חושן משפט ה'

משפט צדק. "righteous judgment." The Torah did not write בצדק as it did in Leviticus 19,15 where it legislated something similar. In our verse -which is addressed to the judges- the Torah teaches the judges something of great importance. If the judge is truly interested in handing down true judgment, he must dissociate himself from the persons, i.e. the litigants before him and weigh only legal considerations. He must not say to himself that according to the arguments of litigant A, B must be guilty, whereas according to the arguments of litigant B, A must be guilty. He must research only the halachah on the subject matter in dispute. If he were to approach the matter differently he could not help but develop some bias in favour of one of the litigants. As a result the judgment would not reflect true righteousness, צדק. When the judge follows the procedure the Torah suggests then he first forms judgment, משפט, which turns out to be צדק, righteousness. [You will observe that in the quotation from Leviticus 19,15 the Torah describes the reverse sequence, i.e. your interest in righteousness obliges you to pronounce judgment. In that instance a variety of considerations ultimately demanded that you resort to law rather than mediation, etc. Ed.]

We do not hold court. Rem"a: Therefore, it was forbidden to arrest and imprison someone who deserved a punishment in order that he not escape. All the more so is it forbidden to give him lashings, because this is a legal matter. If he escapes, we are not liable (Beit Yosef Chapter 253 in the name of the Shibbolei haLeket). We do not betroth women. Rem"a: There are some who allow betrothing when the man has no wife and children (Rabbeinu Tam), and it is possible that this also the rule with regards to a wedding (Sma"g). Even though our established practice is not like this opinion, we can rely on it in a pressing situation, for the additional reason that human dignity is important. It often happens that they do not work out the dowry on Friday until nightfall, and in that case they do the betrothing and wedding on Friday night, because they already have the wedding meal ready and it would be embarrassing for the bridge and groom to not marry then. In any event, a priori one should be careful that it not come to this (and see Tur Even HaEzer Chapter 63). And we do not do chalitza nor we do yibum [levirate marriage], nor do we have a wedding, nor do we dedicate objects to the temple, nor do we dedicate the value of a person or an animal to the Temple, nor do we renounce private use of an object, nor do we separate trumot or maasrot, nor do we redeem a firstborn son [[[wikipedia:pidyon haben|pidyon haben]]], nor do we divorce unless he is very ill (the world is weighing heavily on him). For all of these things, if they were done, whether by mistake, on purpose, or erroneously, what was done is regarded has having been [legally] done.

The Judge before whom a lawsuit comes [up] which he knows to be fraudulent, should not say, 'I will decide it [in accordance with the testimony of the witnesses] and the collar¹²Heb. קולר from the Lat. collare, ‘collar,’ the Roman prisoner’s iron collar or chain around the neck. [of responsibility], i.e., the chain of guilt, will hang around the neck of the witnesses.'¹³Yad, Sanhedrin XXIV, Derived from Sheb. 30b-31a: ‘Whence do we know that a Judge who knows that a lawsuit is fraudulent (having reached a conclusion from the testimony of the witnesses that they spoke falsely), should not say, Since the witnesses bear testimony, I will decide the case (in accordance with their testimony) and the collar (of responsibility) will hang around the neck of the witnesses? — For it is said: From a false matter keep far (Ex. XXIII, 7).’ In what manner should he act? — He should investigate and inquire into the matter closely by means of [the methods employed in the] cross-examination and investigation of capital cases.¹⁴San. 32b: ‘R. Papa stated (in reconciling the views of the Mishna [San. 32a] that both monetary and capital cases require examination and inquiry, and the Baraitha [ibid.] according to which examination and inquiry in civil suits are not necessary) … In our Mishna the lawsuit is fraudulent (therefore, there must be a thorough examination and investigation), but in the other (Baraitha) the lawsuit is not fraudulent. This accords with Resh Lakish, for Resh Lakish pointed out an incongruity (between two verses): It is written, In justice (E. ‘righteousness’) shalt thou judge thy neighbour (Lev. XIX, 15); and (elsewhere) it is written, Justice, justice shalt thou follow (Deut. XVI, 20. The repetition of the word justice indicates a more thorough investigation). How is this possible? — The latter verse refers to a lawsuit that is fraudulent; the former verse to a lawsuit that is not fraudulent.’ However, this passage contradicts the passage in Sheb. ibid. (v. previous note) according to which the Judge is required to withdraw from adjudicating a fraudulent lawsuit. There are in the main three views held among the Codifiers in order to reconcile these two Talmudic sources. a) Tosaf. (San. 32b, s.v. כאן) maintain that in Sheb. we deal with a lawsuit that we know to be fraudulent. Hence, the Judge is obliged to withdraw from such a case; while in San. we deal with a lawsuit that is suspected of being fraudulent. Consequently, examination and inquiry are required in order to determine for certain the fraudulence in the case. b) Maim. (Yad, ibid.) holds that both in Sheb. and San. we deal with a fraudulent lawsuit only that in Sheb. examination and inquiry had already been applied (note the expression ‘A Judge who knows that a lawsuit is fraudulent).’ Consequently, we apply the verse, From a false matter keep far and the Judge must withdraw from the case. In San., however, we deal with a fraudulent lawsuit where examination and inquiry were not conducted as yet. Accordingly, there is no difference whether the plaintiff made a fraudulent claim or whether the defendant presents a dishonest case, — the Judge must withdraw. And although the defendant may benefit according to this view, nevertheless, we are not responsible (This perhaps explains the version found in some texts of Yad ibid.: וידון אותו מלכו של עולם ‘Let the King of the world judge him’ instead of וידוננו מי שלבו שלם ‘One whose heart [intelligence] is perfect should judge it.’ In other words, even if the defendant will benefit, the ‘King of the universe’ will eventually see that justice is carried out). c) Asheri reconciles the passages as follows: In Sheb. the plaintiff is the one who makes the false plea. Therefore, the Judge should withdraw; while in San. we deal with a case where the defendant is a fraudulent person. Hence, in order for the latter not to benefit, the Judge must not withdraw. , infra par. 4. Gloss: Nevertheless, the law [of cross-examination in this case] is not [as strict] as [in] capital cases where if [a witness] stated during one of the inquiries, 'I know not,' that the testimony becomes void; but what is meant to be said is that he [the Judge] should inquire into a fraudulent lawsuit as much as it is possible.¹⁵RIBaSh s. 266 — G. If it appears to him [the Judge] according to his understanding that there is fraud therein, or where his common sense [directs him] not to rely upon the statements of the witnesses although he cannot [find grounds] to disqualify them, or where his [practical] judgment inclines [to assume] that this litigant is a deceiver and a cunning person and mislead the witnesses although they are eligible [witnesses] and gave evidence in ignorance of its legal bearing, and this party [the deceiving litigant] led them astray, or it appears to him [the Judge] from the general contents of the statements that there are other concealed matters therein and they are not willing to reveal them, — [then the law is that in] all these [aforementioned] matters and anything similar to these, he is forbidden to render a legal decision in that lawsuit, but he should withdraw from this case and one whose heart [intelligence] is perfect in [the examination of] such a case should judge it and these are matters entrusted to the heart [intelligence].¹⁶Yad ibid. followed by Tur who also cite, For the judgment is G-d’s (Deut. I, 17). When Asheri would notice on the basis of a well-grounded assumption that the lawsuit is fraudulent, he would prepare a document and place [it] in the possession of the defendant [to the effect] that no Judge should make an effort to try this lawsuit.

When does this apply?¹⁷That the Judge should withdraw from a fraudulent lawsuit. , previous par. — Where the claimant is a deceiver. However, when the defendant is a deceiver, the Judge cannot withdraw [from the case] so that the deceiver should not be at an advantage, but he [the Judge] should examine and investigate [the defendant] closely in order to upset his deception.¹⁸R. Meir of Rothenberg, Asheri and Tur. , supra n. 14c. And if it becomes apparent to him [the Judge] on the basis of a well-grounded assumption that he [the defendant] is guilty, he may declare him guilty [provided] if he is a recognized Judge and distinguished in his generation.¹⁹Asheri Resp. Derived from B.B. 58a: ‘A certain man over-heard his wife say to her daughter, Why are you not more guarded in your immoral conduct? I have ten children and only one is (the issue) of your father. When (the man was) lying on his deathbed, he said, I leave all my possessions to one son. They knew not to which of them he referred, so they appeared before R. Bana’ah (to seek advice in this matter). He (R. Bana’ah) said to them, Go and knock at your father’s grave until he rises and reveals to you which one of you he meant. Thereupon they all went to do so. But the one who was really his son did not go. Whereupon (R. Bana’ah) said to them, All the possessions belong to this one. They went and informed against him (R. Bana’ah) before the king, saying, There is a man among the Jews who exacts money illegally from people without witnesses or any other proof. So they brought him (R. Bana’ah) and imprisoned him etc.’ R. Bana’ah based his opinion on a well-grounded assumption (אומדנא דמוכח) that the real son was the one who did not go to knock at the grave of his father (v. RaShBaM s.v. אמר להן). , further Ket. 78b-79a in accord with Tosaf. s.v. כתבתינהו לברתה in the case of a deed intended as a means of evasion that was torn up by R. Naḥman on grounds of assumption; also B.B. 146b; I Kings III, 16ff. on Solomon’s judgment based on the same principle although it was also a manifestation of the Holy Spirit; cf. also Yad, Sanhedrin XXIV, 1 for more examples of this principle. Should the defendant refuse to answer all the questions put to him by the Judge, he is presumed to be a liar and the Judge pronounces judgment accordingly, i.e., as if the fraudulence of the matter has already been established with certainty — M.E. Gloss: In this manner the Judge can likewise say to the defendant that he will not grant him [an extension] of time [in order to produce witnesses] until he deposits security, — for in such matters the Judge takes into consideration only whatever seems to him [to be correct],²⁰MaHaRIK Rt. 14 — G. On the right to request an extension of time v., infra § 16. and he [the Judge] can impose an oath even where he [the defendant] is legally not bound to take an oath, — [provided] if he does [this] in order to ascertain the truth.²¹Ibid. Rt. 187 — G. Cf. Shab. 10a: ‘Every Judge who judges in perfect truth even for a single hour it is accounted to his credit as though he had become a partner to the Holy One, blessed be He, in the creation.’ Tosaf. ibid., (s.v. דין) write that this ‘excludes a fraudulent case,’ which means that only in the case of a דין אמת i.e., in a regular suit where no fraudulence or dishonesty is detected, the Judge is required to adopt the regular procedure of examination before rendering a legal decision; but in the case of a דין מרומה i.e., where fraudulence is apparent, the Judge may employ even other means which are legally not valid in order to establish the truth of the matter. , Be’er Eliyahu.