Parshah Musings
Here Comes the Judge

Many local Australian rabbis recently attended a three days arbitration course. We're trying to put together a bet din (rabbinical court) for commercial disputes, and this was an opportunity for rabbis to meet and share strategies, learn more about the various acts and legal statutes that apply, and to explore the challenges that would present as we attempt to get such a complex but necessary project off the ground.

Jews are forbidden to sue each other in secular court and are expected to seek legal redress against each other only in a bet din.1 The absence to date of a permanent local bet din in Melbourne rendered it extremely difficult for people to resolve conflict in a timely and halachically permissible manner.

The course boasted an impressive line-up of speakers, with many heavy hitters of the legal community in attendanceThe course boasted an impressive line-up of speakers, with many heavy hitters of the legal community in attendance. The Attorney General welcomed us and warmly commended the Jewish community for their farsightedness in promoting a process of dispute resolution that would be acceptable to both Jewish and civil law. A number of current or recently retired Supreme Court Judges as well as various eminent jurists and arbitrators also addressed us.

It's an appropriate time of year to discuss issues of justice and jurisprudence. This week we'll be reading the Torah reading of Shoftim, which begins with the directive: "Judges and policemen shall you appoint in all your gates."2 A civilized society cannot function without an appropriate system of deterrence, and it is a mitzvah to establish courts and to appoint officials of the law to enforce those laws.

There were a number of points of contention that arose between contemporary civil law and Torah law. Many of the differences were technical, for example the method of appointing judges. Others were procedural, for example the admissibility of circumstantial evidence. However, some of the most significant discussions between the rabbis and the representatives of the legal fraternity were about the role of judges and arbitrators in the first place.

As I understood it, from the legal perspective, in the standard Anglo-Saxon judiciary, the role of a judge is to decide the merits of a case based solely on the evidence presented in court. If one of the parties or their advocates fail to pursue a certain line of question or forget to present a piece of evidence, no matter how potentially crucial to their cause, the judge is expected to sit quietly in place without interfering. The judges who spoke at the course went to great pains to impress upon us that they saw themselves as disinterested umpires, as far removed from the process as possible.

The dayan still maintains neutrality and remains fully objective, but his primary responsibility is to ascertain the truthIn contrast, the primary role of a dayan (rabbinic judge) in a bet din is to determine the truth. To this end, a dayan will often cross-examine witnesses, do his own research, call for the parties to address topics that he feels relevant, and generally insert himself into the process to the fullest extent that he feels necessary. It is the difference between an observer and a truth seeker. The dayan still maintains neutrality and remains fully objective, but his primary responsibility is to ascertain the truth.

Perhaps our understanding of the role of a judge can be deduced from the verse we quoted before. In our system, judges and law officers are expected to be "in your gates." They should not be content to sit back from a distance, but are expected to be out there among the people, promulgating values and promoting honesty. They play a vital role in society and are expected to be part of society. They are the moral arbiters of the nation, with a responsibility to seek fairness and justice for all. It is their job to prevent the miscarriage of justice and this is the primary purpose of their judicial appointment.

You don't need to be a judge to uphold justice. We all have an interest in ensuring that society functions properly and it is up to all of us to promote virtue and maintain decency. G‑d's Torah and mitzvot are a system of law and order that is inherently equitable, and following His rules will ensure a fair go for all.

Get out there in your gates and streets. Reach out to others and make their lives better. When faced with conflict, don't just sit back and watch the dispute unfold, but actively insert yourself into the process and thereby become a positive force for resolution.