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Judges or rulers

Rabbi Eliezer Shenvald - Parasha in our everyday life - Mishpatim - Shkalim- 5781

In recent times, tensions have been rising between the government and the judiciary. Opinion polls show an alarming decline in public confidence in the judicial system.

The democratic regime is based on three governing authorities: the legislature, the executive, and the judiciary, and on the separation between them. The tension that was recently formed, stems from the strengthening of an activist legal approach with a liberal agenda, as opposed to a conservative legal approach. And from a growing trend of crossing the 'lines of separation between the powers', and the intervention of the judiciary in the areas of authority of the legislature and the executive.

The idea of ​​separating the government powers is commonly attributed to the English philosopher John Locke, followed by the French philosopher Charles Montesquieu (between the 17th and 18th centuries).

The idea stemmed from the assumption that the concentration of power in the hands of a single governmental authority could lead to its abuse, while splitting the centers of governmental power between several authorities would prevent this and create mutual balances and brakes.

However, already in the Torah we find the demand for the separation of powers in several areas. One of them is in our Parasha.

וְאֵ֙לֶּה֙ הַמִּשְׁפָּטִ֔ים אֲשֶׁ֥ר תָּשִׂ֖ים לִפְנֵיהֶֽם׃

"These are the rules that you shall set before them" (Shmot 21:1)

'וְאֵלֶּה- מוֹסִיף עַל הָרִאשׁוֹנִים: ואלה “and these” adds something to the former subject, a continuation of it. “And these are the rules": the former commandments were given at Sinai and so were these (Parashat Yitro).

The giving of the Torah and the Ten Commandments was the point in which the unique destiny of the people of Israel and its 'constitution' was shaped. This completed the process of their establishment as a nation. Immediately after, they were given the rules (see Ramban here).

The late Rabbi Kook Z'L had a special method in interpreting the Torah: "Paralleling Torah passages" (Sichot of Rabbi Zvi Yehuda Kook - Vayerah 5725). According to this method, the two Parashot 'Yitro' and 'Mishpatim' complement each other: "Sefer Shmot is a new tractate, etc." The third pair - "Yitro-Mishpatim". Matan Torah, "Yitro" - the generalities of the Torah at Mount Sinai, and "Mishpatim" - the details of the Mitzvot. "Klal U'Prat -generality to specification" (Sichot of Rabbi Zvi Yehuda Kook - Bo - 5727).

In the previous Parasha, Yitro's advice for establishing a hierarchical legal system is also presented:

וְאַתָּ֣ה תֶחֱזֶ֣ה מִכָּל־הָ֠עָם אַנְשֵׁי־חַ֜יִל יִרְאֵ֧י אֱלֹהִ֛ים אַנְשֵׁ֥י אֱמֶ֖ת שֹׂ֣נְאֵי בָ֑צַע וְשַׂמְתָּ֣ עֲלֵהֶ֗ם שָׂרֵ֤י אֲלָפִים֙ שָׂרֵ֣י מֵא֔וֹת שָׂרֵ֥י חֲמִשִּׁ֖ים וְשָׂרֵ֥י עֲשָׂרֹֽת׃ וְשָׁפְט֣וּ אֶת־הָעָם֮ בְּכָל־עֵת֒

"You shall also seek out from among all the people capable men who fear G-d, trustworthy men who spurn ill-gotten gain. Set these over them as chiefs of thousands, hundreds, fifties, and tens, and let them judge the people at all times." (Shmot 18:21-22)

In this way he characterized the system and its people: "capable men - agile to rescue the oppressed from the oppressor, and the robbed from the robber. trustworthy men - who do not like to cover up, disguise (cover and concealing, II Kings 17: 9) and flattery, and do not trust only the truth of things. Spurns ill-gotten gains - who do not like bribes, because whoever has these virtues in him brings out the real truth" (Rabbi Joseph Bekhor Shor ibid).

The purpose of the legal system is to 'save the oppressed from the oppressor', to protect the people in need of relief. Judges must be 'truth-seekers', pursuers of justice, who seek to please no one, and are agenda-free, and only justice and absolute truth will be their guiding principle.

Law will be on merits of the matter and not the merits of the individual.

Therefore, they were commanded, לֹֽא־תַכִּ֨ירוּ פָנִ֜ים בַּמִּשְׁפָּ֗ט

"You shall not be partial in judgment" (Devarim 1:17).

גַּם־אֵ֥לֶּה לַֽחֲכָמִ֑ים הַֽכֵּר־פָּנִ֖ים בְּמִשְׁפָּ֣ט בַּל־טֽוֹב׃

"These also are by the sages: It is not right to be partial in judgment". (Proverbs 24:23) Also these parables are meant for the wise.

"From the beginning of the Book of Proverbs up until here King Solomon made it his business to admonish foolish people and adolescents. In fact, he announced his purpose at the very beginning of the Book when he said (1,4) “to give prudence to the simple, to the young man knowledge and discretion.” Commencing with this verse he switches and admonishes the scholars, the ones who preside in the courts and dispense justice". What does his admonition consist of? “It is not good to display partiality in judgment.” Solomon condemns partiality as a negative character trait". (Rabbeinu Bahya, introduction to Parashat Mishpatim).

Judges are subject to the Divine law of the Torah and yet there is a requirement of the Torah to separate it from the governmental authority, whatever it may be:

אין מושיבין מלך בסנהדרין ... דכתיב ... לא תענה על ריב לא תענה על רב

"A king is not seated on the Sanhedrin as it is written: “Do not answer in a cause [Riv], do not answer to a great person [Rav]". Therefore, one whose stature will make the other judges afraid to contradict him may not be appointed to the Sanhedrin. (Sanhedrin 18b). "Because it is impossible to contradict his words" (Yad Rama Ibid).

In order to do justice and not to influence the opinion of the judges in criminal law "starting from the side" (Mishnah Sanhedrin 4b),

מן הקטנים בחכמה שהיו יושבים בצד

"from the smallest in wisdom who were sitting on the side" (Rabbi Obadiah Bartenura ibid). Because: "When the small ones begin, they are not inclined to the wondrous (the expert) who repeats after them. But stand by their words" (Tosafot Yom Tov on Mishnah Sanhedrin). And thus, the truth and justice are clarified, however: שׂ֣וֹם תָּשִׂ֤ים עָלֶ֙יךָ֙ מֶ֔לֶךְ

"you shall be free to set a king over yourself" (Dvarim 17:15)

גבי מלך שום תשים עליך מלך כתיב שתהא אימתו עליך ואי הוו בסנהדרי על כרחן מיניה בעינן לאתחולי הילכך ליכא תקנתא אלא דלא ליהוי התם כלל

"Let him be a source of fear' and they will start from him and then the rest will not dare to contradict his words. Therefore, the only solution is for him not to be there at all". (Yad Ramah on Sanhedrin 18b).

From this we learned that the presence of the king as a governing and ruling factor in a courthouse may disrupt the clear process of truth in trial.

And it must also be inferred from this the opposite, the combination of governmental considerations in the considerations of law and justice, may create a conflict of interest between the government, which demands control of justice and the absolute truth of law. (See Gemara Sanhedrin 19a)

[The Gemara asks: But what is the reason that others do not judge the kings of Israel? It is because of an incident that happened, as the slave of Yannai the king killed a person. Shimon ben Shataḥ said to the Sages: Put your eyes on him and let us judge him. They sent word to Yannai: Your slave killed a person. Yannai sent the slave to them. They sent word to Yannai: You also come here, as the verse states with regard to an ox that gored a person to death: “He should be testified against with his owner” (Shmot 21:29). The Torah stated: The owner of the ox should come and stand over his ox. The Gemara continues to narrate the incident: Yannai came and sat down. Shimon ben Shataḥ said to him: Yannai the king, stand on your feet and witnesses will testify against you. And it is not before us that you are standing, to give us honor, but it is before the One Who spoke and the world came into being that you are standing, as it is stated: “Then both the people, between whom the controversy is, shall stand before Hashem, before the priests and the judges that shall be in those days” (Dvarim 19:17). Yannai the king said to him: I will not stand when you alone say this to me, but according to what your colleagues say, and if the whole court tells me, I will stand."]

A legal system draws its power from public trust, a mix of unjust truth and considerations can cause a loss of public trust:

כי הדיין האומר לרשע בדינו צדיק אתה שמזכה אותו והוא חייב וכ"ש אם יחייב את הזכאי המון העם יזעמוהו וירחיקוהו בהטותו המשפט.

King Solomon adds: "he who says to the wicked ‘you are righteous’ will be cursed by people, nations will abhor him.” (Rabbeinu Bahya Shmot 21:1)

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