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Mishpatim 5773-2013

“Judaism’s Take on ‘Majority Rules’”

by Rabbi Ephraim Z. Buchwald

This week’s parasha, parashat Mishpatim is a treasure-trove of Jewish law that serves as the basis for much of Jewish jurisprudence. (Mishpatim 5763-2003)

Many principles of law that are recorded in parashat Mishpatim were eventually incorporated into the legal systems of many countries throughout the world. This parasha is clear evidence of the incredibly advanced state of the ancient Jewish legal system, especially as compared to other ancient legal codes.

One particular verse found in parashat Mishpatim, which introduces the principle of “majority rules” in Jewish law, has proven to be the source of many intriguing and revolutionary legal concepts. The Torah in Exodus 23:2 states, “Lo teeh’yeh ah’cha’ray rah’bim l’rah’oht, v’lo tah’ah’neh ahl reev, lin’toht ah’cha’ray rah’bim l’ha’toht,” Do not be a follower of the majority to do evil, and do not respond in a dispute by following the majority to pervert justice.

Rashi, in a lengthy commentary on this verse, notes that the abundant rabbinic interpretations of this verse reflect the many original legal ideas that stem from this particular text.

Commenting further on the verse, Rashi states that when the Torah forbids judges to follow the majority to do evil, it means that judges in capital cases may not arrive at a guilty verdict by a majority of a single judge’s vote. Indeed, Jewish law requires a majority of two judges to convict a criminal of a capital crime. Since all courts of Jewish law consist of an odd number of judges, either twenty-three or seventy-one, in reality, a conviction requires a majority of three guilty votes. However, to acquit a defendant, a majority of one vote is sufficient.

Continuing his explanation, Rashi suggests that the verse, “Lo tah’ah’neh ahl REEV,” Do not respond in a dispute, may also be read, “Lo tah’ah’neh ahl RAV,” Do not respond against a master–a rabbi. This change in reading implies that it is forbidden for a junior judge to take issue with the outstanding members of a court. For this reason, judges’ opinions in capital cases are always polled from the “side.” The youngest and the least prominent judges are required to state their opinions first, and only after the junior members speak, do the more prominent and distinguished members of the court publicly voice their opinions. In this way, young judges will not be unduly influenced by the opinion of the older, more experienced and more knowledgeable judges.

Rashi cites Targum Onkelos, who offers an alternate interpretation of this verse, suggesting that it means that a judge may not refrain from offering a clarification when pressed to explain the reasoning behind a decision. Additionally, a judge must never shy away from a judgment in order to remove himself from dispute. Rather, judges must always render honest verdicts, even though their personal opinions may ruffle more than a few feathers.

In an unusual comment about his own interpretation of the verse, Rashi characterizes his opinion as being, “in its proper context in accordance with the simple meaning [of the verse].” He proceeds to interpret the verse, “Do not be a follower of the majority to do evil,” to mean that a judge may not be intimidated by wicked people, because they are in the majority. Should a defendant question a judge about a possible miscarriage of justice, the judge must state his truthful opinion, even though it may offend the other judges. Judges who are untruthful will ultimately be held accountable for being part of a wicked majority.

The sensitivity that is consistently evident underscores that the Jewish legal system expects judges to realize that they are accountable only to G-d and to their own consciences. In fact, it is well known that Judaism requires judges to exercise independent thinking. It is broadly recognized that any judge’s analyses of a case may be superior to the more erudite and senior members of the court.

What clearly emerges is that the ultimate purpose of Jewish jurisprudence is to help society become more mindful of the sanctity of every human life. Rather than labor to find the accused guilty, Jewish courts are expected to explore every possible avenue in their efforts to exonerate the accused. This is especially true in capital cases, where mistakes cannot be undone and there is no way to rectify an incorrect judgment. The Talmud (Sanhedrin 34a) states that if a student sitting before the court suggests to the judges a novel reason for exonerating the accused, that student may be elevated to serve on the court.

The Talmud also teaches (Sanhedrin 33b) that in capital cases there can be no instance of what we today know as “double jeopardy.” An exonerated defendant may never be retried once an innocent judgment in his favor has been rendered, even though new evidence to convict may be presented. The only exception is in the case of one who incites others to idol worship.

One of the most remarkable features of capital procedure is that if an entire court, twenty-three or seventy-one members, votes unanimously to convict, without a single voice of dissent, the accused is set free (Sanhedrin 17a). The reason for this is that a unanimous decision may imply collusion among the judges or that the judges did not take their responsibilities seriously, and failed to examine the evidence thoroughly. It is inconceivable that not a single judge, among twenty-three or seventy-one erudite jurists, could uncover evidence or invoke a technicality that would exonerate the defendant, no matter how wicked.

The great Rabbis Tarfon and Akiva (Mishnaic sages, first and second century CE), who lived in an era when the Jewish courts no longer had authority to try capital cases, declared (Mishna Makot 1:10) that had they been alive in the times when Jewish courts had authority, no one would ever have been executed. They would have found a legal means to exonerate every capital criminal.

Given that most ancient legal systems were bent on rapidly ridding their societies of any suspected evildoers, it is certainly nothing less than remarkable that the Jewish legal system, which is more than 3300 years old, is designed to extend and enhance life, rather than curtail it.

May you be blessed.

Please Note: This Shabbat is Shabbat Parashat Shekalim. On this Shabbat, an additional Torah portion, known as Parashat Shekalim, is read. It is the first portion of four additional thematic Torah portions that are read on the Shabbatot that surround the holiday of Purim. This week’s supplementary Torah reading is found in Exodus 30:11-16 and speaks of the requirement for all the men of Israel, aged 20 and above, to bring a half-shekel in order to be counted as a member of the People of Israel. In later years, these shekels were donated to the Temple in anticipation of the festival of Passover, when funding for the daily sacrifice had to be renewed.