Delicacies from Yechezkel’s Shabbos Table – A Travesty of Justice (Kedoshim 5784)

 

 

לא תעשו עול במשפט; לא תשא פני דל; ולא תהדר פני גדול; בצדק תשפט עמיתך: – ויקרא י"ט, ט"ו

 

Do not do a travesty of justice; do not favor a poor litigant; do not venerate a prominent litigant; with righteousness judge your comrade.

 

In this single pasuk, there are four cautionary commands. Who is on the receiving end of these commands?

Since all four are grouped in this pasuk, it is a fair assumption that all four cautions are being told to the same subject – one who sits in judgement. After all, a judge is in the best place to perform a travesty of justice and to play favorites and distort the law. Most readers would take this for granted.

Sure enough, Rashi certainly takes this route. He explains the first segment as a declaration that a judge who corrupts the judgement is called all kinds of unsavory names. He explains the other three segments along those lines and tells us why even a straightforward judge may rationalize bending the law.

But, do we notice something that makes the opening segment stand out from the ensuing ones? Hint – it is only evident in the original Hebrew.

Yes, that’s right. The first segment is addressed to multiple people in the plural, whereas the following segments are only mentioned in the singular.

Rashi doesn’t seem to be bothered by this. Indeed, we can all easily dismiss it by saying that since standard litigation involves a panel of three judges, this is to be expected. Of course, this then begs the question as to why are all the ensuing segments in this pasuk addressed to a single person?

The Ohr HaChaim Hakadosh is indeed very bothered by this discrepancy. He presents several approaches. Firstly, he wants to say that the first segment of the pasuk is not being addressed to the judges but rather to the baalei din – the litigants. The pasuk is cautioning the litigants not to twist their stories. That is, not to bend or spin their stories with deceptive terminology to present an inaccurate picture. Just tell it like it is.

Once we say this, we can say that the following three parts of the pasuk are not really commands at all but rather cause and effect results. The pasuk is telling the baalei din, “Do not falsify or misrepresent your claims. As a result of being accurate, none of the individual judges will unjustly favor a poor man or unjustly flatter a prominent man. Each judge will be able to judge your comrade (the other litigant) fairly.”

The Ohr HaChaim suggests some other explanations including one that says the subject of the opening segment is indeed the judge. The pasuk is telling a judge not to do a travesty of judgement to mean as follows. There are times when one can perceive that applying the precise letter of the law is not leading to a just outcome. Due to some quirk in circumstances, following the precise law may turn out to be a travesty of justice. In this case, the judge must use his perception to give a proper and just ruling even against the letter of the law.

Ohr HaChaim does not go on to explain the subsequent segments. Actually, they seem to contradict the first one. In the first segment, the pasuk is giving license to the judge to go against the letter of the law for the sake of justice. But in the next segments, we are telling the judge not to distort the case in favor of the poor or powerful in the face of the letter of the law.

I suppose he may understand that the first segment is giving a judge a license to be “creative”, but this license can easily be abused. Hence, in the following clauses, the pasuk is saying that, although for the sake of true justice one can circumvent the written law, nevertheless, subjective rationalizations based on any litigant’s personal circumstances are not acceptable for this license.

If this is what he means, I have two issues. One is simply that I see it as a big “dochek” (stretch) to say the pasuk is allowing bending the law at all and then calling it back. Hard to know where to draw the line. The other issue is that in no way does this explain why the opening segment is plural and the following ones are singular.

I would like to suggest my own approach that, indeed, the entire pasuk is addressing the judge[s] and not the litigants.

Many of us know that for monetary claims, there is a Talmudic procedure for arranging a Beis Din. This is in Sanhedrin 23a and Choshen Mishpat 13:1. This is what is called a Zabl”a Beis Din. Zabl”a (זבל"א), is an acronym for זה בורר לו אחד – this one chooses one [judge].

It means that for a monetary case, each litigant chooses one judge and then the two judges jointly select the third. The Gemara succinctly states the reason for this system:

אמרי במערבא משמיה דרבי זירא, מתוך שזה בורר לו דיין אחד וזה בורר לו דיין אחד ושניהן בוררין להן עוד אחד, יצא הדין לאמיתו:

 

Here is what they say in the West (Israel) in the name of Rabi Zera – Out of one litigant choosing one judge and the other choosing a second and the two judges choosing a third, the resulting judgement is reliably exact.

Rema in Shulchan Aruch elaborates in the name of the Tur:

Each selected judge will do his utmost to present winning points in favor of the one who selected him to the extent that the law allows. The third [neutral] dayan listens to the arguments of the two “biased” judges and is able to rule with precision.

In the ancient Talmudic system, each litigant can choose a judge which we expect to be somewhat biased in his favor and will know all of the Halachos that can win his own case. Of course, this is offset by the capabilities of the opposing chosen dayan. This is what makes this system fair.

In this system, each of the two biased judges functions like a toen Rabbani for the one who chose him. These judges are well versed in Halacha so they know what to argue and should leave no legitimate claim unspoken. The third judge, who was jointly chosen by the other two, will be the tie-breaker and can determine which Halachic arguments are more relevant to this case. The resulting ruling should be fair and just and neither litigant will be able to claim that the court was totally biased against him and the deciding judge did not hear all of his arguments.

Despite this expected bias from the first two judges, Rema stresses that they are limited to the boundaries of the Halacha. They are not empowered to present spurious Halachic arguments or to push for a false ruling when they know the Halacha is not on their side. This is what he means when he writes, “to the extent that the law allows”.

Accordingly, I want to suggest that this is the intent of the pasuk. The pasuk is referring to a Zabl”a Beis Din where one litigant may be a poor person and another may be a prominent person. Each one chose a dayan that favors him.

The pasuk is telling these dayanim not to go overboard. Even if they have a vested interest, they still must function like judges and not like lawyers. So, first it talks to all three dayanim at once and says to them that as a cohesive panel of judges, the three of you must be sure not to corrupt the judgement. Hence,

 לא תעשו עול במשפט

Then it speaks to each of the three judges individually.

If one was chosen by a needy man, he can make whatever Halachic arguments that are applicable, but he cannot invoke non-related circumstances such as the neediness of the baal din. Nor can he rule in his favor for that reason alone.

לא תשא פני דל

Then, the pasuk speaks to the second dayan and tells him the same thing. You can make whatever Halachic arguments that are applicable, but you cannot invoke non-related circumstances such as the prominence of the baal din. Nor can you rule in his favor for that reason alone.

ולא תהדר פני גדול

Lastly, it speaks to the tie-breaker dayan. The pasuk is telling him that just in case any of the other dayanim overstep their bounds and transgress on their restrictions, he is not to swayed and must rule based on nothing but the merits of the case.

בצדק תשפט עמיתך

Although the Zabl"a procedure is still available today, it is very rarely used. A Zabl"a court is not so practical to set up since it involves a lot of time and bickering between the two sides. It can only work when both sides agree to go to Beis Din and this doesn’t usually happen until after the nitva receives a summons from an established Beis Din. Secondly, a makeshift Beis Din is usually not equipped with a mazkir or safra d’dayana or any staff or equipment or even a place to hold court. Thirdly, Zabl”a dayanim generally charge good money for their time and effort and they become prohibitively expensive.  

Today we usually rely on established prearranged Batei Din which have a fixed panel and are selected by one side or the other. Rarely by consensus. This is just one of many shortcomings of today’s Batei Din which I plan to write about in the near future, IYH. Sadly, the institution of Beis Din is not what it used to be or what it needs to be.

השיבה שופטנו כבראשונה ויועצנו כבתחילה והסר ממנו יגון ואנחה