Deut. 1:1 – 3:22
Rabbi Gary Pokras
This week we begin the book of Deuteronomy (Devarim in Hebrew). Unlike the other four books of the Torah, Deuteronomy is a series of speeches made by Moses towards the end of his life, as the Israelites approached the Promised Land. Knowing that he would soon die, Moses did not hold back in reminding the people to learn from their mistakes and in sharing the wisdom they needed to succeed. Among the many important statements in this week’s parasha we read:
“And I charged your judges at that time, saying, ‘Hear between your brothers, and you shall judge rightly between a man and his brother or his sojourner. You shall recognize no face [lit. lift no face] in judgement. You shall hear out the small person like the great one. You shall have no terror of any man, for judgment is God’s.’” [Deut. 1:16-17]
Along with a handful of similar statements in Torah, these two short verses contain the underpinnings of a fair and just legal system: judges should hear every case with impartiality and an open mind. This overarching concept is strengthened and deepened by some of the unusual elements of these verses. For example, the verb ‘to hear’ in Biblical Hebrew also means ‘pay attention’ or ‘understand’ and usually appears as a command. However, in this verse the verb for ‘hear’ is in the infinitive rather than the imperative/command form. The Or HaHayyim understands this grammatical oddity as a call to a specific kind of listening by the judges:
Why is the unusual infinitive form shamo’a (hear) used instead of the imperative shim’u? … the judges must be patient and hear them out. If one of the litigants wishes to bring more evidence or arguments, the judges should not cut him short but they must ‘hear’ continuously. Further, if the case has been tedious and longwinded the judges should not adjourn the case until much later, but they should hear it out, till the end, without intermission.
In other words, there can be no justice if every stakeholder is not given the opportunity to fully argue their case. Any decision made by cutting off a litigant would be the equivalent of a miscarriage of justice.
Consider as well the use of the word ‘between’ in our verse. Rabbi Chanina, in the Babylonian Talmud interpreted the word ‘between’ to mean that no litigant should be allowed to speak with the judge without the other also being present. All the testimony must be heard ‘between’ the litigants. The Or HaHayyim takes the meaning of the word “between” in a different direction:
This same text also teaches the judge to go behind the words of the litigants and get at the truth, and though the arguments and evidence on one superficially appear to be decisive, if he feels that they are not in good faith, he should use his own judgement. Hear the cause between your brethren implies that he should pay attention to every nuance of their utterances and all that takes place in court between them in arriving at the truth.
This statement, which is the direct continuation of the last quote from the Or HaHayyim reminds the judge that not all litigants act in ‘good faith’ during a trial. This closes one potential loophole that could be exploited when everyone can speak for as long as they wish. In other words, the judge can challenge testimony that does not seem relevant or accurate, or at the very least, take any attempts to ‘game the system’ into account when rendering judgement.
While it is too difficult for a few verses to anticipate every eventuality, the core principles of impartiality and accountability go a long way towards the establishment of a functional and fair justice system – which is itself a prerequisite for the kind of just and free communities Torah teaches us to build.