This column is called the Human Capital Telescope to underline our approach to business issues. It’s a business management column that explores the thinking behind business practices. Whether consciously or not, business leaders apply theories to shape their decisions. A theory is simply a statement of what is associated with what and why. This column gets behind the theories of business management to help readers understand the basis for making business decisions.
Disciplining employees needs both tact and legal savvy. Done poorly, it can cripple a business both financially and reputationally. BSBS explores alternative frames of thinking.There is a legal system that has not received much attention, namely the ancient Hebrew legal system, yet packed in this legal system are powerful ideas that explain in a compelling way how discipline should be conducted to ensure that fairness and justice are administered.
The most gripping and dramatic trials in history was that of Jesus Christ. The Hebrew legal system was designed in such a way that it was virtually impossible for a travesty of justice to occur. It had tight checks and balances. The only way a charade of justice would occur would be by design, with the custodians of the legal system brazenly committing infractions to arrive at a predetermined conviction.
This is precisely what happened in order to secure the conviction of Jesus. I will illustrate one of the infractions of the Hebrew legal system in the case of Jesus’s trial. Jesus was tried during the night. This was against the tenets of the Hebrew legal system that forbade a night trial. To paraphrase the words of one local professor — no night judges sitting in a night court delivering night justice were countenanced.
Desperate to secure a conviction in the night, Caiaphas, the high priest, declared Jesus guilty: “Then the high priest tore his clothes, saying, ‘He has spoken blasphemy! What further need do we have of witnesses? Look, now you have heard His blasphemy! What do you think?’ They answered and said, ‘He is deserving of death.’’’ (Matthew 26:65-66). No less than four infractions of the Hebrew legal system are embedded in these two verses.
For Caiaphas as the head of a legal institution, disrobing himself was the highest level of the symbolic disrespect of the justice system. Unfortunately, the Caiaphas syndrome is well and alive in many a workplace in our country.We shall look at a few of the brass tacks of the ancient Hebrew justice system and propose ways of improving workplace disciplinary procedures.
In the ancient Hebrew jurisprudence there were no hired lawyers. The basic aim of the ancient Hebrew legal system was to acquit the accused, not to condemn. This goes much deeper than the principle of ‘innocent until proven guilty’. Contrast this with our workplace disciplinary procedures.
One may be forgiven where one feels that the guilty verdict is passed even before the hearing and as much evidence is gleaned to nail the accused employee. What is intriguing is that the lawyer-cum-judges would be required to gather for fasting and praying prior to the trial. This was done to give these custodians of justice time to prepare themselves mentally and emotionally. This just goes to show how the justice system placed a premium on the holistic fitness of people who held the fate of the accused.
The judges acted as advocates. Taylor B. Bunch, in his book Behold The Man (page 64) states that: “The judges were the defenders…”. This cuts against the grain of common legal norms. In fact, in the highest court of ancient Hebrew called the Sanhedrin, if none of the 71 presiding judges failed to find a point in favour of the accused, the case was automatically dismissed. We need to draw a lesson, extrapolating to our current workplace disciplinary systems. Those administering discipline should go into those disciplinary sessions with the primary aim of acquitting the accused, not to convict. That mindset changes the whole tone and thrust of the workplace disciplinary system. Upon finding as much points in favour of the accused, the judges then considered the points against the accused.
A panel of judges
One of the most striking facets of the ancient Hebrew legal system was that you could not have a court being presided over by a single judge. In the lower courts the minimum number of presiding judges was three. The highest court of the land, the equivalent of our Supreme Court, called the Sanhedrin, was presided over by 71 judges. The Sanhedrin sat in a half-circle, with the chief judge sitting at the centre with 34 judges on either side. Two of the remaining judges were called scribes. One scribe carefully recorded points in favour of the accused and the other recorded points against the accused.
These scribes were highly learned men whose prerequisite qualifications went beyond the knowledge of the law to multidiscipline expertise. The first legal task for these 71 learned judges was not to deal with the charges, but to defend the accused by carefully scrutinising all points that put the accused in a good light. In our workplaces’ disciplinary language we partly call these mitigating or extenuating circumstances, or in simpler terms, explanatory circumstances.
The takeaway from this principle is that our disciplinary systems should first consider explanatory circumstances as thoroughly as possible, instead of looking at these towards the end of the disciplinary hearing. In other words, our disciplinary committee members should assume the role of both ‘judges and advocates’ in their attitude. This will ensure that the disciplinary procedures are seen to be both fair in terms of procedure and substance.
No official prosecutors
In the ancient Hebrew jurisprudence there were no ‘state prosecutors’. The witnesses to the crime were the ‘prosecutors’. For the case to be heard before the courts, at least two witnesses were needed and in some cases at least three witnesses were required. No circumstantial evidence was admissible. Hearsay was also not accepted.
Even self-accusation was inadmissible. Perhaps, you are now in a position to understand why Caiaphas erred by securing a forced conviction from the accused. The eyewitness accounts of the two or three people had to corroborate for the case to proceed to the later stages of the trial. If the eyewitness accounts did not agree, the accused was automatically acquitted.
False witnesses were dealt with sternly and would be punished as equally as the accused. Due to this strict rule, the probability of coming up with concocted charges was very low. It was almost impossible for the three to 71 highly learned judges to fail to pick holes in a fabricated eyewitness’s account.
The takeaway from this rule of witnesses is that solid and compelling evidence that an act of misconduct was done is needed. In other words the case of misconduct must have substance and not built on wishy-washy circumstances.
Caiaphas infracted on safeguards of a fair trial. He had a predetermined outcome. He arrogated himself powers beyond his legal brief, while systematically rendering other role players lame ducks. He even invented ‘night injustice’ and broke new ground by becoming the accuser, prosecutor and judge. How many of our local workplaces are a modern re-incarnation of the Caiaphas type of justice insofar as disciplinary handling is concerned?
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