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Maimonides’ Theory of Judicial Discretion: Tikkun Olam Supersedes Due Process

Tikkun Olam as understood by Maimonides
Noam Zion is a Senior Fellow Emeritus of the Kogod Research Center at the Shalom Hartman Institute since 1978. He studied philosophy and holds degrees from Columbia University and the Hebrew University in Jerusalem. He studied bible and rabbinics at the Jewish Theological Seminary of America and the Hartman Beit Midrash. In the past, he led the Tichon program for North American Jewish educators and he teaches in Hartman Institute rabbinic programs: the Be’eri program

By NOAM ZION    

The human being is unique among animals in its rational faculty. Thus humans can do tikkun of their character traits, then tikkun of their household, and then tikkun of the state. – Yehuda Halevi (Kuzari I #35, 11th C. Spain)  
Maimonides places tikkun olam as the heart of government activity. While many medieval political thinkers and jurists conceive of tikkun olam as simply maintaining law as fairness and preventing social harm in society, Maimonides has a more proactive vision of the monarch. Menachem Lorberbaum notes that for Maimonides the whole halakhic system, is “for the sake of tikkun olam.” Maimonides adds an executive and the judicial function of good government – protecting the body politic from manipulative and violent enemies, internal and external, even if it is necessary to go beyond the bounds of law and due process. For both the judges and the monarchs must achieve the end of justice and of order against the wicked. Maimonides opens his Book of Judges which describes the tasks of judges and monarchs with the verse: Open your mouth, judge for justice, argue the case of the poor and destitute (Proverbs 31:9).
 
The monarch is to suppress criminal activity that causes chaos though violence, and terrorizes witnesses and judges, thus undermining the judicial system. “For were it not for the fear of government, one would swallow one’s fellow alive” (Mishna Avot 3:2). The king also fights wars against warlike states led by wicked leaders guided by corrupt values. Usually within a society immorality can be managed through education and enforcement using due process in courts and punishments. But sometimes the "wicked" are so powerful that they threaten the social and judicial order from within. Then emergency measures such as martial law must be invoked though such extraordinary measures violate or suspend judicial procedures. Paradoxically, that too is tikkun olam for Maimonides, even though it is in some sense extra-legal. Therefore monarchs and judges must have special courage to establish order. Judges are warriors against the wicked, “men of valor” and “persons of truth” (Exodus 18:21) which Maimonides describes as follows:
 
Men of valor – judges should have a brave heart to rescue the exploited from the exploiter, as it says: Moshe arose and saved the daughters [of Yitro at the well who were victims of the shepherds robbing them of their water] (Exodus 2:17).
 
Persons of truth – pursuing justice on their own initiative voluntarily, loving truth and hating corruption and fleeing from iniquity. (Laws of Sanhedrin 2:7).
 
Due process often lets criminals slip between the judges’ fingers which threatens social order. Remarkably Maimonides instructs judges to go beyond the literal application of law and go beyond the evidence to achieve truth:
 
A judge in monetary cases should use follows his own opinion about what he thinks is the truth, when he thinks strongly that it is correct, even if there is no clear proof. …For the law is dependent on the heart/mind of the judge according to what appears to be a true judgment. (Laws of Sanhedrin 24:1)
 
When faced with suspected subversion of justice through manipulation of the law, then the judge can change legal procedures, for example, demanding that the plaintiff rather than the defendant must take an oath.
 
If the judge thinks the plaintiff is subverting justice and perhaps hiring false witnesses, but he cannot prove it, he should excuse himself from the case but not decide against his intuition (Laws of Sanhedrin 24:3). The judge can act as does the monarch in a state of emergency, outside the law:
 
A judge may expropriate property and violate property rights according to what he sees is necessary to repair broken fences of religion and strengthen order to fine someone who forces his will on others by violence …or place under a ban one who is not legally subject to a ban as the judge sees what is necessary for those times …or tie up hands and feet, arrest and incarcerate them in prison, and push and pull them on the ground.
 
But do not let the honor/dignity of human beings be light in your eyes …and especially be careful not to destroy the honor of the children of Abraham, Isaac and Jacob who hold the Torah is true – except to increase the honor of the Torah. (Maimonides, Laws of Sanhedrin 24:6-10)
 
Zeev Harvey, the Maimonidean scholar, analyzed a case in which Maimonides himself overturns a judgment on appeal on grounds of subversion of justice by an unscrupulous husband and his judicial consultant. In Responsum 365 Maimonides reacts vehemently to a husband who in order to divorce his wife without paying her marriage ketubah claimed that he wished to make aliyah to Israel from Egypt. When his wife refused to make aliyah, the law said that automatically she has forfeited her ketubah payment and now there will be no economic disincentive for her husband to fulfill his spiritual calling. Incidentally this is an egalitarian law. If a wife wants to make aliyah and her husband refuses, then he must divorce her and pay the ketubah (Mishna Ketubot 13:1).
 
To overturn the legal precedent that the unscrupulous husband was exploiting, Maimonides cites the mitzvah of “justice, justice you shall pursue – tzedek tzedek tirdof” (Deut. 16:20) and “the right/duty of the judge to follow what his eyes see,” that is to follow his intuition (TB Baba Batra 131a). He reformulates the law on aliyah and divorce as follows:
 
Only one who wants to make aliyah who is considered to be kosher (a person of integrity) and who has no previous quarrel with his wife at all, may obligate her to make aliyah with him. (Maimonides, Responsum #365)
 
Thus Maimonides excludes known loopholes that allow the manipulation of the law. Then Maimonides turns his venom on the dishonest lawyer who advised the exploiting husband to outsmart his wife and use the judges to enforce his heartless plot. In the name of justice and the rights of women economically abused by their husbands, Maimonides preaches with pathos to the judge from Alexandria who had brought him this appeal:
 
That little weasel who taught that legal maneuver and such like him violate the prohibition to support transgressors and to collude with the wicked (see Exodus 23:1).
 
Anyone who seeks excuses to escape from economic obligations like withholding wages is an exploiter just like a robber. There is no difference between one who obligates himself to pay wages and then seeks excuses not to pay and one who does so with his wife to avoid paying his bride-price. That is what the Torah taught us when Judah said, I sent this goat to pay for the prostitute (Gen. 38:22)…. It is easy for most men to cause their wives pain in order to exempt them from paying their ketubah. But it is worthy to beware of this iniquity and to prevent those engaged in it, as it says, Break the arms of the wicked (Psalm 10:15) and rescue the exploited form the exploiter! (Responsum #365)
 

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