Q&A: Outcome Considerations (Law)
Outcome Considerations (Law)
Question
Outcome considerations. Apropos of the hypothesis that Justice Hayut supported disqualifying Yazbak because even without her there was a majority against the disqualification, and this would help the Court’s image and drain off public anger, etc. Is there something flawed in using such considerations aside from misleading the public (it’s not just a “lie”; it could mislead the public in making decisions. A shade of totalitarianism)? Is this an overstepping of the judge’s authority? In elections, I of course use outcome considerations with respect to the overall distribution of mandates that I want, and don’t support only one party. It’s possible you wrote about this in the past.
There are cases where one has to make a hard decision (morally) for the sake of an outcome. For example, blocking the entry of unfortunate migrants so that in the future the country will not be flooded, etc. Or permitting torture for the sake of an investigation. It seems entirely reasonable to me that a judge might, from the standpoint of image (among his relevant reference group, not his image among all citizens), want to prohibit torture, but weigh the severity of the outcome. If all the judges hold such a view, then each one wants to be among the minority that prohibits torture. A kind of prisoner’s dilemma.
Answer
I find it hard to accept conspiracy theories of this sort. Sometimes our theses just don’t really work in reality. Although the correlation in the distribution of opinions was actually not bad at all. But our sages already said that life is not a guava.
You raise here a collection of questions that I don’t see how one can address all at once. In our context, I don’t see what she gains from this other than a bit of public sympathy toward her, and therefore all the apocalyptic consequences you described and the various prisoner’s dilemmas are not relevant in this case. At most, this is a lie for the sake of sympathy. Nothing more.
There is a discussion I already held here once briefly regarding a judge in a capital case where 22 convict, and now they are waiting for his vote, which will of course bring about the opposite result from the way he votes. The question is whether he is allowed to vote against his conscience in order to achieve the correct result in his opinion. Unequivocally, of course, it is forbidden.
Discussion on Answer
And I hope the judge understands that he must vote exactly according to his true opinion, and if he does not do so I would remove him from office. When Jewish law determined that if all the judges agree, the defendant must be acquitted, it determined this on the basis of the assumption that if everyone agrees, a flaw has occurred in the deliberation. But if you vote to acquit him even though you actually think he is liable, then you have executed a person even though a flaw occurred in the deliberation. That is outright murder. You are not smarter than Jewish law. From another angle: if the judge really was supposed to do this, then of course you empty this law of all content.
There may perhaps be room to discuss a specific situation in which I have a sense that I understand why everyone agrees. That is, where there is agreement here because it is a simple case and not because a flaw occurred in the deliberation. Perhaps in such a situation it is permissible to deviate from the truth. I am inclined to think that even here it is not. After all, whenever everyone agrees, it is likely that each judge will think that this is the truth and not that a flaw occurred. Theoretically, there may be a situation in which every judge votes to sentence him to death, but each judge has a feeling that this is not certain, only an unreasonable doubt. The boundary is thin and delicate, and it is hard to accept that a judge could do this.
I can’t find a discussion of this right now. For some reason I remember there was one.
For some reason the reply button disappears when the comment gets long (152 words), so I’ll shorten. If there are additional considerations, then the judge has to weigh those too, and decide his view after all the considerations. On the contrary, according to your view, since he fears, out of doubt, that a flaw occurred in the procedure, then in his opinion the defendant is acquitted because of doubt and he should acquit. The separation between the planes of discussion seems completely artificial. We are dealing with the specific case where after all the considerations in the world the judge thinks the defendant is liable, and therefore he should vote that the defendant is exempt/acquitted (and that is how judges voted throughout the generations, of course :). Jewish law is not smarter than the judge who knows the law. I too would be happy to remove such a wayward judge from office (because in my opinion the truth is like the majority of judges and contrary to his final true opinion), and that is exactly the problem. In order not to empty the law of content, we need to look for mechanisms (for example, simultaneous publication of all the rulings and blurring the conclusions during the judges’ deliberations).
What I wrote, “because in my opinion the truth is like the majority of judges,” is a mistake (because in the end all the judges are mistaken). I would remove such a judge from office because after all the consideration of Jewish law, which fears that a flaw occurred, is stronger (from the outside), and therefore all the judges may have erred and the defendant is acquitted because of doubt. But the judge himself also weighed that, as stated, and still thinks the defendant is liable; therefore he will vote to acquit, and impose on the system his personal opinion that here the general consideration of concern about a flaw is incorrect. And as I said, according to your view the judge himself thinks because of the above consideration that the defendant may be acquitted, and therefore he must acquit (and then the unfortunate defendant will die for nothing, sadly. According to me, of course, if that consideration tipped his opinion toward acquittal then he will vote that he is liable, and it will turn out in the end that the consideration prevailed and the defendant will go free).
As a bit of pilpul, perhaps that is precisely the force of the rule that if all find him liable he is acquitted: a judge who thinks to convict, like the other 22 members, finally understands that the defendant may be acquitted, and therefore he rules to convict so that the defendant will be acquitted. So the law is not empty of content at all; rather, in such exceptional cases it gives a lone judge the power to acquit by means of a false vote of “liable.” But if the judge really weighed this consideration too and still thinks “liable,” then a deceitful voice is heard to vote “acquit” so that the judgment that emerges will be true in the fullest sense.
If the reply key disappears, press TAB and it will appear.
The fact that you assert so emphatically that judges have always acted this way does not, of course, mean that this is really the case. I explained above why this is nonsense, and I won’t repeat it again.
And pleasant it will be for the listener.
Thank you. It is understood that formally a judge is not allowed to vote in order to obtain the correct result in his opinion, and still I assume (and hope) that not one eccentric judge ever arose who in such a case voted his actual opinion. That is exactly why you need a mechanism that encourages people to say what they really think. I wasn’t able to find the discussion here about a judge in a capital case.