Translation:Arukh ha-Shulchan/Choshen Mishpat/9

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

Choshen Mishpat 9
The prohibition of accepting bribes and the permit of a private citizen to accept payment for salary lost due to serving as a judge

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632542Translation:Arukh ha-Shulchan — Choshen Mishpat 9
The prohibition of accepting bribes and the permit of a private citizen to accept payment for salary lost due to serving as a judgeYechiel Michel Epstein

This chapter contains six sections: 1 | 2 | 3 | 4 | 5 | 6 |7 | 8 | 9 | 10 | 11 | 12

Section 1[edit]

When the Torah states “Do not take a bribe”, it is not possible to explain that this refers to taking money to bend the law, since the Torah has already warned many times against this behavior, with such statements as “Do not bend the law”, “Do not respect persons in judgment”, and “Do not bend the law when judging the destitute.” Rather, the prohibition here refers to accepting a bribe even to exonerate the truly innocent or convict the truly guilty. Therefore, one must be exceedingly careful to avoid bribes. If a judge nonetheless accepted a bribe, the one who offered it can demands its return and the judge is obligated to comply, even after much time has passed, unless the offerer has forgiven his claim to recover. Truthfully, to be clean in the eyes of Heaven one is obligated to return the bribe even if it is not claimed from him [Shvus Yaakov PROBABLY RESPONSA 135]

Not only are judges prohibited to accept brides but also anyone who is appointed to oversee communal needs or even anyone who voluntarily undertakes communal tasks, even if their work does not involve laws of the Torah, they are prohibited to bend the rules because of friendship or dislike and certainly not because of accepting a bribe.

Bribery does not only apply to the exchange of money. Even words can be bribery. For example, offering greetings upon meeting the judge, if he would not normally do so, or praising the judge, even a small amount, if he has not done so in the past.

Offering a bribe to a non-Jewish judge is prohibited because of "Do not put a stumbling block before the blind", as non-Jews (lit. 'sons of Noach') are also commanded to establish honest judicial systems. If he is offering the bribe to prevent a corrupt non-Jewish judge from bending the law in his opponents favor, and instead rule according to the law, that would be permissible [Chasam Sofer, volume 6, responsa 14].

Section 2[edit]

A judge who has made a habit of borrowing from his neighbors, and does not have anything to lend them in return, cannot sit as a judge on a case that concerns them. If he does have objects to lend, but they have not taken the opportunity to do so, he may judge them, as this is not considered a type of bribery, rather it is normal neighborly behavior. In addition, if he only borrows to honor them, he is also permitted to judge them. To be clear, his prohibition to judge neighbors when he borrows from them is only when he borrows continually. If it is only occasionally, there is no objection.

Section 3[edit]

If the defendant had sent a present to the judge before he was first summoned to court, it is acceptable if it always was his practice to send this judge a present on occasion. Therefore, the other litigant cannot protest this action, even if it was known that they would have their dispute presented before this judge, since it is probable that this gift is a continuation of his usual practice, and not meant to affect the case. If the judge himself feels that he would be partial to this individual, he should remove himself from the case. If he senses that the individual gift was an attempt to affect his impartiality, by law he cannot serve as judge in this dispute [Bais Chadash]. If the victorious party should send him a present after the conclusion of the case he is also forbidden to accept it, unless the other has a financial liability towards him that this gift would repay.

Section 4[edit]

In previous generations the city would collect from the inhabitants at the beginning of the year or the end to pay the salaries of the appointed judges and scholars. There is no concern of bribery here, as it is a command on the community to pay the salaries of the judicial employees and the scholars. Additionally, if there where communal pledges or sanctified funds that were not earmarked for specific purposes they would also be used for covering judicial officers and scholars salaries.

Practically speaking, it is much better to collect for salaries at the beginning of the year, so that judicial personnel should not feel pressure to flatter or honor people throughout the year to ensure their salaries. Another option is to pay a set weekly salary, and that is the prevalent custom.

Section 5[edit]

Even if a judge does not take bribes personally, if he strives to increase his officers, scribes, and assistants remuneration he is considered among those who are ‘turning after gain’. The sons of Shmuel HaTzaddik were punished because of this behavior. Therefore, the community should be careful to pay these positions a set salary.

Section 6[edit]

If one takes payment to judge not as a bribe but rather as a service fee, as any type of worker would receive, his ruling is still invalid, unless he known to not generally take payment for his service. If he is of this latter category he is still considered a proper judge, and not of the wicked whose rulings are invalidated. This is because there actually is no Biblical prohibition against being paid for the service of judgeship, and the invalidation of rulings is a rabbinical fine that was enacted on this practice [Sefer Mi’eros Anayim, 13], since it is not fitting for the honor of the institution of justice and law to take money for his service like any other form of work. Even though there is this fine, all of his previous rulings are upheld, even if we suspect he has taken payment in the past, as the rule of ‘only now his status was damaged’ applies [Nisevos haMishpat,7].

Concerning the prevalent custom of both litigants giving judges a token amount before asking them to judge or arbitrate their case – this appears to be an old communal enactment, and the community can enact that judges should not judge until they are paid by both parties to the case, since that is their livelihood. Therefore, when one contracts a rabbi or judge for his case this condition is assumed, since it is the common custom [Nisevos haMishpat, 9]. In an arbitration process it is completely permitted to take money from both sides for the arbitrators’ fees [Shach, 7].

Section 7[edit]

If the judge merely takes payment for the interruption to his regular employment that acting as judge will cause –‘schar batayla’, that is permitted, as long as it is clear to all that the payment is for this reason alone. He would be required to say to the litigants “at the time I am judging your case I will not be able to ply my regular occupation, which would have netted me such-and-such amount of money, and I would like you to pay for that lost income.” Secondly, he must divide that amount equally between the two litigants. Thirdly, this condition must be expressed before the case started. If he brings this up after he started to serve as judge they do not have to pay, as they could argue that ‘if we knew we had to pay your lost wages we would have found a different judge’ [Turi Zahav]. If the judge does not have a known occupation but he says “Perhaps a business opportunity will come my way and I will not be able to take advantage of it, and I would like you to pay for that possibility” he is forbidden to take money on the strength of this claim. If, however, they ask him to travel for the court case he can charge travel expenses, as this is not paying for his actual judging. Tangentially, the same travel rules apply to witnesses, as can be seen in the Shulchan Aruch in chapter 34, section 26. According to what is written there, a judge can even charge for the inconvenience of moving between buildings to judge.

To sum, there are three categories here: If he is in the middle of his occupation when approached with the request to be a judge he is allowed to take payment for his lost work. If he is not engaged in his occupation but insists that his desire is to find work in his field during the period in which they are requesting him to function as a judge and therefore he should be paid for his lost wages it is a detestable practice unless he is known to be involved in that field of endeavor and would reasonably be expected to have a work opportunity during that period. Either way, it is technically permitted if he stipulates this as a condition to serve as judge. Finally, if he has no current work occupation but insists that maybe an opportunity will come his way it is prohibited to pay him for the possibility of lost work. [Sefer Mi’eros Anayim, 16].

Section 8[edit]

All these laws pertaining to paying judges only apply when he is not an officially appointed judge whose livelihood is being a judge. If he is, he may take equal payment from both sides to preside over their case, and such is the accepted custom. [Urim v’Tumim, u9] and [Nesivos haMishpat, 9], as is written in section 6, as this is considered his implied stipulation with the community in return for his services.

Section 9[edit]

A judge should not allow a boorish student sit before him when he presides over a case, for he may engage in give and take with him and the student will bend his opinion away from a true understanding. This is included under the prohibition ‘Distance yourself from a false matter’ (Shmos, 23.7).

Section 10[edit]

“If a student is present before his teacher when the teacher is functioning as a judge, and he sees an argument of merit for a poor man whom his teacher appears to be ready to pronounce guilty he is required to raise his objection for merit. If does not due so he transgresses the prohibition ‘Distance yourself from a false matter’ (Shmos, 23.7).”

This statement of the Shulchan Aruch also applies to a rich man as well, where the student would be likewise obligated to raise his objection for merit. The reason the Rabbis phrased their statement as ‘a poor man’ was to discredit a possible rationalization of the student, who would think “Even though according to the law I see a merit, the Rabbi must understand that the truth is with the rich man, for why would a rich man falsely claim money from a poor man” [it does not seem sensible that a rich man would bother to go through the trouble of court proceeding and risk being caught in a lie for a minor gain.] In this case too the student must voice his argument for merit, and he is not allowed to remain silent [Rashal and Urim vTumim, 10].

Section 11[edit]

If a student is sitting before his teacher and sees that his teacher has made a mistake of law while deliberating on a case he should not say “I will wait until the ruling is issued and then have the verdict overturned by my counter-argument, so that the ruling will be cited in my name”, for that also falls under the category of ‘Distance yourself from a false matter’ (Shmos, 23.7). Rather, he should inform his teacher right away, in a respectful manner, ‘Rabbi, such and such you have taught me’.

Section 12[edit]

There is a practice that society treats as permitted and is actually a great prohibition, which in its commission includes accepting bribes, putting a stumbling block in front of the masses, creating controversies between people and profaning G-d’s name, which has no measure to its punishment. This practice is seen when a community needs to appoint a leader to oversee any area of public policy, often requiring the government’s acquiescence, and people struggle to seek the appointment of their friends or relatives, or prevent those they dislike from securing the position, simply because of their interests, though they know that their candidate is not fitting for the position. They further complicate matters by aggressively promoting their candidate, multiplying arguments and misleading the public about their qualities and character. In the final analysis, this behavior is recognized by He to whom all secrets are revealed, and He is aware of their personal motivations, and as well as how their actions damage the community-at-large. Many are those who have fallen victim to this practice and therefore one is required to be exceedingly careful to avoid this behavior.