פרשת דברים - חמש סיבות שהדיין יעות את הדין

(16) I charged your magistrates at that time as follows, “Hear out your fellow Israelites, and decide justly between one party and the other—be it a fellow Israelite or a stranger. (17) You shall not be partial in judgment: hear out low and high alike. Fear neither party, for judgment is God’s. And any matter that is too difficult for you, you shall bring to me and I will hear it.” (18) Thus I instructed you, at that time, about the various things that you should do.

(16) I commanded your judges at that time, saying: Hear the arguments between your brethren and attempt to understand the wishes of each side, and judge righteousness between man and his brother, and a stranger to him, including those who have no family relatives. (17) You shall not give preference to either side in judgment; small and great alike you shall hear equally, to safeguard justice and honesty. You shall not fear speaking your mind or remaining silent due to any man, as judgment is God’s. No personal considerations may enter the judge’s decision making, as his task is to relay God’s judgment to the litigants. Consequently, any perversion of justice is a sin against God and a betrayal of His agency. 13 And the matter that is too difficult for you, you shall bring near to me, and I will hear it, and attempt to find a solution. (18) I commanded you at that time all the matters that you shall do.

(4) שמוע בין אחיכם ושפטתם צדק, "listen to your brethren so that you can judge fairly." This whole verse is problematical. How could the judges arrive at a fair judgment unless they had first listened to the arguments of the litigants? Secondly, why did the Torah not simply write an imperative such as שמעו, instead of writing the word שמוע in the infinitive? Clearly, Moses' intention was to make the listening to the litigants' argument an ongoing rather than a one time process. The judges should not give way to the feeling that they had already listened to the litigant enough times so that they are sick and tired of hearing the same thing again and again. There are two aspects to the matter. 1) The judges should not display reluctance to hear renewed arguments by a litigant who claims that he has another point in his favour. 2) The judges should not postpone continuation of the hearing to another date as they are tired of hearing anymore on that particular day, but the proceedings should be wound up in one session if possible. Basically, the subject Moses instructs the judges on is what is called ענוי הדין, postponement of sentence.

(1) לא תכירו פנים במשפט YE SHALL NOT RESPECT PERSONS IN JUDGMENT — This is addressed to him whose office it is to appoint judges — that he should not say, Mr. So-and-so is a fine or a strong man, I will make him a judge; Mr. So-and-so is my relative, I will make him a judge in the city, — while in reality he is not expert in the laws, and consequently he will condemn the innocent and acquit the guilty — I will account it unto him who appointed him as though he had shown favor in judgment (Sifrei Devarim 17:1).

כקטון כגדול תשמעון, “listen to claims involving minor sums of money as if it concerned major sums.” Do not relate to disputes involving pennies as a waste of the court’s time.

כקטן כגדל תשמעון YE SHALL HEAR THE SMALL AS WELL AS THE GREAT, i.e. that a lawsuit regarding a peruta shall be as dear to you (shall be as of equal importance) as a lawsuit regarding a hundred maneh — that if it (the former) comes before you first, you should not set it aside until the last (Sanhedrin 8a). — Another explanation of YE SHALL HEAR THE SMALL AS WELL AS THE GREAT — Understand it as the Targum has it: Ye shall hearken unto the words of the small as to those of the great — i.e. that you should not say: This is a poor man and his fellow (opponent) is rich, and is in any case bidden to support him; I will find in favour of the poor man, and he will consequently obtain some support in a respectable fashion (see Rashi on Leviticus 19:15). — Another explanation is: that you should not say, “How can I offend against the honour of this rich man because of one dinar? I will for the moment decide in his favour, and when he goes outside (leaves the court) I will say to him, ‘Give it to him because in fact you owe it to him'" (Sifrei Devarim 17:3).

The Talmud in Ketuvot 105, divides the word שוחד into two, i.e. שהוא חד that it causes the judge to lean only in one direction, that of the person who offered the bribe. This is the reverse of אחדות, since it automatically removes the other litigant from the judge. When both litigants are equally close to the judge we can speak of אחדות, unity, harmony. This condition must prevail when judgment is pronounced, since המשפט לאלוהים הוא, and G–d represents unity and harmony (Deut 1,17).

“Fear no man, for judgment is God’s” (Deuteronomy 1:17). We were warned with this to believe that injury will not occur to us on account of righteous judgment, when we do not show favoritism. [It is] like our Rabbis, may their memory be blessed, said (Pesachim 5b), “Agents of a commandment will not be injured, not on their way [to do it] and not on their return.” And this is the explanation of, “for judgment is God’s” - that injury caused by Him will not happen to you.