Judging the Judges
Adapted from Rabbi Braun’s sermon in 5772
One of the greatest problems with Batei Din is the total lack of any oversight. Each Beit Din is a world unto itself. There is no community monitoring of any kind. The rabbis make decisions that affect the people’s lives in major ways, by deciding division of assets and more seriously custody and visitation without answering to anyone. Even worse there is no court of appeals, no possible way to challenge a decision and no address for complaints. All of this takes place in a system where the judges are often self-appointed or appointed by organizations. The religious community has no say as to who can be a judge. There are no elections and there is no input from the very communities which they serve.
This is a quote from an article in a Jofa journal in 2005 entitled Judging the Judges, a call for Beit Din reform especially in the area of women seeking their get.
I would imagine that while many would agree partially or fully with these sentiments, others would have a rather visceral reaction to them. After all, who are we to judge the judges? We don’t know as much as them? How can we judge them? And isn’t this reversing the relationship- they are supposed to be looking at us and judging us and helping us get better not the other way around.
For many such a reaction is persuasive but I don’t believe that it is correct. I partially agree with the writer of the article and believe that the Torah does as well.
I am always drawn to the verses that command us to be just and ethical and to have and regulate just courts and judicial systems. Their simplicity and clarity speak to me and contain a message that it vital for Jews to hear in today’s world.
In chapter 19 verse 15 we read:
טו) לא תעשו עול במשפט לא תשא פני דל ולא תהדר פני גדול בצדק תשפט עמיתך
15. You shall do no unrighteousness in judgment; you shall not respect the person of the poor, nor honor the person of the mighty; but in righteousness shall you judge your neighbor.
That is a decent translation but as always, something is lost in the translation. The first command, You shall do no unrighteousness in judgment is in plural while the other 3 are in singular. The word “you” in English can refer either to a single person or to a group of people.
Many commentators notice the discrepancy and attempt to resolve it.
The Eben Ezra writes that the reason that the general command is in plural is because it is addressed to both the Judges and the witnesses while the rest are only to the judges.
Rabi Chaim Paltiel 13th century France, explains that there are different types of courts and judges. Regular judges sit with a minimum of 3 while at times a specialist expert judge can rule and adjudicate alone. The general command is to the 3 judges and the singular commands are directed to the one expert.
The approach that I found most appealing is offered by R. Yochanan b”r Aharon Luria who was born in a well-known rabbinic family c. 1440 in Alsace, on the Franco-German border
He writes that the commands written in the singular are directed to the individual judges who will be sitting and deciding the case. The first command, You shall do no unrighteousness in judgment, is written in plural because it is directed to the public and not to the judges. It is a warning to the community to appoint proper and qualified judges. If they fail to do so, and appoint unfit judges or allow unfair judges to continue to judge that community will be held responsible.
In addition to this being a wonderful answer to a specific textual problem, it also imposes a great responsibility upon the community. It assumes, or takes for granted that we the community can decide who is a qualified judge and who is not and it is our responsibility to do so.
There is one other important idea that we must keep in mind as well as we evaluate our judges and system.
Kli Yakar and the Netziv comment on another aspect of that first clause, You shall do no unrighteousness in judgment. Why not just write “do not do unrighteousness”? Why does the Torah specifically add “in judgment”?
Both argue that even if you could find a case where tainting the judgment or judging partially would result in a positive outcome, it is still prohibited because you are corrupting the system, you are doing unrighteousness in judgment. That example might be the continuation of the verse. You have one poor and one rich litigant in a financial case. It happens to be that the rich person is right but you say to yourself, it is the rich man’s responsibility to provide for the poor- I can find in favor of the poor man, the rich man will have provided for him and the poor person won’t feel like a charity case. One could argue that this is righteousness and good, but the Torah teaches us that this is forbidden. You may not pervert justice, the system for any reason at all.
If you would like to reach a compromise between the two and try and help the poor guy, that is certainly ok and maybe even desirable but you may never misuse the halacha or the Beit din for such a purpose.
Consider the following case (I am simply making this up). A couple is divorcing and the secular court heavily favors the wife. They are going to give her full custody with limited visitation and the Beit Din does not believe this to be fair. So they agree or consent or God Forbid suggests that the husband use the “Get” as leverage. Their argument in their mind is that justice is being served and the correct result is achieved. To such a scenario- we would tell the Beit Din, You shall do no unrighteousness in judgment. You may not use the “GET” as a weapon even if you are convinced that the result is right. The system must remain pure and righteous and above reproach. I might even agree in this case assuming that all things are equal that the husband is not getting a fair shake but would still argue You shall do no unrighteousness in judgment.
To use the GET without the conviction of equity is simply evil and abusive.
And I would tell you – You shall do no unrighteousness in judgment – that it is our communal responsibility to see that the Beit Din and those serving in similar capacities or advisory roles maintain the integrity of the system. Any participant who does not must be declared unfit and improper to judge!
