Torah Portion: Mishpatim
Do not speak up in a trial to pervert justice (Shemos 23:2).
It is a negative commandment that one of the judges should not [blindly] follow the opinion of another senior judge, nor even after the majority opinion—towards innocence or guilt—without the matter being clear in his own mind. And if the law is one that is dependant on a Scriptural decree or on a gezeira shava or on an analogy, the judge must know the law firsthand and not rely or trust any one of the judges, not even on the majority. It is thus written, Do not speak up in a trial to pervert justice (Shemos 23:2); that is, do not speak up [in a trial] to bend yourself [to follow the consensus or another judge].” Nor should you simply follow your own logic or wish to remain silent and keep your opinion in your heart in order to bend yourself to their words—do not do so.
Included in this same negative commandment is that a judge who at first argued for innocence in a capital case should not retract and argue for guilt, as is written, Do not speak up in a trial to pervert justice; that is, your words may not be bent towards guilt. It also includes that a capital case may not open with the arguments for the person’s guilt. According to this, the verse should be interpreted thus: “Your opening words should not be aimed to incline the person to guilt.” For we must say that the verse is referring to the beginning of the case, for it is impossible to say that throughout the hearings no one can argue the person’s guilt, for if so then no one would ever be condemned.
We also learn from this negative commandment that in capital cases we do not start from the most senior judge in the court. Instead, the junior judge speaks his opinion first, the verse thus saying, “Do not speak up after the words of the senior judge” — as though the word riv (trial) is read rav (the greater one) — for this word is spelled without a yud [which is vowel for ‘ee’]. I.e., Do not respond to the words of the senior judge; rather, you say your words first and then he should respond to them.
The idea behind this is that it is to prevent all the judges from relying on the most senior judge. All these interpretations are derived through the wisdom of the Torah, from which one thing can be understood in several ways. This is the meaning of what our Sages of blessed memory said, that “there are seventy facets to the Torah.”
Among the roots of this mitzvah is the idea that we mentioned above, that a judge should not follow one of the other judges but he must understand the issues on his own, for if not for this it is possible that an entire verdict would be based on the opinion of a single person. Hashem, may He be blessed, did not wish to entrust a capital verdict to a single opinion. As for the other laws that are derived from this mitzvah, such as that a judge who argued for innocence may not retract, and that we do not open the case with the guilt, and that we do not listen to the senior judge first — all this stems from Hashem’s compassion for His creatures, like a person has compassion for his sons.
This mitzvah applies to men who are fit to judge and in the Land of Israel alone, for only there are capital cases heard.
