Translation:Arukh ha-Shulchan/Choshen Mishpat/7

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

Choshen Mishpat 7
Those who are eligible for judgeship and those who are not, whether in general or for specific cases appearing before the court

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608529Translation:Arukh ha-Shulchan — Choshen Mishpat 7
Those who are eligible for judgeship and those who are not, whether in general or for specific cases appearing before the courtWikisourceYechiel Michel Epstein

This chapter contains twenty two sections: 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22

Section 1

In general, all Jewish individuals are allowed to be judges, although there are exceptions. Due to a decree of the Torah from the verse "Place upon yourselves...from among your brothers...” a convert cannot be appointed a communal judge with jurisdictional authority (to force the appearance of litigants before the court). This verse is the source of an accepted oral law that all official government appointments, including that of a judge in an official communal court, cannot be a convert. However, that pertains only to judging non-converts. He can, however, be appointed to judge other converts. If his mother or father is Jewish, that is enough to be considered "from among your brothers", and he can judge those born Jewish as well. Of course, if the litigants agree a convert can judge these Jewish-from-birth litigants. The rules above do not make any distinction whether one judge is a convert or all three are converts. A Mamzer (child born of a union that is punishable by Kares) can judge civil claims, but not capital cases. In Jerusalem, however, he cannot even judge civil cases (Gemara Kiddushin 76.2).

Section 2

One who is blind in both eyes cannot be a judge, for the verse states: "...by their mouths will be judged every dispute or lesion ('Nega')" (Dvarim 21.5), and by applying a bidirectional connection-'Hekesh' between plagues-"Negaim" and this verse ('Nega') the Rabbis have derived the requirement of a sighted judge as follows: Just as a plague cannot be inspected by a blind Kohen (priest), as the verse states "...what appears to the eyes of the priest", so to a blind person cannot be a judge. Interestingly, though one blind in one eye cannot inspect plagues, since the verse specifies a 'full and complete visual' of the plague, he can be a judge, as the visual seen by one eye is no worse than trying to see a person at night, and the Torah does specifically permit issuing a final ruling at night, as explained in chapter 5. To sum up: one who can see with only one eye is perfectly valid to serve as judge from the beginning of a case through its final ruling, for if he could only issue a final ruling, how would he reach that point without first deliberating the entire case? (Levush 3 and Urim 6, Tumim 2 ). However, one who is blind in both eyes cannot even be involved in the final ruling of the case (Urim 6, Tumim 2), even if he had become blind after deliberations (Nisevos haMishpat: ch3, b2). Here as well the law is the same whether it affects one of the judges or all three. If one's eyesight is merely weak he is still valid to serve as a judge (Birchei Yosef). Finally, one who is blind could not serve on the Great Court [AND A COURT OF 23 MEMBERS?].

Section 3

There is a dispute regarding the minimum age for appointment to judgeship. Some maintain that it is eighteen, when one is old enough to have the physical strength to personally recover an illegally held object. A dissenting opinion argues that thirteen is the minimum age, even if the individual does not show signs of puberty (lit. two hairs), since the true criteria for a judge is his knowledge of the legal codes and acumen in applying them, not his physical strength. In addition, the Torah does not define a judge as 'a man' in any verse. Regardless, one less than thirteen is not considered to have any status of an adult in any area of Jewish law and his appointment would certainly be invalid.

Court cases concerning real property do require judges to have signs of puberty (lit. two hairs), since the law is (in chapter 235) that one who has not shown signs of puberty cannot legally buy or sell land (Urim v'Tumim). A permanent communal judge has a higher age requirement, and should not be appointed until he has reached twenty years (M"Y) [WHAT SEFER IS THIS? PERHAPS IT IS ‘MINHAG YASHAN’, ‘A CUSTOM OF OLD’]. In a situation where a single judge would be valid, he should not be less than forty years, unless there is a younger one in the city who is greater in scholarship (Shvus Yaakov).

These rules above are stringencies, as once one shows signs of puberty he can be a judge for all cases, and before this stage is reached he cannot be a judge at all, as the act of a minor has no legal force, and therefore the law does not follow the dissenting opinion above.

Section 4

A woman’s appointment to judgeship is invalid just as her appointment to any office of public authority would be invalid, as the verse states: "Place upon yourselves…from among you brothers…" (Shmos 17.15). This is taken to mean that all ‘placements’ upon the community, meaning offices of authority, should only be from males (Rambam, first chapter of Laws of Kingship), as the verse states "from among your brothers" and not "from among your sisters". The fact that the prophetess Devorah was a shofet (lit. judge) of the people does not mean she held court, rather she taught the people what the law should be in given cases and the judges ruled based on her direction. Note also that her appointment to shofet was a special prophetic command (Tosfos, Gemara Yevamos 45.2), and that the nation accepted her as a judge voluntarily.

Section 5

According to some, one who has consumed wine can act as judge, although he cannot teach law. Their reason is that since there are two other judges with him, they will assist him to rule properly. Therefore, if he will be judging by himself or if all three will be drinking wine they (or he) cannot act as judge (Urim vTumim: T6 and Nisevos haMishpat: ch6). Others argue with this allowance and prohibit one who has consumed wine from sitting on the court (Bayis Chadash and Shvus Yaakov based on the Midrash). It is proper to be strict here and follow the latter opinion, as this dispute creates a doubt in law regarding a Biblical prohibition. (This is the custom of old)

Section 6

A witness cannot function as judge. The reason is because of the verse: "The two men (, and) those that have the dispute should stand before G-d (the judges)". The "two men" are the witnesses, "those with the dispute" are the litigants, and "before G-d" is before the judges. It is not correct to translate "the two men" as the litigants, for that makes the phrase completely extra, as well as leading to mistaken notions: Do only "men" bring cases to court, and not women? Are cases only made up of "two" litigants, and no more? Rather, it is referring to the witnesses. The explanation of the verse is that the witnesses stand before the judges, and not that they themselves are the judges. Furthermore, valid witnesses must be those who can be disproven and made ‘Zomem’–witnesses, and if they are judges they won’t accept this incriminating testimony against themselves.

Individuals are not disqualified as judges in case until they actually testify in that case, and once a judge testifies on a case he is currently hearing he is immediately disqualified to continue to act as judge in that case. Interestingly, if a judge sees an act but does not testify he can still function as a judge on the very act that he saw. Furthermore, even if all three judges should see an act in the daytime (when they can function as judges), they may immediately rule on that act, even if they had intent to be witnesses at the time the saw the act. In this case they would function purely as judges and they do not even require witnesses according to Biblical law, as the witnesses' statements are not treated weightier than what the judges have actually seen, which actually replaces the need for testimony. However, if they saw that act at night, which is a time when the court does not function, their only choice is to act as witnesses the following day, and would then be disqualified from also acting as judges. Since they did not see the act during daytime, when accepting testimony is valid, their seeing cannot replace testimony.

If the judges saw an act on Shabbos or on a festival, when the Rabbis have proscribed the Biblical allowance for court to hold session, there is a dispute among the later authorities if the court can hear the case the next day without witnesses. The law inclines to those who permit (Urim v’Tumim and Nesivos ha'Mishpat). Additionally, a lone expert is not allowed to judge a case based on his own witnessing of the act, as one person’s account is never considered valid testimony (Nesivos ha’Mishpat).

Only court cases that involve Biblical-level liabilities have this injunction against a witness being a judge. For purely rabbinic matters, such as certifying contracts and similar matters, even a witness who testified can act as judge, as the rabbis were not stringent to enact the prohibition here as well. There are those that add that in capital cases even a non-testifying witness is disqualified from acting as judge, although the Rambam (chapter 5, Laws of Testimony) does not differentiate. [He rules like Rabbi Tarfon in Gemara Baba Kamma, 90.2]

Section 7

If one of the litigants had invited someone to be a witness to his transaction with the other litigant, and he obliged, he is not allowed to be a judge on this case, even if he does not end up testifying. The general rule is once one is invited to be a witness he has the status of a witness. Here too there is a dissenting opinion that argues that an invited witness is like seeing the act at night, and he is allowed to judge this case as long as there are other witnesses and he does not testify. To sum:

a) If one sees an act in the daytime he may judge as long as he does not testify. b) If one sees the act at night he can judge if other witnesses testify. c) If one is invited to be a witness by a litigant the matter is in dispute, as was written above. d) When the case involves a purely rabbinic law, a witness may act as judge.

Know further that even though a witness cannot be a judge in a monetary case he can advocate for one of the litigants and present legal arguments to the court on his behalf. This is only true for monetary cases, for capital cases a witness cannot present arguments for guilt or innocence of the defendant [Rambam, Chapter 5, Laws of Testimony].

Section 8

If a Torah scholar is summoned as defendant before a judge who is of a lesser caliber than he, the judge cannot force him to appear before the court. What should then be the course of action? All the scholars of the city should assemble to judge him, for since all the scholars have gathered, it is no longer an affront to his honor to present himself (Urim v’Tumim. This is true even if he is a greater scholar than the whole assemblage of scholars. If a Torah scholar wishes to waive his honor and appear in front of the judge of lesser stature he may, as a scholar can waive the honor due him. If, however, it is an affront to his honor to appear with the other litigant, the court may send scribes to accept his claims via affidavit and deliberate based on those written statements (Sefer Mi’eros Anayim). See further in chapter 124.

Section 9

A person should not judge on a case where he is pleasantly disposed to one of the litigants, even if the litigant is not a close personal friend or part of his wedding party (within the seven days of ‘Sheva Brachos’), as that may affect the impartiality of his judgment. Similarly one cannot judge on a case where he is negatively disposed to one of the litigants, even if it is not to the extent that he holds enmity towards him. Obviously, this warning is not speaking about wicked behavior like purposely distorting the law to favor one side. The concern here is that a person’s feelings may blind his ability to properly determine the faults or merits of those before him.

If he had in fact judged this case, the litigants cannot seek to invalidate the judgment, as this is only advice of the proper meritorious practice, but is it not law. At issue is just a possible concern of what could occur when he judges people that he is somewhat disposed to one way or the other. Ideally, he should know nothing about the litigants before him, not recognizing them or their past behaviors, so that he can be perfectly impartial. Note: ‘Part of his wedding party’ are the friends or acquaintances who celebrate with the groom for the 7-day ‘Sheva Bracha’ period following his wedding.

Section 10

The above is not true when one of the litigants is a true, close friend, whom he loves as his own soul, or an enemy he truly reviles and seeks his detriment, for example one he hasn’t spoken to in three days despite being in his presence due to his hatred of him. In these cases even post facto his judgment would be null and void. Of course, should this man accept him as a judge, the decision is binding as is the usual law. One litigant is not believed to claim that the judge is a close friend of the other or that the judge hates him personally, a clear proof of this is always required for the judge to be removed. It does, however, behoove the judge to remove himself from this case if there is another to act as judge in the city, since one of the litigants suspects him [this is the custom of old].

If the opposing litigant is fine with the fact that the judge is a close friend (or close wedding party member) of the other litigant the other cannot bar the judge from sitting on the case [Urim v’Tumim], and anyway either one has had their chance to bar any judge not to their liking when they chose judges for their case. [WHAT ABOUT WHEN THE TOWN HAS AN OFFICIAL, PERMANENT COURT? ALSO, ISN’T IT ONLY THE THIRD JUDGE THAT REQUIRES THIS LITIGANT’S AGREEMENT?]

Section 11

It is evident that when each litigant picks his judge (of the three chosen) he will pick one he is on friendly terms with. Therefore, those two judges’ leanings will balance each other out. The third one should be on equally friendly terms with both litigants, and since they must agree on this third choice, it is likely he will be and there is little cause for concern.

Section 12

It is completely acceptable for a Torah teacher to be a judge in a case involving his student and the other litigant cannot disqualify the rabbi as judge. Heaven forbid one should say that these (the rabbi and student) whose love is because of the Torah will cause the rabbi to bend the Torah law in court. If, however, the rabbi himself feels that his judgment may be swayed because of his love he should remove himself from the case.

Section 13

If a court of judges are disqualified due to their personal relationships (love or hate) with the litigants they still may choose other judges to serve in their place. However, judges who are invalid because they are actual relatives of the litigants cannot choose other judges to serve in their place, since this is Biblical-level invalidation. If the community has a custom that allows them to pick other judges the can comport themselves according to this custom [Nisevos ha’Mishpat].

Section 14

If a judge loves or hates both litigants equally it is completely acceptable for him sit on the case, as he heart will not lean more to one than the other. Though there are opinions that are not sure about this it seems to be the accepted law to me.

Section 15

In the earlier generations, when excommunication was a penalty imposed by the court, you might find one excommunicated because he shamed another. Once his period of excommunication ends, he is able to function as judge in a case concerning the one he shamed, as his dislike of the other was only because of the excommunication, which was caused by the court, not the other man. During his period of excommunication it is proper for him to remove himself from a case concerning the other, for it is impossible that he does not harbor resentment against him during this time. [Sefer Mi’eros Anayim].

Section 16

Consider: There was an account of a great and righteous scholar who lent his fellow money only to have this fellow deny it and swear falsely in court that there never was a loan. When this fellow appeared before him some time later as a litigant in an unrelated case this righteous man removed himself as judge, as he was afraid that the incident might subconsciously cause him a mental block when trying to find merit in this fellow’s claims [IS THIS THE CORRECT TRANSLATION?] [Chavos Ya’ir]. The rabbi in this story acted sensibly.

Section 17

If two scholars dislike each other excessively they are prohibited from sitting as judges together on cases, since this mutual dislike will cause them to struggle to contradict each other’s words and not pay attention to determining the right law in the case before them. Similarly, two men who are of very different natures and comportment should not be appointed to server together in any capacity of communal authority [Chinuch]. Furthermore, a judge should not sit on a case involving his in-laws, even if he is acting as an officially appointed judge in the city’s court system. Post facto, his decision is not invalidated if he ruled on such a case. As far as serving on a court with his in-law as a fellow judge, this is completely permissible.

Section 18

All those who are invalid to testify because of familial relation or the commission of certain sins, even rabbinic prohibitions, are likewise invalid to act as judge. The invalidation for judgeship is actually somewhat stricter, as the invalidation to testify arises from one transgressing a rabbinic prohibition to the point where the court would publicize his wrongdoing in the synagogue in order to shame him into desisting (see chapter 34), whereas the invalidation for judgeship in similar circumstances does not require this [Kenesses Hagedolah]. In addition, the judges on a case should not be related to each other, the witnesses, the litigants, or any heirs that may stand to gain in the future if one of the litigants prevail. If a litigant request a judge to hear the case knowing he is a relative of the opposing litigant the judge may hear the case, as the litigant has accepted this arrangement by requesting this judge himself (Sifsei Cohen – ‘Shach’). The related litigant can still bar his relative, the judge, if he chooses to.

Section 19

If one of the judges are found to be related or otherwise invalid during the case the entire hearing is annulled, as would be the case with invalid witnesses (chapter 36) [Rabbi Akiva Eiger], as the case must start anew with proper judges. One the invalid judge departs the case can start anew with the remaining valid judges.

Section 20

If a judge knows his fellow judge to be a criminal, thief, or otherwise wicked he is forbidden to join with him to judge a case even if this fellow knows the law and will judge this case correctly or effect a proper compromise. This is because of the verse: “Distance yourselves from false words…” (Shmos 23.7). If the litigants know of this fellow’s poor character and still accept him as judge one must ask a competent authority if he may be permitted to sit and judge with him [see the Shvus Yaakov].

Section 21

A court should be comprised of judges who have the following seven qualities: knowledge, modesty, fear of G-d, a hatred for money acquired illegally – and even in their own affairs they should not be the type to busy themselves excessively over money nor strive to amass wealth; a love of truth, the people’s love and acceptance, and a good reputation. The punishment of one who appoints judges who are not fitting is described in chapter 8.

Know that all these qualities are described in the Torah:

Dvarim 1.13 - When the Torah speaks of appointing judges it states clearly “men of knowledge and understanding”. It also states: “known to your tribes”, i.e. that people should be satisfied with their appointment (this meaning taken from the use of “known” in Ruth 2:1 “And Naomi had a kinsman of her husband…” (more lit.: ‘one she knew of who was one of her own from her husband’s family’).

Shmos 18.21 - When speaking of appointing judges in Parshas Yisro it states “Men of strength”, which is defined as one who controls his desires, as well as the more literal meaning of one who is strong-hearted and saves the oppressed from their oppressors, as Moshe exhibits in the same parsha: “And Moshe rose and saved the daughters of Yisro.” This ability would engender the person with a good reputation as well. Also, just as Moshe our teacher was modest, all judges should be modest as well, as it states “they will carry the burden with you…”, meaning those who are comparable to you in behavior. The Torah further states “fear of G-d “, which is self explanatory. The following words “hatred of monetary gain” are likewise self explanatory, and include not busying oneself excessively with one’s own monetary gain. Finally, “men of truth” denotes that they seek truth for its own sake.

Section 22

Whenever there is the possibility of some gain accruing to a judge in the case before him he is recused, since he has a personal interest and his heart will be drawn to the side that favors his interest. If he unequivocally removes himself form the possible benefit, he is allowed to act as judge. For example, if a synagogue had their Torah scroll stolen a judge from that synagogue cannot sit on the trial, unless the synagogue has another Torah scroll, in which case it is not considered a personal interest, and the judge does not have to remove himself from the synagogue, though they had two before. If they do not have another Torah scroll, even if there are other synagogues in the city with Torah scrolls, the judge must remove himself from that synagogue and pray elsewhere if he is to sit on the case. Similarly, if there is a case regarding the continued existence of a synagogue itself [IS THIS CORRECT?] then a judge who prays there cannot preside over the case unless he removes himself to another synagogue, praying there on a consistent basis. If he continues to pray in the synagogue embroiled in the dispute, it does not matter that there are others in the city he could go to, he is still invalid to judge this case out of personal interest [Sefer Mi’eros Anayim]. Truthfully, in order for this man to act as judge everyone in the city must be able to pray in a different synagogue, for if the other synagogue(s) is too small for the displaced people a new one will have to be built, and the community can force everyone to pay their part, including the judge. This would then be his personal interest in the matter [Urim v’Tumim]. However, if he has a permanent seat in the other synagogue, as many do in our days, no one can remove him from there and he would not be required to pay his share for a new synagogue for the displaced people. Therefore, this would not be considered a matter of personal interest for him. This exception would only apply when the local city government does not have the authority to sell the synagogue or the Torah scroll for the needs of the city. If they do, his place is not considered permanent, and he would have a personal interest in the outcome of the case [see there further].

To sum, in all court cases one must be aware of the personal interests that might affect the judges arising from the outcome of the case (as is explained in chapter 37 regarding witnesses as well). Another example would be if there is a dispute regarding a charity donation. This cannot be judged by judges in the community because everyone is affected when the community’s poor either do or don’t receive charity funds, as the obligation falls upon all. Even if the judge chooses to give regardless of the case's outcome it is still considered within his personal interest. Similarly, when a tax is levied on the community as a group no one within the city can act as judge in a case regarding tax payments, as that outcome might affect them or their family members. If the tax is of a specific nature such that part of the community can pay their portion and be done with their responsibility, not being affected by the case's outcome at all, people from that group can act as judge.

It should be noted that the above does not apply if the community has a standing agreement or custom to let the courts of the city decide internal matters such as these even thought there is possibility of personal interests among the judges. In this era cities comport themselves according to agreements such as these, as we have not seen nor heard of cities bringing their internal matters to other cities’ courts for adjudication. See more about this issue in chapter 37 in regard to how personal interests affect witnesses. In the final analysis, if the dispute in question really does contain strong elements of personal interest for the judges and it seems correct to have a change of venue to another city the local court should remove themselves from the case and direct the case to be heard elsewhere.