On Justice and the Right of Appeal – part II | Rabbi Yossef Carmel | Beit Midrash

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Certain specific legal issues, the organizing of the beit din system, choosing judges, and the rules of adjudication are discussed in this week’s parasha as well as the previous one. Yitro suggested to Moshe that Moshe deal with the big (gadol) matters and the lower courts would deal with the small (katan) matters. Moshe carried it out differently, taking the hard (kasheh) cases and leaving the small cases for the other courts. In Devarim (1:17), it says that the lower courts would refer to Moshe the cases that were too difficult for them. Let us look at the difference between these terms and the distinction that is hiding behind them.

The mishna (Sanhedrin 1:5) says: Only a court of 71 can judge a tribe, a false prophet, or the Kohen Gadol. The gemara (ibid. 16a) derives it from the words "the big matters" – it refers to "the matters of the big (gadol)," i.e., prominent. In other words, when the judged person has a special public status, and certainly if the judged is a whole tribe, it requires the Sanhedrin, the largest court (parallel to the court of Moshe).

The Ramban explains that Sanhedrin represents all of the elements and approaches (there are 70 facets to the Torah) in society. This is the proper way to deal with every matter that affects the public. I might have thought that Moshe would hear the cases involving large sums of money, but the gemara (Sanhedrin 8a) learns from the pasuk "Do not show favor in judgment; you shall hear alike the small and the large" (Devarim ibid.) that not only should the judge put in the same effort for large amounts and small amounts of money, but the size of the monetary dispute does not even impact the order in which cases are heard.

Regarding the "hard (kasheh) matter," the author of the Tur explains that it refers to cases that include difficult, powerful people. The Torah commands the judge not to be afraid of the litigants, and that Moshe would be the one to deal with those who might be intimidating. This is an important demand of the judges, but it also obligates society to protect the judges and not allow them to be dependent on individual powerful people.

There is an opinion in the gemara (ibid.) that Moshe was punished for saying that the things that were too difficult for others should come before him, and Rashi explains that he was seizing too much power. The "punishment" was that when questions of inheritance (with the daughters of Tzlofchad) arose, Moshe was forced to admit that he did not know the answer and had to wait for Hashem to inform him.

From this statement of Chazal we learn another critical characteristic: humility is particularly important for a judge. Moshe had earned the right to be confident in his ability to solve legal matters, and still he was taken to task for not being careful enough in expressing it.

Next week, we will deal with the idea of the Malbim and the Seforno, that Torah portions teach us the concept of an appeals court.

Mishpatim

Parashat Hashavua