From Parsha to Halakha Mishpatim: Bias and influence
The bulk of Parshat Mishpatim is comprised of a series of laws. Many of these laws involve the justice system – either they are enforced by the courts, concern testimony or vows by witnesses or claimants, or they specifically apply to judges. As we noted a few weeks ago, there are more mitzvot that apply to conduct of judges than there are to the claimants who come before them.
Perhaps one of the more interesting examples of this phenomenon relates to bribery – the Torah repeatedly prohibits judges from accepting bribes, but never outlaws offering them.[1]
In Devarim the Torah uses almost the exact language that appears in this week’s parsha to prohibit judges from taking bribes. The verse in Devarim continues, “Justice, justice you shall pursue.”[2] Devarim also contains an injunction against accepting payment instead of executing murderers and curses those who do so.[3]
In Mishpatim the prohibition against taking bribes is part of a section in the beginning of Chapter 23 that mixes laws limited to judges with general social laws:
- Do not bear false rumors; do not join hands with a wrongdoer to act as an unjust witness.
- Do not follow the greater/many to do evil; do not testify/respond in a dispute to influence, to follow the greater/many.[4]
- Do not honor the poor (dal) in their dispute.
- When you come upon your enemy’s ox or donkey wandering, you must return it to him.
- When you see your enemy’s donkey lying under its burden and you would refrain from unpacking it with him, you must unpack it with him.
- Do not sway the judgment of your impoverished (evyonkha) in their dispute.
- Distance yourself from falsehood; do not kill an exempt, innocent [person] because I will not acquit the wrongdoer.
- And do not take bribes, because a bribe will blind pikchim (those with open eyes/the intelligent) and twist the words of the righteous.
- And do not oppress the ger (foreigner), for you know the life of a foreigner, for you were foreigners in the land of Egypt.[5]
Without prejudice
Many of these mitzvot seem somewhat repetitive, particularly verses 3 and 6. Since verse 3 specifically prohibits judges from favoring poor claimants, the plain explanation for verse 6 would prohibit “swaying” the judgment in the other direction to avoid redundancy.[6] Indeed, Bekhor Shor explains that the plain meaning prohibits perverting justice to rule against the poor person.
According to this reading, the Torah’s first concern is that a judge would favor a poor person. The possibility that a judge would act with prejudice against the poor is secondary, perhaps because the Torah expects it’s more likely Israelite judges would act with too much mercy.
It’s also possible to explain that the difference between the verses is not the direction of the prejudice, but rather the meaning of “evyon.” Umberto Cassuto notes that “evyon” is not the usual word for a poor person, but rather related to the word for enemy in other Semitic languages, like the Hebrew “oyvekha” in verse 4 and “sone’ekha” in verse 5. Verses 4-5 may stick out because they don’t refer to judges, but they do relate to the topic of verse 6. Just as a judge is not permitted to deal with their enemies in an unjust manner, neither is anyone else. Even when the just thing to do involves going out of one’s way – to return a lost animal or unload a suffering donkey – one may not refrain from doing so because it benefits their enemy.
Chazal take a third approach and explain that the evyon here is “impoverished of mitzvot” – a wrongdoer.[7] Even when the judge knows the person before them has sinned, they may only judge the matter before them. Interestingly, the enemy in the previous verses is often understood to be a wrongdoer as well, as that is the only permissible reason to hate another Jew.
Just judges?
While the laws against bribery and swaying judgment clearly apply to judges, Chazal explain that some of the more cryptic verses do as well. For example, since bearing false witness is already prohibited, the first verse is understood to prohibit judges from accepting the testimony of someone who is a known “rasha,” “wrongdoer” or hearing one claimant without the other present.[8]
Accordingly, Chazal demand that judges adopt a nuanced approach to evildoers. Judges are obligated to judge the trustworthiness of potential witnesses based on things they know from outside the court; but when it comes to the parties before them they may only rule on the matter at hand, even when the judge knows the person before them deserves to pay for a different crime. This is not an easy balance to maintain.
Chazal understand that verse 2 makes similar demands about when to follow the majority and when to remain independent. A judge must form their own opinion. Therefore, Chazal explain, the more junior judges are told to render their judgments first, so they are not swayed by the opinions of senior judges (rabim). Similarly, they may not argue both sides of the issue or render judgment without fully understanding the issue.[9] While Devarim commands “follow the majority” and the Torah generally encourages deference to authority, a judge must always form their own independent opinion first.
Bias
Looking at these laws they seem to have one common thread – commandments and injunctions against bias. These verses maintain that judges in particular and people in general must strive to act without prejudice and should never let justice suffer because they are swayed by outside forces.
Monetary bribes are obviously a problem, but Chazal go further and rule that judges may not have any reasons to feel they owe a claimant – be it that the judge borrowed from a person, lodged in their home, or even received minor help like a steadying hand or brushing a feather off their head.[10] Even accepting a bribe to rule justly is prohibited.[11]
The overall picture is that judges must remain loyal to their internal compass of what is wrong or right. To do so they must eliminate bias when they can and recuse themselves if they can’t. The Torah understands that people are subjective and fallible, but it also trusts us – and entrusts us – to discern wrong from right.
There are many reasons that could lead someone to deviate from what is just and true. The motivation may be something negative – bribe or benefit, prejudice against foreigners or the poor. It may be positive – deference to senior judges, mercy for the poor, or correcting an unrelated injustice. But judges are forbidden from allowing external considerations to sway their judgment.
What about laypeople? The commandments “keep far from falsehood” and “justice justice you shall pursue” are often understood as applying to us as well as judges. Shulchan Arukh rules that if a student overhears his Rabbi rule that a poor person is liable, but the student has a reason to rule in their favor they must inform their teacher. If they remain silent they are guilty of transgressing “keep far from falsehood.”[12]
The Torah demands we walk a fine line. We must think for ourselves and determine what is right, not just follow the opinions of others because they are greater in number or stature. At the same time, we should not overthink things – take external matters into consideration when determining what is just.
To bring an example discussed by modern halakhic authorities – someone, a politician or citizen, who does not vote based on their conscience, but rather based on party lines or calculations of what will get the best result, may be violating these laws. If we fail to search for what is true in our hearts or we blind ourselves to it with prejudice, we turn away from the pursuit of justice which brings us closer to falsehood.
Justice and truth are essential Torah values. The midrash teaches that the justice system is so beloved by God it’s comparable to the Ten Commandments – there are ten positive mitzvot and ten prohibitions.[13] May the people of Israel be blessed with clarity to choose what is just and righteous in God’s eyes.
[1] Rambam (Mishneh Torah Hilkhot Sanhedrin 23:2) rules that the prohibition of “lifnei iver” “You shall not put a stumbling block before the blind,” prohibits bribery. (Vayikra 19:14) This mitzvah is interpreted to prohibit the literal and metaphorical meanings of the text. In addition to the physical act, enabling or causing another to sin is prohibited, as is giving bad advice or misleading someone.
This language is interesting as the verse states a judge may not take a bribe because it “blinds those with open eyes,” meaning before a bribe is given a judge is not considered blind – the judge is aware.
It seems that bribery falls under “lifnei iver” because it causes the judge to sin. In this case offering the bribe is only a problem because the judge is prohibited from accepting it – the primary offense is that of the judge. But it’s also possible that bribery is problematic in its own right, similar to giving bad advice. The “blind” in this case is the other claimant, who is unaware they are at a disadvantage.
[2] Devarim 16:19-20
[3] Devarim 27:25; Bamidbar 35:31-32.
[4] Meaning of Hebrew is difficult, as we will discuss.
[5] Shemot 23:1-12
[6] Midrash Lekach Tov 23:6.
[7] Midrash Agada Shemot 23:6
[8] TB Sanhedrin 25a, 27a. For an alternative reading see Sanhedrin 7b.
[9] TB Sanhedrin 34a; Sefer HaMitzvot, Mitzvot Lo Ta’aseh 283. This verse is also used to learn that someone may not be executed (l’raot – to rule guilty) based on a simple majority of one, there must be a majority of two. (ibid 282) There are several other related instructions to judges, see Sefer HaChinukh 77.
[10] Tb Ketubot 105a
[11] TB Ketubot 105a
[12] Choshen Mishpat 9:7
[13] Otzar Midrashim Hashkem, Midrash Hashkem 10.
