Translation:Arukh ha-Shulchan/Choshen Mishpat/8

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

Choshen Mishpat 8
The prohibition of appointing unqualified judges and the reward and punishment of one engaged in being a judge

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618666Translation:Arukh ha-Shulchan — Choshen Mishpat 8
The prohibition of appointing unqualified judges and the reward and punishment of one engaged in being a judge Yechiel Michel Epstein

This chapter contains six sections: 1 | 2 | 3 | 4 | 5 | 6

Section 1[edit]

Whoever appoints a judge that is wanting in his behavior or is not knowledgeable in the law, though he might possess many other good qualities, has transgressed a Biblical prohibition of “Do not show favoritism in judgment” (Devarim 1.17). This prohibition includes appointing because of fondness for the individual or because of a desire to appoint a judge who is not fitting for the post. This is what the rabbis of the Talmud refer to when they say that one who appoints a judge who is not fitting is like one who plants an Asherah tree (for idol worship) among the Jewish people, since the topic “You should provide yourselves with judges and officers” (Devarim 16.18-20) is juxtaposed to the topic “Do not plant an Asherah tree” (Devarim 16.21). This that was explained in chapter 3, namely that one may have a court composed of 3 members when only one is knowledgeable in the law, is only when there is no permanent court available, and the people must make do with a temporary court. However, when one seeks to establish a communal court, all the members must be knowledgeable and possess fear of G-d.

It is forbidden to establish one who is ignorant of law as a judge with the proviso that he will enquire of a sage for every case, for perhaps he will not bother sometimes and will decide the law incorrectly. If there is no one in a city qualified to act as judge, and they do not have the funds necessary to hire a sage from another city, the best and wisest among them can be appointed as judges, in order to prevent lawlessness from taking hold. Once the citizens have accepted them as judges, they cannot later be declared invalid due to their lack of expertise.

One may not bring a case in front of any judge who used trickery, unethical schemes or bribes to attain his position. A judge of this type should be the subject of scorn and ridicule.

Section 2[edit]

“During the court proceedings the judges should sit with awe, fear of Heaven, and a serious demeanor and they should be attired with a turban on the head”. – Today it is not our custom to wear a turban, though one’s head should be covered with hat, which serves the same purpose as a turban did. This is similar to the idea of wearing a hat during afternoon (Mincha) and evening (Maariv) prayers, where one wears a hat without being wrapped in a prayer shawl (Tallis).

Realize too that when a court session is held the Divine Presence is present, as the verse states “G-d stands in the congregation of G-d, in the midst of judges He will judge.” (Tehillim 82.1). This means that G-d will judge those who corrupt the law in their rulings and will reward those who judge correctly. The second instance of G-d in this verse is referring to the human judges who are also called G-d (‘Elohim’) at times, as another verse states “ ‘Elohim’ you should not curse.” (Shmos 22.27). The Targum on this verse translates it as ‘Do not belittle judges’. Therefore, frivolity is prohibited during a court session. A judge should consider as though a sword is placed at his neck and Gehenam is opened beneath him should he corrupt the judgment. Furthermore, he should be aware of before whom he is delivering judgment, before the King of kings, the Holy One, blessed be He. Any judge who does not judge accurately causes the Divine Presence to remove itself from the Jewish people – and any judge who takes money from one and gives to another not in accordance with the law – G-d takes souls from him in recompense. On the other hand, any time a judge correctly applies the law, striving for absolute truth, he is credited as if he repaired the entire world, and he causes the divine Presence to dwell amongst the Jewish people. ‘Accurate judgment’ even includes cases where the claim or witnesses may be false but the judge is unable to determine that fact, and he judges to the best of his ability according to the rules of claims and testimony. If, however, he recognizes falseness in the claim or the testimony, this is a ‘deceitful case’ and he must remove himself from adjudicating it.

Section 3[edit]

Even in light of all this, one should not say “With such a great punishment why do I need all this? I will avoid being a judge completely”. On this the King Yehoshafat said to his judiciary “See what you are doing, for you do not judge for man but for the Lord, and [He] is with you in the matter of the judgment." (Divrei Hayamim 19.6), meaning that the judges should not be afraid to judge a case, for as long as they honestly try to determine law according to the claims presented to them they will not be punished, as it is understood that a judge can only rule by what his eyes see, and the Torah was not given to angels nor is it in heaven. One is only obligated to understand the issues involved and to rule to the best of one’s ability, and one who honestly follows the path of Torah will be aided from Heaven in his deliberations.

Section 4[edit]

It was the custom of the sages of previous generations to avoid being appointed as judge, and they would strive to remove themselves from situations where they would be appointed to sit on a court. If they saw that there was no one present who was knowledgeable in the law, and that fairness and truth would suffer - even then they would not ascend to judgeship until the people and community elders would press upon them to accept.

This is only when there are others available to act as judge, for although they might not be as expert as the scholar above, he should still decline. If, however, he sees there is no one with the requisite expertise at all, he is obligated to accept judgeship, as the verse states: "...and numerous are all her victims." (Mishlei 7.26), which refers to one who has the ability and obligation to judge and does not [Urim v'Tumim u6].

Section 5[edit]

A judge is prohibited to behave in a lordly, arrogant manner with the community. Rather, he should exhibit humility and fear of Heaven. Know that one who places excessive fear on the community that is not for the sake of Heaven will never see descendants who are scholars. Furthermore, it is prohibited to treat the community flippantly, and their honor should not be light in his eyes, even if they be unlearned, as they are still children of Avraham, Yitzchok, and Yaakov, of holy seed, and therefore he should not tread on the heads of this holy people. A judge must shoulder the burden of the community, and they in turn must treat him with respect and reverence. He must also be careful not to treat himself lightly and act frivolously while in their presence. This entails not making a habit of having festive meals in others’ homes when it is not a religious-themed event. Even when the meal is religiously-themed, he is prohibited to drink until intoxicated. Since he has been appointed into a ruling office over the community, he must not engage in manual labor in front of three or more people, so as not to have his status lessened in their eyes. Finally, any judge who does not have one to serve as his assistant should not accept appointment as judge.

Section 6[edit]

It is also prohibited to treat an officer of the court lightly, and the court is permitted to fine one who causes him embarrassment or distress as is appropriate in their eyes. An agent of the court is believed as two witnesses to report that he was disrespected as far as enabling the court to excommunicate the individual in question. However, in order to issue a monetary fine or corporal punishment there must be two witnesses to the act.

An agent of the court can report the response of the litigants, even if the response was insulting to the court, and it is not deemed ‘disparaging speech’ – ‘Loshon Hora’. The rabbis of the Talmud learnt this from the account of Korach’s rebellion, where Dasan and Aviram responded to Moshe’s messenger “Even if he would take out the eyes of those men (oblique reference to themselves) we will not come up to him” (Bamidbar 16.14). Ostensibly, these words were repeated to Moshe. If there would have been a sin in accepting this report Moshe would not have believed that they said that, and the Torah would not have written their response, as it seems obvious that G-d would not command something to be written which is in violation of the law. Furthermore, he must have heard it from the messengers, as it was not revealed to him by G-d, since there is a rule that G-d does reveal messages that are of tale bearing nature (Gemara Sanhedrin 11.1). Certainly then the messenger reported their words to Moshe, and G-d commanded him to write their response in the Torah, and we learn from here that there is no concern of the prohibition of disparaging speech –‘Loshon Hora’.

An agent of the court is even allowed to administer corporal punishment to the recalcitrant litigant; and he is also exempt for the damage he causes to his property, even if there was another way to proceed that would not have caused that damage (Sefer Mi’eros Anayim 25). There is a dissenting opinion that rules that the agent is prohibited to strike the litigant or damage his property if there is another way to garner his cooperation (Shvus Yaakov). This second opinion appears to be the law (see chapter 11 for further information).