Vayishlach: Judging According to Torah Law

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Beit Din
03 Dec 2009

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 after the Ten Commandments which warns us against making “gods of silver and gods of gold” (Shemot 20:19) is also interpreted to mean that we shouldn’t appoint judges because of their wealth or influence (Sanhedrin 7b).

The Importance of Compromise:

We have just explained that bringing cases before a Jewish court is important because of the specific rules of Jewish law applied in this court which guarantee fairness as well as because of the statement it makes that we acknowledge HaShem and the Torah as the ultimate source of legal authority.

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
learned in Jewish law, may decide between the two sides. This is one opinion in the Talmud: “Rebbe Eliezer the son of Rebbe Yosi HaG’lili says, It is forbidden to compromise… Rather, let the law cut the mountain, as it is said, Judgment belongs to G-d; and Moshe also used to say, Let the law cut through the mountain” (Sanhedrin 6b).

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 Yehoshua 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).

Rabbi Asher Meir is the author of the book Meaning in Mitzvot, distributed by Feldheim. The book provides insights into the inner meaning of our daily practices, following the order of the 221 chapters of the Kitzur Shulchan Aruch.

The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.