Judicial neutrality is critiqued through an exploration of ancient legal traditions that both uphold and challenge the ideal of rule-bound justice. Narratives such as those of Daniel, Susanna, Herod, and Jesus reveal how rigid legalism can lead to injustice, while empathy and contextual judgment often result in fairer, more humane outcomes.
See also Trial Stories in Jewish Antiquity: Counternarratives of Justice (Oxford, 2024).
By Chaya Halberstam
Professor and Chair, Department of Religious Studies
King’s University College at Western University
July 2025
Our culture has a love-hate relationship with judges and courtrooms. The love side: our current political worldview, which chooses democracy over tyranny, upholds the standard of “the rule of law,” which means something along the lines of adhering to the dictates of the law above all else. If we don’t, we reason that we may face the whims of a despot who will claim the mantle of truth and justice and impose their will on the people, leaving them with no leverage to fight back. On the hate side: we often disparage legalism, equating it with nitpicky, lawyerly adherence to “the letter of the law” and, unfortunately, with law-bound Jewishness—an appraisal that stems from Christian antiquity. In contrast, looking at the facts through the spirit of justice may provide a better barometer for making the right decision.
In my daily life, I encounter this dichotomous thinking about law often. I listen to many legal podcasts. Often within one hour-long episode I hear sharp criticism of a court's narrow interpretation / application of statute and anger that a court did not adhere more closely to precedent. Which one is it that we want to see? Why can we not seem to take a side?
Looking back at the biblical world in the ancient Near Eastern and Greek and Roman cultures with this question on my mind, I found that biblical and other early Jewish writings intriguingly anticipate our own ambivalence on the issue. This phenomenon is not limited to just one era or one type of writing, but ambivalence is shot through canonical, noncanonical, Jewish, Christian, Hebrew, Greek, Aramaic, narrative, history, and law. A dominant narrative in which the fair and impartial application of law seamlessly orders society coexists alongside counternarratives that see through the purported success of “blind justice” and suggests alternative ways to achieving truth, justice, or social harmony.
A strong cultural discourse that upholds impartial judgment goes all the way back to ancient Near Eastern literary and legal rhetoric and suffuses biblical law and wisdom literature. Ancient Near Eastern cultures use metaphors of scales, plumb lines, and other measuring tools to symbolize fairness and cosmic balance. These images emphasize that justice is external to human reason, emotion, and discernment—something objective and verifiable, much like a correctly balanced scale. For example, the famous ancient Egyptian tale of “The Eloquent Peasant” (c. 1800 BCE) appeals to metaphors of accurate measurement (plumb lines, scales) to demand justice (Hoffmeier 1998). In Mesopotamia, visual depictions of Shamash often show him holding scales and other measuring devices, representing his role as arbiter of justice (Doak 2006). The Hebrew Bible famously encodes impartiality clauses into all of its law collections, commanding: “You must not be partial in judging; hear out the small and the great alike” (Deuteronomy 1:17).
The Hellenistic and Roman understanding of civilization as a law-bound community also means that they demanded judges remain neutral and rely on dispassionate reasoning to determine the outcomes of cases. A good judge would be thought of as upholding even-handedness and decorum, allowing the facts and the rules and precedent to guide them towards a wise decision. As we saw earlier, in both Greek and Roman contexts, “the law” functioned like a measuring tool—abstract, external, above individual judges. It served to legitimate decisions as rational, universal, and transcendent of personal bias. Provincial populations were taught that this legal order was authoritative, binding even the emperor to its rules and procedures. The people themselves would often cite precedent and law to claim a fair hearing, creating moments where imperial officials were rhetorically bound by their own legal systems (Ando 2000, Bryen 2012, Kelly 2011).
These ideals were upheld and continually asserted despite how easily they were falsified: the actuality of judgment was routinely on display, as Greek and Roman courtroom theatrics were performed publicly and attracted large audiences. Instead of contemplative consideration of rules and precedent there was shouting and weeping; instead of calm analysis of reasonable solutions there were rhetorical duels with each contestant vying for the spotlight and persuasive supremacy (Bablitz 2007). Within this context, authors in various Jewish sub-cultures wrote their own dramatic trial stories that reckon with questions of judgment and justice (Schwartz 2003). They push back against assumptions that impartiality and legal reasoning yield the best results and depict processes more invested in the social and emotional dynamics inherent in trials. They expose the complexities, failures, and emotional entanglements inherent in legal decision-making. When neutral, rule-bound decision-making triumphs in these stories, the court often ends up inflicting more injury. Characters cast about for ad hoc remedies available in their immediate environments and find differing levels of success.
When Rule-Bound Decision-Making Does Harm
The famous story of Daniel in the Lion’s Den, along with the closely related story of Susanna, tells us very clearly that adhering to legally prescribed procedural rules is a disaster. Both Daniel and Susanna are nearly murdered by hateful conspirators not in spite of law-abiding societies but because of them. In Daniel, officials who are jealous of Daniel’s closeness to the king pass a law to criminalize Daniel’s daily practice of petitioning his god, demanding execution by lions for those who transgress it. When Daniel is caught and found guilty, the king is forced to confront the tragic consequences of applying his law too consistently: Daniel, a loyal servant of the king who means no harm, ought to be subject to the death penalty. The king hesitates over applying this harsh penalty to Daniel, but his officials remind him that “it is a law of the Medes and Persians that no statute or ordinance that the king establishes can be changed” (Daniel 6:15). The king is forced to concede to his ministers that “the rule of law” must bind even the highest officials. So Daniel is taken out to be devoured by lions. Similarly, Susanna is slandered by two elders who had threatened to ruin her if she didn’t submit to them sexually. They use their knowledge of the law to mount a (false) case of adultery against her which meets the required evidentiary threshold for conviction. Susanna is taken out to be stoned (Susanna 41).
Neither of these narratives is interested in complex or nuanced questions of guilt or innocence. Instead, these melodramas (Susanna especially so) depict a vivid battle between right and wrong. Those who act within the dictates of the law are villains, and the heroes work extra-legally to ensure that justice is done. In both stories, the cues they follow are divine inspiration and feeling. The king is immediately distressed when he realizes he needs to execute Daniel, and when Susanna is brought out and unveiled to face the vile lies the elders hurl at her, we are told that “those who were with her and all who saw her wept” (Susanna 33). The sadness the king feels for Daniel, and the sympathy the crowd (who act as jurors) who shed tears for Susanna, point directly to the correct legal outcome. The law, manipulated by evildoers, points away from it. When readers encounter commentary on the story of Daniel, the focus is almost always his miraculous divine salvation, and the focus of the story of Susanna is nearly universally on Daniel’s ingenuity in exposing the witnesses’ lies. But my reading of these stories hinges on their critique of neutral and detached legal decision-making. These near-miss travesties of justice only happen when care and empathy are deemed irrelevant to the proceedings of the case. When people ignore their intuition towards compassion in order to follow the dictates of the legal order, they go astray.
But it is not only these morality tales that suggest that following legal procedure to the letter may have tragic outcomes. Josephus’s history, The Jewish Antiquities, includes many trial scenes involving the Judaean royal family and other high Roman officials. They are all high-stakes trials, and none is as well known as the trial of Herod. As a young Herod was rising to power, he gathered followers, many of whom were violent. In Book 14 we read about how he and his band of thugs would summarily execute people who crossed them, and it soon became clear that he is threatening the authority of the current monarch, Hyrcanus, by ordering these extra-judicial killings. Herod is dragged into court and arrives flanked by troops and draped in royal purple (AJ 14.173). His message is not subtle; he is declaring to Hyrcanus, who is conducting the trial, that he considers himself an equal and not a defendant, and that ruling against him would be tantamount to starting a war. Unlike the legal actors in our stories above, Hyrcanus does not push the trial through to the end. Instead, perhaps wisely, he allows Herod to escape and dissolves the trial. Many other courtroom scenes in Josephus follow this pattern. While very different in tone and outlook from the stories of Daniel and Susanna, they also suggest that a legal ruling of innocence or guilt does not always result in the best outcomes. While Herod, unlike Daniel or Susanna, may have actually deserved to be executed, Hyrcanus rightly assesses that he is dangerous, and a verdict against him would be the only necessary provocation for a massacre. Innocent lives are spared when legal actors in these stories can shift modalities instead of seeing a legal process through to its deadly end.
The trial of Jesus (particularly in Mark and Matthew) may also be seen as a sharp rebuke of the rule of law and impartial justice along the same lines as the trials in Josephus. Here, legal safeguards are too weak to stand up against the relational, emotional, and political forces that drive the ruthless power dynamics of empire and living as the subaltern. The trial itself has similar contours to Daniel and Susanna but is set on a stage as grand as the trial of Herod. The chief of priests and the local leaders attempt to wield legal mechanisms as an instrument of revenge the same way the elders do in Susanna. But there is another legal arena to contend with in imperial Rome, one which ought by reputation to be a place of decorum and reason, which ought to uphold the rule of law. Instead, Pilate’s feeble attempts to apply even the most basic legal structure to the proceedings (“What evil has he done?” [Mark 15:14]) is drowned out by the clamoring of the crowds around him. When Matthew retells this trial story, he inserts a scene of Pilate, sitting on the “judgment seat.” Instead of weighing evidence, however, he is instead asked to consider a personal message from his wife who complains of “suffering” from dreams about the “innocent” Jesus (Matthew 27:19)—testimony that may provide an emotional counterweight to the angry crowds, but does not aim to enhance his impartiality. Matthew then continues to mock Pilate’s judicial “neutrality” in the scene of his hand-washing (Matthew 27:24). Neutrality is what ought to allow Pilate to render an evidence-based verdict undeterred by the high-intensity environment in the courtroom; instead it provides an excuse to stand back and allow the strong to dominate the weak.
Modern feminist and race-critical legal theory make this very point, one which has percolated into and become widely accepted in contemporary social justice circles. “Neutrality” or “objectivity” typically mask a lack of justice for the vulnerable, who are only treated equally when they are affirmatively acknowledged. It is this contemporary insight that we may see already emerging from these ancient trial stories, counternarratives that suggest that one-size-fits-all legal mechanisms so often fail to take into account the particular circumstances of the litigants in a specific courtroom. Contextual judgment is necessary—one that perceives the full horizon of every situation, the interrelationships between the litigants and the crowds and the judges themselves. We may only get an imperfect, or perhaps partial, justice as we aim first and foremost to do no harm.
The Argument for Case-Specific Dispute Resolution
Many biblical and early Jewish trial stories implicitly call for situation-specific decision-making, as we have seen. The early, Tannaitic rabbis, who are rightly well-known for embracing legal reasoning and rule-bound decision-making, also offer full-throated endorsement of mediation. Tosefta Sanhedrin 1 presents a debate of sorts between both views, the need for clear legal verdicts against the benefits of mediation, and it seems to subtly favor the side of mediation. One evocative midrash deploys a verse from the Prophets to infer the merits of a mediated compromise:
R. Joshua b Qorha said: it is a commandment to compromise. As it is said: “truth, and judgments of peace [mishpat shalom], shall you judge in your gates” [Zechariah 8:16]. And is it not the case that in every place where there is truthful judgment [mishpat ’emet] there is no peace? And in every place that there is peace there is no truthful judgment [mishpat ’emet]? Where do we find [truthful] judgment in the same place as peace? One must say: this is compromise. (Tosefta Sanhedrin 1:3; Zuckermandel 1970: 415).
In his prophecy about the restoration of Jerusalem, Zechariah envisions a future, model society that Israel must sustain. He tells them: “These are the things you should do: Speak the truth to each other; make truthful, just, and peaceable decisions within your gates” (Zechariah 8:16). The midrashist is perhaps rightly confused about an implied contradiction here: where have you ever seen definitive legal decisions result in more peace? Are the judgments in this verse referring to mediated agreements? It is easy to see why mediation begets peace: the process ends with an agreement and a handshake. But the midrash goes one step further, telling us that mediation is not only peaceful, it is also truthful. I might suggest that in many ways, it is more truthful than a legal decision, because it has taken into account the full range of experiences, feelings, and relationships that surround the case, while the legal decision has decided only based on distilled, legally-relevant facts.
But the early rabbis quite clearly do not give up on legal dispute resolution. Mediation may be ideal, but parties to a dispute are not always benevolent and they are not always willing to desist from harm. We need impartial, legal judgment. But we need not hold it up as the gold standard of good decision-making.
References
Ando, Clifford. Imperial Ideology and Provincial Loyalty in the Roman Empire. Classics and Contemporary Thought. Berkeley: University of California Press, 2000.
Bablitz, Leanne E. Actors and Audience in the Roman Courtroom. London/New York: Routledge, 2007.
Bryen, Ari Z. “Judging Empire: Courts And Culture in Rome’s Eastern Provinces.” Law and History Review 30, no. 3 (August 2012): 771–811. https://doi.org/http://dx.doi.org.proxy1.lib.uwo.ca/10.1017/S0738248012000259.
Doak, Brian R. “The Origins of Social Justice in the Ancient Mesopotamian Religious Traditions.” Faculty Publications - College of Christian Studies, Faculty Publications - College of Christian Studies, Paper 185 (2006). http://digitalcommons.georgefox.edu/ccs/185.
Hoffmeier, James K. “Once Again the ‘Plumb Line’ Vision of Amos 7.7-9: An Interpretive Clue From Egypt?” In Boundaries of the Ancient Near Eastern World: A Tribute to Cyrus H. Gordon, edited by Meir Lubetski, Claire Gottlieb, and Sharon Keller, 304–19. Journal for the Study of the Old Testament Supplement Series 273. Sheffield: Sheffield Academic Press, 1998.
Kelly, Benjamin. Petitions, Litigation, and Social Control in Roman Egypt. Oxford: Oxford University Press, 2011.
Schwartz, Saundra. “The Trial Scene in the Greek Novels and in Acts.” In Contextualizing Acts: Lukan Narrative and Greco-Roman Discourse, edited by Todd Penner and Caroline Vander Stichele, 105–38. SBL Symposium Series 20. Atlanta: Society of Biblical Literature, 2003.
Zuckermandel, Moses Samuel, editor. Tosephta. Reprint. Jerusalem: Wahrmann, 1970.