A Brief Note on the Law and Order, Part Two
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Parshat Mishpatim [1] contains a broad collection of laws, both civil and criminal. There are laws relating to bondage, murder and assault, restitution for loss of property and damages suffered through the negligence of another, bailment and debtor-creditor relationships [2]. On their face these disparate laws described in the pasha appear as a polyglot collection, yet when looked at in their entirety, they represent a cohesive body of legislation, drafted to accord with certain of the fundamental values that are emphasized in the Torah and which form the core of Judaism. Some of the provisions described in the pasha are not laws as much as they are statements of moral precepts and standards of care expected of the Israelites. For example, in dealings with the vulnerable, the Torah enacted the axiomatic prohibition against taking advantage of the less fortunate: “You shall not afflict any widow or fatherless child”. Some of the laws have as their objective the continued integrity of the justice system: “Do not accept a false report; do not extend your hand with the wicked to be a venal witness”. Judges are also warned about subverting justice, even for a noble cause: “Do not be a follower of the majority for evil; and do not respond to a grievance by yielding to the majority to pervert the law. Do not glorify a destitute person in his grievance”. Rashi interpreted these provisions in a curious way and suggested two principles that could be adduced from the text. The first is that a judge is required to hear both sides of a dispute before making a decision. The second is that in capital cases a majority of two (of a 23 man court) would be required to convict. A simple majority would result in an acquittal. Rashi’s interpretation of these provisions denotes an advanced awareness of the dangers of private communications between judges and individual litigants, onetime referred to as ex prate communications. More so, his opinion reflects the positive requirement to that a litigant has a right to be heard. These concepts lie at the foundation of contemporary rules of natural justice. Similarly, the requirement of a special majority in a capital case was only part of a Torah-based justice system that ensured adequate safeguards to an accused, presumed to be innocent before conviction. This concept lies at the foundation of the contemporary Rule of Law. More : infoisrael.net |