Simon Jackson
Legal Advisor to Torah Mitzion
In last week’s column, we outlined a number of “worthy causes” which may justify the utterance of an untruth / being economical with the truth. These included the preservation of one’s own life, family unity and modesty.
It is interesting to note the context in which the Pasuk: “Distance yourself from any matter of falsehood” (Shemot 23:7) appears. The verse continues: “and do not kill the innocent and righteous” and it is preceded by the command: “Do not pervert the judgment of your poor in his grievance”. A number of commentators therefore hold that the above Pasuk is addressed specifically to the judges and not to every individual. It is the courts who must be so careful not to deny justice to the victims of violence, not to turn a blind eye to the oppression of the poor and not to condemn an innocent person to death.
Chazal were well aware of the fact that lying and perjury are specific evils in the courtroom and in the administration of justice. One of the Amoraim, expounding the Pasuk in Isaiah 59:3, expressed this in the following extreme (and even cynical) manner (Shabbat 139a):
For your palms are stained with blood – this refers to the judges.
and your fingers with iniquity – this refers to the court scribes.
your lips speak falsehood – this refers to the lawyers
your tongues utter wickedness – this refers to the parties.
However, Chazal did not regard these as necessary evils, and they therefore demanded that anyone involved in law and justice adhere to an even greater commitment to truth. There can be no license, therefore, to “alter words” for the sake of any higher goal when it comes to the legal arena.
One example of this absolute commitment to truth on the part of the judge is reflected in the judge’s duty to penetrate to the depth of the matter before him, including questioning the credibility of the witnesses and to avoid simply going through the motions of the trial:
“From where do we learn that a judge who knows that a plaintiff’s case is rotten at the core cannot simply abdicate his responsibilities and argue: Since the witnesses are the ones giving the testimony, I will give my ruling on the basis of their testimony and they will bear the responsibility for the judgment? As the Pasuk says: Distance yourself from any matter of falsehood” (Shabbat 31a).
At the same time, Chazal did not require judges to suspect and regard as a liar every person who comes into the courtroom. The judge must examine each case on its own merits:
“The judge is cautioned against perverting his judgment when he knows that the person before him is wicked or a sinner… not to say that because he is wicked I will wrest judgment from him, because the Torah states: You shall not pervert the judgment of your poor in his cause – he is poor in mitzvot, that is, even though he is poor in good deeds you shall not pervert his judgment” (Rambam, Sefer HaMitzvot, Negative Commandment 278).
The duty of the witnesses to testify truthfully is so fundamental that we even find an opinion in the Gemara which claims that the prohibition on giving false testimony even overrides the interest of the witness’ own life! “Rav Chisda stated… Witnesses who were told to sign falsely, or else they would be killed – should be killed rather than sign falsely…” (Ketubot 19a). While this opinion is not accepted as Halakha, it does illustrate the importance of being truthful during judicial proceedings.
One technique that is widespread amongst parties to a court case is to exaggerate their claims in order to improve their bargaining power and to achieve better results. A more familiar example to non-lawyers may be a person’s deliberate inflation of the amount a particular item is worth when making an insurance claim in order to guarantee that one receives the actual amount the item is worth from the insurance company.
Israeli Supreme Court President Sussman (Civil Appeal 254/58) had the following to say on lying for the sake of a higher goal even in court:
“I agree… that it is sometimes permitted for a defendant to deny a fact in his statement of defense, which he knows is true. I will explain this with an example: X was sued by Y to pay a sum of money under a check bearing his signature. X’s defense is that he did not receive the goods for which he wrote the check, and he therefore needs to prove that he never, in fact, received the goods… The only witness able to testify that no goods were received from Y or to otherwise assist X … is a person, possibly related to Y, whose whereabouts are unknown to X. Now, if X (in addition to the fact that he did not actually receive the goods) denies the fact that he ever signed the check, the plaintiff will then be forced to bring that person as a witness in order to prove the defendant’s signature, and in the course of cross-examining the witness the defendant can then also prove his real defense. What is wrong with this? If the defendant does not act in this manner, he may well have to pay for goods which he never actually received. This “decidedly legitimate stratagem” that he adopted is precisely what prevented the cause of any injustice!”
By contrast, Chazal emphasized the damage caused to the value of truthfulness in such cases: “From where do we know that a creditor who is owed 100 should not say: I will sue the debtor for 200, in order to force him to admit that he owes me 100? As the Pasuk says: Distance yourself from any matter of falsehood” (Shavuot 31a). In addition, one can always appeal insurance settlements to loss adjusters…
Even if one’s opponent exaggerates the value of his claims, one may not follow suit, as the Gemara continues: “Where the debtor [only] owes the creditor 100 and the creditor sues the debtor for 200… the debtor may not say: I will deny that I owe him anything in court and I will admit outside of court that I owe him 100 so that I will not have to take an oath [as a person who admits part only of a claim in Jewish Law]. Because the Pasuk says: Distance yourself from any matter of falsehood.”
Based on an article by Adv. Yakov Shapira, White Lies and Other Lies, in Israeli Ministry of Justice “Parshat Hashavua” webpage, 5761 (Parshat Toldot)
