8-5770 Mitzvah N-66; 67; 68
January 11, 2010
Negative Mitzvah 66 – This is a negative commandment: Do not have pity on a poor man in a court trial.
Hafetz Hayim – As Scripture says: “neither shall you favor a poor man in his cause.” (Ex. 23:3). And it further states, “You shall not respect the person of the poor (Lev. 19:15) [This means] that the judge should not say, “He is an indigent man, and we have a duty to sustain him. I will declare him right in the court case so that he will be sustained with ease.” It is in force everywhere, at every time.
Negative Mitzvah 67 – This is a negative commandment: Do not pervert justice for a sinner on account of his wickedness.
Hafetz Hayim – As Scripture says: “you shall not pervert the judgment of your poor in his suit (Ex: 23:6) and the meaning of “your poor” is a person who is poor in Mitzvot. It applies everywhere and always for both men and women.
Negative Mitzvah 68 – This is a negative commandment: Do not pervert justice for a proselyte or an orphan.
Hafetz Hayim – As Scripture says: “You shall not pervert the judgment of a convert or an orphan” (Deut. 24:17) If a judge transgressed and did deal unjustly with the case of a convert or the case of an orphan, he would violate two prohibitions (you shall do no injustice in judgment – (Lev. 19:15 see next Mitzvah in the next lesson #69) and this prohibition). It applies everywhere and always for both men and women.
I would have thought that all of this would fall under one single prohibition about ruling in a court case based on who the litigants are, rather than on the facts of the case. The Torah, however, lists all of these cases separately so each one is a mitzvah in its own right. We will see next week the general law, but here we have some specifics. These represent cases where one might have a reason to consider who is standing in front of them.
In the first case, one of the litigants is a poor man and the other is more wealthy; (he may or may not be “rich” but he has a lot more than the poor man has). The judge might consider that the wealthy litigant can afford to lose the money and the poor man will not have to beg for his meals for a while. It is a kind of “Robin Hood” idea. Take from the rich and give to the poor. This is not allowed in Jewish Law. If the law says that the rich man is right and the poor man wrong, the judge must rule against the poor man. He can ask the rich man not to oppress the poor man by demanding his payment right away, but if the wealthy man is right, it is not permitted to rule against him.
In the second case, one of the litigants is a wicked man. He may or may not be willing to give up his life of sin. In any case, he is currently “poor in Mitzvot.” A judge may not rule in the case in order to give the sinner what the judge thinks he deserves. If the sinner is right, and the other litigant is in the wrong, a judge must not rule against the sinner. The sinner may later do something that will get him in trouble for his own actions, but justice will have to wait. No matter what the morality of either of the litigants, the judge must rule on the facts of the case and not on the “lifestyle of the litigants.
Finally, the orphan and the convert were always susceptible in court to other litigants. They were usually poor and could not mount a proper defense of their position. They also did not have enough experience in Jewish courts to get justice. It is not the role of the judge to do any social engineering. It does not matter if the orphan or convert is wise to the world of the court, or not. If the facts of the case are that they are guilty, then they must pay what the court decides. A judge can not protect them if they have acted inappropriately. I heard a story where a Rabbi was called to judge between a man and his servant girl. As he left for court, his wife also prepared to go to court as well. “Why are you going to court?” asked the Rabbi, “Why should you bother with this trivial case?” The wife replied, “I am going to make sure that the poor servant girl gets a fair hearing and is not cowed into admitting what may not be true. I am going to defend the servant girl.” It is one thing to make sure that the poor, orphan, convert and sinner do not have an advantage in court due to their position in society. But it is also the community’s obligation to make sure that they do have proper representation in the court.
These Mitzvot all insure that everyone, the poor, the wealthy, the powerful and the weak all get a fair trial and a proper day in court. After that, the ruling of the judges must follow the law. The law must not respect the person of either litigant, for good or for ill.