Parshat Mishpatim 5778: Timely, Fair, Unbiased Hearing of Both Sides of Litigation to Gain Truth in Judicial Judgement

Shalom Friends;

This week, our Parshat HaShevua, Parsha Mishpatim is being sponsored by Baruch and Yaffa Swinkin and family of Ramat Beit Shemesh dedicated lilui nishmas for Baruch’s grandfather Micha’el ben Yaakov.. To the Swinkin family, many thanks for your sponsorship and for your continued kindnesses.

You can celebrate a Simcha — a birth, a Bar/Bat Mitzvah, a Chassuna or other Simcha event in your life, or commemorate a Yahrtzeit of a loved one, or for whatever other reason by sponsoring a Parshat HaShevua.

Please forward to your relatives and friends and encourage them to sponsor a Parshat HaShevua. And please be in contact with me with any questions, or for further details.

Best Regards,

Moshe Burt
skype: mark.burt3

Parshat Mishpatim 5778: Timely, Fair, Unbiased Hearing of Both Sides of Litigation to Gain Truth in Judicial Judgement

by Moshe Burt

R’ Shimshon Rafael Hirsch, z’l, in the new Hirsch Chumash, Sefer Shemos (published by Feldheim in 2005 and translated to English by Daniel Haberman, page 361) expresses the spirit of our Parshat Mishpatim through a profound comment on the concluding posuk of Parshat Yithro:

“You shall not ascend with steps upon My Altar, so that your nakedness will not be uncovered.” (Sefer Shemot, Perek 20, posuk 23)

Without morality and modesty, justice and humanity in society will be sought in vain. With immorality the heights of My Mizbeiyach will never be mounted.

Rav Hirsch then cites Sefer Breish’t, Perek 6, posuk 11 and writes:

“And the earth was corrupt before Hashem’s countenance, and so the earth was filled with wrongdoing” — the oldest and gravest experience in the history of man.

Bearing this in mind, the exposition of the law to B’nai Yisrael begins in Parshat Mishpatim.

In our parsha, many basic laws of civilized existence are enunciated for B’nai Yisrael. The overriding purpose of the Mishpatim — the civil laws, it seems, is to protect the moral fiber of society by regulating relationships between men, both on a national level as well between individuals, encouraging truthfulness, sincerity and kindness while condemning immorality and deceit.

Our Parshat also provides indication of the placement of the Sanhedrin, the location where deliberations and judgements regarding the civil laws take place.

The opening posuk of our Parshat reads:

“And these are the judgements that you shall place before them” (Sefer Shemot, Perek 21, posuk 1 as rendered to English in The Saperstein Edition – The Torah: With Rashi’s Commentary, page 248)

Rashi provides these comments on the opening posuk of our Parshat and the Chumash provides footnote #3 citing Mechilta, Tzeidah LaDerech and Be’er Mayim Chaim (ibid. The Saperstein Edition – The Torah: With Rashi’s Commentary, page 248):

Whenever it [Torah] says “And these,” as it does here, it adds on to that which has been stated previously. Thus, “And these” of this posuk implies, just as those which have been stated previously, the Ten Commandments [Asseret HaDibrot], are from Sinai, so too, these commandments that the Torah is about to state are from Sinai. And why was Mishpatim, the section that deals with judicial cases, juxtaposed with the preceding passage which deals with the Altar [Mizbeiyach]? To tell… that you should place the Sanhedrin adjacent to the Beit HaMikdash.

Footnote #3: Mechilta [indicates] some editions (including the first printed edition) of Rashi read HaMikdash; others read HaMizbeiyach. Since Rashi’s question involved the juxtaposition of the posukim regarding the Altar and judicial cases, it is logical that his answer should speak of the Altar. According to Tzeidah LaDerech, the word HaMikdash is a copyest’s error; HaMizbeiyach is the correct version. However, Be’er Mayim Chaim states that Rashi could not have written HaMizbeiyach for that would have pinpointed the location of the Sanhedrin in an area of the Courtyard where non-Kohanim are not permitted entry. By writing HaMikdash, Rashi means “in the Temple environs,” an area that includes the total Courtyard, even those areas that non-Kohanim are permitted to enter.

Rebbetzin Shira Smiles, in her sefer “Torah Tapestries” on Sefer Shemos (Parshat Mishpatim pages 87- 88, 92-96) discusses two laws of judges (in a Torah justice system) and how these laws relate to us, we who don’t serve in the legal system. Rebbetzin Smiles cites Sanhedrin 7b in explaining:

“A judge is prohibited to hear the words of a litigant until his fellow has arrived.” Judges are not permitted to hear a case until both parties are present and prepared to present their arguments, one immediately following the other.

Why is the Torah so particular about a judge hearing the two accounts in immediate consecutive order? Any experienced judge understands that one account is only one half of the story and any initially formulated conclusions are temporary. The judge is aware that his view of the case will change when he hears the second side.

Hmmm? (Facetiously) Kinda sounds like the Israel’s agendized, biased and selective “rush to judgement”, and corruption-ridden police and “judiciary” (sic)???

Rebbetzin Smiles then cites a Maharal (MeiRosh Tzurim, Shemos. page 254) which says:

…As soon as the a judge hears the first presentation, …. in his effort to fully understand the first litigant’s testimony, he mentally validates the initial version of the story. Even if the judge subsequently hears the second side legitimately disprove the original story, it is very difficult for him to listen with equal objectivity. The judge’s natural human inclination is to support his original impression.

Rebbetzin Smiles continues:

And…, time is a factor…. The more time between presentations, the more the first opinion dominates the judge’s mind.

Understanding human nature, Hashem put a Mitzvah in the Torah that advises judges to hear the opposing testimonies one after the other, as close as possible. It is a warning to prevent a first opinion from overpowering the mind and spoiling objectivity.

Rebbetzin Smiles then discusses how first impressions can effect us, we who don’t serve in the judiciary, in our daily lives.

It may be the new neighbor about whom one may form a first mistaken negative impression from hearing yelling from behind the neighbor’s door. Others, who know the neighbor, would then speak highly of his or her kind attributes.

Rebbetzin Smiles asks:

What would it take to convince you that you might have been mistaken?

It’s difficult to let go of… first impressions. Even [Torah-true] judges, who constantly strive to be truthful, were given laws to prevent a biased first impression…. Prevent the possibility of the initial impression becoming a permanent one. When forming an opinion, stop and… mix it with other possible perspectives. Hashem rewards us, as it says in the gemara:

“Anyone who judges others favorably will be judged favorably in Heaven.”

When we decide that the truth is more important than our egos, we will be able to swallow our pride and confess our errors.

Truth, honesty represent an important linchpin of morality and justice. As the line from that old Billy Joel tune goes:

“Honesty is such a lonely word.”

In his sefer “Inspiration and Insight”, Discourses on the weekly Parashah by the Manchester Rosh Yeshiva, Rabbi Yehuda Zev Segal, z’l (pages 128-129) cites sefer “Mesilas Yesharim” (Chapter 11) which provides lengthy discussion regarding levels of falsehood existing within mankind and their “descending order of destructiveness.”

R’ Segal cites R’Moshe Chaim Luzzato:

Our Sages have taught, “The seal of the Holy One is truth” (Shabbos 55a). Now, if truth is what Hashem has chosen as his seal, then how despicable must its converse be before Him… Truth is one of the pillars upon which the worlds exist (Avos 1:18); it follows then that one who speaks falsehood is considered as if he has destroyed the world’s foundation.

R’ Segal also indicates that there is a common misconception that falsehood only occurs through speech. He cites a braisa (Shevu’os 30b-31a) to note how one can violate the admonition against falsehood through deeds.

The second law mentioned in our parsha which Rebbetzin Smiles in her sefer “Torah Tapestries” on Sefer Shemos [ibid] discusses “deals with court dress code.” Rebbetzin Smiles cites gemara Shevu’os 31a:

Two people cannot appear in court dressed differently, meaning one dressed simply and the other extravagantly. Either the one wearing expensive clothing must remove it and dress more humbly, or he must give the other litigant similarly expensive garments for the duration of the court case.

The gemara says… “distance yourself from a matter of falsehood.” The drastic contrast in garments might influence judges to favor the finely dressed person or snub the poor person’s argument. The simply-dressed litigant might feel that the judges are predisposed toward his rich opponent, as Rashi explains (commentary on gemara Shevu’os 31a).

Rebbetzin Smiles cites Rabbi Yehuda Leib Chasman (Sefer Ohr Yahel, Vol. 3, page 124) in further explaining dress as a possible factor in judicial decision-making:

Even though… [a] judge may be committed to impartiality, his eyes can still lead him astray. A gold button and a drape of expensive fabric hypnotize the human mind. Once you remove… visual stimuli, an objective judgement can emerge….

Hashem created our human nature; and therefore, instructs us: Distance yourself from falsehood and remove any visual clues that could mislead you.

Rebbetzin Smiles continues citing Rabbi Chasman who notes:

We judge all the time. We make internal judgements and decide how to act. Some thoughts are influenced by the yetzer hatov (good inclination) and some by the yetzer hara (evil inclination). So how do we tell the difference? …The yetzer hara thoughts are usually dressed in a fancy suit…. to deceive us with positive external impressions: “Think how amazing life will be be when you earn that extra money, even if it’s slightly dishonest.” …The yetzer hatov’s ideas never seem to look as exciting or glamorous on the outside.

The gemara (Berachas 5a) gives us ways to conquer the yetzer hara, it instructs us to learn Torah and to accept the yoke of the Kingship of Heaven…. This is how to enclothe the yetzer hatov in the elegant clothing it deserves; we feel how beautiful and pleasant it is to learn Torah and serve Hashem, and then the desire for sin lessens. If that doesn’t work, then… remember the day of death. That is tearing off the yetzer hara’s finery and exposing the rags that truly lie underneath.

Imagine the merit to be earned collectively by a unity of B’nai Yisrael acting truthfully, justly and treating each other — our fellow Jew, at all levels from daily man-in-the-street dealings, or between merchant and customer, bus driver and passenger, employer/employee, civil-servant and Yosef Q. Jewish Citizen, as well as by the governing law enforcement and judicial systems toward those being governed, as Yithro the righteous Ger did.

And imagine building on that national kindness and unity with the rock-solid, unified, unequivocal principle — Kol Ha’aretz Shelanu (This is Our Land)! This seems a logical evolvement of Bein Adam L’Chaveiro applied to Bein Adam L’Mokom, an outgrowth of fair and righteous dealing between one and his fellow as extended to our relationship with Hashem.

Rabbi Zelig Pliskin, in his Sefer “Growth Through Torah” (on Parsha Mishpatim, page 197) adds to this equation of righteousness, kindness, principle and integrity by citing both Sefer Shemot (Perek 23, posuk 8 ), and Rabbi Avraham of Sochotchov equating one’s bias’ with bribery:

“And bribery you shall not take, for a bribe will blind those who can see, and distort the words of the righteous.” (Sefer Shemot, Perek 23, posuk 8 )

Rabbi Avraham of Sochotchov commented…. When a person is blind, he realizes it and will ask someone who can see to help him. But if a person has a bias, the bias blinds him to such an extent that he does not even realize that he is blind.

He feels that what he perceives is reality and will refuse to listen to others.

There are many bribes that distort our judgement. We are not referring to an out and out bribe. Any bias will cause us to view things in a way that will fit our particular bias.

It would seem then that the modern-day adaptation, or application of the term “bias” would be agendization, as in the Israeli left’s efforts, with help of a left-oriented police and judiciary, to brainwash the population to radicalize as “racist (sic)” (in the very eyes of the agendizers and in the eyes of segments of the public who fall prey to such brainwashing or dumbing down) those who possess the Land of Israel as our Divine legacy. In doing so, they have sooo deluded themselves and sooo numbed and blinded themselves to what should be the Divine, self-evident truth of our Jewish sovereignty in and on Eretz Yisrael. And the same goes for the “bias”, the political agendization of divide-and-conquer against the Chachamim who give their beings over to learning Torah, or the agendization of some segments against their fellow Jews who they see as “not as religious” as themselves because of the kippah they wear or the Rabbinic hashkafah they adhere to. That the government of Israel swears by such tactics by it’s law enforcement and judiciary validates how very far we are from achievement of the paradigm envisioned by Yithro in his advice and counsel to Moshe Rabbeinu.

Whether deciding personal injury, financial, property, military attack/defense protocols or orders litigation and more, a Torah system of Mishpat would preclude one-sided, baised politically agendized actions by law enforcement as well as in judicial judgement..

May we, the B’nei Yisrael be zocha that our brethren — the refugee families from Gush Katif be permanently settled and be made totally whole — be totally restituted for all that was stolen from them and that the expelled families of Amona be restored to their rebuilt homes, at government expense; both due to alt-leftist-agendized, supreme court legalized Yassamnik gunpoint. May our dear brother Jonathan Pollard be liberated and truly free — only upon his return home to Israel, and that the MIAs be liberated alive and returned to us in ways befitting Al Kiddush Hashem, as should the remains of the two chayalim from the Gaza War of three and a half years ago. May we have the courage and strength to stand up and physically prevent the possibility of Chas V’Challila any future eviction of Jews from their homes and prevent Chas V’Challila the handing of Jewish land over to anyone, let alone to enemies sworn to Israel’s and Judaism’s destruction and eradication. May we fulfill Hashem’s blueprint of B’nai Yisrael as a Unique people — an Am Segula, not to be reckoned with as with “the nations” and may we be zocha to see the Moshiach, the Ge’ula Shlaima, as Dov Shurin sings; “Ki Karov Yom Hashem Al’Kol HaGoyim”, the Ultimate Redemption, bimhayrah b’yamainu — speedily, in our time”, — Achshav, Chik Chuk, Miyad, Etmol!!!

Good Shabbos and Chodesh Tov!

Moshe Burt, an Oleh, is a commentator on news and events in Israel and Founder and Director of The Sefer Torah Recycling Network. He lives in Ramat Beit Shemesh.

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