of this verse, charging judges to carry out justice, in the interpersonal section of Parashat Kedoshim serves to inform us that a life of holiness requires that one make certain that there is a just system of legal recourse for anyone who has been hurt by others.
However, further analysis of the verse and its context would seem to indicate that one’s interpersonal responsibilities are not limited to ensuring that there is an adequate address in the form of a just legal solution for one who has been trampled by another. Not all cases can be adjudicated in court, nor do people always wish to raise their issues with others in the courtroom, even if their case is simple and straightforward. For this reason, the individual and community must ensure that there is not only a reliable system of justice in the courtroom, but outside of it as well. The best way to accomplish this is by learning from the professional judges how to maintain balanced dealings with others and by knowing when and how to act as a judge outside of the courtroom. Analyzing the verse a little further will enlighten us as to how the Torah guides us to honesty outside the courthouse as well.
The Instructions to the Judges
The aforementioned verse begins with a general commandment not to pervert justice, but it continues with specifics, “Do not give special consideration to the poor, and do not show preferential honor to the great.” Rav Hirsch continues his comments by explaining that although the first part of the verse is directed towards the community, the second part of the verse is directed towards judges:
These statements caution against partiality toward one of the litigants…. That is to say, in forming your judgment and in giving your verdict, pay no attention to the personalities of the litigants; consider only the issue in dispute… A litigant’s previous record of uprightness or wickedness must not affect his standing in the minds of the judges; such a reputation must not influence their decision. The most righteous person may be in the wrong in this case, and the most wicked may be in the right.
The judge must make justice his guide and not pay attention to the stature of the litigants.
Other commentators see the inclusion of a verse directed to judges as a necessary outgrowth of the events in the previous verses: The Alshikh explains that the verse here comes after the Torah’s discussion of labor laws, because in the event that there is a dispute between the owner and the worker, the judges must not display partiality to either the poor, usually the worker, or the wealthy, usually the employer.
In fact, the Talmud (Shevuot 30a) expounds “Be-tzedek tishpot amitekha,” as directing the judge to ensure that nothing he does will unduly affect the outcome of the case:
“Be-tzedek tishpot amitekha” — do not allow one litigant to sit while the other stands, one to state all his claims while the other is told to be brief.
The Panim Yafot (ad loc.) explains that the word “avel” in the verse is meant to tell the judge that his responsibility goes beyond the proper adjudication of the case based on that which he has heard: if he is responsible for one litigant’s feeling of disorientation and intimidation, undermining his ability to articulate his whole case properly, then the judge is held responsible. The responsibility for righteous judgment also includes the requirement to create an atmosphere in which the litigants realize there is no favoritism.
Again, this section of the verse might appear to be uniquely directed towards the judges duly appointed, enjoining them to ensure that justice be served through the courtroom, a deeper look at the Torah’s conceptualization of mishpat may prove otherwise.
Courtroom Lessons for Life
The beit din is not only an institution aimed at achieving a just verdict; it is also the place of understanding God’s prerogative on the issues in dispute. Through the judges’ analysis of the halakhic sources, they are able to crystallize the words of God — the word of God is the law (see year 1, lesson 12). For this reason, the standards of honesty in the courtroom are quite exacting; this ensures that it is only a place of uncompromising truth. This is part of the backdrop that requires that all precautions be taken to ensure that no avel of any kind be performed in the administration of justice.
I recently read of a din Torah between a caterer and the host who hired him. They went to the beit din due to a disagreement over who had rights to ten meals that were ordered and never served. Rather unusually, both were “fighting”, amicably, about who had the privilege of being able to pay for the ten meals that were not served to the guests but to the needy. The caterer, seeing that ten meals were extra, had given them to the needy, and when informing the host that he need not pay for ten meals, the host demanded the right to pay for the meals that he had ordered even though they had been given to the needy. The host felt it was his mitzva, and he was unwilling to allow the caterer to shortchange him for the mitzva. Not knowing who was in the right, they asked the beit din to inform them of the divine outlook on the case, in the form of a verdict.
All disagreements in beit din should be of this type, but alas, they often are not. Nevertheless, this case serves to illustrate that the ideal goal of the court is to act as the representative of God, informing the litigants of how the Torah requires they proceed.
What does the verse’s requirement entail? The courtroom demands an extreme standard of honesty which doesn’t allow for any ulterior considerations, even those which may be admissible outside of the courtroom. The Sifra (Kedoshim 2:4) therefore writes:
Do not say: this man is a poor man, so both I and the rich man are obligated to support him; therefore, I will decide in his favor, so that he will get what he needs without feeling the shame of accepting charity.
The Midrash goes on to define the responsibility to judge one’s comrade righteously as:
Do not allow one to state all his claims while the other is told to be brief. Do not allow one litigant to sit while the other stands
The Rambam (Hilkhot Sanhedrin 21:1-3) codifies this mitzva as an obligation to give equal treatment to both parties, in a way that both have equal speaking time, equal seating, etc. The requirement goes so far as to demand that:
When one of the parties is elegantly dressed and the other is wearing shabby clothes, prior to the proceedings, the judge must order the former either to provide the latter with equally fine garments or to dress like his adversary.
In essence, the responsibility mandated by the verse is to ensure that one’s actions remove any chance of the appearance of favoritism.
Thus, one must strike a balance: on the one hand, one must maintain the honesty so thoroughly required by the beginning of the verse, but one must also fulfill the end of the verse, which expresses the need for often going above and beyond in the possibilities entertained to ensure that one will not jump to conclusions.
While this is certainly applicable in court, it has implications for daily disagreements. It has significance as well as for one who is trying to educate youngsters, often one’s own children. One must treat others with fairness, hearing both sides of the story without jumping to conclusions.
The Or Ha-chayim understands the plural opening of the verse in a similar regard. Not only are the judges required to maintain honest conditions in order to arrive at the truth, so are the litigants. The Or Ha-chayim states that a litigant must not use illicit means to prove his case, even if, objectively speaking, he is in the right. In a similar vein, if a litigant realizes that the judge has ruled in his favor based on a mistaken assumption or the like, he must be forthcoming and honest in revealing the reality of the situation.
This idea is expressed clearly in a responsum of the Rashba (3:81), who is dealing with the question of a possible Talmudic precedent for presenting a false case in court in order to win the money one is rightfully owed. The Rashba responds:
God forbid that a descendant of Avraham tell a lie, even in order to avoid losing money, as it says (Tzefanya 3:13) “The remnant of Israel will neither perform iniquity nor speak untruth.”
Moreover, we have seen in the fourth chapter of Shevuot that it is forbidden even to convey the truth in a way differing from the way it actually happened… The Torah says, “Distance yourself from dishonesty” (Shemot 23:7).
The Rashba goes on to explain that the seeming precedent is inapplicable — firstly, because of the Rashba’s understanding of the case; secondly, because even if dishonest means may sometimes be employed outside of the courtroom, they have no place in either the claims of the litigants or the testimony of the witnesses. All the more so, they certainly have no place in the actions or verdicts of the judges.
The Keli Yakar elaborates on the unique role of truth in the courts in his explanation of this verse. He explains that the term avel refers to a forced judgment; it takes into account elements that are generally positive but have no place in the courtroom. He comments on the unique formulation of the verse, “Lo taasu avel ba-mishpat”, do not perform iniquity in justice, and explains that the Torah seeks to forbid iniquity that may arise in a just situation.
It refers to an act which, on its own terms, is righteous and just but nevertheless is defined in this context as iniquity… for instance, that which Rashi mentions, that the judge must not say “This man is a poor man, so both I and the rich man are obligated to support him; therefore, I will decide in his favor, so that he will get what he needs without feeling the shame of accepting charity.” True, the wealthy individual is obligated to support the poor, but if done in the context of mishpat it is avel. Though elsewhere it is obligatory, in the place of mishpat, where justice must be served, it is iniquity; rather, the judgment should be declared properly, and as an act of charity the wealthy should provide for the poor in another venue.
These directives concerning the judges ensure that the proper individuals are appointed and that they will maintain a strict regimen of honest analysis and judgment. However, it is not sufficient to leave this stress on true judgment and interaction to the courts. The obligations upon judges are a guide as to how all of society must create an atmosphere of truth and honesty. While the extreme conditions of honesty maintained in the courthouse may brook no exceptions, as expressed by the Rashba and Keli Yakar, they still act as the guiding light for all fair and honest ethical interaction.
It is probably for this reason that the Keli Yakar understands that the plural used to open this verse requires that the judge himself must not maintain any double standards, holding others to criteria he does not see himself as obligated to satisfy.
It says “Lo taasu” in the plural… This is a warning to the judge that he should not permit for himself that which he forbids for others… Therefore, it says to the judges: don’t do yourselves that which you forbid in mishpat, because that is true avel.
The debilitating dishonesty of the double standard is certainly not only relevant to judges; it is an unfortunate reality of much personal interaction. Certainly, a judge who is openly adamant about the illegality of an act that he himself does is deplorable, but how many of us can say that the double standards that we maintain are any less objectionable?
The exact same phrasing, “Lo taasu avel ba-mishpat,” appears regarding the requirement to maintain genuine weights and measurements in business later in the chapter (v. 35), for the requirements of honesty are not restricted to the courtroom. This interplay between honest judgment and equally impeccable behavior outside the courtroom is expressed in the commentary of the Alshikh. He notes that Rashi (based on Bava Batra 89b) explains that the word mishpat in this instance refers to weights and measurements, i.e., anyone who cheats in weights and measurements is just like a judge handing down a verdict which is a miscarriage of justice.
The courtroom is a microcosm of truly honest and respectable dealings with others, and the Torah demands that we apply the lessons in our own macrocosm, in order to create a holy society. Perhaps for this very reason, the directives to the judges are found in Parashat Kedoshim, because ignoring the judges’ charge is liable to create difficulty for the community as a whole.
Prohibitions for Judges that Apply to All
The notion that the directives to judges obligate everyone in a certain sense does not seem to be without basis. After all, a number of laws from the courtroom are the direct sources for laws outside it, be it in the courtrooms of our minds or the courtrooms of our dealings with others. One prime example of this idea is the prohibition of “Do not bear a false report” (Shemot 23:1). The Rambam (Hilkhot Sanhedrin 21:7) states:
It is forbidden for a judge to hear the words of one of the litigants before the other comes or if the other is not present. Even hearing one word is forbidden as it states (Devarim 1:16): “Listen among your brethren.” A judge who listens to [only] one litigant violates a negative commandment, as it states: “Do not bear a false report.” Included in this negative commandment is the prohibition of listening to malicious gossip, speaking malicious gossip and bearing false testimony…
How could a prohibition requiring the judges to be honest also serve as the basis for not speaking negatively or maliciously about others? Clearly, the judges must maintain strict honesty without reservations, but all of society must learn from them how to maintain honest dealings with and treatments of others.
In fact, the most explicit mention of a commandment directed towards judges but obligatory upon all of society is the concluding clause of the very verse we are discussing, “Be-tzedek tishpot amitekha.” In Shevuot (ibid.), the Talmud continues by noting that this verse not only obligates the judge to be fair and balanced; it is binding upon every individual who sees his companion perform an action of questionable propriety.
“Be-tzedek tishpot amitekha” — the verse tells us that you must judge your friend favorably.
The specifics of this requirement need further study, as may be found in our next lesson, but the application is clear. Not only must the judge in the courtroom be careful in his judgments of the litigants; every individual who sees another act must exercise the same care and caution before passing judgment.
The Keli Yakar (loc. cit.) points out that it is particularly because of the wording of “amitekha” that the Sages understood that the verse must be referring to a situation outside of the courthouse, in the courtrooms of each individual’s mind.
All in all, while we hold judges to a higher standard, there is no doubt that their administration of justice is the moral benchmark for our behavior in all facets of life. If the judge must be careful not to show favoritism or give an unfair advantage to another based on his actions, the same holds true for us as well. If the judge must be careful not to hold a double standard, then we must question our internal barometers to see if we fall prey to that same character defect. If the judge must ensure that the litigants speak properly, then we must be careful that our words are proper as well.
Next week, we will see how, just as the judge must ensure an honest proceeding, we as well must maintain standards of balance between honesty and naivety, while giving others the benefit of the doubt. This is the holiness embodied by the arbiters of mishpat, a holiness that should permeate the very fabric of our interactions with all our amitim, our comrades.