web analytics
August 28, 2015 / 13 Elul, 5775
At a Glance
Judaism
Sponsored Post


Home » Judaism » Parsha »

When A Judge Can Recuse Himself

Taste-of-Lomdus-logo

In this week’s parshah, Parshas Devarim, the Torah includes several halachos concerning dayanim. The Torah commands a judge to judge righteously, and to not show favoritism. The pasuk also says that a judge must hear a case regardless of whether its magnitude is small or large. Then the Torah instructs a judge not to fear any man, for the judgment is God’s (Devarim 1:17).

The Gemara in Sanhedrin 6b discusses when a judge may recuse himself from a case. The Gemara says that just because one of the litigants is powerful and difficult to deal with, causing the judge to fear that this litigant will harass him if he rules against him, the judge may not recuse himself from the case. In order to recuse himself from a case, the judge must have either not yet heard the arguments of the case or, having heard the arguments, has not yet seen where the case is heading. Under these circumstances he may recuse himself from the case. However, once he sees in what direction the case is going, he may not recuse himself due to his fear as outlined earlier. As the source for this halacha, the Gemara cites the pasuk in this week’s parshah (see above) about not fearing any man when judging.

The same is said about a talmid who, sitting by his rebbe who is paskening, knows a zechus for one of the litigants. The talmid is not allowed to speak up due to any fear. If he remains silent, he is in violation of this prohibition.

The Rambam brings this halacha in Mishneh Torah, Hilchos Sanhedrin 22:1. There, he adds that a judge should not say (once he has heard arguments and understands the direction the case is heading) that since one of the litigants is a rasha he fears that if he rules against him, this litigant will perhaps harm his children or damage his property. If one of the litigants is a public figure, the judge may not recuse himself under any circumstances.

But Rashi, on the Gemara, explains that the only concern a judge may have in recusing himself is if he thinks that one of the litigants will harass him and cause him to change the verdict. The Bach (Choshen Mishpat 12) explains that the problem this will cause is that ultimately beis din will not look good. Based on this, the Bach says that if both litigants are difficult to deal with and are powerful individuals, a judge will not be allowed to recuse himself from the case – even before hearing arguments. This is so because the only reason why a judge is permitted to recuse himself is due to the fear that he may overturn his judgment if one of the litigants is difficult and powerful. However, if both litigants are equally difficult and powerful, there is no fear that the judge will overturn his verdict – for the other litigant would not allow it.

According to the Rambam, one is not obligated to take a case before he has heard arguments, even if both litigants are equally difficult and powerful.

It is evident that one must risk financial losses, and even risk the lives of his relatives, in order to not violate this prohibition. The Shulchan Aruch (Yoreh De’ah 157:1) says that one must risk losing all of his money in order to not violate a lo sa’aseh. There is a machlokes, though, as to whether this applies to all lo sa’aseh or only those requiring action. The Pri Megadim (Orach Chaim 656, Eishel Avraham 8) and the Chavos Yair (Teshuvos Yoreh De’ah 4) say that one only need risking the loss of all of his money if the lo sa’aseh that he would be transgressing requires an action. If the lo sa’aseh is violated passively, one need not lose money in order to not be in violation of it.

About the Author: For questions or comments, e-mail RabbiRFuchs@gmail.com.


If you don't see your comment after publishing it, refresh the page.

Our comments section is intended for meaningful responses and debates in a civilized manner. We ask that you respect the fact that we are a religious Jewish website and avoid inappropriate language at all cost.

If you promote any foreign religions, gods or messiahs, lies about Israel, anti-Semitism, or advocate violence (except against terrorists), your permission to comment may be revoked.

No Responses to “When A Judge Can Recuse Himself”

Comments are closed.

Current Top Story
State Department Spokesperson John Kirby. Aug. 27, 2015.
State Dept Spox: No Worries, Parchin has No Nuclear Dimensions
Latest Judaism Stories
Rabbi Avi Weiss

The love between Gd & Israel is deeper than marriage; beyond the infinite love of parent for child

Q-A-Klass-logo

Question: When a stranger approaches a congregant in shul asking for tzedakah, should the congregant verify that the person’s need is genuine? Furthermore, what constitutes tzedakah? Is a donation to a synagogue, yeshiva, or hospital considered tzedakah?

Zvi Kirschner
(Via E-Mail)

Taste-of-Lomdus-logo

Since giving the machatzis hashekel will not change his financial situation, he is obligated to do so even though it is more than a fifth of his income.

Grunfeld-Raphael-logo

Today, few people fast during the Days of Selichot, but the custom is to rise early to recite Selichot.

Each month is associated with a particular tribe. The month of Elul is matched up with Gad. What makes Gad unique?

Sanctions and indictment of the Jew, holding him to a higher standard, is as common and misplaced as ever.

To allow for free will, there are times when Hashem will allow a person the “opportunity to be the messenger.”

“There is a mitzvah to pay the worker on that day,” answered Mr. Lerner.

Be happy. Be grateful. God knows what he is doing. It is all happening for a reason.

We get so busy living our lives, handling our day-to-day little crises that we forget to go that one step deeper and appreciate our lives.

The promise for long life only comes from 2 commandments; What’s the connection between them?

Mighty Amalek deliberately attacked enemy’s weakest members, despicable even by ancient standards

If we parents fail to honor responsibilities then society’s children will pay the price for our sins

Consider how our Heavenly Father feels when He sees His children adopting all other parents but Him

You may wonder, how can we be excited and joyful at a time when His Judgment, not Fatherly Love, reigns supreme?

More Articles from Rabbi Raphael Fuchs
Taste-of-Lomdus-logo

Since giving the machatzis hashekel will not change his financial situation, he is obligated to do so even though it is more than a fifth of his income.

Taste-of-Lomdus-logo

We can suggest that since Hashem Himself appointed Dovid there is no question. The rules are only in place for when we must chose a king ourselves.

Perhaps a careful reading of the pesukim in the parsha will shed light on this dilemma.

The second parshah of Shema is referring to keeping the rest of the mitzvos, and there the Torah does not require that one spend all of his money in order to perform the mitzvos.

Why would Moshe Rabbeinu have thought that the vow that disallowed him to enter Eretz Yisrael was annulled simply because he was allowed to conquer and enter the land of Sichon and Og?

In addition to the restrictions of Tisha B’Av, there are several restrictions that one may not perform during the week that Tisha B’Av falls in.

We do not find that Pinchas was chastised for what he did; on the contrary he was greatly rewarded.

The Shulchan Aruch in the very first siman states that one should rise in the morning like a lion, implying that simply rising form bed requires strength of a lion, in line with the Midrash.

Printed from: http://www.jewishpress.com/judaism/parsha/when-a-judge-can-recuse-himself/2014/07/31/

Scan this QR code to visit this page online: