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November 27, 2015 / 15 Kislev, 5776
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When A Judge Can Recuse Himself


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.

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