The Right to a Hearing in Jewish Law

The Right to a Hearing in Jewish Law

By Elishai ben-Yitzhak*

Parashat Bereshit is a primary theological source on the development of humanity, beginning with the creation of the world and continuing through the ways of early man at the dawn of civilization.  The events narrated in this reading are indicative of a direct and unmediated tie between G‑d and man.  The Lord, Creator of all, is the master, the one who sets the rules of what is permitted and what is forbidden, and He is the one who judges those who violate the rules.  All this is done in direct conversation with man.  The weekly reading also describes the sin of Adam and Eve in eating from the Tree of Knowledge, and later on also the sin of Cain, murdering his brother Abel.  In both instances the Lord appears and begins a dialogue with the sinner before punishing him.  After Adam sinned it says, “The Lord G‑d called out to the man and said to him, ‘Where are you?’” (Gen. 3:9), and after the murder of Abel, “The Lord said to Cain, ‘Where is your brother Abel?’” (Gen. 4:9).  These two verses raise a question of principle regarding the significance of the Lord thus addressing the sinner:  Did He not know where Adam was hiding?  Did the Lord not know where Abel was?  In general, when the Lord knows the answer, is there still place for Him to address man in this way?  Rashi, aware of this difficulty, identifies an important principle in the Lord’s action, which principle recurs several times in Scripture with respect to sinners and accused.  Rashi says:  “He [G‑d] knew where he was, but he [asked this in order] to open up a conversation with him so that he should not become confused in his reply, if He were to pronounce punishment against him all of a sudden.”

The reader of the narrative about Adam and Eve eating from the Tree of Knowledge assumes that they could expect to be punished for their sin, and therefore the preface of the conversation between G‑d and man, beginning with the question, “where are you?,” appears superfluous.  According to Rashi, however, the object of this “superfluous” preface is to teach us that punishment cannot be meted out to a person with there being a preliminary legal proceeding and without giving the sinner a chance to have his argument be heard.  In the story of Cain, Rashi adds another level, explaining:  “thus entering a friendly conversation with him:  perhaps he might repent and say, ‘I have killed him, and sinned against You.’”

In this case, too, the question asked by G‑d seems superfluous, for He knows where Abel is.  Here, however, Rashi adds that the object of giving the accused the right to a hearing is in order to check out his position:  to see whether he regrets his actions, or is indifferent to their consequences, or stands firm in his ways.  Each stance can have a bearing on his punishment.

These events and the Lord’s handling of them provided the ground on which the right to a hearing developed.[1]  This right instructs the authorities to give anyone who might be injured in any way (in body, loss of liberty, property, business, status, or damage to any interest which is the person’s right) a chance to voice himself before a decision is taken regarding his affair.[2]

The prevalent view in Scripture,[3] the Talmud[4] and posekim[5] is that any person is presumed honest.  What is more, there is presumption of honesty even in cases of past offenses, where there might be a suspicion that the person has again committed the same offense.[6]  The presumption of a person’s honesty stands even when there are rumors that he was the one who killed another person.[7]  This being the approach, there are no shortcuts in the process of convicting and punishing the accused, and he must be given the right to a hearing.

The importance of this right was well-put by Rabbi Moses Isserles, a.k.a. Rema, who even explained the underlying reason in one of his responsa:

Clearly one cannot deliberate a matter without hearing the claims of the defendant, for the Torah says, “Hear out your fellow men.”  Even though this is a plain matter, we can learn it from the ways of the Lord, blessed be He, for all His ways are just and His ways are pleasant ways and all His paths, peaceful.  He began conversation with Adam, asking, “Who told you that you are naked?” and said to Cain, “Where is your brother Abel?” in order to hear his arguments; all the more so for the common man.  The Sages deduced likewise from G‑d saying, “I will go down to see…” (Gen. 18:21), teaching the judges not to reach a judgment until they have heard and understood.  Even when it is clear to the judge that the defendant will be found guilty, nevertheless he has to hear out his arguments first.[8]

The right to a hearing and to plead one’s case goes hand in hand with legal procedure, making deliberations more efficient and to the point, or saving valuable court time when a person has a choice of accepting a charge or alternatively proving and explaining that the suspicions against him are based on an erroneous perception of reality.  Thus Rabbi Shabtai Cohen (17th-century Lithuania), for example, ruled:

The defendant is entitled to say:  First tell me what your case is against me, for after I know what you are claiming, perhaps I will comply with your wishes and the case will not have to come to court at all.  As long as [the plaintiff] does not want to reveal to him the substance of his claim, he [the defendant] is not obliged to face him in court at all.  (S. C., Hoshen Mishpat 11.1)

Shabtai Cohen’s remarks express the principle that the defendant must know why he is summoned to court and what claims are being made against him.  Furthermore, a party cannot be forced to appear in court without knowing what charges are being brought against him.

In this connection the question arises to what extent the accused or a party in a civil case must be allowed to voice his claims?  Where does the boundary pass?  May one set limits on or curtail the defendant’s arguments?  In his preface to the Mishnah, Maimonides discusses the role of dayanim and the legal system, and in this connection he states:  “The defendant must be allowed to defend himself, even if his words are lengthy and stupid.”  In other words, according to Maimonides a healthy legal system is one which allows the accused to make his arguments heard, even if they are “lengthy and stupid.”

From all this we learn how very important is the right of a person to a hearing, before any decision prejudicial to him is made.  This is so important that the Lord Himself did not punish the sinner—Adam or Cain—without first giving him a chance to defend himself against a prejudicial action or punishment.[9]

Translated by Rachel Rowen

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* Elishai ben-Yitzhak, L.L.M. from Hebrew University, and adjunct lecturer at Sha`arei Mishpat College.  This article is in memory of Tehillah Haya daughter of Michal, who passed away at a tender age.  May she rest in peace. Originally published in Hebrew in 2016. This translation has not been reviewed by the author.

[1] See the ruling by Judge Zilberg, who not only cited the discussion in Jewish law but also the ruling of Judge Fortesqcue, given in England:  “The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence.  Adam [says G‑d], where art thou?”  (The King against the Chancellor, Masters and Scholars of the University of Cambridge (1723), 93 E.R. 698 at 704.  (HCJ 58/3 Bergman v. Minister of Interior, PD 12[2] 1493, p. 1507).  Also cf. Moshe Zilberg, “Tohar ha-Shiput ba-Mishpat ha-Ivri,” in Kitvei Moshe Zilberg, 207, pp. 208-212.  Also see the ruling of Judge Elon:  “The right of a person to a hearing before a decision is taken against him dates back to the Bible:  Hear out your fellow men, and decide justly (Deut. 1:16)…and its roots go back to the dawn of civilization:  He began by asking Adam, ‘Who told you that you are naked?’ and said to Cain, ‘Where is your brother Abel?’ in order to hear his argument” (CA 80/413 Anon. v. Anon., PD 35(3) 57).


[2] “The right to plead one’s case means that the words of the defendant be heard before a decision is taken regarding him” (HCJ 78/654 Gringold v. National Labor Court 35(2) P.D. 649).  For further discussion of the duty to give a hearing see:  Michal Horowitz, “La-tzet Yedei Hovat Shimu`a—Ikaron ha-Shimu`a be-Mabat Analiti,” Mishpat ve-`Asakim 9 (2008), 311; Dafna Barak-Erez, “Zekhut ha-Ti`un—Bein Tzedek Protzedurali ve-Ye`ilut,” in Sefer Or (2013) 817.

[3] For example:  “G‑d made men honest” (Eccles. 7:29), and, “The remnant of Israel shall do no wrong” (Zeph. 3:13).

[4] “For we do not assuredly presume a man to be a robber” (Shevuot 46b).

[5] For example:  “Any Jew is presumed an acceptable witness, unless you with certainty that someone is not acceptable” (Maimonides, Hilkhot Kiddush ha-Hodesh 2.2).  Also cf.:  “One does not presume a Jew to have done something forbidden, when one can ascribe him to have done it in a manner which is permissible” (Encyclopedia Talmudit, Vol. 1, col. 456).

[6] For example, Tur rules:  “A question to the gaon:  If you have someone who is suspected of theft but there are no witnesses against him, but there are witnesses against him for a previous act of theft, what is the rule regarding him?  Responsum:  We consider that one can neither pass judgment against him nor sentence him to flogging, for the Torah commands flogging only when there have been two witnesses to the crime; however, one issues an edict against him by the scroll of the Torah and shofar; and such is the halakhah” (Tur, Hoshen Mishpat 348).

[7] Rabbi Solomon Luria ruled as follows:  “One presumes him valid to testify and grants that he surely has not committed murder” (Hokhmat Shlomo, Niddah 61.1).

[8] For a detailed discussion of this responsum see the ruling by Judge Elon in HCJ 90/4112 Ha-Aggudah le-Zekhuyot ha-Ezrah be-Yisrael v. Aluf Pikkud Darom, PD 44(4) 626, p. 637.

[9] Note what Judge Yitzhak Cohen said in this regard:  “It is the rule that the governing authority may not cause a citizen injury to his or her body, property, professional standing, status, and the like, unless the person has had fair opportunity to have his defense heard prior to any such future injury” (HCJ 76/361, Ha-Megader v. Agaf ha-Mekhes, P.D. 31[3], 281).

Last modified: 16/10/2017