Saturday, January 29, 2011

Judging fairly

The possuk says at the beginning of this week’s sedrah:
וְאֵלֶּה הַמִּשְׁפָּטִים אֲשֶׁר תָּשִׂים לִפְנֵיהֶם.
“These are the laws that you should place before them.”

Rashi explains:
לפניהם" - (גיטין פח) ולא לפני עו"א ואפי' ידעת בדין אחד שהם דנין אותו כדיני ישראל אל תביאהו בערכאות שלהם שהמביא דיני ישראל לפני ארמיים מחלל את השם ומיקר את שם האלילים להשביחם (ס"א להחשיבם) שנא' (דברים לב) כי לא כצורנו צורם ואויבינו פלילים כשאויבינו פלילים זהו עדות לעלוי יראתם

“These are the laws that you should place before them – and not before idolaters. Even if you know that in one law that they judge like the Torah, do not bring it to their courts. Someone who brings Jewish cases before non-Jews desecrates Hashem’s name and honours the name of idols to praise them as it says ‘Their rock is not like our rock and our enemies are judges’. When our enemies are judges this is testimony to the raising of their deity.”
·         Why is bringing a court case before a non-Jewish court testimony to the greatness of their deity?
The Medrash Rabbah says (Shemos 30:3):
דבר אחר "וְאֵלֶּה הַמִּשְׁפָּטִים" מה כתיב למעלה מן הפרשה (שם יח, כב) ושפטו את העם בכל עת. ואמר כאן ואלה המשפטים והדברות באמצע. משל למטרונה שהיתה מהלכת הזין מכאן והזין מכאן והיא באמצע. כך התורה דינין מלפניה ודינין מאחריה והיא באמצע.

“The Aseres Hadibros are between the parsha of appointing dayanim and ve’eileh hamishptaim. This is comparable to a noble-woman who was walking with soldiers on one side and soldiers on the other side with her in the middle. So too the Torah has laws before it and laws after it and matan torah is in the middle.”

·         Why is the Torah compared to a noble-woman and why does the Torah need gaurds?

The halachah is that a dayan is allowed to judge a case where one of the litigants is a soneh of the dayan and the other litigant is an ohev. However if the dayan takes even the smallest bribe from the soneh he is passul to judge the case although he could still be far friendlier with the ohev.

·         Why is this?

Rav Yitzchok Hutner z”l explains as follows:
When a noblewoman walks with her soldiers there are two things happening at the same time. The soldiers protect the noblewoman but at the same time she makes the soldiers into soldiers. Without a king a soldier is not a soldier, albeit the soldier protects the king.

Similarly the Torah is compared to the noblewoman because the dayan protects the Torah by ensuring that people conduct themselves according to the halachah. However the Torah also protects the dayan from subjectivity and elevates him to a level where he is able to be objective and reach a correct pesak. Therefore a dayan is like a soldier who is appointed by the king but who also protects the king by enforcing the kings law.

If a dayan takes a bribe then he looses the protection of the Torah that elevates him to a level where he can reach a correct pesak. Subsequently he becomes subject to the influence of the bribe and is no longer able to see the truth. It is not the bribe itself that takes away his ability to see the truth but rather the fact that he has been over on the issur of taking bribes and has stepped outside of the protecting influence of the Torah. Now he becomes subject to distorting influences and is no longer able to protect himself from the influence of the bribe.

A person is always naturally inclined to lean one way or the other, but when a person is a shliach of Hashem to judge a din torah he is given a havtachah that he will reach a correct conclusion. Because correct pesak in cases of machlokess between two baalei din is not something that is humanly possible to accomplish, if someone takes a case to a non-Jewish court he is relying on the deity of the non-Jew to be the source of truth in his law case. Therefore this is edus leiluy yirasam – he is testifying to the greatness of their deity.

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