INSIGHT 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. Return to top |
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