Supremacy of the Law

Rabbi Bernie Fox

You shall do no injustice in judgment: you shall not be partial to the poor, nor show favoritism to the great, but you shall judge your neighbor with justice. (Sefer VaYikra 19:15)

I. Judging justly

Parshat Kedoshim is composed of a broad variety of mitzvot. Included are commandments governing civil matters and jurisprudence. The above pasuk is directed to judges. They are commanded to decide cases based on the law and not favor poor or prominent individuals. Rashi is troubled by the pasuk. The Torah’s passages are precise and concise. No word is superfluous. Our pasuk opens admonishing judges to decide cases based on the law. The passage continues and instructs judges to not show favoritism. A judge may not be influenced by empathy for a needy litigant or respect for a person of renown. Why does the passage mention these particulars? Once judges are admonished to decide matters according to the law, it follows that they may not show favoritism.

II. No favoritism

Rashi’s response is strange.

You shall not be partial to the poor – i.e. you should not say, "This is a poor man, and the rich man has, in any case, the duty of supporting him; I will find in favor of him (the poor man) and he will consequently obtain some support in a respectable fashion (Sifra, Kedoshim, Chapter 4 2).

Nor show favoritism to the great – you should not say, "This is a rich man, or this man is of noble descent. How can I possibly put him to shame and be witness to his shame? There is punishment for such a thing!" It is for this reason that Scripture states, "nor show favoritism to the great." (Sifra, Kedoshim, Chapter 4 3)

Rashi explains that a judge may have a reason for deciding a case in favor of a poor person. Consider a case in which a poor litigant is opposed by a wealthy person. The wealthy person should be helping the poor person. He should provide his less fortunate neighbor with support and encouragement. Instead, he is in court facing off against this less fortunate person and seeking from him or denying him monetary recompense. The judge may see in this an opportunity to correct this situation. By finding the case in favor of the indigent, he is helping both parties. The poor person receives some relief, and the wealthy person fulfills his obligation to support the needy.

Rashi also describes a scenario in which a judge may have reason to favor a prominent individual. His scenario is more easily understood when we update it. A judge is confronted with a claim against a prominent elected official. He is accused of failing to provide a minor employee with a 1099 tax form. The judge studies the case and concludes that the employee should have received the 1099. However, he realizes that if he decides the case based exclusively on the law, this official will be vilified in the media. The consequences will far exceed the magnitude of the crime. The judge weighs the matter and decides that justice is better served by overlooking the violation and privately instructing the official to be more diligent moving forward.

III. Two judicial philosophies

How is Rashi answering his question? The pasuk opened by demanding the judge to not pervert the law. Are not the scenarios suggested by Rashi perversions of the law? Why would a judge think that favoritism is justified in these scenarios?

To answer this question, we must look more deeply into Rashi’s comments. Imagine we could interview the judge Rashi describes in his scenarios.

We ask him, “Sir, is it your contention that you decided these cases justly?”

He responds, “Absolutely!”

“But sir, you know the law. Was your decision in these cases consistent with the law?”

He responds, “Certainly not.”

“Then, how can you contend that your decisions were just?”

This is the question that the judge awaited, and he is prepared with his response. “Justice is not served by adhering to the specifics of the law. Justice is served by providing the greatest good.”

The judge then turns the tables on us. He asks, “Do you think a greater good would be served by forcing this poor person to pay a sum he cannot afford to his wealthy adversary? Would destroying this dedicated official’s career be the just consequence for not giving his gardener a 1099?”

The judge’s position is that the law is not supreme. Instead, it is a tool that a judge uses to achieve just outcomes. But sometimes it must be ignored. Sometimes, the just outcome is achieved by disregarding the law.

IV. The foundation of justice

According to Rashi, our pasuk is addressing this issue. It is explaining that the judge is wrong. The laws of the Torah are supreme. They are given to us by Hashem, and we are expected to fully observe them. Furthermore, they are not a means through which we secure justice. They define justice. Rashi explains this in a subsequent comment.

Let us return to our pasuk. It concludes “But you shall judge your neighbor in righteousness.” Why is this conclusion needed? What does it add? Rashi is surely aware of this problem, but his response is odd.

But you shall judge your neighbor with justice. – Take this as the words imply.

Rashi is explaining that the just resolution in the cases he described is not to favor the poor or the prominent person. The just solution is to adhere to the law. The mitzvot are not a tool to achieve justice; they define it. The Torah is not telling us to put its laws above justice. It is saying that judging with justice requires and means adhering to the Torah’s laws.

In other words, Rashi is explaining that the judge’s reasoning is flawed. Let’s return to our interview and continue our dialogue with the judge.

“Sir, tell me how you would decide this case. A great humanitarian needs an immediate kidney transplant. He is in the hospital awaiting a transplant, but no kidney is available. In the hospital is a patient who is a completely miserable human being. No one has a nice thing to say about him. Even his wife and children wish him the worst. He has a healthy kidney. Is it just to harvest his kidney and save the great humanitarian?”

The judge is shocked by the question, “Of course not!”

We press, “But sir, why not. Is not the greater good served by the survival of the humanitarian?” The judge pauses for a moment and then responds, “You make a valid point. But I agree that certain rights are inviolate. This miserable person has the right to his organs. We have no authority to abrogate that right.”

“But sir, how do you know which rights are absolute? Is it not possible that the rich person’s right to his wealth is also inviolate? Where do you draw the line between the rights you can abrogate and those that you may not?”

The judge is honest and responds that he needs to further consider the issue.

Rashi’s point is that the Torah decides the rights and privileges of the individual and its decision defines justice. The wealthy person is obligated to support the poor. But he also has the right to manage his wealth and disperse it. This right cannot be assumed by the court. The Torah gave him this right and the judge does not have the authority to ignore it.

V. A contemporary illustration

The perspectives described above are illustrated by an issue now riveting and dividing our country. The leaked opinion of the Supreme Court overturning Roe v. Wade has been commented on by politicians, legal authorities, celebrities, and other prominent leaders. The comments that follow are an observation and not intended to weigh in on this complex issue.

Most of the responses to the leaked decision focus on whether it is best to allow states to regulate abortion. Pro-lifers are fine with affording states this authority. Pro-choice advocates fear that the decision will restrict women’s access to safe abortions. It seems that if you are in the pro- choice camp, you oppose the decision. If you are pro-life, you support it.

However, the court’s responsibility is to put aside both the priorities of the pro-life and the pro- choice camps. Its job is to decide the constitutionality of the right to abortion. Its job is to interpret the constitution. Whether a justice is pro-choice or pro-life should make no difference in his or her analysis of the legal issue.

The discussion that has overtaken the country reflects the perspective of the judge Rashi describes. Rashi’s judge does not decide cases based on the law. He decides based on his assessment of the greater good. Pro-choicers and pro-lifers are demanding that our justices adopt this approach to the constitution. They should interpret the constitution to support or not support a women’s right to abortion based on their views on abortion. A pro-life justice should find that there is no such constitutional right. A pro-choicer should find that it is guaranteed.

The problem with this approach is that it ignores the role of the court. The justices do not have the authority to act based on these considerations. They cannot decide the case by simply consulting their attitudes toward abortion. They are required to evaluate the issue based on the constitution and its amendments. Unfortunately, inflammatory, divisive rhetoric has replaced consideration of the legal issue.