Academic journal article American University Law Review

Doing Justice: Judging and Jewish Values

Academic journal article American University Law Review

Doing Justice: Judging and Jewish Values

Article excerpt

The iconic image of justice is a figure-usually depicted as female-blindfolded and holding balanced scales. The artistic portrayal of blind justice dates back to fifteenth-century German manuscripts,1 and the image has been interpreted both positively and negatively. It is a positive symbol of ultimate impartiality: that nothing but pure reason, as opposed to the often misleading evidence of the senses, should be used in making judgments. But it also is a negative symbol of unfairness and partiality-blind toward the poor, with eyes only for the rich.2

The image of blindfolded justice holding balanced scales is fundamentally flawed. First, we know that except in very rare instances, the scales are not balanced. Several forces-economic, social, political-have the effect of placing litigants on an unequal footing when they come into the judicial system. Sometimes the law can attempt to redress those imbalances. For example, in criminal cases, we provide counsel to people who otherwise could not afford a lawyer.3 And, in certain types of civil cases, the law provides for awards of attorney's fees to prevailing parties, which makes it more feasible, as a practical matter, for consumers or employees to take on opponents who have significantly greater resources.4 But balancing the scales generally is not the role of judges, both because the inequalities result from factors outside the court's control and because a judge attempting to redress the imbalance effectively would be favoring one side over the other, which is precisely what a judge should not do. Nonetheless, a critical challenge for judges is to implement practices and procedures that make the system accessible to litigants so that the judicial system itself does not exacerbate the imbalances.

Second, judges only can do their jobs properly if they have their eyes open. To do justice and to make fair and correct decisions, judges must see the people who appear before them. when parties are shown respect and feel respected, they are much more likely to perceive the legal system as legitimate and fair and to accept the court's decisions.

As a judge, it is my obligation to see the parties who appear before me not simply as cases, but as people. i also have a duty to the extent that i can to make the court open and accessible, so that the public perceives not only that i am not wearing a blindfold, but that the court system itself is not creating additional imbalances that interfere with doing justice.

Jewish law supports those principles. In Deuteronomy 16:18, Moses tells the people that when they enter the land, they are to appoint judges and officials for the tribes "in all the settlements that . . . your God is giving you, and they shall govern . . . with ['mishpat tzedek'],"5 which often is translated as "due justice" or, in Robert Alter's beautiful translation, as "just judgment"6 "[T]zedek is justice in the sense of doing the right thing in a legal procedure; mishpat is justice as a cosmic principle that maintains harmony in the world and allows civilization to continue."7 Accomplishing both is a tall order, but that is how the Torah describes the role of the judge.

Moses then goes on in verse 19 to explain how judges should conduct themselves in order to do justice. He states three fundamental rules of judicial conduct. First, "[y]ou shall not judge unfairly."8 Second, judges shall not show partiality.9 And finally, judges shall not take bribes.10 The third is the only rule for which a reason is given: judges must not take bribes because "bribes blind the eyes of the discerning and upset the plea of the just."11 In other words, bribes incline the judge in favor of one party and influence the judge against the claims of the deserving or innocent party, which is a kind of blindness antithetical to judging fairly and impartially.

Moses then makes the famous statement, "Tzedek tzedek tirdof"- "[j]ustice, justice shall you pursue, that you may thrive and occupy the land that the Lord your God is giving you. …

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