Divine Guidance Chapter 3 Part 1
Divine Expectations of Judges and Judging

This new chapter begins our study of mizvot that relate directly  to justice and particularly the administration of justice. This first part focuses on Divine expectations of judging and judges.

We have already spent time on guidance about living with love, mercy, and justice toward others in our own lives. Now we move beyond that, essentially to principles affecting the administration of justice in our broader community. While we are personally expected to do justly and love mercy, the expectations of justice and mercy are not created for individuals alone. They also apply within the community as a whole and guide how the community lays out and enforces a system of justice with respect to its members and inhabitants. So, in order to assure justice and mercy among us all, we are instructed also in establishing a process and ways for fair judgment and wise governance in the community.

As we consider these mitzvot, we shall explore why and for what purpose people then and now need communal institutions to administer justice, what form they should take, and how they can best be implemented.

Today we’re going to consider mitzvot that guide us in one specific arena of justice - the selection and work of judges and a variety of matters relating to the process and act of judging itself. This guidance is most directly about judging in a judicial setting, but I want you to think about whether they also help inform us in the proper ways of judging when, in life more broadly, all of us are called upon to make judgments.

I. Read Deuteronomy 16:18

Deuteronomy 16:18 Appoint judges and officials for each of your tribes in every city that the Lord your God gives you. They must judge the people with rightousness.

Q1. What are the key elements of this mitzvah and its fundamental purposes? While it directly applies to the judicial process, what meaning might it have more broadly in how we conduct our lives?

(First, this mitzvah directs us to have judges and officials in every city. This suggests that there are both judges and other officers in the judicial system and that they be available to do their work in each and every part of the land. Further, this suggests that the work they do, which we will discuss shortly, is work that is needed to be done throughout the land and with dispatch, not delay.)

Q2. They judge the people with just (righteous) judgment. What does that mean?

(It’s insufficient that there just be judgment. The judgment must be in accord with tzedek, with righteousness, or rightness, which means in accord with the mitzvot.)

Q3. And to what end?

(Maimonides: without effective and generally available justice, robbers and sinners would go unpunished. Their wrongs would neither be prevented nor punished. Persons intending evil or simply living with a sense of imperviousness to the way of justice and righteousness would not be discouraged and rather might be encouraged. And those who are wronged would not be compensated and made whole. Such a state of affairs would be unhealthy and indeed cruel, hardly consistent with God’s expectations of us.

God’s ways, especially with respect to expectations of justice, cannot be dependent for fulfillment on the will of individuals alone but rather require a community organized to dispense justice in the manner these mitzvot prescribe. And we should know that God desires that we who dwell in His midst live within such a system of justice.)

Q4. While we’re talking about judges in a setting of a judicial system, do you think this mitzvah (and the ones that follow) might have a broader application, that they apply more generally, perhaps to all of us in many ways of our lives? If so, how?

(Aren’t we all judges in a way?  Don’t we, indeed mustn’t we, judge what’s right and wrong in all sorts of ways in our day-to-day lives? Don’t we make decisions about others? Don’t we make judgments all the time in many phases of our lives? Could the criteria we draw from the mitzvot about righteous judging in the judicial context be relevant to, and inform, the ways in which we make many of our discriminating decisions and judgments?)

II. Read Deuteronomy 1:17 (first part)

Deuteronomy 1:17 (first part) Don’t show favoritism in a decision. Hear both sides out, whether the person is important or not.

Q1. Why is this important? Do you see any deeper possibilities?

(No partiality. No favoritism. This is obviously key to the administration of justice. Otherwise, it’s as if Lady Justice peaks past the blindfold, right?

But while this is the clear and powerful surface intent, the sages go to a place one can’t see directly on the surface but is required to achieve the stated goal. Any ideas of what that might be?

They believe the command leads to certain required practices: The criteria for the selection of judges must be based on their learning and living in the way of God and Torah, not factors such as popularity, power, money, favors, relations, politics, or even general knowledge, or “smarts.” Maimonides argues that the risk of going the wrong way on the selection process creates a markedly higher risk of favoritism or other sorts of partiality playing out, which increases the chance of the innocent being condemned or the guilty going free.)

Q2. Are they right?  Why or why not.

(If judges are picked on the basis of knowledge of, and fidelity to, the mitzvot, there will ipso facto be no partiality in judgment. If they’re picked on other factors, there is no such assurance.

Couldn’t one conclude, again more broadly, that these criteria for picking judges are also relevant to selecting other leaders or even our companions whose judgment matters, or even the process of making decisions of our own that involve judgment more generally?)

III. (multiple mitzvot) Read Leviticus 19:15 and Deuteronomy 24:17 

Leviticus 19:15 You must not act unjustly in a legal case. Do not show favoritism to the poor or deference to the great; you must judge your fellow Israelites fairly.

Deuteronomy 24:17  Do not obstruct the legal rights of an immigrant or orphan. Do not take a widow’s coat as pledge for a loan.

Q1. What’s the main objective in the first part? In what ways could we achieve it? Why is this hard to do, especially in the times in which we live?

(There shall be no perversion of justice, in judgment. What values, principles, and general practices do we rely upon to avoid perversion of justice?

This must involve fairness, even-handedness, judgment based on truth, and an understanding of the requirements of standards in the mitzvot and the application of such standards, with equity, to the matters brought before the court.

Other ideas include being deliberate in the work of doing justice, being knowledgeable about the law, showing level-headedness, ruling on a timely basis, and encouraging compromise and settlement, if possible.)

Q2. Look at the middle two ideas in the Leviticus verse and the Deuteronomy verse. What do they mean together?

(Our inclination is to be biased to the side or position we feel closest to or identify with the most. Or we might see our own position best served by siding one way or the other.

We might fear one who is rich or powerful and rule his/her way, or see a benefit from doing so, or believe they are “better behaved,” or due special regard, or be seen as unlikely to have acted wrongly.

On the other hand, we might be sympathetic with the poor, want to show him/her pity, or give a break, or want to show mercy to the needy, whether mercy is actually merited. We shouldn’t, but nor should we hold it against the stranger or fatherless because of their appearance or weakness. 

We’re to walk the straight path dictated by the mitzvot, again, without favoritism, but rather with equality, disregarding human inclinations that lead away from fairness and equal treatment based instead on the call of the mitzvot.)

Q3. What’s the fourth requirement, and what idea does it add?

(To judge with righteousness, tzedek - this could be argued to be subsumed in the language we’ve already studied and discussed. Or it could be a summary of it. Or it could be for emphasis. Or it could put us on the search for even more ways of doing it, which the sages have done, such as in treating all litigants the same as to procedure, giving all parties an appropriate benefit of the doubt, or trying to engender harmony and reducing suspicion.)

IV. Read Exodus 23:6 and Deuteronomy 19:13

Exodus 23:6  Don’t undermine the justice that your poor deserve in their lawsuits.

Deuteronomy 19:13 Show no mercy to such killers. Remove innocent bloodshed from Israel so that things go well for you.

Q. What is added here? 

(It’s unjust to judge and punish a person who has been charged with a particular offense on the basis of his/her having sinned in the past. (The sages interpret destitute as meaning generally wicked.) Nor can one be lenient solely out of pity to one who has committed a wrong, explicitly here a murder.)

V.  (2 Verses) Exodus 23:8 and Deuteronomy 1:17 (second part)

Exodus 23:8 Don’t take a bribe, because a bribe blinds the clear-sighted and subverts the cause of those who are in the right.

Deuteronomy 1:17 (second part) Don’t be afraid of anyone because the ruling belongs to God. Any dispute that is too difficult for you to decide, bring to me and I will take care of it.

Q1. What lessons do we learn from these mitzvot about judging both inside and outside the courtroom?

(A judge is forbidden from committing perversion in justice by taking action based, not on the just result, but rather on what’s in the judge’s best personal interest, whether it’s in the form of a reward or the avoidance of personal harm.

Maimonides and others read the Deuteronomy verse as teaching us not to fear the face of any party.)

Let’s pull this out of the arena of the courtroom and talk about ways in which we judge people or make other judgments in our own lives. Are there ways in which we accept gifts from people with whom we have a stake and thereby sway our views and actions? Are there times when we fail to act in accord with the requirements of justice because we fear the consequences for ourselves from others. How, and it ways? Is this guidance relevant to such situations? If so, how?

Does this mean the judge (or we) must proceed in judging even in the face of a threat on our lives? (There’s a difference of opinion among the sages on this. Some say the mitzvah speaks clearly and that we must take on the risk, while perhaps seeking protection, as would, say, a soldier. Others say putting one’s life in the path of evil is not required.)

VI. Read Exodus 23:1 

Exodus 23:1 Don’t spread false rumors. Don’t plot with evil people to act as a lying witness.

Q. What concerns us about the false reports discussed here?

(Some say that it simply means that false accounts should be kept out of the process. But most sages say it’s, more specifically, designed to keep one litigant from being heard in the absence of the other litigant. As a lawyer, I appreciate that reading. The best guarantee against a false account being made and/or swaying judgment is to be sure the opposing party hears it and has the opportunity to rebut and defeat it. Otherwise, the judge would be affected by a false report the advantaged litigant might be tempted to offer.

Falsehood brings on malediction and curses, the opposite of happiness, peace, and gratification (the manifestation of God’s attributes of truth, mercy, and kindness).)

VII. Exodus 23:2 (first part)

Exodus 23:2 Do not take sides with important people to do wrong. When you act as a witness, don’t stretch the truth to favor important people.

Q1. What do you see on the surface here as to the requirements of judging? Do you see deeper meanings?

(The sages say it means that a judge should not rely on a fellow judge’s opinion in convicting or acquitting, without doing his own investigation, inquiry, and reasoning as to guilt or innocence. A judge must substantially rely on his own learning and reasoning ability.

Why?

The judge occupies a position of authority and responsibility and is accountable to do his duty by the standards that govern his service. Taking shortcuts violates that duty. It’s not his elder’s job, his better’s job, or anyone else’s job to do his job. It’s his. This matters in any case that requires a majority, and even more in a capital case, where the vote has greater consequence. So, each vote must be true and independent.)

Q2. Could this principle apply in the judging we do more generally in our lives? How?

(We need to make thoughtful, inquiring, and reasoned decisions when we make judgments of people, ideas, etc., and not rely overly on the opinions of others. It’s our duty. We can only be accountable if we do the work of judgment ourselves.)

VIII. Read Exodus 22:28

Exodus 22:28 You shall not revile God, nor put a curse upon a chieftain among your people.

Q. What does respect of a judge require? What might it not require?

Know that while this (nasi) covers rulers, Maimonides says it refers to the judge, too. As we complete our consideration of the mitzvot regarding judges and judging, I wanted to ask you to opine on the significance of this mitzvah.

(It certainly doesn’t mean that we can’t be aware of and act on wrongdoing by a judge. We can criticize a judge who is operating outside the framework of the mitzvot.

The more typical situation, however, is when a judge administers justice in a way that goes against our personal interests. In such circumstances, we’re not to vent our anger at, or curse, him/her. Cursing a judge is akin to cursing God. One who damns a judge becomes ripe for wrongdoing and also unjustly punishes a servant of God and deters him and other such good people from serving in such an important and difficult capacity.)

Divine Expectations of Judges and Judging

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