You shall set up judges and law enforcement officials for yourself in all your cities that the Lord, your God, is giving you, for your tribes, and they shall judge the people [with] fair judgment. (Devarim 16/18)
Zera Shimshon asks that seemingly the mitzvo mentioned in the beginning of the possuk “You shall set up judges…” is not referring to any one individual but it refers to the whole nation of Bnei Yisroel in general. If so, why at the end of the possuk does it write, “and they shall judge THE PEOPLE…”. and not “and they shall judge YOU…”?
Secondly, he asks, what does it mean, “and they shall judge the people [with] FAIR JUDGEMENT”? Wouldn’t it be better to simply write, and they shall judge the people FAIRLY?
He gives three answers to these two questions.
1) There is a well know halacho if two people claim that a certain property is theirs, the burden of proof is on the one claiming (Hamotzie m’chaivoro aluf ha’raiya).
For instance, if Reuvan claims that the property in which Shimon lives is really his and two witnesses testify that he is right.. Shimon then brings two witnesses that he is right and that the property is really his (In other words, one of the set of witnesses is lying but Bais Din doesn’t know which one.).
Since Bais Din doesn’t know who is right, and the one claiming has no sure proof that the property is really his (since there are two witnesses that testified against his claim Reuvan cannot take any of the property.
The Gemorra in Bava Metzia (39/b) cites an exception to this halacha; if the defendant is known to be violent and the one claiming the property explains to Bais Din that he has witnesses that the property really belongs to him but that they are scared to testify against such a violent person. In such a case Bais Din rules in favor of the one claiming unless the defendant can prove the contrary.
This possuk, explains Zera Shimshon, is alluding to this halacha.
The phrase “they will judge THE PEOPLE”- ha’am – refers to the bad and wicked people members of Clal Yisroel, and more specifically violent people. (like Rashi in Chumash explains the difference between ha’am and ami).
In such a case the process of judging really isn’t fair (since the one claiming doesn’t have 100% proof that he is right). However, the judgement is fair since the reason that the one claiming cannot bring proof that the property is his is because of the behavior of the defendant.
This then is the meaning of the phrase, ” [with] fair judgment”- that the judgment is fair even the the judging is not fair.
2) This possuk is alluding to the following halacha. In a case where Bais Din knows that one of the parties is lying (but they cannot catch him on the lie), the halacha is that Bais Din writes that not they or any other Bais Din can judge this case. The Ro’sh explains that this is only true if the one claiming is suspected of lying however if the defendant is the one lying then even though that this Bais Din cannot judge the case (since they know that something is “fishy”), another Bais Din can. The reason for this is that we can’t let the liar benefit from his lie. (If we let the suspected liar keep the property that really isn’t his, he has gained by his lie).
According to this we read the possuk, “and they shall judge the people” – the bad people (the liars) and to inform other Batei Din not to judge this case – “[with] fair judgment”- only if their refraining from judgement will be fair, in a case when the one claiming is suspected of lying.
3) The possuk is referring to another halacha that when Bais Din knows that one of the parties is lying but cannot prove it, Bais Din is allowed to rule that NO ONE can do business with him in order that he will admit his guilt.
According to this, explains Zera Shimshon, we read the possuk, “and they shall judge the people”- they shall judge the whole community not to do business with the liar- “with fair judgement”- in order that the judgement will be correct and fair (that the liar will admit his lie).
This d’var Torah is dedicated to Beracha Bas Menucha Shaina. In the merit of the learning Zera Shimshon’s divrai Torah, Hashem should answer her prayers and she should quickly find her proper match along with all the other members of Clal Yisroel who are also looking for their zivug hagun
P.S. The Yahrtzeit of Zera Shimshon this Monday (6 Elul). There is an old tradition to learn some Torah of a Talmid Chochom on his yahrtzeit for a zechus for the one that past away.
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