Difficult decisions for the courts and the Knesset

Israel's front page issues are all about the difficulty of decision and the limitations of compromise and plea bargains.

Rabbi Berel Wein,

OpEds Rabbi Berel Wein
Rabbi Berel Wein

Part of the tradition of rabbinic jurisprudence is that courts of law should attempt at almost all costs to arrive at a compromise/arbitration decision rather than attempt to enforce the letter of the law. This is undoubtedly because of the fact that true justice is often beyond the abilities and capabilities of ordinary humans.

In all major decisions in life there are always, so to speak, winners and losers. This is certainly true when two adversarial parties are involved, and decisions must be rendered that apparently benefit one and damage the other. Also, there always is the question of the public good, the overall impression that the decision may make upon the general society, the question of precedent and future challenges and decisions. Because of all of these issues, Abraham Lincoln so famously phrased it " a poor compromise settlement is always better than a good lawsuit." But people are rarely satisfied with compromises and settlements.

When questions of doctrine, policy, belief and ideology are intermixed with the specific issues of the case involved, then compromise is somehow viewed as being a betrayal of values and something to be avoided.

There are a number of issues on the front burner of Israeli news today that are illustrative of this fact. Is there any possibility of a just compromise regarding the community of Amona and its seemingly impending forced evacuation? What are the rights of the people living there for decades? What are the rights of those, if they appear, who claim that the community was built upon their land? What about the national political and international diplomatic consequences of the evacuation or the retention of settlement? There seems to be no compromise that would be acceptable to all and no matter what happens the issue will simmer for years to come.

There is a tendency, almost an unwritten rule, in Israeli criminal justice that plea bargains are the way to dispose of criminal cases. This is not an Israeli invention. The same is true for instance in the United States and perhaps in most Western countries operating under the rule of law. The plea bargain again usually satisfies no one. But because of the difficulties that the legal system poses, in pursuing the matter where a person is found guilty of a serious crime, the charges are often lessened and the punishment usually radically decreased.

The Talmud ruefully states that the Lord, so to speak, is busy righting the wrongs committed by well-meaning but erroneous legal decisions of human courts.
Those people harmed by the crime itself are always outraged at the fact that the perpetrator, so to speak, got off so easy - or that the accused who they believe to be innocent is accepting a compromise. Yet, the paralysis of the legal systems as they exist in the Western world and here in Israel almost dictate that the bargains are the necessary oil that lubricates the wheel’s of justice in the court system.

Plea bargains are certainly practical answers to difficult matters. But they belie any sense of true justice and rarely if ever provide closure or satisfaction to the victims of criminal behavior or those who are falsely accused. Once again the courts are forced to make a difficult choice between the practical and the moral, the temporary and the eternal.

All of this only serves to reemphasize to us the inadequacy of human wisdom and planning. The Talmud ruefully states that the Lord, so to speak, is busy righting the wrongs committed by well-meaning but erroneous legal decisions of human courts. So it becomes the job of heaven somehow, to remove wealth from the fraudulent and provide for the defrauded when the human courts charged with that task are somehow unable to accomplish it correctly. Heaven apparently is a very busy place.

The competing thought in this matter of difficult decisions is that the Talmud teaches us that a judge can only base one’s decision on what one’s eyes see. One can only use one’s best judgment to arrive at a decision. Whether or not that decision will ultimately prove to be the wise and correct one, the one that will stand the tests of time and circumstance and later knowledge and wisdom, is never known at the moment of decision.

Because of this, ultimate justice is rarely to be found in human affairs. We are too limited in our scope and vision to achieve that noble goal. The justification for all of the shortcuts that our legal system takes – compromises, plea bargains, etc. – is in order to somehow keep society moving, even with limited justice as a result.