"You Shall Not Fear Any Man"
The Weekly Mitzva
Yeshivat Har Etzion
This shiur is dedicated in memory of Dr. William Major z"l.
"You Shall Not Fear Any Man"
By Rav Binyamin Tabory
At the beginning of Sefer Devarim, Moshe recounts how he had set up a court system during Benei Yisrael's travels through the wilderness. Later, in Parashat Shoftim, Moshe introduces the actual mitzva of appointing judges and the unique status of the courts in Eretz Yisrael. However, certain requirements and obligations charged upon judges are conveyed already in our parasha. The judges were instructed to listen carefully and judge righteously, and Moshe forbade them not to show favoritism or be afraid of any person (Devarim 1:16-17).
The Rambam listed a mitzvat lo-ta'aseh in connection with the court system based on these verses in Parashat Devarim that a judge may not be fearful of anybody during the process of judicial decision-making (276). He must rule the particular case and reach his conclusion based purely on legal considerations, and pay no attention to any possible danger he may incur as a result of an honest ruling. The Rambam quotes the Sifrei's comment that a judge may not express any fear that a litigant might kill him or his son, or burn his produce or uproot his plants.
In general, it is difficult to understand how the Torah could ever command someone not to be afraid. We might explain this prohibition by drawing a parallel to another mitzva listed by the Rambam that seemingly forbids the experience of fear: that we must not be afraid of infidels and flee from them during wartime (lo ta'aseh 58). The Steipler Rav writes (Birkat Peretz, p. 80) that the Torah did not actually forbid someone to be afraid. Rather, the Torah simply mandated that a person should not dwell upon his fears and cause himself to panic. He further notes that a person who experiences fear may go home before the war begins and thereby avoid transgressing this prohibition.
Similarly, in our case, the Rambam rules (Hilkhot Sanhedrin 22:1) that if one of the litigants is a particularly difficult person, a judge may refuse to preside over the case. Even if the court has heard the case but has yet to reach a conclusion, a judge may refuse to continue in the case. It is only in the situation where the judge has decided but has not yet announced his decision, that he is forbidden to abandon the case.
Why doesn't this prohibition apply before the case began? The Taz (Shulchan Arukh C.M. 12:2) explained that this prohibition applies only to judges, and a person cannot be considered a "judge" until he has heard and decided this particular case. The Taz apparently felt that there is no direct obligation on any person to serve as judge, even if he is a great talmid chakham. Although the Talmud (Avoda Zara 19b) sharply castigates those capable of deciding Jewish law who refrain from doing so, the Taz perhaps limits that passage to cases of ritual law. The obligation of appointing judges and serving in court is a communal, rather than personal, responsibility, and thus no one individual bears a personal obligation to serve in this capacity. Hence, the prohibition against fearing a litigant does not apply until an individual accepts upon himself the status of judge.
The Rambam added (ibid.) that a communally appointed judge may not under any circumstances decline from hearing a case. According to the logic of the Taz, it is clear that his appointment automatically yields the formal halakhic status of judge even before the particular case has begun. It is therefore forbidden for him to refuse to hear a case due to fear.
Alternatively, we might explain that fear is forbidden only if it could cause the judge to decide the case unfairly. If he has yet to hear the arguments or has not determined his ruling, he is still entitled to excuse himself. Once, however, he has reached a conclusion, his refusal to render a decision due to fear amounts to dishonest handling of the case, and he thus violates this prohibition. And when it comes to a communally appointed judge, he has obligated himself to adjudicate all cases and thus does not reserve the right to refuse hearing any case.
One important question, however, remains: why must a judge be prepared to risk his life, or even his property, to preside over a case? The Imrei Bina (C.M. 19) discusses at length the broader issue of how much money must a person be prepared to forfeit to avoid transgressing a biblical prohibition. In this context, he cites the Bach's ruling that when a judge faces the actual threat of financial loss, he is not required to hear the case. The prohibition refers only to a case where the litigant is difficult to control, but would not actually cause damage. On the other hand, as the Imrei Bina cites, the Shevut Ya'akov disagreed with the Bach and claimed that this mitzva requires a judge to hear a case even if he might incur actual financial loss.
Needless to say, according to the Bach, in a situation of potential mortal danger this prohibition would be suspended, as the interest in preserving life overrides all Torah laws with the exception of the three cardinal sins (idolatry, adultery and murder). The Rama (ibid.) records the custom in his day to ignore court cases involving sinners who might besmirch the judge before the local authorities and thus endanger his life.
Others, however, appear to maintain that this particular law overrides physical or even mortal danger. Rav Aharon Wolkin (Zekan Aharon 126) argued that the Torah here clearly intended to require a judge to risk potential danger. There are certain mitzvot, such as berit mila, which by nature entail some physical danger, and thus the fact that the Torah commanded them clearly shows that we must accept some risk to perform these mitzvot. Rav Z. H. Kalisher (Moznayim La-Mishpat Choshen Mishpat 12) likewise implies that a judge would actually have to sacrifice his life to avoid this transgression. He claims that if a violent person forces a judge to rule in his favor, the judge's acquiescence would constitute a falsification of Torah, which is akin to uprooting the principles of Judaism. The Yam Shel Shelomo (Bava Kama, chapter 6), in a different context, ruled that falsification of the Torah is subject to the rule of "yeihareg ve-al ya'avor" (one must give up his life rather than commit the violation sin). Therefore, a judge may not distort his ruling under any circumstances, even to save his life.
Of course, majority opinion follows the view of the Bach and Rama, that this law is suspended in cases of an actual threat or danger to life.
A subsidiary of this law involves a student who observes his Rav judging a case and has a relevant point to make. If he remains silent out of fear for his Rav, he transgresses this prohibition. In this case, the prohibition is not restricted to judges, but rather includes everyone. Although a student is not allowed to disagree with his Rav (Rambam, Hilkhot Talmud Torah 5:6), he must, nevertheless, express his opinion. It appears that presenting his viewpoint in a tactful, respectful manner does not violate the prohibition against contradicting one's Rav. Indeed, the gemara (Kiddushin 32a) prescribes the method by which a child may and should inform his parents of Torah laws of which they are ignorant. Presumably, one may, and in fact should, state his view to his Rav, provided that it is done with proper respect and reverence.