"Do Not Fear Any Man": The Status of the Individual within the Collective
In our Torah portion, Moses begins his farewell address to the people, on the threshold of the Land of Israel. In the course of his remarks he refers to the duty of judges and says (Deuteronomy 1:16-17):
And I charged your judges at that time, saying: Hear the cases between your brethren, and judge righteously between a man and his brother, and the stranger with him. You shall not show favoritism in judgment; you shall hear the small and the great alike; you shall not fear any man, for the judgment is God's; and the matter that is too difficult for you, you shall bring to me, and I will hear it.
Judges are obligated to adjudicate, and there is an additional obligation to do so justly. They are certainly forbidden to show partiality in judgment, and among the prohibitions that appear here is the prohibition against fear when rendering a verdict: "Do not fear any man."
"Do not fear any man"
In the discussion in tractate Sanhedrin 6b, the Talmud derives a law from here:
[…] And Resh Lakish said: If two come for judgment, one weak and one harsh, before you have heard their claims, or even after you have heard their claims but you do not know to which side the law inclines—you are permitted to say to them: “I will not deal with your case.” Perhaps the strong one will be found liable, and then the strong one will pursue him. But once you have heard their claims and you know to which side the law inclines—you cannot say to them, “I will not deal with your case,” as it is said: “You shall not fear any man.”
The Talmud instructs us that a judge may not withdraw from a case out of fear, at least once he knows which way the law inclines.
These remarks are brought in Maimonides' Sefer HaMitzvot, negative commandment no. 276 (and commandment no. 415 in Sefer HaChinukh):
And commandment 276 is the warning that a judge must not fear a harmful person who threatens and speaks arrogantly, and therefore fail to render judgment and truth against him. Rather, he is obligated to decide the case and pay no attention to whatever harm that person may cause him. As He, exalted be He, said (Deuteronomy 1): “You shall not fear any man.” And the wording of the Sifrei is: “You shall not fear any man”—lest you say, “I am afraid of so-and-so, lest he kill me or my son, lest he burn my stack of grain, or lest he cut down my saplings”; therefore Scripture says, “You shall not fear any man.”
Sefer HaChinukh (ad loc.) adds that the prohibition applies both to a judge who withdraws out of fear and to a judge who distorts the judgment out of fear (in which case there is also a prohibition of perverting justice):
If one violates this and does not wish to judge, once he knows to which side the law inclines, as we have said, because of fear of the litigant, he has violated this prohibition. And if he also perverted the judgment out of fear, he has violated this prohibition as well, besides having violated the prohibition of “do not pervert justice” [commandment 233].
This is also codified in Maimonides, Laws of Sanhedrin 22:1-2 (and in the Shulchan Arukh Choshen Mishpat 12:1):
If two come before you for judgment, one weak and one harsh, before you have heard their claims, or even after you have heard their claims but you do not know to which side the law inclines, you are permitted to say to them, “I will not deal with your case,” lest the harsh one be found liable and thus pursue the judge. But once you have heard their claims and know to which side the law inclines, you are not permitted to say, “I will not deal with your case,” as it is said: “You shall not fear any man”—that you should not say, “So-and-so is wicked; perhaps he will kill my son, perhaps he will burn my stack of grain, perhaps he will cut down my saplings.” And if he was appointed for the public, he is obligated to deal with their case.
In Maimonides' formulation here there is a distinction between a private individual to whom people come for adjudication and appointed, permanent judges. In the case of a private individual, there is a distinction between a situation in which he knows which way the law inclines and the stage before that. But with respect to appointed judges, that distinction is not stated. They are obligated to adjudicate every case that comes before them, even before they know which way the law inclines. Rashba stated this explicitly as well in a responsum, vol. II sec. 344 (cited in Beit Yosef at the beginning of sec. 12).
How far does the obligation extend?
Maimonides' wording above implies that the obligation to adjudicate and not to fear extends even to situations of danger to life; that is, a judge must hear the case and render a true judgment even if threats are made against the lives of his household, and certainly against his property. The source of these remarks is Sifrei Deuteronomy, pisqa 17:
“You shall not fear any man”—lest you say, “I am afraid of so-and-so; perhaps he will kill my son, or perhaps he will burn my stack of grain, or perhaps he will cut down my saplings”; therefore Scripture says, “You shall not fear any man, for the judgment is God's.” And so too Jehoshaphat says (II Chronicles 19:6): “And he said to the judges: Consider what you are doing, for you judge not for man but for the Lord.”
Sifrei derives this principle from the wording of the verse, which grounds the duty to judge in the phrase "for judgment is God's"; that is, there is an obligation toward the Holy One, blessed be He, to judge. It seems that its purpose is to explain why the judge must sacrifice his own property in order to protect the litigant's property. On this, Sifrei writes that his duty to judge is not only toward the litigant but toward the Holy One, blessed be He. This is how the matter is explained, for example, in Yeshu'ot David vol. IV sec. 23 (and similarly in Shevut Ya'akov vol. I sec. 143).
But what about risk to life? Where do we find an obligation of self-sacrifice for a commandment that is not one of the three cardinal transgressions (idolatry, forbidden sexual relations, and bloodshed)? The commentators indeed wrestle with this issue, and some of them offer explanations that blunt the force of this obligation. For example, in the glosses of Barukh Ta'am on the Tumim there, he inferred from the wording of the Sifrei and Maimonides that the case involves a judge who instills fear in his own heart, but without any real basis. Radbaz, on Maimonides there, wrote that the judge is protected by the community and therefore is not in genuine mortal danger. These explanations imply that in a case of real danger to life, the judge need not place himself or his household in mortal danger in order to adjudicate.
But in the Tumim itself it appears that at least once the judge knows which way the law inclines, he has no right to withdraw even in the face of actual danger to life. Thus he writes (ad loc., subsec. 2):
The Bach raised an objection from the Sifrei, where it is explained that even if he would kill him, nevertheless one may not refrain from judgment… But if he has already undertaken the case, even Mahari"v agrees—Heaven forbid—that because of fear or some intimidation he should withdraw from the case; rather, he is obligated to judge. And this is the case discussed by the Sifrei: even if he would kill him, he may not withdraw. That is, he has already undertaken the case, and thus there is no difficulty. And so too I found in the responsum of Shevut Yaakov, part I, sec. 143, that once he knows to which side the law inclines, it is forbidden to withdraw because of fear under any circumstances, and this is the correct view.
Thus, the Tumim, the Bach and the author of Shevut Ya'akov vol. I sec. 143 maintain that a judge has no right under any circumstances to withdraw from the case. The Bach, however, concludes that this applies only in a case of possible danger to life; where there is clear mortal danger, nothing stands in the way of saving life, and that indeed seems to be the view of most halakhic decisors. But in the Tumim it appears that this applies even in a case of certain danger, and so too this emerges from Rashba's responsum, vol. II sec. 344.
Two difficulties
How can one understand the views that obligate the judge to adjudicate even in a situation of danger to life? Is another person's property preferable to the judge's life? As noted, the duty to judge is not one of the three cardinal transgressions. From the words of Rashba, the Bach, and the other halakhic decisors it emerges that if the judge does not adjudicate in such a situation, every violent person will evade justice, and society may descend into anarchy and fall prey to violent people. Such a concern, even if it relates only to property, is tantamount to danger to life (a society that disintegrates and ceases to function is a dead society),[1] and therefore a judge must sacrifice his life for it. In my article, "On the Law of 'Do Not Fear Any Man'", (Machanecha – Journal of the Chief Military Rabbinate 3, Summer 2008, p. 241) I showed that this duty is incumbent on every public officeholder in a situation where capitulation to a threat may lead to deep corruption of the social order. There I also derived from this permission to operate police on the Sabbath even for purposes that do not involve saving lives.
However, the identification of public breakdown with danger to life is not absolute, for in a case of certain danger to life, according to most halakhic decisors there is no prohibition of "do not fear any man," and the judge may withdraw from the case. If a state of public breakdown overrides danger to life, we should have had to require him to sacrifice his life even in a situation of certain danger. We do not find in Jewish law a distinction between certain danger to life and possible danger to life, whether with respect to the permission to transgress prohibitions in order to save life or with respect to the duty of self-sacrifice in the cardinal transgressions (see Yoma 85a-85b).
The difference between possible and certain danger to life: the status of the individual within the collective
To understand the distinction between a situation of danger to life and a situation of public breakdown, we must consider the status of a person who holds office within the community he serves. There are individualistic conceptions that see the individual as the supreme end, and the community and its institutions exist only to serve him. According to those conceptions, it is hard to accept an obligation of self-sacrifice even in a case of possible danger to life. Conversely, there are fascist conceptions that see the individual as a limb subordinated to the collective to which he belongs (the community), and the interest of the community wholly nullifies his status as an individual. According to those conceptions, it is reasonable that an officeholder would have to sacrifice his life even in a case of certain danger to life. Above we saw that in Jewish law there are conceptions of both kinds.
But according to the views that distinguish between certainty and possibility, it seems that Jewish law adopts a combined conception. Every person is understood as "wearing two hats": an individual hat, as a private person, and a hat as a limb in the collective.[2] Within such a conceptual framework, one can understand why, when a person faces possible danger to life, he is obligated to take a risk in order to preserve the public fabric. But when the danger to his life is certain, we do not subordinate his individual hat to his collective hat, and therefore we do not require him to efface himself entirely for the sake of the public interest.[3]
A similar distinction exists with regard to a soldier in wartime. The halakhic decisors rule that a person may not sacrifice his life in order to save his fellow from danger (though see the Jerusalem Talmud cited by the Hagahot Maimoniyot at the beginning of the Laws of Murder and Preservation of Life, which disagrees with this, but this is a lone opinion). But in war that is what every soldier does. He risks his life to save civilians, and at times also to save his fellow soldiers. What permits this? Most likely, the permission is based on the fact that this is an act of public significance, and the soldier does not act as a private individual but as an organ of society and of the fighting army. The public is in danger, and the soldier is a limb in that collective; therefore he must risk his life to save the public (one should remember that this is also his own rescue within the collective as a whole).[4]
This is with respect to risk to life. But what about a situation in which the soldier is supposed to enter a mission in which death is certainly expected? The case of the paratroopers at the Mitla Pass in Operation Kadesh (1957), who ran into an Egyptian ambush, is well known. A soldier was needed there to drive a jeep in order to draw Egyptian fire and thereby reveal the enemy's location. This was a suicide mission, and the soldier Yehuda Ken-Dror went out to carry it out. He was wounded and, after about two months, died of his wounds; later he was awarded the Medal of Valor for this. There is a dispute whether the battalion commander ordered him to undertake the mission or whether he volunteered, but in contemporary IDF ethics it is accepted that one cannot give a soldier an order to go on such a mission. The meaning of this is that a soldier is indeed required to risk his life in battle, but there is no possibility of requiring him to surrender his life. This is precisely the distinction I presented here regarding judges and other public officeholders, and as I explained, it is probably rooted in a complex conception of the relationship between the individual and the collective to which he belongs.
[1] Let me sharpen the point that I do not mean here an indirect concern for a person's life, as is commonly explained. Social disintegration itself is a condition of danger to life.
[2] I discussed this in my article "The Problem of the Relationship between the Individual and the Collective and the 'Defensive Shield' Dilemma," Tzohar 14, Spring 2003, p. 61.
[3] In my article, "Do Not Fear Any Man," I discussed a similar consideration regarding a military commander who was exiled to a city of refuge.
[4] For otherwise, a person has no duty to surrender his life in order to save the life of another person. As an aside, I would add that a soldier's self-sacrifice to save the lives of his fellow soldiers in a situation where this is not required for the sake of the mission, that is, for the sake of saving the public (this was apparently the case with Roi Klein, of blessed memory), is apparently forbidden according to Jewish law.