Parashas Devarim: Abominable Judgment

Artwork: Corrupted Conscience, by Jason Chan

Parashas Devarim: Abominable Judgment

Moshe Rabbeinu's opening speech in Sefer Devarim is mostly a recap of Klal Yisrael's 40-year sojourn in the Wilderness. One of the first incidents that Moshe reviews is the appointment of shoftim (judges) to assist him in his governance of the nation:

So I took the heads of your tribes, distinguished men, who were wise and well known, and I appointed them as heads over you ... I instructed your judges at that time, saying, "Listen among your brethren and judge righteously between a man and his brother or his litigant. You shall not show favoritism in judgment; small and great alike shall you hear; you shall not tremble before any man, for the judgment belongs to God; any matter that is too difficult for you, you shall bring to me and I shall hear it." I commanded you at that time all the things that you should do (Devarim 1:15-18).

Chazal expound upon each of these qualifications and requirements, in accordance with Torah she'baal Peh. In this short dvar Torah, we will focus on the statement "small and great alike shall you hear." The following two explanations are given in Sifrei:

"the small and the great alike shall you hear": Perhaps you [the judge] might have said, "Since it is a mitzvah for this rich man to support this this poor man, I will vindicate the latter [in judgment], thereby enabling him to be supported in a respectable manner." Thus, the verse teaches, "the small and the great alike shall you hear." 

Another interpretation of "the small and the great alike shall you hear": Perhaps you will say, "How can I blemish the honor of this rich man over a single dinar (i.e. a small sum of money)? [Instead] I will vindicate him [in judgment], and when he goes outside I will say to him, 'Give [the poor man] the money, for you are [actually] liable [to pay him].'" Therefore, the verse teaches, "the small and the great alike shall you hear."

It is easy to understand why a judge might be tempted to favor the poor or the rich in one of these scenarios. After all, these motives seem reasonable - even noble. And as long as the end result is in line with justice and righteousness, why does it matter how that result was brought about? Moreover, isn't it the judge's job to promote justice and righteousness? What's wrong with him using his position to facilitate this through "meta-legal" means?

Shlomo ha'Melech offers one answer to this question in Mishlei: "One who vindicates an evildoer [in judgment] and one who vilifies a righteous person [in judgment] – both are an abomination to Hashem" (Mishlei 17:15). The major question on this pasuk is: In what sense are both perversions of justice considered to be "an abomination to Hashem"? 

In the Sefer Mishlei, the term "toeivah" (abomination*) is used for actions which might not necessarily be so harmful as particulars, but nevertheless pose a threat to the system as a whole - often in an insidious manner. This is why the emotionally charged word "abomination" is used: one would naturally be inclined to view these actions as harmless, since the consequences are not readily apparent; therefore, a harsher term is needed for added deterrence. 

I believe this is why the term "abomination to Hashem" is used in our pasuk: the particular instance of perverting justice might be justifiable in a vacuum, but nevertheless, it poses a threat to the greater system. The question is: How?

Here is the main idea. People have an intuitive "sense of justice" which ultimately boils down to one principle: “those who do wrong should be punished, and those who do no wrong should not be punished.” Within any system of law, situations will arise in which the adjudicators and law enforcers will be tempted to pardon those who violate the law or punish those who adhere to the law. For example - an example from outside for the legal system - a teacher might pardon the penalty of student in order to “give her second chance,” or he might punish an entire class in order to create a social stigma around the violation**. 

The lesson of this pasuk is that no matter how reasonable or noble these motives are, they will be perceived by the members of the system as undermining justice. This, in turn, will cause the overall commitment to justice to deteriorate within the society (e.g. the teacher who repeatedly pardons guilty students or punishes innocent students, they will soon lose respect for the class rules). Thus, whenever a law enforcer is tempted to make one of these "exceptions to the rule," he should recognize the detrimental ripple effect of his actions on the entire system. He must consider whether it is worthwhile to jeopardize the whole system for the sake of an individual. 

One might object and argue that this detrimental effect on the system would only come about if people are aware of the judge's malfeasance. Theoretically, if nobody knows about it, then there would be no problem! However, upon the slightest scrutiny, this objection falls flat on its face. In the vast majority of cases, there will be at least one person who knows that the judge perverted justice, namely, the recipient of the judge's manipulation of the system. And even in cases where the judge manages to conceal his subterfuge, it is unlikely that his secrecy will last. Eventually, people will find out - especially if he perverts justice on multiple occasions. The truth will ultimately come out, and when it does, the system will suffer.

In his introduction to the Mishnah, the Rambam states that Avos was written primarily for judges, and only secondarily for laymen. He explains:

[The subject] of Avos is that of the ethical exhortations expounded upon by each of the Sages (peace be upon them) so that we may learn the good character traits from them. Now, no one needs this section more than the judge. If a layman doesn't learn mussar (ethical perfection), this will not be harmful to the masses, and will only harm himself. However, if a judge does not possess ethical perfection and discipline, he will harm not only himself, but all of the populace as well! 

The prohibition in our parashah is a perfect example of this. An ordinary individual who bends the rules for the sake of an individual will cause little or no harm, but that same behavior for a judge can unravel the fabric of the society. It is for this reason that the Torah holds its judges to the highest standards. 

* I have been meaning to dedicate an entire post to the term "toevah," in which I present the sources and proofs, but I haven't gotten around to it yet. When I do, I'll go back and link it in this post.

** I do NOT endorse this practice; it's just something I've seen teachers do.