“Do not be after the majority to do bad” (Shemot 23:2)
The portion of Mishpatim contains a wide variety of commandments dealing with laws between man and man regarding lending, charity and damages. Criminal law is also a subject of many of the laws taught to our people in the parashah. Judges are instructed how to mete out justice in matters of crime and punishment.
An interesting situation arises in regard to the verse cited, which instructs the courts to follow the majority in deciding its verdict. Concerning matters in which the court has the power to inflict the death penalty on a guilty party, the rule is that if the entire ruling body votes to convict, the accused is acquitted. The Torah demands that the case involve a side that wants to convict and one that wants to save the accused, and so unanimity — even to convict — is ruled an acquittal.
The Ohr Hachaim Hakadosh, zt”l, Rabbeinu Chaim ben Attar, asks the following: “What should a judge do if he is the last to cast his vote, and all those who preceded him voted to convict — but he feels the accused is not guilty? If he votes as he feels the truth of the matter — i.e., not guilty — he will be overruled by the overwhelming majority and the person he feels is innocent will be convicted. If, however, he votes to convict, even though he feels the party is guiltless, the vote will be unanimous against the defendant and the Torah rule will require an acquittal. By voting guilty he will acquit the man, and by voting innocent he will give the court the power to execute. Should he vote to achieve the result he believes is right, or should he vote as he believes — although the outcome would be the opposite of what he thinks is the correct verdict? How should he vote?”
Ohr Hachayim says he must vote according to what he feels is true without regard to the practical result which will result from his vote. “Do not go after the majority to do bad and don’t calculate the outcome — because G-d is the L-rd.”
We might have thought it would be better to vote in a way that would save an innocent party from the “injustice” our colleagues were erroneously going to inflict upon him. The Torah, however, expects us to be totally honest and to follow the truth in all we do without regard to our calculations. A Jew must believe that if one is supposed to live, Hashem will find a way to save that person; and if one is supposed to die, there are many messengers available to Hashem to bring about the correct result. In fact, there is nothing one can do to change Hashem’s Heavenly verdict for life or for death.
King Chizkiyahu saw in a prophetic vision that his offspring would be wicked and lead the Jewish people towards forbidden idol worship. He decided he would prevent tragedy from befalling his people by not marrying and by not following the mitzvah of pru u’rvu (having children). Hashem decreed a judgment of death upon the well-intentioned king. When the prophet Yeshayahu came to rebuke him, Chizkiyahu explained his position. The prophet responded, “Do not mix in the business of Heaven.” The king had a Torah commandment to perform and the outcome was not his concern.
The lesson is clear. In His holy Torah, Hashem has given us a set of guidelines by which we must live. Our concern is to study and understand what Hashem wants us to do, and then do our best to observe the commandments. Calculating the good or bad results of our observance of mitzvot is beyond the scope of our duties. We are expected to do our job, trusting that Hashem knows what is best and that no harm can come from our commitment to Torah — only blessing and good.
Rabbi Raymond Beyda serves in the Sephardic Community in Brooklyn, N.Y. He lectures to audiences all over the world. He has distributed over 500,000 recorded lessons free of charge. He is author of the book 1 Minute with Yourself: A Minute a Day to Self-Improvement, Sephardic Press, 2008.