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Sunday, February 14, 2010

Mishpatim - Justice or Compromise?

ואלה המשפטים אשר תשים לפניהם

(שמות כא, א)

A few years ago, while building our new house, we had a disagreement with one of the contractors. We were not fully satisfied with the his work and asked him to compensate us. The argument dragged on for a while but he did not budge. So we sued him at the Small Claims Court and after a few months we were invited for the hearing. I remember walking into the tiny courtroom with some trepidation; after all, this was my first ever appearance before a judge. The judge entered, sat down, looked at us both and said: “I can either delve into the matter before me deeply, appoint experts and start a lengthy process of investigation. Or, I propose that you both settle now” and he proposed an amount of money. After a short discussion with my wife, we accepted, and so did the contractor. The whole thing took less than two minutes.

Why do I tell this story?

This week’s parasha, Mishpatim, deals with a multitude of intricate tort and property laws. The Ramban (Nachmanides) says that the entire parasha is a continuation of the previous one, Yitro, where we read the Ten Commandments. More specifically, it elaborates the rules governing the last commandment about coveting. A person needs to know what belongs to him and what does not, what he can rightly covet and what he must not think about possessing. For this, he needs the detailed laws in Mishpatim.

So it would seem a judge needs to “do justice”. Indeed R. Shmuel bar Nachmani says in Sanhedrin: a judge who judges truth makes the Shechinah (God’s presence) rest in Israel, and a judge who does the contrary makes the Shechinah leave. A tall order for a judge, who has to make 100% sure he find out the absolute truth and passes correct judgement. But also in Sanhedrin we find an interesting discussion that reflects differing opinions on how a judge should go about his job.

R. Eliezer ben Yossef HaGelili says that a judge must not settle for a compromise, and one who does so is committing a sin. Instead,  judge should decide either way and give a verdict. However, R. Yehoshua ben Korcha says that not only is a judge allowed to find a compromise, it is a mitzvah for him to do so! He learns this from verses in the Prophets that show that justice and peace can live together, and this is possible only if the sides reach a compromise.

So we are left with the question: what is a judge to do? Fortunately for us, there is a third opinion in the Talmud that merges the two opinions. R. Shimon ben Menassia says that a judge is allowed to offer the sides a settlement before he listens to their arguments (or even after he listens to them, provided he doesn’t know what to rule). But if he has heard the sides and reached a decision on who’s right and who’s wrong, he is not allowed to offer a compromise and must make a definitive ruling. In other words, the judge has two roles: that of judge (like Moses in last week’s parasha) and that of mediator (like Aharon, who always sought to bring peace between parties).

It turns out that this is also reflected in the secular laws of the State of Israel. In the 1980 law governing the court system, there is a stipulation that if a court does not know what the verdict is, the court should appeal to “the principles of freedom, justice, righteousness and peace of Israel’s heritage”. Mencham Elon, a former judge in the Supreme Court, wrote that he researched many judicial systems and did not find one where “peace” was up there with values like freedom and justice.

R. Ya’akov Ba’al HaTurim sums it up nicely by using the first two words our parasha as acronyms:

ואלהוחייב אדם לחקור הדין (A man must investigate and get to justice)

המשפטיםהדיין מצווה שיעשה פשרה טרם שיעשה משפט (The judge has a mitzvah to offer a compromise before making jugdement)

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