By Rabbi Yisrael Rosen
Dean of the Zomet Institute
"What is the prayer of the Holy One, Blessed be He? ... Let it be My will to behave towards My children with mercy, and that I will treat them in a way that goes beyond the strict letter of the law. We have been taught: Rabbi Yishmael Ben Elisha said, One time I entered the innermost place to offer the incense, and I saw ... the G-d of Hosts sitting on a high and exalted throne. He said to me, My son Yishmael, bless Me! I said to Him, Let it be Your will to have Your mercy overpower Your anger. Behave towards Your sons with the trait of mercy, and treat them beyond the strict letter of the law. And He nodded His head to me." [Berachot 7a].
Behave with the Trait of Mercy
The above remarkable legend of Yom Kippur, which was transformed into a hit song by the rabbi-singer Avraham Fried, is a very powerful expression of significance of the Day of Judgement and of the prayer of the Ultimate Judge "who sits on a high and exalted throne." What is the prayer? "Let it be My will" that the trait of mercy will take precedence over the strict law! And indeed the Almighty responded and shook His head in response to the request of His subjects, "Show mercy!"
This article will be published between Rosh Hashanah, the Day of Judgement, and Yom Kippur, the Day of Mercy. At this time of tension between the two extremes, our yearning is clear: "Let the trait of mercy prevail... To the One who extends mercy in judgement... Silence the prosecutor and take the defender in his place..." [from Asheknazic liturgical poetry]. The word "judge" is defined by our sages as one who is involved in defense of an accused person. "'And they shall judge the nation in a righteous way' [Devarim 16:18] – they should tend towards the side of acquittal. From whom can we learn this? It is from Gidon Ben Yoash... As is written, 'Go with this power of yours' [Shoftim 6:14] – with the power of the fact that you found the merits of My sons." [Midrash Tanchuma, Shoftim, 4]. (See also Shmuel Rabba 3:3 about Otniel, and see an expansion of this theme in my book, "Shoftim as Viewed by the Sages.") A basic condition for appointing a judge is his ability to consider the side of innocence and to search for a way of light and freedom: " Only people who can show from the Torah that a vermin is considered pure should be appointed to the Sanhedrin" [Sanhedrin 17a]. This does not mean that the judges should sit night and day to convolute the law, but rather that they should be able to "purify the vermin" (and not to declare the pure to be impure) in a time of great need!
The Judge's "New Clothes"
As I write this article, there is a three-way war going on in Israel between Chareidim, the Shas Party, and religious Zionism in a competition to fill empty seats of dayanim – Jewish court judges. By the time you read these words perhaps you will already know the results of the negotiations and which deals were made. But I, from my minor position, stand in the village square and shout out: The cloak of the dayan shows his nakedness! What's the big deal? What is so desirable about these positions? What is there about this question that is at all related to specific sectors in our land? Let me make my position clear, after I first ask my colleagues, the dayanim in Israel, not to take offense at what I will say.
I know that there are only about a hundred recognized dayanim in Israel, and therefore the nominal value of the position is high, the salary is commensurate with such a position, and it is also a source of status and honor. In our past traditions, the title "Dayan" implied a high cultural level, but the importance was mainly linked to the fact that the judge was often also the local rabbi or the head of the community . The judges were highly respected, as is true of all other cultures, as people who helped solve all personal and public disputes. The Dayanim (and the judges) in Israel have had this responsibility taken away from them. Just about the only remaining issues for the Dayanim are matters of divorce, which usually involve harsh personal disputes. Recently, due to a ruling by the State Attorney, the Dayanim have even been stripped of the power to be involved in monetary cases, conversion, or arbitration! They are not allowed to voice any opinions on current events, and they must be forever removed from any positions of leadership or influence. They remain sterile!
The competition between the different parties in this matter is strictly a matter of prestige and a desire to make appointments as a way of spreading favors, and it has nothing at all to do with seeking influential positions. And again I ask for my colleagues the judges to forgive me for saying that a school principal contributes more to spreading Torah and glorifying it than a Dayan does!Anybody who really wants to have an influence and to have an effect as a "religious person" will have greater success in such roles as a rabbi, teacher, chazzan, mohel, and even (perhaps especially) as a member of a burial society (which is a challenge for religious Zionism!), much more than as a Dayan! Such people are challenged as part of their jobs to show warmth, to be "one of the common folk," and to work at outreach at a much higher level than any religious court judge...
The Criterion for "Lenience" is not Kippa-Dependent
To return to the "sectorial war" about appointing judges "from our side," I reject the automatic classification that gives preference to one who wears a knitted kippa over those who are Chassidim or from the Eastern community (although I do agree that there is a difference as compared to the Lita'i sector). If I were responsible for appointing Dayanim, my first criteria would be "the ability to act for the defense" and "purifying the vermin," and only after these would come "the temperament in judging," erudition, and writing skill. In the rabbinical courts in Israel, which are involved exclusively in cases of divorce (and without including financial matters related to divorce) – such a criterion means that the judge will of necessity accept lenient rulings in the laws of divorce. And, if in monetary matters, where "victory for one side is a loss for the other side," the judges are told to rule "beyond the strict rules of halacha," it stands to reason that the same is true for attempts to free a woman from being "chained" in an impossible situation, where there is no side that is harmed but only a fear of making an error in halacha.
Any Dayan who wants to be treated by the heavenly courts with mercy and beyond the strict halacha must nod his head to accept the lenient rulings that appear in the halachic literature. And then the Holy One, Blessed be He, will nod His head towards him with respect to the characteristics of law...