Each week we discuss one familiar halakhic practice and try to show its beauty and meaning. The columns are based on Rabbi Meir's Meaning in Mitzvot on Kitzur Shulchan Arukh.
Judging According to Torah Law
The Torah encompasses not only religious laws but also a vast number of what we would call civil laws, including detailed regulation of commerce and of the judicial system. Torah law is very jealous of its jurisdiction over these seemingly mundane matters. Voluntarily bringing a suit to a non-Jewish court is considered a very grave transgression (SA CM 26).
One justification for this is the desire to rule according to the statutes of Divine law. Any system of "impartial" laws necessarily embodies a certain system of values; only if we base our judgment on the laws of the Torah can we be certain that our laws are based on the eternal principles of fairness and morality which HaShem demands of us. However, this consideration is only part of the story. Halakha explicitly forbids bringing a case between Jews to a non-Jewish court even if secular law in their particular dispute is the same as Jewish law. Conversely, it is a mitzva to bring a suit to the Jewish Beit Din even though they generally judge according to commercial custom and according to customary secular laws regulating commerce (SA CM 74:7). The basic idea behind these laws is that ultimately judgment is a Divine prerogative. Human beings can administer utilitarian regulations, but human judges can administer true justice only as "deputies" of the Divine Judge Himself. "Don't show favoritism in judgment, hear the small as the great, and fear no man; for judgment belongs to G-d." (Devarim 1:17)
Indeed, the Hebrew word "Elohim" is not only one of the appellations of G-d but also a word for human judges. And the verse in the Ten Commandments which warns us against making "gods of silver and gods of gold" (Shemot 20:7) is also interpreted to mean that we shouldn't appoint judges because of their wealth or influence (Sanhedrin 7b).
The Importance of Compromise
This might lead us to believe that Jewish
law would be wary of arbitration or mediation, in which the decision is
often made based on everyday notions of fairness, and where on occasion an
impartial third party, not necessarily
However, the Talmud continues in a different vein: "But Aharon loved peace and pursued peace, and established peace between a man and his fellow, as it is said (Malachi 2:6) The Torah of truth was in his mouth, and no injustice was found in his lips; he walked with Me in peace and straightness, and turned many away from wrongdoing".
The Talmud concludes: "Rebbe Yeho- shua ben Korcha says, It is a mitzva to compromise, as it is said (Zecharia 8:16), Truth and judgment, judge peace in your gates. How can this be - where there is judgment there is no peace, and where there is peace there is no judgment! Rather, what judgment has peace as well? This is compromise. And so David said (Shmuel II 8:15) And David did justice and righteousness".
Rebbe Yehoshua ben Korcha agrees that where there is judgment, it must "cut the mountain": where there is judgment, there is no peace - the judge is forbidden to take into account the consequences of his ruling and must apply the strict letter of the law. Yet the best solution is not to resolve the conflict between the two sides in the fairest way but rather to forestall the conflict altogether. This kind of judgment incorporates peace and righteousness.
In other words, compromise is not viewed as a way of resolving disputes but rather as a way of forestalling them!
So it is true that all conflicts must be resolved in strict accordance with Divine will, but the wise judge will find a way to avoid a conflict altogether, and to bring the sides together to find an agreed solution through arbitration or mediation. As a result, it is considered a mitzva for the judge to encourage the sides to reach a compromise and not resolve their dispute through a suit (SA CM 12:2).
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Rabbi Meir authors a popular weekly on-line Q&A column, "The Jewish Ethicist", which gives Jewish guidance on everyday ethical dilemmas in the workplace. The column is a joint project of the JCT Center for Business Ethics, Jerusalem College of Technology - Machon Lev; and Aish HaTorah. You can see the Jewish Ethicist, and submit your own Qs — www.jewishethicist.com or www.aish.com.