Devarim: The Idolatry of Showing Favoritism in Judgment

If you think you know what the Torah means when it says, "Do not show favoritism in judgment," then either think again, or explain it to me! According to Chazal, this is NOT an intuitive prohibition!

Jul 21, 2023

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Artwork: *Vish Kal, Blood Arbiter*, by Michael C. Hayes

Devarim: The Idolatry of Showing Favoritism in Judgment

The Facts and the Main Question

The first mitzvos mentioned in Sefer Devarim pertain to judges. Moshe Rabbeinu recounts:

I commanded your judges at that time, saying: “Listen among your brothers and judge righteously between a man and his brother and his sojourner. Do not show favoritism in judgment; listen to the small and the great alike; do not tremble before any man, because the judgment belongs to God; and the thing that is difficult for you, bring it to me and I will listen.” (Devarim 1:16-17)

What, exactly, is the prohibition of hakaras panim ba’mishpat (showing favoritism in judgment)? One might assume that this is a prohibition for judges to show favoritism when judging cases. Indeed, this interpretation is given by those who endeavor to explain the pshat of the Written Torah (see Ibn Ezra, Ibn Kaspi, Ralbag, and others). The explanation transmitted in the Oral Torah (Sifri, cited by Rashi) is quite different. Here is the Rambam’s presentation of the halacha (Hilchos Sanhedrin ve’ha’Onshin ha’Mesurin la’hen 3:8-9):

Any high court, king, or exilarch who appoints a judge for Israel who is not proper and is not wise in the wisdom of the Torah and fit to be a judge, even though he is filled with other desirable [traits] and has other good qualities, the one who appoints him transgresses a Torah prohibition, as it is stated, “do not show favoritism in judgment” – the Oral Torah teaches us that this is addressed to the person who is in charge of appointing judges.

This understanding of “do not show favoritism in judgment” is counterintuitive. The prohibition is not addressed to the judges themselves, but to those who appoint the judges. This pasuk doesn’t proscribe showing favoritism in rendering judgment, but in appointing the judge. The Rambam continues:

The Sages said: Maybe you will say, “So-and-so is handsome! I will appoint him as a judge,” “So-and-so is strong! I will appoint him as judge,” “So-and-so is my relative! I will appoint him as judge,” “So-and-so knows all languages! I will appoint him a judge.” Consequently, he will exonerate the liable and convict the innocent, not because he is wicked, but because he doesn’t know. Therefore, it was said, “do not show favoritism in judgment.”

This prohibition is repeated in the opening pesukim of Parashas Shoftim, followed by an apparent non-sequitur:

Judges and officers you shall appoint for yourselves in all of your gates which Hashem your God gives you for your tribes, and they shall judge the people with a righteous judgment. Do not pervert judgment, do not show favoritism, do not take a bribe – because a bribe blinds the eyes of the wise, and corrupts righteous principles; righteousness, righteousness shall you pursue, in order that you live and inherit the land that Hashem your God gives you.
Do not plant an asheirah (idolatrous tree), any tree at all, next to the altar of Hashem, your God, that you will make. Do not erect for yourself a matzeivah (idolatrous platform) that Hashem, your God, hates. (Devarim 16:18-22)

Rambam (ibid.) concludes these halachos by citing Chazal’s homiletical reason for this juxtaposition:

The Sages also said: Anyone who appoints an improper judge for Israel, it is as if he erected a matzeivah, as it is stated, “do not erect a matzeivah that Hashem, your God, hates.” If it is in place of a Torah scholar, it is as if he planted an asheirah, as it is stated: “Do not plant an asheirah, any tree at all, next to the altar of Hashem, your God, that you will make.” Likewise, the Sages said: “Do not make with me gods (elohei) of silver and gods of gold” (Shemos 20:19) – an eloah (“god,” which in Hebrew, is the same word for “judge”) who comes for silver and gold: this refers to a judge who is appointed because of his wealth.

This brings us to our main question: How is “showing favoritism in judgment,” as defined by the Oral Torah, comparable to building a matzeivah and planting an asheirah? What idea are Chazal trying to teach us?

Approach #1: Hakaras Panim and Avodah Zarah in General

From a methodological standpoint, there are two approaches one can take. The first is to assume that Chazal intend to draw our attention to the common denominator between hakaras panim and avodah zarah in general. According to this approach, the references to matzeivah and asheirah in the pesukim are merely a “hook” for the drashah (homily), but the main idea is about the theme of avodah zarah itself. The second approach assumes that Chazal’s teaching relates hakaras panim to matzeivah and asheirah as particular avodah zarah institutions.

In my opinion, both approaches are viable. Since everyone I asked was drawn to the first approach, I’ll begin by sharing two ideas which follow that approach.

Yehoshua (a student of mine) explained that the essence of avodah zarah is the attribution of power to that which has no power, mistakenly believing that this will yield some benefit. The harm in this is twofold: the idolator turns away from the Source of reality, Who actually has the power to benefit, and places their trust in falsehood, which will prove fruitless and destructive. Yirmiyahu ha’Navi, speaking in Hashem’s name, expressed this in last week’s haftarah: “for My people did two evils: they abandoned Me, the source of living waters, to dig for themselves cisterns – broken cisterns that can't hold water” (Yirmiyahu 2:13).

Similarly, one who appoints a judge based on any quality other than Torah mastery endows that judge with a power he doesn’t (or shouldn’t) possess and expects this appointment to yield a benefit in return. Not only will this cut the populace off from the “living waters” of Hashem’s justice which bring about righteousness and peace in society, but it will subject them to the destructive forces of self-serving human dictates and whims.

In short, both avodah zarah and hakaras panim set up a false reality, to which people will attribute powers without any legitimate basis, thereby engendering harmful societal consequences on a systemic level.

Another explanation in line with this first approach was suggested by Brooke (another student of mine who, coincidentally, happens to be married to Yehoshua). She theorized that both avodah zarah and hakaras panim stem from a flawed value system in which the physical is elevated over the spiritual. Avodah zarah began when people directed their worship towards the manifestations of God’s greatness in the physical universe, rather than God Himself. Over time, they became so focused on physicality that “the revered and awesome name [of God] became forgotten from the mouths and minds of all who arose, and they no longer recognized it” (Hilchos Avodah Zarah v'Chukos ha'Goyim 1:2). One who overlooks a judicial candidate’s deficiencies in Torah knowledge and appoints him based on his appearance, his wealth, his strength, or other superficial attributes has committed a similar error: prizing the physical over the metaphysical and allowing the former to supplant the latter.

Both of these explanations are entirely satisfactory. And yet, whenever my rebbi, Rabbi Moskowitz zt”l, was confronted with two approaches to a question or problem, he would always take the more difficult of the two, believing it would be more likely to yield new insights. With that in mind, I’d like to attempt the second approach.

Approach #2: Metzeivah and Asheirah in Particular

First, we must answer two questions: (1) What are matzeivah and asheirah? and (2) Why did the Torah prohibit them? Fortunately, the answers to both questions are clear from even a cursory reading of the Rambam’s writings:

The 11^th negative commandment is the prohibition to make a matzeivah for people to gather around and honor, even if it is made for the sake of serving Hashem. The reason for this is that we should not make His worship similar to avodah zarah, for this is what [the idolators] would do: they would build matzeivos and place the worshipped object upon them. (Sefer ha’Mitzvos: Lo Taaseh #11)

The matzeivah that the Torah prohibited is a structure that everyone gathers around – even to serve Hashem – because this was the custom of avodah zarah, as it is stated, “Do not erect a matzeivah which Hashem, your God hates.” Anyone who erects a matzeivah gets lashes. (Hilchos Avodah Zarah 6:6)

One who plants a tree next to the altar or anywhere in the courtyard [of the Beis ha’Mikdash], whether a decorative tree or a fruit tree, even if one makes it to beautify the Mikdash and to adorn it, he gets lashes, as it is stated: “do not plant an asheirah of any tree next to the altar of Hashem your God which you make” – because this is the custom of avodah zarah: they would plant trees near their altars so that the people would gather there. (ibid. 6:9)

The prohibitions against a stone floor and planting a tree near the altar have one objective, namely, that we do not worship Hashem with the particular forms of worship that were used by the idolators. Regarding this [objective] we were warned in a general manner: “[Do not say,] ‘How did these nations worship their gods? I will do the same.’ [Do not do this to Hashem, your God]” (Devarim 12:30) – in other words, do not implement the same [forms of worship] to Hashem [that are used by the idolators]. (Moreh ha'Nevuchim 3:42)

According to the Rambam, matzeivah and asheirah are rallying points for avodah zarah: locations where the idolators would gather for public worship. They were prohibited by the Torah because they are customs of avodah zarah that were attractive enough for the Jews to want to incorporate into their own worship of Hashem.

With this understanding of matzeivah and asheirah, we are now in a position to answer our question … SIKE!!!

That’s actually as far as I got with the second approach. I have a few faint glimmers of intuition, but not enough to develop into a full idea. At least, not in time to get the article out tonight, which is what I’d like to do. If you have any ideas, please let me know in the comments. Maybe if I hear something I like enough, I’ll send out an update before Shabbos! I’ll end by sharing my concluding thoughts.

Concluding Thoughts on Current Events

At the time of this article’s publication, the modern state of Israel is embroiled in a seething controversy about judicial appointments. I am so woefully ignorant about the intricacies of Israeli politics that I can assure you that there are no hidden messages or implications in this article.

I will, however, say that those who have opinions on judicial appointments in Israel (and in America, and in every other country) would do well to consider their political stance in light of the Torah’s laws about how judges should and should not be appointed. Even if we can’t expect these laws to be implemented by the powers that be, the philosophical ideas and ethical teachings are just as relevant.

I’m serious: I really want to hear ideas you have on the relationship between hakaras panim ba’mishpat and the specific prohibitions of matzeivah and asheirah. Let me know in the comments!

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