web analytics
March 28, 2015 / 8 Nisan, 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
Prime Minister Binyamin Netanyahu.
Netanyahu to Release Frozen Palestinian Authority Tax Revenue
Latest Judaism Stories
Bodenheim-032715

Our ability to teach is only successful if done by example.

Torat-Hakehillah-logo-NEW

Outside of the High Holidays, Pesach is probably the most celebrated biblical holiday for the majority of Jews.

Business-Halacha-logo

“If I notify people, nobody will buy the matzos!” exclaimed Mr. Mandel. “Once the halachic advisory panel ruled leniently, why can’t I sell the matzos regularly?”

The-Shmuz

So what type of praise is it that Aaron followed orders?

Her Children, Her Whim
‘Kesubas Bnin Dichrin’
(Kesubos 52b)

Question: Must one spend great sums of money and invest much effort in making one’s home kosher for Passover? Not all of us have such unlimited funds.

Name Withheld
(Via E-Mail)

Yachatz is not mentioned in the Gemara. What is the foundation for yachatz?

First, the punishment for eating chametz on Pesach is karet, premature death at the Hand of God.

Why is it necessary to invite people to eat from the korban Pesach?

How was I going to get to Manhattan? No cabs were going, we didn’t have a car, and many people who did have cars had no gas.

Did you ever notice that immediately upon being granted our freedom from Egypt, the Jewish people accepted upon themselves the yoke of a new master – Hashem?

Why does Torah make the priests go through a long and seemingly bizarre induction ceremony?

Often people in important positions separate from everyday people & tasks-NOT the Kohen Gadol

You smuggled tefillin into the camp? How can they help? Every day men risked their lives to use them

Rambam: Eating blood’s forbidden because connected to idolatry;Ramban: We’re affected by what we eat

Rambam warns that a festival meal without taking care of the needy isn’t fulfilling simchat yom tov

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

Why is it necessary to invite people to eat from the korban Pesach?

Taste-of-Lomdus-logo

The Ran asks why the Gemara concludes that since we are unsure which two of the four we must recline for, that we must recline for all four.

The Chasam Sofer answers that one of only prohibited from wearing a garment that contains shatnez if he does so while wearing the garment for pleasure purposes.

The Aruch Laner asks: How can Rashi say that the third Beis Hamikdash will descend as fire from heaven when every Jew prays several times a day for the rebuilding of the Beis Hamikdash?

The Ohr Hachayim rules that one may not manipulate the system; rather he must state his opinion as he see the ruling in the case; not as he would like the outcome of the verdict to become.

He suggests that the general admonition only dictates that a father may not actively enable his son to perform an aveirah.

Rather than submit to this fate and suffer torture and humiliation, Shaul decided to fall on his sword.

And if a person can take steps to perform the mitzvah, he should do so (even if he won’t be held accountable for not performing it due to circumstances beyond his control).

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: