7-5770 Mitzvah N-65
January 4, 2010
Negative Mitzvah 65 – This is a negative commandment: A judge must not hear the argument of one party to a lawsuit when the other party is not there.
Hafetz Hayim – As Scripture says: “You shall not take up a false report.” (Ex. 23:1). A litigant (party to the dispute) is likewise adjured not to present his statement to the judge before his fellow-litigant comes; we read the text (Lo tissa) “you shall not take up” as though it were “Lo tassi” “you shall not cause to be taken up.” Included in this prohibition is the rule not to accept and not to relate evil slander and not to give false testimony. It is in force everywhere, at every time for judges and litigants, both male and female.
The law here is rather straight forward; it is how we get to the law that is of interest to me. It is important that both parties for a lawsuit should be present in court so that each one can hear the claims against the other and properly offer a rebuttal when it is their turn. This makes logical sense as well as legal sense. To have one party state its case without the other party present, is a form of collusion between the judge and the one litigant against the other. It is as if the judge is being manipulated by or is prejudiced to the litigant giving his testimony in secret. That seems to be rather clear as far as the conclusion of the mitzvah is concerned.
The interesting part is how the Hafetz Hayim learns this lesson by “misreading” the actual text of the Torah. We are being asked to understand what is written in one construct as if it were written in another. One gives us a plain meaning; the other is causative. The actual written difference is minimal but the change in meaning is great. Without the switch, the mitzvah seems to be saying that we must not slander another person or give false testimony. With the change it becomes a directive to judges and litigants that they can not bring up any matter in a false manner that is without the other party in attendance.
We can ask, at this point, which came first, the need to find a scriptural basis for testimony in the presence of both litigants, or that someone read into this verse from Exodus and came up with the idea that testimony must be done publicly in this manner. I am not sure that it really matters at this point. Through the magic of hermeneutics, a new law has come out of a simple verse and its plain meaning is extended.
This is the kind of interpretation of Torah that the Karaites, during the middle ages, objected to. If it was not in the plain meaning of the text, then it should not be considered “Torah” or law. The only problem was (and still is) it is impossible for anyone to just rely on the plain meaning of the text of the Torah alone, without interpretation. Even the Karaites had their own forms of interpretation that often went far beyond the simple meaning of the text.