Do not appoint non-expert Judges

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SMG

It says in the verse[i] לא תכירו פנים במשפט and we learnt in the Sifri this admonition to prevent judges being appointed [based on appearance], a person shouldn’t say, ‘this person is pleasant or strong – I will make him a judge’ [or], ‘this person is my relative, I will appoint him as the city magistrate’ when in fact, the person is not an expert in the law. By doing so, the [inexpert judge] will obligate the innocent and exonerate the guilty. The Torah considers the one who appoints such as if they had taken bribery.

The continuation of the verse כקטן כגדל תשמעון teaches us[1] that one must treat the case involving the smallest coin with the same deliberation and gravitas as the case regarding a hundred of the largest coins. A case may not be given precedence on the docket by the value to be adjudicated, as was explained[2] in the Gemara[ii]. Another way of understanding this verse; [a judge] may not tell himself, ‘One of the claimants is poor, the other rich. And it is a Mitzva to support the poor. I’ll render the judgement in favor of the poor, thereby allowing him to be supported cleanly by the wealthy [as is his due as a charity recipient].’ Alternatively, [a judge may not tell himself,] ‘I should not [publicly] impugn the honor of the wealthy important man in the matter of a Dinar. Let me render judgement in his favor, and later on I will tell him privately that under the law he really is required to pay up [to the poor person].’ [see negative Mitzvos 203 and 204]

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[1] The Gemara attributes this teaching to Reish Lakish.

[2] The Gemara notes that the simple meaning of the verse, that one should judge every case, regardless of the value being claimed, with the same diligence is too simple an edict for the verse. That is obvious. Therefore, it must mean that we cannot give precedence to a case based on the value of the amount being adjudicated.

In practice, since the litigants are responsible for the cost of court proceedings, judges often try to schedule cases involving large amounts under dispute early in the day, thereby collecting court fees from those whose cases make it worthwhile to pay those fees, and then in the later part of the day, they will listen to smaller cases pro-bono. This is done to ensure that costs for those seeking the courts intervention aren’t prohibitive rendering it a barrier to those seeking justice.  

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[i] Devarim 1:17

[ii] Gem. Sanhedrin 8a

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AMUDAY SHLOMO

[Maharshal quotes SMG but does not comment. His comment may have been lost, or the manuscript was never completed.]

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RASHI

Rashi on the verse provides the following commentary:

• לא תכירו פנים במשפט – this is the one appointed to install judges. He should not say, so-and-so is pleasant, or strong, I will [therefore] appoint him as a judge. So-and-so is my relative, I will appoint him a justice of the city. And, he [the installed judge] is not expert in law. The result is, he obligates those who are meritorious and renders meritorious those who are guilty. In which case, I [G-d] consider the one who appointed him as if he ‘recognized faces’ – showed favoritism during the case.
• כקטן כגדל תשמעון – that the case over a single Pruta shall be as beloved as that of a hundred Mana. So that if one preceded the other [if a small claims case was filed first], do not push it off to be [adjudicated] last.

Another way of interpreting the verse; in accordance with the Aramaic translation – that a judge should not state, this one [claimant] is poor, and his friend [the other party] is rich, and is commanded to support him [the rich are commanded to support the poor], I shall render the poor meritorious and thereby he will be supported cleanly.

Another way of interpreting the possible favoritism [between the poor and rich parties in court]; you shouldn’t say, how can I impugn the honor of the rich person[1] for a single Dinar. Let me render him meritorious now [in public] and when he goes out, I shall tell him [in private], ‘you are [actually] obligated to him’.

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[1] Why would a rich person be deserving of honor simply because he is wealthy? The Gemara [Eiruvin 86a] notes the following:

Rebbe would honor the wealthy. Rabbi Akiva would honor the wealthy. [This was done in accordance with Rava son of Mari’s teaching, based on the verse [Tehillim 61:8] ישב עולם לפני אלקים, חסד ואמת מן ינצרהו – he [the king] shall universally sit before the Almighty; kindness and truth [with which the king busies himself] shall be prepared to guard him. (Rashi: the word מן – prepared, is similar to the term used in the verse [Yona 4:6] וימן ה’ קקיון – and G-d prepared a tree.) When will he sit universally before the Almighty, when there is kindness and truth done with the sustenance preserved [wealth]. (Rashi: the word מן – prepared, is similar to the term מזונות – sustenance.)

In other words, the wealthy deserve respect because G-d trusts them to use their wealth to perform ‘kindness and truth’ in the world. In which case, they ‘sit universally before the Almighty’, thereby rendering them deserving of honor.

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Discussion by SMS

The Gemara[i] notes when violations of this Mitzva and the prohibition against judges fearing any person [negative Mitzva 207] became prevalent, the yoke of heaven was removed and was replaced with the yoke of people.

Presumably, the ‘yoke of heaven was removed’ as a result of the violation of this Mitzva, while the replacement with ‘the yoke of people’ is a result of the violation of the prohibition against judges fearing any person. Judges are meant to be G-d’s representatives on earth, and choosing a judge based on criteria such as favoritism, or pleasantness and strength, means that we are removing the appointment by heaven of a proper judge, and replacing it with one of our own design.

However, this does not explain the continuation of this precept by verse, as explained by the SMG, to include the requirement to adjudicate all cases equally, regardless of the monetary value under dispute, and that judges must render judgement, and not charity.

When appointing a person as a judge, there are several ways this can happen:

• The government, king or other ruling authority, can appoint magistrates, whose authority is unrelated to who they are. Rather, they are an extension of the authority of the one who appointed them.
• An expert in a particular matter (a subject matter expert) can be nominated as a judge. Not that he would be judging the claims made by the defendant and plaintiff, but rather that he would be judging the material under dispute. For example, a diamond expert might be called in to appraise a diamond under dispute.
• And finally, a judge like those of Base Din can be appointed, whose authority is derived from the Torah law. Technically, such judges are expected to be experts in a wide variety of fields, in addition to being expert in Jewish law, as well as being a person who has received a tradition and סמיכה – ordination from the sages who themselves were ordained. It is this person to whom the appellation ‘Justice of the Court’ is applied.

Perhaps, the Torah (and the SMG) is providing guidance for each of these three circumstances:

• לא תכירו פנים במשפט – For a magistrate, the Torah mandates that nepotism and superficial qualities not be employed to choose those who would rule. Such things lead to a perverse society.
• כקטן כגדול תשמעו – For a subject matter expert, the Torah mandates that he treats each and every case brought before him with the same gravitas regardless of the value being adjudicated.
• לא תגורו מפני איש בי המשפט לאלקים הוא – And for those who would sit in Base Din, the Torah warns against acting to perform charity and kindness. The law is not something that can be moderated by circumstance. Judgement must be issued on the basis of what the law is, not what your empathy would have it be. Once judgement is issued, then society can step in and help out with charity and kindness as necessary. But that isn’t part of the law being rendered in court.

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[i] Gem. Sota 47b