Nechama Leibowitz
reprinted courtesy of the Jewish Agency for Israel Education Department
In this sidra Moses recapitulates, in his address to the children of Israel the history of their fathers’ wanderings. He begins from the moment, thirty-eight years previously, their parents had stood on the threshold of the promised land which they had forfeited on account of their misconduct. Moses describes how he had prepared the children of Israel, at that time, for the entry into their patrimony by appointing leaders and officers. Here is the message he gave their judges:
And I charged your judges at that time, saying: Hear the causes between your brethren, and judge righteously between a man and his brother, and the stranger that is with him. Ye shall not respect persons in judgment; ye shall hear the small and the great alike; ye shall not be afraid of the face of any man; for the judgment is God’s. (1:16-17)
Besides the general rule to deal justly, many detailed regulations of judicial procedure are derived from every word and turn of phrase in the above text. In the first verse the word “hear” as well as the unusual adverbial qualification “between” are the subject of exegesis.
Said R. Hanina: This constitutes an admonition to the court not to hear the words of one litigant before his opponent has arrived, and an admonition to the litigant that he should not present his case to the judge before his opponent arrives. Apply the text: “Hear the cause between your brethren.” (Talmud, Sanhedrin 7b)
The hearing of the litigant in the absence of the other may give rise to partiality, since the one cannot correct the impression given by the other. But even if both are present there are still dangers to be avoided in the interests of justice. These may also be deducted from the wording of our text as the author of Or Ha-hayyim observes:
What is the point of the text telling us to hear the cause between your brethren? Surely without hearing them out, there can be no case! Why is the unusual infinitive form shamo’a (hear) used instead of the imperative shim’u (hear ye)? The implication to be drawn, however, is that the judges must be patient and hear them out. If one of the litigants wishes to bring more evidence or arguments, the judges should not cut him short but they must ‘hear’ continuously. Further, if the case has been tedious and longwinded the judges should not adjourn the case till much later, but they should hear it out, till the end, without intermission. The Torah thus prohibits the injustice of protracted legal proceedings and demands swift justice.
This same text also teaches the judge to go behind the words of the litigants and get at the truth, and though the arguments and evidence of one superficially appear to be decisive, if he feels they are not in good faith, he should use his own judgment. Hear the cause between your brethren implies that he should pay attention to every nuance of their utterances and all that takes place in court between them in arriving at the truth.
The word “hear” is understood in the sense of “pay attention” or “grasp.” The equal treatment to be accorded to both litigants can be distilled from the word “between.”
The judge must not serenely look at one and avert his gaze from the other, but his hearing must be “between,” equally balanced – if he looks at one he should look at the other, if he averts his gaze, it should be from both or from neither…A certain pious and scholarly judge R. Moses Berdugo would avert his gaze from both, because he felt that if he gazed at one of them his opponent was bound to be flustered for the moment. He said that the text “hear the cause of your brethren” implied that it was the duty of the judge simply to hear, and nothing more, and let the words of the litigants reach his ears without making the slightest differentiation between them both. In this way you will “judge righteously between a man and his brother.” (Or Ha-hayyim)
Here we have the affirmative formulation of justice. The next verse gives us the negative formulation followed once again by an affirmative demand:
Ye shall not respect persons;
Ye shall hear the great and small
The demand to mete out impartial treatment to both parties recurs in all the four Biblical contexts dealing with judicial matters:
Thou shalt not pervert the judgment of thy poor in his causes; neither shalt thou favor a poor man in his cause. (Exodus 23, 6, 3) Ye shall do no unrighteousness in judgment; thou shalt not respect the person of the poor, nor favor the person of the mighty, but in righteousness shalt thou judge thy neighbor. (Leviticus 19:15) Thou shalt not pervert judgment; Thou shalt not respect persons. (Deuteronomy 16:19)
Our sages have taught us not to regard any text in the Torah as merely repetitive, and they elicit for us the separate and exclusive messages of each word and phrase. Here we shall deal with the implications of the repeated references to favoring the “poor” and “mighty.” The word “poor” does not only mean the destitute in worldly goods. Here is the interpretation of our Sages on the text in Exodus 23:
If a disreputable and a decent person stand before you in judgment do not say, Since he is a disreputable person, I shall view his cause unfavorably but “thou shalt pervert the judgment of thy poor” –he who is poor in good works (mitzvot). (Mekhilta Ex. 23:6)
The judge has to limit his considerations to the parties standing before him in court and take no account of a person’s past, but weigh up the matter objectively on the basis of the facts presented to him. We find a similar duplication in the case of the admonition not to favors the poor man. In Exodus we are bidden not to favor the poor man in his cause; in Leviticus not to respect to person of the poor nor favor the person of the mighty. Malbim who specializes in clarifying the subtle differences in apparently synonymous expressions in the Torah directed his genius to explaining our text:
The phrase nesi’at panim (“lifting up the face” translated in our text by “respect the person”) implies overlooking some transgression or unsavory matter cf.: “peradventure he will (yisa panai) accept me” (Genesis 32:21) … “See I have accepted (nasati panekha) thee concerning this thing also that I will not overthrow the city” (ibid. 19:21). The word “favor” comes from a Hebrew root meaning external beauty (hadar) referring to whatever is attractive in man’s eyes; cf. “the fruit of a goodly (hadar) tree…” “The majesty (hadrat) of the king is in the multitude of people” Proverbs 14:28; “the beauty (hadar) of the old men is the hoary head” (ibid. 20:29) etc.
It is the way of the world to make allowances for poverty and to pay respect to external appearances. the Torah therefore forewarned us against both these pitfalls. But it could be argued that though forbidden to make allowances for the poor and give him respect, so that his opponent should forego some of his claim. For this reason the Torah states that it is forbidden, too, to favor i.e. to honor the poor in his cause.
The Torah was not concerned, in this context, with protecting the weak but with upholding justice, since as it concludes in our sidra: “the judgment is God’s” The implication of this cryptic expression is to be found in Jehoshaphat, king of Judah’s words to his judges:
Consider what ye do; for ye judge not for man, but for the Lord; He is with you in giving judgment. Now therefore let the fear of the Lord be upon you; take heed and do it; for there is no iniquity with the Lord our God, nor respect of persons, nor taking of tribes. (2 Chronicles 19:6-7)
The commentary to Rashi on Chronicles explains the significance of the above as follows:
Do not say: What difference does it make if we are partial to our friends or pervert the judgment of the poor and favor the rich? Surely the judgment is not God’s. For this reason it states that it is “for the Lord”. If you have convicted the innocent it is as if you have deprived your Creator of something and perverted the judgment of heaven. Therefore “consider what ye do; ye judge not for man, but for the Lor.” Perhaps you will then argue, why should I take upon myself all this responsibility and trouble (to suffer punishment if I make a mistake)? The text adds: “with you in giving judgment”; in other words, it is your bounden duty to deliver judgment on the basis of the facts in front of you.
The administering of justice is a Divine charge entrusted to man by God, both a duty and a privilege.