To Appoint Only Torah-Knowledgeable Judges

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by R. Gidon Rothstein

Lo takiru panim ba-mishpat, says Devarim 1;17 commands, a phrase I would have taken as the English does, judges must not favor one litigant [especially in the context of the passage, where the previous verse has Moshe ordering judges to handle their cases well, the rest of this verse also referring to ways to ensure fairness within a lawsuit].

Tradition understood the phrase to articulate a mitzvah on those in charge of appointing judges.  As we start, I am already intrigued by the idea the Torah would “waste” one of the 613 on a mitzvah relevant to a few people in the nation.

The Qualities of the Torah Judge

Sifrei was the source of the idea, prohibition number 284 in Rambam’s list. The Sanhedrin or whoever appoints judges (Rambam mentions rosh galuyot, the head of the Jews in exile, a reminder Jews are to have halachic judges and courts wherever they live; similarly, Sefer Ha-Hinuch Mitzvah 414 declares the mitzvah applies to all times and places) must choose only qualified men, who know the laws well enough to judge them, and whose personal conduct fits the Torah’s requirements.

Sefer Ha-Hinuch cites Tanhuma Shofetim 3, a judge needs fine character, must be a worthy person. I would have thought it part of ensuring the man will judge well, but Sefer Ha-Hinuch thinks it is to forestall a litigant’s accusing the judge of hypocrisy, repudiating the verdict because the judge acts contrary to what he is trying to impose on this litigant.

Based on verse thirteen, Sefer Ha-Hinuch adds the judge should be well-liked, someone who puts effort into mitzvot, insists on high standards in his personal observance, has enough self-control to mean no one can point out any flaws of behavior, and has always been this way there are no embarrassing stories from their youth (a quality phrased pirko na’eh, his youth was fine).

A final quality named in the verse: anshei hayil, people of courage, including to save the oppressed from their oppressors, as Moshe did when the other shepherds tried to prevent the daughters of Yitro from drawing water for their flocks.

With Moshe as model, we also say as Moshe was anav (a quality often translated as modest or humble, but which I have been taught has to do with dispensing of ego expectations of certain kinds of treatment), the judge must be anav.

Not All Appealing People Are Fit Judges

Rambam contrasts the right way to pick a judge with the temptation to elevate someone because of other positive traits, a reminder of how easily we can become enamored of someone for reasons—maybe good reasons—that do not justify a judgeship. He uses a phrase from Shir Ha-Shirim 5;16, kulo mahmadim, he is all lovely, again a reminder we can think someone is “all lovely,” the person may be “all lovely” in many ways, yet not have the requisite Torah knowledge and/or character to be a judge.

Rambam’s examples are na’eh, I think good looking and/or charismatic, gibor, powerful, or has important relatives, is wealthy, knows many languages.

Sefer Ha-Hinuch generalizes, says we cannot appoint the judge because of other wisdoms he may have. (It’s a mistake we see in our lives, such as with Nobel prize winners and/or university professors; because they know a lot, and are exceptional in their fields, we come to think they have to have relevant insight everywhere.)

We could see how each of these qualities would commend themselves as qualifications for the job. Must not matter, the Torah is telling us: a judge needs Torah knowledge and conduct befitting that knowledge. [Some have the knowledge and are still not fit to be a judge, but that’s not our mitzvah’s concern.]

Being Alert to Why We Like Someone

The idea the person making the appointment will believe s/he has selected a worthy candidate highlights how hard it is to fulfill a ruling of Aruch HaShulchan, Hoshen Mishpat, the end of halachah aleph. He says we must not stand out of respect for any judge appointed by trickery or stratagem, and certainly by bribery, and should actively dishonor the person.

The idea only works if “we” can agree this judge took his position through trickery, where those who appoint unqualified judges will rarely, if ever, admit it. Put into practice, it would likely mean some group would refuse to stand for this judge, others would be sure he was a perfectly fine judge, and a middle group would see problems in the appointment, but tell us we have to respect him now that he is in the position. A recipe for social strife.

The Punishment

Minhat Hinuch says no lashes are given for this sin because the person who appoints the judge could always claim s/he thought the appointee had the proper knowledge. God will administer the punishment.

[An important example of how vital it is to focus on truth; the person here could make a false claim, and we would have no way of knowing, says Minhat Hinuch. I suspect there would be times the person making the appointments would believe the appointee was qualified, or fool him/herself into believing it, because the other qualities blinded him/her to their true level of qualification.

The idea God would take care of it is also worth a second, a reminder the Torah does not think or expect human beings will or can make society function perfectly. There are parts even of human society we necessarily leave to God to oversee.]

Minhat Hinuch says the person or people who put an improper judge in place will bear the responsibility for every incorrect verdict the judge hands down, throughout his career [imagine if politicians forced a judge through improperly by refusing to give a qualified judge a hearing, or the judge had acted in his youth in ways that would have disqualified him, or took a spot by violating a standard the politicians had just set up themselves; every one of such a judge’s wrong verdicts afterwards would add to the guilt of those who put him/them there.]

Judges and Value Systems

Sefer Ha-Hinuch says the reason for the mitzvah is obvious, a word I find overused in our times, since what is obvious to some is not obvious to others. For example, here, I’m sure he meant the judges will clearly get verdicts wrong because of their ignorance, but to accept that—which I do, but I’m reminding us why it is not obvious—we also have to accept the idea of correct and incorrect verdicts, based on the Torah’s view and no other.

Similarly, Rambam says the unfit judge’s ignorance will (inevitably, I think he means) lead to cases where he absolves the liable and obligates the innocent, by which he clearly meant those that halachah would see as guilty or not.

Especially because he is assuming halachic conclusions are non-intuitive (hence the need for study and knowledge), it becomes less clear why the Torah would care so much. Possibly, the Torah wants us to know its rules are the only just system, as Sefer Ha-Hinuch seemed to assume. I think it more likely they would have said the Torah was sure judges appointed for bad reasons would end up perverting the system, declaring the innocent liable or vice versa where there is no justification for the idea.

A phrase in Sefer Ha-Hinuch, based on Sanhedrin 7b, points in yet another direction. He says anyone who appoints an unqualified judge is as if s/he has built an altar to a foreign god (Minhat Hinuch corrects the quote; the Gemara actually called it planting an Asherah, a tree used in idolatrous worship). The issue of other gods suggests the Torah insists that Jewish societies judge by halachic rules, regardless of even just alternatives. Western law may also be a fine legal system; it is not ours.

[To add what seems clear to me, but is not explicit in the sources I consulted: versions of justice also make value judgments, necessarily. Were Jews to judge by a non-Torah system, even one that effectively also produces social order and reasonable fairness, they would at the same time be buying into this other value system, one that is not the Torah’s. I think that’s part of what we mean by constructing an Asherah and/or building an altar to other gods, God forbid. We are building an institution whose approach to life is this other values-system’s approach, rather than the one God gave us.]

And it is on those who appoint them to be sure that does not happen.

Where It’s Not Possible

Aruch Ha-Shulhan Hoshen Mishpat 8;1 notes we do consult unqualified judges when we lack alternatives, but only as a stopgap. We cannot appoint such a person to a position as a judge, not even if he commits to always asking a more qualified judge whenever he does not know the answer. For a place with no qualified judges, who do not have the wherewithal to import them, Aruch HaShulhan concedes the possibility of taking whoever is best, and the locals all accepting him. [Litigants have the right to forego many rules of the Torah for their individual case; they can decide to accept a judge who is related to the litigant, for example. This town would blanketly accept this judge.]

If so, the Torah’s mitzvah turns out to be about the nature of judicial appointments, the necessity of striving for certain kinds of judges, and being aware that when we do not have them, we are stepping outside the Torah system. We may be allowed to, depending on circumstances, but we are obligated to be aware of what we are doing.

The Torah’s laws and values are supposed to be overseen by judges, who must know and live those laws and values. While we sometimes make do with lesser versions of the law, any official appointment of a dayan, an halachic judge, must find people who know Torah law so they can rule by that system, our system, and not impose their values or some other values onto the Torah way of life.

About Gidon Rothstein

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