11-5770 Mitzvah N-72
February 1, 2010
Negative Mitzvah 72 – This is a negative commandment: A judge should have no fear of any party to a lawsuit.
Hafetz Hayim – As Scripture says: “you shall not be afraid of the presence of any man.” (Deut. 1:17). Even if a man on trial is powerful, he should not be afraid of him that he may harm him. Now, as long as the judge does not know in which direction justice tends in the case, he can remove himself from the judgment, saying, “I am not bound to you [to have to try your case].” But from the time he hears their statements and knows which way the justice tends to lie in the case, he has no right to remove himself because he fears one of them, that he may injure him. Included in this is the rule that if a disciple is sitting before his master (when the master is trying a case) and he sees a point in favor of a poor man and to the disadvantage of a rich man, and he remains silent, he violates this prohibition. It applies everywhere, in every time.
As long as there have been judges, there have been those who seek to pervert justice by intimidating the court. Herod tried it with the Sanhedrin, showing up in court with a company of armed soldiers. Powerful and rich men sometimes try and get all the justice that they can buy. No matter what the cost, it seems that buying a judge, for some, is just part of doing business. It is all too often the case in many corrupt countries where the judges are not honored nor paid a living wage that they resort to taking bribes because the judges think that nobody important will care if they pervert justice.
Our Mitzvah tells us that even if nobody else cares if justice is bought, God cares. God looks out for those who are oppressed and if they are oppressed through corruption of courts, then God will look out for them and see to it that they get justice. If the judge is afraid for his life, then God will defend that judge as long as justice is assured. A judge must be fearless in dispensing justice.
There are times when a judge should not render a verdict. In cases where the judge is related, indebted or invested in one of the litigants, then the judge should recognize that even if they are committed to justice, there is an appearance that justice has been perverted. Therefore the judge should refuse the case from the beginning. If there is any relationship between a judge and one of the litigants, then the judge should refuse the case so there will be no question when the verdict is rendered. According to our Mitzvah, once the trial has begun, and testimony has started, the judge can no longer remove himself from the case since it would appear that he is afraid of the verdict and wishes to avoid the threat from one of the litigants. He would then be in violation of this Mitzvah.
I can see that once testimony begins and the judge realizes that he has a relationship with one of the litigants that the judge was not aware of, that they are both invested in the same partnership or the litigant is a silent partner in some venture in which the judge has a vested interest, as soon as this is discovered, the judge should step down from the case. Otherwise, once the case has started, the judge must see it through to the end.
This Mitzvah would apply if a litigant threatened the judge bodily or financially. Justice must be dispensed fearlessly.
In the final part, the student of a judge is listening to the testimony being given to his master/teacher and realizes that a point of law has not been brought up in the case that would clearly tilt the verdict from favoring a rich man to favoring a poor man. If the student does not speak up on behalf of the poor man, that student is guilty of violating this Mitzvah since we assume that he refuses to speak up because he fears the rich man.
For there to be true justice, then justice must be fearless