Joel Cohen
Joel Cohen

Restore our judges as in earlier times

We say the prayer (“Hashiva Shoftaneinu Kevarishona”), described in the title, daily. For the resolute, three times a day. Do we recite it, though, fully appreciating its true meaning — that is, essentially a recognition of the supposedly admirable attributes of the ancient judges that, the prayer seems to tell us, no longer exist in their successors? Yesteryear’s judges, I imagine, are the judges, beginning with those appointed by Moses at the encouragement of his father in law, Yitro. (Exodus 18: 14-26)

The exact content and meaning of the prayer, though, is odd. It goes on to ask God to “remove from us sorrow and groan,” and reign over us with kindness and compassion, and to “justify us through judgment.”

Is there a relationship between the prayer to “restore” the attributes of earlier judges, and asking God to “justify us through judgment”? We seem to want today’s judges to be like yesterday’s; but, almost simultaneously, we want God to reflexively rule in our favor?

Of course, we always want God to spare us from punishment, notwithstanding our sins. Natural enough. Still, is a hoped-for willingness by God to “let it go” the same quality we seek in human judges?  Meaning, are human judges righteous simply because/when they rule for us?

It seems almost counterintuitive. We ideally want human judges to emulate God’s righteous ways — to channel Him in imposing their rulings. Still, the prayer asks God to rule for us; it mentions kindness, compassion and judgment – but, always a favorable result even if we’ve been wrongful in our conduct. However, aren’t the potential for adverse judgments if we’re at fault — unhappy as it might make us — the essence of righteous judging?

Of course, human judges should always extend kindness and compassion in their judgments. They’re hard pressed, though, to rule for us if we’re in the wrong. Contested cases always leave one side displeased.

As regards extending compassion to the litigants, the Bible is unambiguously clear: “You shall do no unrighteousness in judgment; thou shall not respect the person of the poor, nor favour the person of the mighty; but in righteousness shalt thou judge thy neighbor.” (Leviticus 19:15).  Are these reconcilable? Isn’t a hoped-for return of judges to earlier times – when the Bible oddly directs equal treatment of the mighty and the underclass in the effectuation of legal judgments – a return to a regimen of judging that essentially eliminates the precise qualities of compassion and kindness that the “Hashiva” prayer seeks from God?

Lost at sea, then, in understanding the prayer, the siddur’s footnote explains thusly: when Elijah heralds the Messiah’s coming, he will first reestablish the Sanhedrin. Meaning, the prayer asks God to “help all Jewish judges rule wisely and justly.” (Yaaros D’vash).

So, what does “wisely and justly” really mean? Presumably, because the Sanhedrin will follow God’s Law, the downtrodden will lose the benefits typically imparted by “activist” judges, to coin a modern term, who might ideally weight their judgments favorably to the underprivileged.

At bottom, the “Hashiva” prayer and the by-the-book judgments that the Bible demands, basically represents a return to theocratic rule that seemingly leaves the downtrodden to its own devices. Isn’t a judging regime that authorizes judges to weight the   equities in achieving a righteous judgment, though, a better model?

The time-honored prayer notwithstanding, I honestly don’t wish for a return to a theocratic regime of any kind. I prefer a judicial system that always authorizes judges to dispense justice coupled with mercy. Of course, the precise nature of that mercy depends on the idiosyncratic circumstances of the individual case. Despite the connectivity suggested by the “Hashiva” prayer and the reality that we seek mercy from God always, human judges simply can’t always extend the kind of mercy we necessarily seek from God.

Perhaps, we should compose and substitute a new prayer. Not asking for a Messianic or theocratic return to the judging of before. Rather, a new day of sorts. A day that simply brings out the best in human judges – every day. And merciful judgments from God – always.

About the Author
Joel Cohen is a white-collar criminal defense lawyer at Stroock in New York and previously a prosecutor. He speaks and writes on law, ethics and policy (NY Law Journal, The Hill and Law & Crime). He teaches a course on "How Judges Decide" at Fordham Law School and Cardozo Law School. He has published “Truth Be Veiled,” “Blindfolds Off: Judges on How They Decide” and his latest book, "I Swear: The Meaning of an Oath," as well as works of Biblical fiction including “Moses: A Memoir.” The opinions expressed in this article are not necessarily those of the Stroock firm or its lawyers.
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