Majority verdict

Mitzvot and middot do not always comfortably complement one another. Sometimes it seems that they are on course for a collision.

At Exodus 23:2, in Parashat Mishpatim, this week’s Torah reading teaches us:

לֹא תִהְיֶה אַחֲרֵי-רַבִּים לְרָעֹת וְלֹא-תַעֲנֶה עַל-רִב לִנְטֹת אַחֲרֵי רַבִּים לְהַטֹּת

“You shall not follow the majority to do evil; nor shall you respond to a grievance by yielding to the majority to pervert [justice]”.

In the course of his commentary on the verse, Rashi explains that a judge, though outnumbered by his fellow judges, should voice his opinion in accordance with his understanding of the law and the evidence, if he considers that his colleagues have mistakenly or intentionally reached a contrary conclusion.

Pirkei Avot appears to take a contrary stance, one that at first sight seems less principled. At Avot 4:10 Rabbi Yishmael ben Yose teaches:

אַל תֹּאמַר קַבְּלוּ דַעְתִּי, שֶׁהֵן רַשָּׁאִין וְלֹא אָֽתָּה

Don’t say, "You must accept my view," for this is their [the majority's] right, not yours.

One might jump to the conclusion that a judge who disagrees with the majority is therefore obliged to accept their reasoning, even if it is erroneous or even perverted. But is this so? Certainly, a single judge cannot outvote the majority, but what precisely Is he bound to accept?

Clearly Rabbi Yishmael cannot have been inviting the dissenting judge to drop his principled stance and connive with a majority who wish to pervert justice. But he must also have intended to teach more than simply that the stand-out judge should accept the decision of the majority, since that is an established halachah.

Arguably, this teaching in Avot is that, once the minority rabbi has explained his objection to the majority position, he should stop at that point and not be overcome by the temptation to assert himself through the force of his personality. Once the other judges have heard his argument, his job is done. “You must accept my view” is not an argument based on law or on fact; it should therefore not be allowed into the court’s discussion—however correct it may be.

There are other ways of explaining our mishnah in Avot that do not bring it into possible conflict with our Torah verse at all. The Me’iri gives us an extreme example of this in his Bet HaBechirah, where he astonishingly removes it from the context of judicial proceedings altogether and categorises it as good advice for businessmen that they should not assert their position against their colleagues without bringing some sort of proof to support it.

Returning to the application of  this mishnah to a judicial context, the Hebrew word דַעְת, which is translated here as “view”, has many shades of meaning. These include the following (per Jastrow and Brown-Driver-Briggs): knowledge, mind, temperament, intention, skill, perception and wisdom. Rabbenu Yonah picks up on this: the דַעְת here refers to the knowledge of an expert judge who is sitting with a panel of non-experts. He cannot say: “I know I’m right, based on my expertise in this area—and if I was judging the case myself I would do so on the basis of my expertise. It’s only my humility that caused me to hear this case with other judges in the first place”.  It would be a strange species of humility that enables a single judge effectively to overrule his colleagues in this manner. I leave the last word with Rabbi S. R. Hirsch:

“[O]ne who impudently seeks to force his own decision upon others only exposes thereby his deficiency in wisdom and scruples, as well as his foolish conceit”.  

For comments and discussions on this post on Facebook click here.

Here comes the judge...

One of the most trenchant statements in Avot comes from Rabbi Yishmael ben Yose, who says (at Avot 4:9):

“The person who separates himself from litigation removes himself from enmity, robbery and false oaths; but the person who relishes a ruling—he’s a wicked puffed up idiot.”

There is much that can be said about this statement for many reasons, since disputes do arise between even the best of people and the Torah makes extensive provision for their resolution. Judges and lawyers may not always (or ever) be loved for what they do, but we must accept that they are necessary and that even the exemplary figure of Moses was obliged to demonstrate the skills of advocacy and judgment in his long tenure as leader of the Children of Israel.

In his commentary on Avot, Rabbenu Yonah is sensitive to the notion of litigation as a necessary evil when he points to an apparent contradiction between the words of the Written Torah and Oral Law. The Torah explicitly provides that judges be appointed and that they should judge in accordance with justice. How then can Rabbi Yishmael urge people not to judge? Rabbenu Yonah's answer is that the instruction to judge only applies when there is no-one else to do the judging but that, where there are others who are available to judge, it may be better to leave it to them since, by doing so, a person can escape the perils of falling into doubt as to which way the case before him should be judged, presumably running the risk that he will reach the wrong decision.

On the face of things this answer may seem a little weak, but it looks better if one considers an analogy with the field of medicine. Just as there is a mitzvah ("commandment") to judge, and also a prohibition against misjudging, so too there is a mitzvah to save a life but a prohibition against wounding or killing another person. A person who has never delivered a baby by Caesarean section or learned how to resuscitate someone who has stopped breathing may possibly be expected to step into the breach and have a go when no-one else is available to tackle these tasks. But that same person would be strongly advised not to do so when qualified medical assistance is on hand.

There is another way of looking at the apparent contradiction between Written and Oral Law. The Torah requires that there be judges and that they judge. However, the teaching in Rabbi Yishmael's mishnah is not saying the opposite at all: it is addressing the judge’s state of mind. He should not detach himself from judging. Rather, he should judge with detachment. This means objectivity in not taking a personal interest in the outcome. Once a judge becomes emotionally involved in the parties and the outcome of their dispute, he no longer stands above it and the danger of losing the necessary quality of dispassionate objectivity is great.

The words of the Mishnah give some support to this reading of its meaning, since it does not contrast the position of someone who judges with someone who does not judge; rather, it contrasts someone who judges with the right attitude, one of distancing and detaching himself from personal considerations that may engender enmity, robbery and false oaths, with someone whose attitude is frankly unsuitable for the discharge of onerous judicial responsibilities.