The Judge’s Obligation To Be Brave

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by R. Gidon Rothstein

Parshat Devarim

I fear we sometimes lose sight of the vital role of an independent judiciary in any polity, the need for people outside the system, with no stake in outcomes other than right and wrong. Always, there will be people who resent those judges, because they end up on the wrong side of them. And some of those people will be able to bother or harm the judges. Sefer HaChinukh 415 calls a person like that az panim, brazen-faced, aveh ha-moach, thick-brained, I think because only the brazen and thick brained imagine their short-term gain in perverting this verdict is worth the overall cost to the system they also need.

Prohibition 276 in Rambam’s list codifies God’s warning to judges not to fear them, to render a true verdict no matter the consequences, because the seventeenth verse in this week’s parsha says lo taguru mipenei ish, do not fear any human being. The Sifrei Rambam quotes includes fear of death (Rambam has “lest he kill me or my son,” where our version of Sifrei only speaks of the son) and loss of property among fears a judge may not indulge.

Judges have to be willing to risk, including innocent family members, in the name of doing their job. [A few years ago, Esther Salas, a federal judge in New Jersey, lost her son because a man shot him at the door to their home, and wounded her husband as well.]

There’s more to the story.

The Obviousness of It

Sefer HaChinukh doesn’t give a reason for the mitzvah, says the human intellect bears witness to it. He means, clearly, that we all know why it’s important to have judges who will follow only the truth, not the threats of litigants. I agree with him, and also think it’s worth pausing to consider why people recurringly try to threaten and/or buy off judges, in many societies throughout history and today.

Some judges are heroic and resist (for two examples I remember, Italian and Mexican judges have played such a role in their societies, as have US judges at various junctures), but it is the repeat attempt of people to intimidate the judges—who find others ready to help them–I wanted to note. Still today, we all know people who want to make judiciaries, in more than one nation, less independent, want to coerce them to follow what “we” tell them to do.

It is their job to ignore the pressure, sure, but what does it say about us, all these millennia later, that we’re still comfortable trying?

When It Is God’s Judgment We Fear to Render

Given the way the mitzvah is said, the first rule Sefer HaChinukh shares, from Sanhedrin 6b, surprises me: a judge can refuse a case! Should two litigants appear, one of them a difficult person who can give the judge headaches, he can decide not to hear the case. He can withdraw, too, as long as he does not yet have a sense of where the truth lies. Only after the likely verdict becomes clear to him does our prohibition apply.

Arukh HaShulchan Choshen Mishpat 12;1 justifies the idea based on the end of the verse, which says “for judgment is God’s,” meaning this judge cannot be afraid to render God’s judgment. But that only becomes relevant when the judge knows the direction of the case.

The obligation isn’t not to fear such people, then, it’s not to let such fear stop a judge from articulating truths he knows (and if he renders a wrong verdict because of this fear, he also violates lo tateh mishpat, do not pervert judgment). Bowing out is allowed.

Students watching a case have the same obligation. Should one such see a valid argument for the weaker party (in halakhic courts, the judges are supposed to think of arguments each side could make), he cannot stay quiet for fear of the other (or of the teacher, I think, who might take umbrage at being upstaged).

Fixed Judges, Protected Judges

Arukh HaShulchan adds two cases where the judge must accept the case and hear it to verdict. First, if he is an appointed judge, the judge for this locale, it’s his job. Second, if both litigants are tough and likely to pressure him, he has to take the case because one will protect him from the other (this is from Rema, as is the next piece).

He also tells us Rema said that if the judges feel endangered, they may step away from the case regardless of their position, regardless of how close to finishing the case is. With the utmost respect for Arukh HaShulchan—and I really do find him top-rate, am fully in line with those many acharonim who think of him as the major posek on all issues—it is not quite what Rema says.

Rema says some say we don’t try to stop sinners today, lest they turn us over to the non-Jewish authorities. Rema might have meant only that judges can refuse cases where both sides are powerful, the previous issue he had been discussing. Regardless, this idea is also a huge innovation, considering that Sifrei and Rambam had thought the judge could not be afraid for his life or that of his children.

You Might Not Be Obligated At All

Minchat Chinukh offers another way a judge in an uncomfortable situation can choose to withdraw. Although relatives and certain others are not eligible to be judges, the litigants can agree to accept them anyway. In such a situation, however, the judge has none of our current prohibition at hand, because he was never obligated to hear the case.

He supports the idea from Sefer HaChinukh’s exemption of women from this mitzvah, although the litigants could agree to have a woman hear their case (as with Devorah, from Tanakh). Wouldn’t such a woman now have the prohibition of fearing a litigant? Apparently not, says Minchat Chinukh.

If he’s right, it would extend to someone who does not have the requisite knowledge to be a judge; he seems to be saying the prohibition is addressed only to plausible judges, who can recuse themselves for any reason they want, until they have a good sense of the verdict. For non-judges, I guess he would say, even once they think they know how they will rule, it’s still not any kind of Torah judicial process, and only there did the Torah put this prohibition into place.

Lo taguru becomes more of a rule about the formal Torah judicial process than about making sure society has proper judging. We should not limit it too much, though; Minchat Chinukh is sure non-Jewish judges are implicated in this mitzvah, because they also are obligated to judge their fellows, at least in Ramban’s understanding of the Noahide laws. Given that, a Jew asked to judge non-Jews would also have to resist any fear [and here, I think qualifications matter less, because the rules for who can judge are less well-defined].

Two chapters later, Arukh HaShulchan says the judge must fear God, and leave all these other issues behind. Our brief review of this mitzvah shows some ways a potential judge might not be required to put his/her safety on the line out of fear of God, but other places where he must: when he is a fixed judge, or when he took a case and already knows where the decision is going. When the mishpat of God has already appeared, fear of God outranks fear of any man or any consequences.

About Gidon Rothstein

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