When a politician is repeatedly accused of embezzlement, should we give him the benefit of the doubt?

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1 Give the Benefit of the Doubt (But Don t Be Naïve!) B Tzedek Tishpot Amisecha Introduction Often, we see people in what seem to be compromising positions: the friend who appears to be stabbing us in the back, the upstanding member of the community who seems to have been caught with his hand in the cookie jar, etc. When a politician is repeatedly accused of embezzlement, should we give him the benefit of the doubt? Closer to home, what if the shul president, who is known to be a serious religious man, is seen munching a hamburger in McDonalds? Should we naively assume that McDonalds must have gone Kosher? What are we supposed to think? What does the Torah say about giving the benefit of the doubt? Actually, should we judge people altogether, or should we just act blind and deaf? Let s examine the relevant Pasuk in Vayikra, and see how the Talmud and Rishonim approach it. We will see that rather than telling us to turn our minds down a couple of notches, the Torah expects us to turn our minds up! The Verse and the Mitzvos it Entails "לא תעשו עול במשפט לא תשא פני דל states, The Torah (Vayikra (19:15 Do not commit a perversion of ולא תהדר פני גדול בצדק תשפט עמיתך " justice; do not favor the destitute nor honor the powerful, with fairness you must judge your fellow man 1.

2 On the surface, this Mitzva seems to be speaking to the courts, directing them to judge impartially. Indeed, the Gemora in Shevuos (30a) 2 offers this interpretation of the verse. A judge must be fair. a The Gemora in Sanhedrin (3a) 3 adds that another court-related Mitzva is learned from this verse. Tishpot, - You shall judge - there is a Mitzva for a qualified individual to be a judge. The aforementioned Gemora in Shevuos offers another explanation of the Mitzva, which has nothing to do with courts. The verse commands us to judge our friends favorably Dan Es Chavercha L Kaf Zechus. Give them the benefit of the doubt! So, the Mitzva now moves out of the court and applies to every individual. We are commanded to view the actions of our friends and neighbors favorably. b Now, where does this come from? How can a verse discussing Justice command us to give the benefit of the doubt? Giving the benefit of the doubt is the opposite of judging correctly and fairly - in Justice, no one is ever given the benefit of the doubt! Different Rules for Different People? Rabbenu Yona c notes that when we see someone acting in a questionable fashion and we are unsure as to whether his actions are legitimate or not, we must first consider the character of the individual involved. 4 Tzadik: If the person is a G-d fearing Jew, we must assume that his deed was permissible. This is true even if the action seems extremely suspicious. d a Paradoxically, the Gemora does note that when determining precedence, a judge should take into consideration who the litigants are. For example, the case of a Torah scholar is moved ahead of the line (in deference to his Torah). The same goes for a woman s case (since women may feel uncomfortable and embarrassed in court). Sometimes being fair means making exceptions! b So, there are three facets of the Mitzva; be a judge, judge fairly, and give your friend the benefit of the doubt. Indeed, the Rishonim see all of these aspects as being part of the single Mitzva of B Tzedek Tishpot. See Rambam in Sefer HaMitzvos (Positive Com. # 177) and Sefer HaChinuch (#235). c In Sha arei Tshuvah Sha ar 3 #218, and in more detail in his commentary to the Mishna in Avos (1:6) d Furthermore, the Gemora (Brachos 19a) notes that even if you know for certain that a Tzadik sinned; you must assume that he immediately did Teshuva (Repentance). The Yad Ktana

3 Rasha: A Rasha is a person who attaches little significance to Torah and its values. We are to assume that his actions are not legitimate. This applies even for an indeterminate action, which on the surface is probably alright. The prevailing assumption is that this person probably has something up his sleeve. Beinoni: The Beinoni is a person who takes Torah and Mitzvos seriously, but slips up from time to time. Our judgment of such an individual will depend on the odds. If it is a 50/50 question as to whether his action is legitimate or not, we have a Biblical command to judge favorably. If, on the other hand, there is strong reason to assume that something shady took place, it is nice to leave the issue as a question mark, and nicer still to give the benefit of the doubt. But, as the Chofetz Chaim e points out, under such conditions (Beinoni in a very shady situation) we are not commanded by the Torah to Dan L Kaf Zechus. Note that in the first two categories, Rabbenu Yona did not mention the idea of Dan Es Chavercha L Kaf Zechus. He only mentions this regarding the Beinoni. Now, where do all these complicated rules come from? Isn t there just a simple Mitzva to give everyone the benefit of the doubt! Why can t we all just get along? Biblical Imperative - Or Nice Idea? In Sefer HaMitzvos, f the Rambam quotes the idea of Dan Es Chavercha L Kaf Zechus as being part of the Mitzva of B Tzedek Tishpot. 5 This Mitzva appears to be imperative upon each and every one of us. However, in Hilchos De os g the Rambam says it is the trait of a Chachom (wise (Hilchos De os Perek 9 #24) goes so far as to say that you should not even admonish him. That is, it is unnecessary to perform the Biblical directive of Tochacha (Rebuke), and if you do, it will needlessly embarrass him! The Chofetz Chaim, however, holds that one is not exempt from Tochacha so easily. e Hilchos Lashon Hara Klal 3 #7 (see Be er Mayim Chayim ad loc) f Asei 177 g 5:7

4 man) to give everyone the benefit of the doubt. 6 This implies that the rest of us are exempt! h The Chofetz Chaim i reconciles the contradiction by stating that the Torah s commandment of Dan Es Chavercha L Kaf Zechus applies to people whom you know. 7 The Biblical commandment does not require that we judge a complete stranger favorably. It is simply a recommended course of action, and is certainly behavior for a Chachom. This second type of Dan L Kaf Zechus, judging everybody favorably, is in fact the subject of the Mishna in Avos (1:6), which tells us to judge everyone L Kaf Zechus. This is not the Biblical command, but rather a positive trait to develop j. Two Basic Forms of the Mitzva Form One: B Tzedek Tishpot - the Basic Idea It is wrong to say that the Mitzva of B Tzedek Tishpot entails finding a far-fetched explanation of the circumstances. The Mitzva has nothing to do with being a naïve do-gooder. In fact, if anything, the idea is just the opposite! The Mitzva, in its most basic form, tells us to turn on our brains and make an honest assessment of the situation, as it presents itself to us. We are commanded to take into account all of the surrounding circumstances to make a fair and true judgment. This is true both in, and out, of the courtroom. In the courtroom, the Mitzva tells us to do our utmost to make sure that the litigants are placed on equal footing, and that they are treated fairly, so that we arrive at a true judgment. We must not allow irrelevant biases to cloud our judgment. l h In truth, the question is not so compelling, since the Rambam also says that everyone is commanded to be a Chachom! i Be er Mayim Chayim #3 on Pesicha j Now, we must ask: Why not say that this stranger might be a Tzadik whom we are commanded to judge favorably? Or in a situation where the action can really go either way, why not say he is at least a Beinoni, and judge his action favorably. It is a D Oraysa that we are dealing with, and generally we say Sofek D Oraysa L Chumra? The truth of the matter is that the above questions are coming from a point of view that is lacking in clarity. We must first define the Mitzva in its two most basic formats and once we have the parameters, the questions will fall away one by one. l However, at the same time we must recognize that there is a larger picture, and that being fair often means to allow exceptions. Thus, this same idea allows for certain cases to cut the line, since part of being fair is recognizing the need for exceptions.

5 As mentioned, this basic idea extends outside of the courtroom walls, too. It is an idea that applies to all of us, everywhere. We, too, must act as fair and correct judges - of the world in which we live. When trying to define and understand the actions or words of an individual, B Tzedek Tishpot requires us to see more than the simple events that just occurred. We must go further, like a wise judge, and see the context. What type of person is the protagonist in the given situation? If he is indeed a Tzadik, and the action he is doing seems to conflict with everything we know about him, it is then obvious that we are misunderstanding the circumstances. The same logic goes for a Rasha. If a man is known to be a scoundrel, yet seems to be acting in a kind and compassionate fashion, he obviously has something up his sleeve. In fact, since we are looking at all of the surrounding circumstances before we pass judgment, the question will always boil down to, Would this person do such a thing? Thus, one may be a Tzadik with regard to action X and a Rasha with regard to action Y, and this will affect how we apply judgment. m The Sh iltis D Rav Achai Gaon n brings a wonderful incident that helps to illustrate this point: 8 Rabbi Akiva had spent three years working for Rabbi Eliezer Ben Hurkonos. On Erev Yom Kippur, he was finally going home, and he requested his paycheck. Rabbi Eliezer replied that he had no money, even though Rabbi Akiva saw cash in his possession. Rabbi Akiva asked to be paid in cattle, but Rabbi Eliezer said he had none, despite the fact that his meadows were full of livestock. He asked for wheat, chattel, and land, all with the same results. Dejected, Rabbi Akiva returned home empty-handed. A few weeks later, after Sukkos, Rabbi Eliezer personally traveled to visit Rabbi Akiva, with three donkeys loaded up with This is something we often take for granted. A basic truism in society is that there are different rules for different classes of people. Thus, the elderly, due to their special needs, may command a larger chunk per capita of the community s coffers than middle-aged adults. If we were to say equal footing for all, and no special treatment, no matter what it would be impossible for certain groups of people to survive. Such a policy would be the height of cruelty and unfairness! m Rav Shlomo Zalman Auerbach zt l n Shemos #40. The same story appears in Shabbos 127a without the names.

6 food and delicacies. They feasted together, and Rabbi Eliezer handed Rabbi Akiva the full salary he was owed. Rabbi Eliezer then asked Rabbi Akiva what he had thought when he refused each form of payment. Rabbi Akiva replied that with each refusal, he developed a new excuse, each one more of a stretch than the proceeding one. Finally, he assumed that Rabbi Eliezer must have pledged his entire estate to the Bais HaMikdash. Rabbi Eliezer looked at Rabbi Akiva and said, That is exactly what happened! I was angry at my son, and to disinherit him, I vowed away all my property. I later went to the Sages, and they annulled the vow, so now I can pay you. o Was Rabbi Akiva a prophet? Did he just happen to guess what occurred?! No. He came to a logical conclusion. What kind of person would look his loyal worker in the eye, and tell him that he has nothing to pay him - after three years of work? Who would send a poor man home to his hungry family empty-handed when he had the responsibility to pay him? Even an ordinary man would not fathom such a cruel act; certainly, the respected Rabbi Eliezer ben Hurkonos would never do that! And on Erev Yom Kippur no less! Under the circumstances, and considering whom he was dealing with, Rabbi Akiva came to the most logical (if not obvious) conclusion possible: There is no way that Rabbi Eliezer is just being spiteful. He must have vowed his property to the Bais HaMikdash. Thus, the Mitzva of B Tzedek Tishpot requires strictly logical judgment. It is exacting in every detail. However, Chazal tell us that the Mitzva goes a step further Form Two: Dan L Kaf Zechus When one is dealing with a Beinoni, in truth, his actions can go either way. Let s say that Shimon tries to be decent and avoid Lashon Hara, but he slips from time to time. There is reason to believe that he might have spoken Lashon Hara, or maybe he didn t. How should one o Why didn t Rabbi Eliezer explain himself at the time? It s hard to know, but perhaps he was embarrassed of his son s misdeeds, or his reaction to them, and thus avoided bringing it up.

7 proceed? The context here leaves a question mark. How should you tip the scales? Here, the second level of the Mitzva applies: When the circumstances do not definitively indicate the direction of this deed, the Torah tells us to tip the scales to the side of goodness. The Torah tells us that under such circumstances, we should give the benefit of the doubt because people are basically good-intentioned! As noted earlier, the Torah only requires this when the situation is truly gray. If, however, the circumstances surrounding a Beinoni s actions indicate that most likely he did do something improper, we are no longer required to give the benefit of the doubt. Giving the benefit of the doubt, or even just leaving the question up in the air, is a meritorious deed but is not a Torah requirement. Finally, when dealing with a person who we do not know, we lack any way of applying the scales of judgment to his actions. How can we honestly apply context, when we lack it? Here, too, the Torah does not require us to give the benefit of the doubt. It is a meritorious approach why not view the world with a rosy outlook, and give everyone the benefit of the doubt? p Still, the Torah does not demand it of us. p As the Mishna in Avos (1:6) suggests; Judge every man favorably.

8 Let us review the questions that we posed, and see how the above approach addresses them: Q: What is the common ground between the three different aspects of the Mitzva; judging fairly, giving the benefit of the doubt, and serving as a judge when needed? A: A person is required to act as a fair and seeing judge both inside and outside of court. Q: Doesn t giving the benefit of the doubt conflict with justice? A: No, giving the benefit of the doubt simply requires one to act logically, and thus, be just like a judge. Q: Why are there so many qualifications involved? Wouldn t the plain understanding of the Mitzva of B Tzedek Tishpot demand that we give all people the benefit of the doubt? A: No, the Torah sets guidelines enabling each individual to be smart and discerning when performing the Mitzva of B Tzedek Tishpot, like a judge. Q: Why does the Rabbenu Yona say that for a Tzadik and Rasha there is no need for Dan L Kaf Zechus? A: The Tzadik and Rasha are part of the first and basic understanding of B Tzedek Tishpot be a fair judge. Q: Why doesn t the Torah require us to give the benefit of the doubt to a stranger? A: The Torah requirement teaches how to judge a situation i.e. to use context, and to do so with a grain of positivism. But, to judge in an instance where we completely lack context is not judgment at all. It is just guesswork! Every Jew Must Be a Judge In conclusion, it is interesting to note that the Torah commands us to judge one another. Why should we? Why not just say, It is not my business? First of all, this is not going to happen. It is simply against human nature. But, there is a deeper idea here. We are not supposed to turn a blind eye to the world around us! Rather, we are directed to be active participants in society. We should not just say, I am not getting involved; I don t want to know, nor do I care what he or she did. We have to care! We have to make a judgment -

9 and understand where every person s actions are coming from. r This is the world in which we live. It is part of being an active contributing member of society. s Not judging is a passive withdrawal from society. The Torah s idea of a righteous individual is not one who locks himself up in a cave, but rather one who successfully deals with the world around him. Study the world around you, says the Torah. But do it as a wise judge with open eyes, and recognize that people are generally decent. Some Practical Applications: Scenario: Once, Rabbi Shimon Schwab zt l, the Rav of Washington Heights NY, was in New York s Penn Station. To his shock, he noticed a fine member of his shul run to a non-kosher hotdog stand, buy a hotdog and eat it. What should he have assumed? B Tzedek Tishpot: He assumed that the individual was sick and ate the hotdog out of necessity. Later that week, he found out that the individual was in the hospital with a bleeding ulcer. If he hadn t eaten when he did, he would have been putting himself into great danger. Rabbi Schwab s assumption was no magical feat. A normal religious Jew does not buy a treif hotdog on the streets of Manhattan. This action, for this person, demanded a farfetched explanation! Scenario: Your best friend is sitting at a table with a group of people. Suddenly, they all look up at you, and they all start giggling! Your heart sinks, and you think, They are all laughing at me. B Tzedek Tishpot: He is your best friend! You know that he only wants the best for you. He obviously retold something funny which you once said. He is praising your wonderful sense of humor. [If you know that your best friend has a slight problem with Lashon Hara and may sometimes speak badly even about his friends, he is a Beinoni. If the r We see from the above story of Rabbi Akiva and Rabbi Eliezer Ben Hurkonos that Rabbi Akiva did not just say He must have some explanation. Apparently that is not enough. He had to go a step further and create the story in his head. That is how far one needs to go! s There is also a Bein Adom L Makom perspective here. Saying, I don t care, and I don t want to get involved, is the equivalent of saying that evil does not bother me. The possible violation of the Torah does not even get me thinking. If someone might have killed your beloved dog, you would definitely not say, I don t want to think about whether he did it or not. When it bothers you, you start thinking. So, the Torah tells us to always think it out - rationally.

10 circumstances look bad, there is no requirement to assume he was not talking Lashon Hara. If he is Mr. Gossip, you could positively assume that he was speaking Lashon Hara. This is even if you did not see him doing anything specifically suspicious looking. (Get a new best friend.)]

11 Endnotes and Sources