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To what extent would a relationship with a party recuse a judge from judging a case? By Rabbi Yosef Fund
Judging vs. Testifying
The Mishna[1] states in the name of Ribbi Yehudah, that a close friend – such as a Shushbin (member of wedding party similar to best man or bridesmaid) – may not bear witness for his friend, as is the case with an enemy who has not spoken to the subject of his animosity for three days. Hachamim disagree with Ribbi Yehuda, reasoning that Am Yisra’el are not suspected to testify falsely out of affection or animosity. Rashi[2] points out that the disagreement is only with regards to bearing witness, but regarding serving as a judge all agree that one cannot properly seek merit on behalf of one’s enemy. A business partner is considered a friend in this context.[3] One who did speak to his enemy – but only because he is being deceptive as to his true feelings – is still considered an enemy.[4]
The Gemara[5] states in the name of Rav Pappa: one should not serve in judgement for one’s friend or enemy – for one does not see liability for one friend, and one does not see merit for one’s enemy. The Gemara further quotes a Beraita that derives from the verse[6] ‘and Shohad (bribery) you should not take’, that since the verse does not use the term ‘Betza’ – which refers to a monetary interest – but rather “Shohad”, that the prohibition includes on not only financial bribes but verbal bribes as well. The Gemara offers an example of this: once Shmuel was crossing a bridge, when a man offered his hand to support him. Hearing that this individual had a court case before Shmuel, he unilaterally disqualified himself from hearing his case. The Gemara offers many other examples in this vein.
Who is a Real Friend?
The Rosh[7] writes that the rule that a Dayan may not judge his enemy is only if he has not spoken to him for three days due to animosity, or, in the case of a friend, it is a very close friend such as the aforementioned Shushbin. However, it is preferable that one should not serve as a judge even on behalf of someone whose level of friendship of animosity does not reach that level, based on the logic of Rav Pappa that the Gemara quotes, that one does not see liability to one’s friend nor merit to one’s enemy.
The Rosh further expounds that “merit and liability well in the heart of a person without ill intent: slight affection leans one’s heart towards merit, and slight animosity towards liability”. If a Dayan ultimately favors one side over the other, he is not considered as having judged truly – even if his findings are legally correct.[8] The Ohr Sameah[9] discusses whether one may serve as a Dayan if both parties are his close friends. The Hida in Birke Yosef[10] writes that even when it comes to one’s friends one is likely to prefer one over the other, bringing into play the concern of the Rosh that his affection will affect his judgment.
L’Halacha
Maran in Shulhan Aruch[11], quoting the Rambam[12], rules that “it is prohibited to judge one who one favors even if he is not his Shushbin or one whom he loves as himself, nor may one judge one whom he hates, even if it is not an enemy and he does not seek that evil befall him, rather the two parties need be equal in the hearts and eyes of the judges, and if one does not recognize the parties and is unfamiliar with their reputation, he is the ideal judge”.
The Rama follows the position of the Rosh, and also cites an additional opinion: “however if they did serve as judges – their ruling is valid, [however] there are those who say that in the case of a true enemy, such as one with whom he had not spoken for three days due to animosity, or a true friend, such as one who served as one’s Shushbin, the judgement is not considered valid. There are those who say that as long as he is not a true friend or a true enemy it is permitted to serve in his judgement, and it is only extra scrupulousness (Midat Hassidut) to abstain; therefore, he may act as a judge in a court of Zabl”a[13]”.
The Poskim disagree as to whether the Rambam disagrees with the Rosh. According to the Bet Yosef understanding the Rambam’s opinion is that all friends and enemies may not serve as judges as a matter of Halacha – not just out of mere scrupulousness. He also understands that according to the Rambam, B’Di’avad – after the fact – the judgement is valid in all cases. The Birke Yosef[14] cites authorities who maintain that the Rambam agrees with the position of the Rosh.
A Blinding Bias
Rav Natan Tzvi Finkel זצ”ל, states[15] that we see from the Talmud that it is impossible to outsmart self-interest, and even the wisest and most-saintly cannot free themselves of the blinding effect of self-interest. In his words: “How awesome it is to imagine that the great Amora’im were liable to pervert judgment due to slight self-interest. These holy ones … refused to serve as a judge because of a slight benefit which could pervert judgement”. Rav Finkel writes further, that self-interest perverting judgment is an issue not only for a judge, but also in all aspects of any individual’s life.
However, the Hazon Ish[16] seems to take a different approach. As he explains, a Torah scholar would not pervert judgment for the sake of interest, flattery or the like, especially since – to a Torah scholar – truth is the highest desire. Just as, according to some authorities, only a true enemy may not serve as a judge, so too, only benefit given at the time of a judgment is considered a bribe, not benefit given at an earlier time. A scholar is trusted to rule on the Kashrut of an animal, even if it is his own, and even if he his poor and his livelihood depends on it!
Seeking truth is second-nature to a scholar, asserts the Hazon Ish. Therefore, he reasons, bribery must pervert judgment not only naturally in the minds of the common man, but also on a supernatural level. Since the Torah disqualified a Dayan who has received a bribe, the inherent impurity in the concept of bribery is able to infect even the mind of the most-saintly and truth-seeking Dayan (Rav Chaim Kanievsky[17] שליט”א is quoted as explaining the words of the Hazon Ish only in regards to a subtle interest, not to one who accepts an outright bribe to issue a specific ruling). Since the Torah disqualifies such a Dayan, his wisdom loses its normal ability to immunize the scholar from being affected by self interests. Nevertheless, outside the circumstances where a Dayan is disqualified according to Torah law, we have faith in Torah scholars that they are above petty self-interests. Those who suspect otherwise – states the Hazon Ish – are subject to their own smallness of spirit. There are those who teach that only a person who trust that his creator will provide his needs can reach the level of despising bribery and self-interest.[18]
[1] סנהדרין פרק ג’
[2] שם
[3] עבודת הגרשוני סי’ לג, הובא בחי’ רעק”א חו”מ סי’ ז ס”ז
[4] חכמת שלמה חו”מ סי’ ז ס”ז
[5] כתובות ק”ה ע”ב
[6] שמות כג, ח
[7] סהדרין פ”ג סי’ כג
[8] באר שבע סנה’ דף קי”א ע”ב
[9] פ”ג מסנהדרין ה”ו
[10] חו”מ סי’ ז סק”כ, הובא בפת”ש שם סקי”א
[11] חו”מ סי’ ז סק”ז
[12] פכ”ג מסנהדרין ה”ו
[13] In which each party chooses one of the judges
[14] שם סקי”ח
[15] אור הצפון ח”ב, עמ’ קנה-קסב
[16] אמונה ובטחון ג, ל
[17] דרך שיחה עמ’ שט
[18]מחזה אברהם (וואהרמאן) דברים, ד”ה ואצוה