INSIGHT
5773 - #39

Devarim / Shabbat Chazon

THE MITZVAH TO JUDGE

            A most interesting question is posed by Rabbi Norman Lamm, Is It a Mitzvah to Administer Medical Therapy? Journal of Halacha and Contemporary Society 8:5 in regard to whether the mitzvah to assist someone who is ill is result-oriented or action-oriented. In other words, if one provides medical care to another, is the therapy considered a mitzvah only if the person is healed (at least, to some extent) or is the act undertaken considered to be a ma’aseh mitzvah [an action of mitzvah] even if the patient is not healed?1 Rabbi Lamm’s conclusion is that this question of whether medical therapy is a mitzvah regardless of the results has actually been a matter of disagreement over the ages, right from the Talmudic times to the present. In considering this, I began to wonder if the same issue may also arise in regard to the mitzvah to judge. Applying the same question, is the mitzvah to judge action-oriented or result-oriented?

            Of course, in medical cases, the results are clearly observable and so, in defining the mitzvah of administering medical therapy as result-oriented, it would still be relatively easy to determine whether a specific undertaking was a mitzvah or not. In defining a mitzvah to judge as result-oriented, though, as we would almost never truly know whether justice was actually achieved, it could be almost impossible to absolutely define a process of judgment as a mitzvah or not. The very inability to perceive one’s behaviour as a mitzvah or not would seem to indicate a problem with defining this mitzvah as result-oriented. It struck me, however, that this might be the basis of an answer to the question of Torah Temima, Devarim 1:16, note 17 as to why there is no bracha [blessing] for judges to recite before commencing judicial proceedings. If the process only equals a mitzvah if justice is achieved, and we have no way of actually knowing if justice will truly be served, it would seem that a bracha could never honestly be recited for we would have no absolute knowledge that a mitzvah being performed.2

            The opening statement of the Torah Temima in this presentation, though, would challenge such a consideration. Commenting on Rashi, Ketuvot 106a, d.h. Ha Esei, who states that Devarim 1:16 is the source for the positive commandment for judges to judge, Torah Temima contends that there indeed must be such a commandment for Shulchan Aruch, Choshen Mishpat, chapter 25 states that if a proper judge makes a mistake, he is not liable for any ensuing damages.3 Since he was commanded by the Torah to judge, he had no choice but to do so. In that Torah Temima still defines this case with a mistaken judgment as a mitzvah, it would seem that he clearly sees this mitzvah as action-oriented rather than result-oriented. Even if justice is not actually served, the act of judging4 can still be a mitzvah.

            Rashi’s view that this verse is the source for the commandment on judges to judge, however, presents somewhat of a problem. Chinuch, Mitzvah 491 and Rambam, Sefer HaMitzvot, Aseh 176 both seem to derive the command from Devarim 16:18. Torah Temima, however, explains that this latter verse actually refers to a communal obligation to appoint judges. What Rashi is specifically addressing is the source for the obligation on an individual, provided he is competent to be a judge, to judge. Devarim 1:16 is the source for a mitzvah on such an individual – and this is to what Rashi is referring. The strange thing, though, is that while both Rambam and the Chinuch derive a general command concerning judges from Devarim 16:18 – and indeed this command is communal – both these commentaries still seem to also note numerous other commands on individual judges to judge. For example, Chinuch, Mitzvah 49 presents a mitzvah on individuals to judge cases of fines; Chinuch, Mitzvah 53 presents a mitzvah on individuals to judge tort cases caused by a pit.5 If mitzvot to judge already exist on the individual, why would Rashi further define a mitzvah from Devarim 1:16?

            The simple answer – that the command defined by Rashi is all-inclusive, while the other mitzvot refer to specific legal matters, thus still necessitating such an inclusive command – presents a corollary question: if there is already a general command on individuals to judge, why the need for the specific commandments for the variant legal issues addressed?6 I have been able to identify two possible approaches in answering this question. One is, upon a close reading of the Chinuch, that the specific mitzvot are much more result-oriented. For example, the command to judge cases of fines also includes the mitzvah to carry out the punishment of the fine.7 The result is integrated much more into the mitzvah in these specific commands.  

            Another possibility is that the list of specific individual mitzvot also includes in each command the application of Torah law in the judgment. For example, the mitzvah to judge cases of fines includes in its directive ‘pursuant to the Torah laws dealing with fines.’ We can thus understand the various specific mitzvot on judges to judge as commands to judge these variant cases pursuant to Torah law. Rashi’s overall and general mitzvah, however, may now be understood as presenting a greater context even for these specific mitzvot. It is a command, and this would seem to flow from the verse, to seek justice in judgment. While we are clearly always bound to the technical halacha, there should also always be a concern for the broader concept of justice. 

Rabbi Benjamin Hecht

 


Footnotes

1 One is invited to see the article for practical implications of this distinction.

2 For Torah Temima’s own approach in answering this question, as well as others of a similar nature, see Torah Temima, Shemot 24:12, note 30.

3 It should be noted that there are many qualifications on this statement. As evidenced by this chapter itself, there are, actually, many factors that must be considered in determining whether someone who did undertake to judge is liable or not. For our purposes, though, the very fact that there is even one case whereby one who makes a mistake in judgment is not held responsible for the mistake, serves our purposes.   

4 Again, it should be noted that, amongst other factors, this is specifically in regard to one who is competent to do so. The mitzvah does not generally apply to everyone but is specific to those who are in its purview, i.e. with the requisite knowledge to judge. As to how this concept may also apply to the above medical issue, see Aruch HaShulchan, Yoreh De’ah 336:2.

5 That this mitzvah applies to the individual is obvious in that the Chinuch specifically states that it only applies to men and not women as only men can judge. The term ‘pit’ should be understood as the placement of any hazardous object in the public domain.

6 This is especially so in that not every legal issue is addressed in the list of specific commands.  

7 Of course, it might also be that the mitzvah simply includes the carrying out of the verdict and, thus, reaching a verdict of “not guilty” in such a case could also be a fulfillment of this specific mitzvah. It may not only be if a verdict of a fine is reached and then carried out that there is a fulfillment of this mitzvah. The point is that these specific mitzvot maintain a consideration of result in the mitzvah consciousness.

Nishma 2013 

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