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Can a Man Be Unbiased?

For Parashat Shofetim

Parashat Shofetim opens with a call for Justice for All (Deut. 16:18-20):

 שֹׁפְטִ֣ים וְשֹֽׁטְרִ֗ים תִּֽתֶּן־לְךָ֙ בְּכָל־שְׁעָרֶ֔יךָ אֲשֶׁ֨ר יְקֹוָ֧ק אֱלֹהֶ֛יךָ נֹתֵ֥ן לְךָ֖ לִשְׁבָטֶ֑יךָ וְשָׁפְט֥וּ אֶת־ הָעָ֖ם מִשְׁפַּט־צֶֽדֶק

לֹא־תַטֶּ֣ה מִשְׁפָּ֔ט לֹ֥א תַכִּ֖יר פָּנִ֑ים וְלֹא־תִקַּ֣ח שֹׁ֔חַד כִּ֣י הַשֹּׁ֗חַד יְעַוֵּר֙ עֵינֵ֣י חֲכָמִ֔ים וִֽיסַלֵּ֖ף דִּבְרֵ֥י צַדִּיקִֽם

 צֶ֥דֶק צֶ֖דֶק תִּרְדֹּ֑ף לְמַ֤עַן תִּֽחְיֶה֙ וְיָרַשְׁתָּ֣ אֶת־הָאָ֔רֶץ אֲשֶׁר־יְקֹוָ֥ק אֱלֹהֶ֖יךָ נֹתֵ֥ן לָֽךְ

Judges and overseers you shall set for yourself within all your gates that YHWH your God is about to give you according to your tribes, and they shall judge the people just judgment. 

You shall not skew judgment, you shall recognize no face, and no bribe shall you take, for a bribe blinds the eyes of the wise and perverts the words of the innocent. 

Justice, justice shall you pursue, so that you may live and take hold of the land that YHWH your God is about to give you.  

The Torah stresses, both directly and indirectly, the importance of a judicial system which takes care of all citizens:

Within all your gates: the judges should be available to the people in every city and every village, whether in the center of the country or the periphery.

Gates: the judges sit in the open, at the gate, and not in intimidating marble palaces, to make themselves accessible to all people. 

To your tribes: all tribes are included.

They shall judge the people: all the people. The word עָם is related to the word עִם – with. To be a nation there must equality and togetherness. 

You shall not skew judgment: judgment is skewed when one party is favored by one judge or by the judicial system for political, financial ,or personal reasons. Favoring one party denies the other party its rights.

You shall recognize no face: this admonition is metaphorical, in the sense of not giving preferential treatment to anyone. It is also literal. We tend to identify with people who look like us, and we subconsciously register factors like skin color, gender, and dress code. Unless the judge makes a deliberate effort to treat everyone equally, his body language and facial expression will signal to the parties who is the favorite and that might skew the results.

No bribe shall you take: bribe is not only money, but any type of favor of benefit the judge is standing to receive. Taking care of those who are similar to the judge causes him a certain satisfaction which is a form of bribe.

Justice, justice shall you pursue: the word justice is repeated to emphasize that justice should be equally distributed to all.

So that you may live and take hold of the land: this aspiration applies to all citizens, men, women, and children, so it is appropriate that the quest for justice will be shared by all.

The question must be asked now: can we trust that a male judge will not be biased in favor of men? 

We would like the answer to be positive. We would like to believe that an observant, God-fearing judge, will treat everyone equally. The sad truth is, however, that the orthodox Jewish judicial system is an all-male system, and very few among these men fully understand or identify with the strife of women. The problem cannot be clearer than in the cases of divorce.

I have read a ruling by the chief rabbinate of Jerusalem dealing with a woman who filed for divorce citing her husband’s violent behavior. The court dragged her case for years and agreed to grant her a get only after her husband shot her with the intention of killing her. The court ruled that the woman, who luckily survived the attack, is justified in her fear of her husband and she deserves a get.

Even worse is the situation of the Agunot, the women whose husbands refuse to give them a get. Recently, the chief rabbi of Israel ruled that a man who denies his wife a get would not be allowed to bury his mother. Some people applauded what they consider a groundbreaking precedent, but others, me included, were frustrated with the system. Why must we use such desperate measures, which are disrespectful to the deceased mother, when the court can simply, yes, simply, annul the wife’s marriage retroactively?

That option might seem extreme, but Rabbi Shmuel Wozner writes that it is the safety net in every case of a missing husband whose wife is given permission to marry. When the question is raised whether the husband is still alive, since we do not have sufficient evidence, Rabbi Wozner says that we rely on questionable evidence and allow the woman to marry, and that to guarantee that she is not still married to her first husband we nullify the marriage. But that solution is reserved only for cases of missing husbands and not to a husband which is accessible but denies his wife a get.

Why the difference? Rabbi Wozner writes to a rabbi who asked him to annul a woman’s marriage, and says that he cannot annul her first marriage (Shevet HaLevi, 4:172) because:

…this is what the secular heretics are waiting for… they want to find a way to nullify matrimonial obligations without a divorce, God forbid!

Any lenient ruling on those issues supports the hands of those who want to destroy religion and puts a sword in their hands. Therefore, one should not be lenient at all in such a case.

What was the case? It wasn’t some marital dispute that the woman wanted to solve by retroactively annulling her marriage, but rather a harmful, insidious deception:

…the woman married him in the Salzburg camp [post WWII] …she had a son and he refused to circumcise him… he then told her that he converted to Christianity years ago when he was in the DP camp and he never told her a thing… he said that he has no connection to the Jewish people… when the woman heard this she left him… 

she now asks to be permitted to remarry and be disassociated from the man who deceived her and violated her…

The poor woman was deceived by the man. Had she known that truth about him she would never marry him. And now that she knows, she perceives him as a rapist. She begs to be freed of those spiritual and emotional shackles but is denied because of “what will the secular people say…”.

But there is a completely different sentiment when Rabbi Wozner discusses the request by a man whose wife refuses to receive a get and insists on staying married to him (ibid. 5:190). He explains that the man should be allowed to marry a second wife because of several reasons:

1. The man resents his cantankerous wife and cannot have normal marital relationships. 2. He does not have children. 3. He has sexual fantasies which might cause him to waste his seed. 4. She makes his life miserable and endangers his health.

I am not saying that these arguments are not valid (well, except for the third which I have discussed thoroughly elsewhere), but it is obvious that the judge here can identify with men and not with women. It would not be improbable to say that this happened because he is a man, and if that is so, then the admonition against being partial, the insistence on justice for all, and the demand for equality are all blatantly ignored or transgressed.

The ideal solution would be to have a diverse judicial system, with many more Devorahs who judge all the people, and who sit under (a metaphorical) palm tree where justice is accessible for all, but until that happens, maybe we should ask our judges to undergo a special sensitivity training program. It is told about the great khaliph Haroun el Rashid – the righteous, that he would dress in simple clothes and intermingle with the people of Baghdad to feel their needs and strife firsthand. Some good-hearted modern husbands wear pregnancy suits to try to feel, as much as possible, what their wives are going through (though all women would agree they are not even getting close). So why can’t we ask our judges to do the same?

Let those judges, in front of whom the pleas of women in fear of domestic violence and those seeking get from resentful husbands are brought, feel a little of what those women have to endure. Let them live for six months deprived of the right of meeting new people or maybe connecting to their loved ones. Let them be denied certain rights and feel that they depend on the whims of someone who does not care about them. As a matter of fact, I should not be the one suggesting how to do that. There should be a committee of get-applicants and agunot who will create a plan which will simulate their lives and by which the judges will live for a while.

Maybe, if we start working on this, we will be able to communicate with God and say that:

Justice, justice we are pursuing…

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