Shabbat Parashat Mishpatim 5782

Parashat Hashavua: May a Dayan Help the Poor in Beit Din?

The obligation to relate equally to the two litigants is fundamental in the Jewish system of justice. As the Torah writes in our parasha: “Do not give preferential treatment to the poor in his quarrel” (Shemot 23:3). The Rambam writes: “So too, in monetary cases, we do not have mercy on the poor, as we should not say, ‘He is poor and the other litigant is rich and obligated to provide for him – I will have him win in court and it will turn out that he will be supported in a honorable way.’ About this the Torah warned ‘…’” (Sanhedrin 20:4). On the other hand, the Torah also warns in our parasha: “Do not take advantage of the convert … every widow and orphan you must not afflict …” (Shemot 22:20-23).

We will now try to explain in brief why the halachic system of litigation is preferable to the adversarial system, which is practiced in the government courts in Israel (based on the model of the British system). One of the advantages of our system relates to the “weaker party.”

Our halachic system is based on an investigation of the claims carried out by the dayanim. They are the ones who ask questions of the litigants and, of course, the witnesses and the experts who are brought in to help clarify the truth. While we allow lawyers and rabbinical lawyers, their impact on the ruling is miniscule. It is the dayanim who call in an expert witness to give a professional report on, for example, an engineering issue regarding a building dispute or an accountant regarding a case of a retirement fund. Beit din is the one who pays these experts (through money it collects for this purpose from the sides). This is cheaper than the sides hiring experts to support their side, and, more importantly, it arms beit din with a reliable opinion from an objective source.

In an adversarial system, the lawyers interrogate the two sides, as well as the witnesses. When there is a need for an expert, each one hires one to provide corroboration for his case and pays him to be subjective in his favor. While the judge oversees the case, he is not permitted to investigate himself.

Therefore, in the British system, the quality of the lawyer has a tremendous impact on the case’s result. If one side is rich enough to afford a more expensive, which usually means more capable lawyer, or a more convincing expert, it gives him a tremendous advantage. When beit din runs things, it can ensure equal footing for the two sides, which is a net advantage to the poor person. Thus, one can help the poor without giving them an advantage, just by holding down the disadvantage.

We end off with a midrash that connects Parashat Mishpatim to Parashat Yitro and stresses the importance of a proper judicial system in our lives as servants of Hashem: “Parallel to the Ten Commandments, Hashem gave ten negative commandments regarding jurisprudence… and since Hashem commanded Moshe about jurisprudence, therefore all of the prophets spoke and warned Israel about them” (Pesikta Zutrata, Shemot 20:23).

We pray that our beit din network, Eretz Hemdah-Gazit, will sanctify Hashem’s Name in all that it does and will hold an ever-stronger place in the legal apparatus of the State of Israel and the Jewish Nation.

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