Translation:Arukh ha-Shulchan/Choshen Mishpat/2

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Translation:Arukh ha-Shulchan
by Yechiel Michel Epstein, translated from Hebrew by Wikisource

Choshen Mishpat 2
The Laws of the use of Extralegal Force by the Court

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594722Translation:Arukh ha-Shulchan — Choshen Mishpat 2
The Laws of the use of Extralegal Force by the CourtYechiel Michel Epstein

This chapter contains four sections: 1 | 2 | 3 | 4

Section 1[edit]

As mentioned, courts exercise executive power in so much as they dictate the application of force for preserving adherence to the law. Even though capital punishment, lashing, and fines are not administered by the court today - and even outside the land of Israel in Temple times, there are instances where the court has to use force to prevent a widespread disregard for civil or religious laws. (This force is applied when there is permission from the ruling government.) Even if court sees only a single individual flouting the law, they can fine him as they think reasonable given the situation, as long as their intention is for the sake of Heaven (and to cause the individual to give up his recalcitrant behavior). In this instance witnesses are not required, as long as there is clear, continual circumstantial evidence of wrongdoing, such as widespread public knowledge of the individual’s actions. The court can then act without the standard legal requirements of a court case, for if the court had to wait for witnesses and apply standard legal process for every issue that arises in the community the world would be destroyed as they watched. This is what was said of the destruction of Temple, that it was caused by a society that would only adjudicate wrongdoing if the court could hear the case according to the Torah’s ideal standard procedure (Rashbah in his responsa).

In instances such as these the court has the right to afflict the wrongdoer bodily and in his possessions as seems necessary to shore up the break in adherence to the law. If the individual is a powerful person who can withstand the Jewish court, than he may be taken to the secular courts of the ruling government, to recover what may be recovered according to Jewish Law. Whoever has in his power to act in this situation to protect the Torah should do so; otherwise he will not have protection in this world or the world to come, nor aid or help when he requires it (Beis Yosef quoting the Medrash ha’Ne-elam).

There is also an obligation to ensure that no member of the Jewish people entertain notions of rebelling against the Czar and his ministers, as the sages teach (in Gemara Kesubos 111.1) that G-d imposed an oath on the Jewish people not to rebel against the governments they live under. It is also written (Proverbs – ‘Mishlei’ 24.21) “My son, fear G-d and the king..”, as well as the Talmudic adage “The kingdom on earth is akin to the kingdom of heaven.”

Section 2[edit]

This power is only reserved for one great in Torah or those who are appointed leaders in the city, and in our day a city’s appointed leadership is in place of the Great Court and is responsible to address the social ills to the best of their abilities (with permission of the secular government.) Even though the policies they establish will likely cause benefit to some and loss to others the needs of the community generally override the effect on the individual. One who opposes them or their attempts to address societal problems, whether through a change of practice or prohibition, is like a partner of “Yerovam Ben Navat’ (Jerobam – king of ten tribes whose actions split the nation of Israel after King Solomon’s death) and he should not be followed. [NEED HELP WITH LAST SENTENCE]

Section 3[edit]

If the societal issue at hand is not regarding the abuse of a Torah law or the repair of a social ill the leaders of the city do not have the right or power to force their views on the community unless it is to reestablish an accepted practice or custom. Otherwise, the community must unanimously [OR BY MAJORITY VOTE?] agree on the change. The city leadership can enforce a communal referendum once it has unanimous agreement, though it might benefit some and cause loss to others.

If the community should confer on its leadership broader powers that the basic law allows it is binding, even powers where decisions will cause benefit to some and loss to others. As long as their intentions are for the good, G-d will help them administrate, as it says “One who comes to purify himself is helped from heaven to do so”.

Section 4[edit]

When it comes to extralegal statements of the latter authorities such as “one who should have received lashes for his actions should give 40 gold pieces in its place” and the like the court has the right to institute these ‘replacement punishments’ if it sees fit. This is true even for leniency, as there was an incident in previous times where one was obligated to undergo lashing and he prepared himself in place but the officer who would administer the lashing do not arrive, and the Rabbis exempted him from lashing even so, in the merit of his preparing himself for punishment (Sefer M’eros Anayim). The Rabbis in the Talmud have also stated “…since he has been (anyhow) debased, he is exempt.” (Rambam, chapter 17, Laws of Sanhedrin)