Masei: The role of a Jewish judge

By RABBI SHMUEL RABINOWITZ
Downtown Hebron (photo credit: Wikimedia Commons)
Downtown Hebron
(photo credit: Wikimedia Commons)
In the Torah portion of Masei, which concludes the Book of Numbers, we continue reading about certain halachot (Jewish laws) given as preparation for the entrance into the Land of Israel. The nation was camping in the plains of Moab on the eastern side of the Jordan River, awaiting the imminent entrance to the land. Meanwhile, they were given commandments whose purpose was to organize public life in the land where they were to establish a Jewish state.
One of the commandments written in this portion is about the city of refuge. A person who intentionally kills someone is punished by death, according to the Torah. But if one kills someone unintentionally, he is sentenced to exile – a sort of “house arrest” in a specific city. This city is called a city of refuge since it protects its inhabitants. In a tribal society, a relative of the deceased might try to take revenge upon the killer and kill him. Sadly, even today, this is customary in some societies. The city of refuge protects the killer and prevents the relative from exacting revenge.
In some cases, it is not clear if the killing was intentional or not, and this must be clarified in court:
“Then the congregation [the judges] shall judge between the assailant and the blood avenger, on the basis of these judgments. The congregation shall protect the manslayer from the hand of the blood avenger” (Numbers 35:24-25).
So the job of the judges was to clarify the details of the event, and if it was deemed an unintentional killing, the court would protect the killer from the avenger and place him in a nearby city of refuge, and he would be safe from revenge.
The concurrence of the phrases “shall judge” and “shall protect” sheds light for our sages on the role of law in Judaism:
“If the Sanhedrin saw someone kill another person... Rabbi Akiva says they are all rendered witnesses, and a witness cannot become a judge... for the Merciful One says, ‘and the congregation shall judge... and the congregation shall save’” (Rosh Hashana 25-26).
Here is a halacha that appears to be absurd. The judges themselves saw a man killing someone. Seemingly, there is nothing left to doubt. There is no need for investigation. The judges themselves know the facts. But our sages disqualify these judges, since a fair trial requires both sides to be heard, both prosecution and defense. When the judges themselves witnessed the killing, they cannot be objective about the defense. You cannot have a fair trial if the judge approaches the case with a predetermined conclusion.
On a deeper level, the Jewish court is defined here as something that “saves.” That doesn’t mean that every person who faces the court is found innocent. Guilty people have to pay the price for their actions. But the judge should strive to acquit the defendant. If the judge himself was a witness to the case, he cannot possibly “save” the defendant and therefore must be disqualified.
When Rabbi Chaim Soloveitchik (1853-1918) was asked what a community rabbi’s main role is, he answered with the words of Isaiah: “to revive the spirit of the humble and to revive the heart of the crushed.” That is the job of a Jewish rabbi and judge – to strive for acquittal, to save anyone he can, and to revive the spirit of the humble or crushed.
The writer is the rabbi of the Western Wall and Holy Sites.