6-5770 Mitzvah N-64

Torah Emet
6-5770 Mitzvah N-64
December 27, 2009

Negative Mitzvah 64 – This is a negative commandment: Do not appoint a judge who is unsuitable.

Hafetz Hayim – As Scripture says: “You shall not respect persons in judgment.” (Deut. 1:17). And it was explained in the Midrash Sifre that this is addressed to the man assigned to appoint judges, that he should not respect persons: He should not say, “So and So is strong” or handsome, or wise in other fields of knowledge or other areas of excellence, which are not related to the Torah and the reverent fear of Heaven (God). For a judge needs to be wise in the Torah, reverent toward Heaven, with a hatred of bribery, who subdues his evil impulse; and he should have a strong fearless heart to rescue an exploited or victimized person from the one who oppresses him. These are the noble qualities that a judge needs to have. If, however, someone appoints judges on account of other qualities, he violates this prohibition. It is in force everywhere, at every time.

The plain meaning of the verse from Deuteronomy teaches that when litigants come before a judge in court, he should not administer justice based on the different statuses of the litigants. A judge should not say, “This man is a well respected man in town, he must be right in this case, how could I even think to rule against him?” nor should a judge think, “This man is poor and the other is rich; the rich man will not miss the money and the poor man needs it so I will rule against the rich man to aid the poor one.” In both cases the judge has not acted correctly and would be basing the judicial decision on the circumstances of the litigants and not the facts of the case. Rich or poor, one must not favor one side over the other in court.

The Hafetz Hayim, however, basing his interpretation on the Sifre, sees this Mitzvah in a very different circumstance. The Sifre is a collection of Midrashim, sermons and other extra-legal stories that expand or limit the context of the verses in the Torah. The Sifre is part of the “Midrash Halacha” one of the earliest collections of interpretations of the Torah. [The parts of Midrash Halacha are: The Mechilta (on Exodus), the Sifra (on Leviticus), and the Sifre (on Numbers and Deuteronomy). It does not include Genesis because there are very few Halachot, or laws based on the verses of Genesis.] According to the Sifre, our verse in the Torah from Deuteronomy does not refer to the actions of judges but to the one who is appointing judges.

In ancient times, judges were appointed by the ruling party and were supposed to follow the demands of those who appointed them. In many cases rich men (never women) would pay to be appointed to these posts which came with easy salaries and one could “take care” of friends and punish enemies. As long as you paid your patron and did not anger him, you could be appointed for life and everyone would have to honor you or face your wrath. Another point in the ancient judicial world was that, for pagans, justice depended on the god who was behind the judge. Since the many gods often fought with each other, human justice could also reflect this disagreement and a final decision could depend on which god the judge saw as the “patron” of his court.

Justice in Judaism was a very different process. The fact that there is only one God means that there is only one law, for all the people. That law is based on the single text from that God and the judges are only responsible for upholding the law. Moses, who appointed the first judges, was looking for men who were upright and honest. Jewish literature is filled with judges who were not afraid to judge a king or a powerful man in the community. They believed that God stood behind them in justice and if someone were to subvert their rulings, then God would punish those who would defy God’s judge.

In this tension, between the Jewish version of justice and the pagan view of justice, is the core of our Mitzvah. There could be all kinds of reasons someone would want to appoint a person to be a communal judge. The Sifre tells us that there is really only one correct reason, that the person is wise in the law, hates bigotry, too honest to accept a bribe and with a pious reverence for God and Judaism. It is hard enough to weigh justice and mercy when ruling in court. To be distracted by other extraneous ideas and indebted to other people just can not be tolerated. To bring any other qualification to the table when appointing judges would be an affront to God and a violation of this Mitzvah.

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