Choshen Mishpat Hilchos Dayanim 1

(1) Laws of Judges - (Pirkei Avot 1:18) “Rabban Shimon ben Gamliel says: On three things is the world established - on judgement, on truth, and on peace.” Rabbeinu Yonah z”l explains: The explanation cannot be that “because of these three things the world was created,” because the beginning of the chapter said that on three things does the world stand, and these three are not listed there. Rather, first [Pirkei Avot] relates that for three things the world was created, i.e. Torah, Avodah and Gemilut Chasadim. Torah, that it says, (Proverbs 8:22) “God made me as the first of His way...” The Torah says, “I was created before all of the creations and for my sake were all creations created.” Similarly, [the world was created] because of “Avodah” because God chose Israel from all of the nations, and chose the Beit Hamikdash from all of the places, that they should serve Him in it, and for its sake to God create the world. And similarly Gemilut Chasadim, which is the middah of chesed that causes one to be approved before God. Here [Pirkei Avot] states, “...the world is established.” This means that after the world was created it is preserved through these things - that through judges that judge between people does the world continue. Because were it not for law the more powerful would conquer. And similarly truth, like it says in Shabbat 104a, that lies have no legs [to stand on] but truth is the foundation and it is a big pillar for all things. And similarly, peace, as they say in Avot (Pirkei Avot 3:2), “One should pray for the peace of the government, for were it not for the fear of government, people would swallow each other alive.”

(2) And this is the intention of our rabbis z”l, when they say, “All who judge a judgement truthfully, it’s as if he is a partner with God in the creation of the world,” because God created the world to continue and the wicked who steal and commit acts of violence ruin the world through their actions. And similarly we find regarding the generation of the flood that the decree of their judgement was sealed only because of theft, as it is written, (Genesis 6:11) “For the earth is filled with violence,” and it says after this, (Genesis 6:13) “I will destroy them with the earth”. What emerges is that the judge who breaks the high arms of the wicked keeps the world going and completes the will of the Creator, blessed is His name, who created it to keep going, and it is as if they become partners with the Holy One ,Blessed Be He, in the creation. Abraham our forefather didn’t know God, and He called him (Isaiah 41:8) “My beloved” because he walked in the ways of justice and guided his children, as it is written, (Genesis 18:19) “For I have known him, to the end that he may command his children and his household after him, that they may keep the way of God, to do righteousness and justice…” And Moses our teacher a”h, master of all prophets, took advice from Yitro with regards to justice, to establish judges to caution Israel and to command them through justice, and God agreed with this. And Joshua afterwards established a covenant with Israel to serve God, he left his last word as justice, as it is written, (Joshua 24:25) “On that day Joshua made a covenant for the people, and there at Shechem he reaffirmed for them laws and justice.” [This is] because justice is the foundation and the great principle in the service of God, and following [Abraham] have each and every judge judged their generation, and bring them back from their evil ways to service of God to go in the way that Abraham paved to do righteousness and justice, and through this were they [i.e. the Jewish people] were saved from their enemies until Samuel the prophet came, God-faithful, (1 Samuel 7:15-16) “who judged Israel all the days of his life. And he went on a circuit year by year to Bethel, Gilgal, and Mizpah. And he judged Israel in all these places.” And our sages tell us that the path he took one year was not the one he took the next, so that he could turn the hearts of the entire nation toward service of God, and to walk in the way of Abraham our forefather a”h, and he anointed David to be the king of Israel, and he too walked in the ways of God from all that was in front of him, as it is written,(2 Samuel 8:15) “And David did justice and righteousness. (1 Chronicles 11:8) “And Joab restored the rest of the city.” And our sages tell us that in the merit of the justice and righteousness of David, Joab restored the rest of the city, and had his child [Solomon] continue after him, the “Yedid Hashem”, who loved to go in the laws of his father David and would ask from God an understanding, listening heart to judge his people, to understand between good and bad, and it was good in God’s eyes, that which he asked regarding this. And He gave him a wise and understanding heart which has never been before, and no one has been like him since, and all of Israel was afraid of him because they saw that the wisdom of God was in his heart to do justice. And also Jehoshaphat, who took the paths of his father and raised his heart in the ways of God, was strengthened in justice, and he appointed judges in every city, and he said to the judges, “See what you do, for you are not judging for man but for God, and with you shall be justice.” Josiah as well, that Scripture testifies about him, “And no king was like him before, who returned to God with all his heart.” And also the King Messiah, who will be revealed speedily in our days, is praised by Scripture regarding justice, and it is written, (Isaiah 11:4) “And he will judge the destitute with justice, and decide with equity for the meek of the earth…” And according to the greatness of his reward will be the punishment for those who void and pervert it, as it is taught, “Destruction comes to the word based on lack of law and on the perversion of law.” And so did David say, (Psalms 119:121) “I have done justice and righteousness, leave me not to my oppressors.” This implies that without justice, he would have been left in the hands off oppressors. And Jerusalem was only destroyed, and Israel only exiled, because of the neglecting of justice, as it is written, (Isaiah 1:21) “She once was full of justice; righteousness used to dwell in her-- but now murderers.”... And God wants it more than all the sacrifices, as it is written, “Doing righteousness and justice is choicier to God than the zevach offerings.” It does not says “than sin and burnt offerings,” but rather “than zevach offerings.”

(1) The Judge must be patient in the [administration of] justice¹Yad, Sanhedrin XX, 7 and Tur a.l., derived from Aboth I, 1: ‘Be patient in judgment.’ [viz.,] that he should not give a decision before he protracts [his deliberations]²San. 35a: ‘Raba derived it from here: Ashsheru ḥamoẓ (Is. I, 17), i.e., praise (אשרו is explained ‘declare happy’) the Judge (in capital cases) who reserves (lit. ‘makes sour’ or ‘preserves,’ i.e., he protracts his deliberations) his judgment (overnight).’ Tur cites כי יתחמץ לבבי וכליותי אשתונן (Ps. LXXIII, 21) which may be rendered, For my heart (i.e., my mind) matures (by protracting the deliberations) and (through) my reins (fig. the soul or mind) I will become sharpened (i.e., through mature judgment). Cf. Ibn Ezra a.l. and v. Ha-Oẓar by S. J. Fin, s.v. שנן ,חמץ. E. renders, For my heart was in a ferment, and I was pricked in my reins. Yad ibid. cites And the cause of him that I knew not I searched out (Job. XXIX, 16). and discussed it [the law]³Mishna San. III, 6(29a): After examining the witnesses separately, it is stated that ‘if their statements agreed, they (the Judges) discuss the case,’ whence we infer that a discussion must always take place in order to establish the truth. and it becomes clear to him as the sun[light].⁴San. 7b: ‘R. Joshiah… expounded: What is the meaning of the text, O, house of David, thus saith the Lord: Execute justice in the morning and deliver the spoiled out of the hand of the oppressor (Jer. XXI, 12). Is justice executed in the morning and not during the whole day? — It means rather that if it (i.e., the judgment that you are to pronounce) is clear to you as the morning (light), pronounce it, but if not, do not pronounce it.’ He who gives legal decisions in haughtiness and rashly decides the law before he examines it well in private until it becomes clear to him as the sun[light], is regarded foolish, wicked and presumptuous.⁵Aboth IV, 7. ‘Foolish,’ since he regards himself a wise man and is too sure of his knowledge (cf. Prov. XXVI, 12) ; ‘Wicked,’ for he perverts justice; ‘Presumptuous’ because he is over-confident and consequently, is not patient in the administration of justice — M.E.

(3) For she hath cast down many wounded,'⁸Prov. VII, 26. refers to a scholar who has not attained [the age of] ordination, and [yet,] renders decisions; 'Yea, a mighty host are her slain,'⁸Prov. VII, 26. refers to one who has attained [the age of] ordination, but avoids giving decisions,⁹A.Z. 19b. provided [his] generation has need of him.¹⁰Yad, Sanhedrin XX, 8; Tur. Derived from Ber. 63a. However, if he knew that there is [another scholar available] there [who is] fit to render decisions, and [on account of this] he refrains from giving decisions, he is considered praiseworthy.¹¹For this entire ruling v. supra § 8, 3, nn. 26-28. Whosoever refrains from [trying] a lawsuit avoids enmity and robbery and a vain oath.¹²Aboth IV, 7. This is applicable even if the generation has need of him, for even if the law is quite clear, the Judge should endeavour to arbitrate the case — M.E.

(1) Whoever appoints an unworthy Judge,¹San. 7b; A.Z. 52a: ‘Resh Lakish stated: Whoever appoints an unworthy Judge over the community is as though he planted an Ashera in Israel, for it is written, Judges and officers shalt thou appoint thee, and near it is said, Thou shalt not plant thee an Ashera of any kind of tree (Deut. XVI, 18-19).’ Tree refers to a Judge. , Ta‘an. 7a to Deut. XX, 19. or²Lit. ‘and,’ which is to be understood here not as the Waw explicativum (as the English ‘to wit’), but rather as the Waw copulativum that introduces an alternate item, i.e., having the meaning of ‘or.’ , Kimḥi’s Heb. Gram., ed. Chomsky p. 352. Hence, the meaning here is a) One must not appoint an unworthy Judge, i.e., one who is unworthy in his deeds or actions, though he may be a scholar, or b) One who is not a scholar, though he is considered worthy in deeds (-a totally pleasant individual, i.e., outwardly his actions are becoming). The ruling supra § 3 that even if one of the Judges is versed in law and is endowed with reasoning power, it suffices, has reference only to ex post facto decisions. However, in the first instance, the Judges who are appointed permanently must be versed in the law. , supra § 3, n. 42. one who has no knowledge in the wisdom of the Torah and is not fit to be a Judge,³San. 7b: ‘The members of the Nasi’s household once appointed a Judge who was incompetent. The Rabbis said to R. Judah b. Naḥmani, the interpreter of Resh Lakish: Stand at his side as interpreter. When he stood at his side and bent down (to hear what he was saying), the (interpreter) said nothing. Whereupon R. Judah commenced his exposition and said, Woe unto him who saith unto wood: Awake! — to the dumb stone: Arise! Can this teach? Behold it is overlaid with gold and silver and there is no breath at all in the midst of it (Hab. II, 19); but the Holy One, blessed be He, (he continued) will punish those who set them up, as it is written, But the Lord in His holy Temple; let all the earth keep silence before Him (ibid.).’ — even if he is a totally pleasant [individual]⁴e., he is full of charm. , Song of Songs V, 16. and possesses other good [qualities], — [yet,] the one who appointed him transgresses a negative precept.⁵Sifre XVII to Deut. I, 17, Ye shall not respect persons in judgment, i.e., one must not respect his friend by appointing him as a Judge because the latter is wealthy, or is a relative of his or for any other similar reason. Cf. Yad, Sanhedrin III, 8. Gloss: It is forbidden to appoint an unlearned person [as] a Judge on reliance that [in every legal matter] he will always consult a scholar.⁶B.Yos. — G. Derived from Shab. 139a: ‘What is the meaning of the verse, The Lord hath broken the staff of the wicked, the sceptre of the rulers? (Is. XIV, 5). Mar Zutra said. This refers to scholars who teach the laws of the public to ignorant Judges,’ i.e., the ignorant Judges are appointed in reliance that they will consult the scholars in doubtful matters, but they act of their own accord and thus pervert justice (Rashi). Hence, we see that an ignorant Judge should not be appointed on the reliance that he will always consult the scholar. [In] towns where there are no scholars [available] who are fit to be Judges, or where all of them are unlearned people and they require Judges to adjudicate [cases] among them so that they go not before heathen Courts, — [the law is that] they may appoint [as Judges] the best and the wisest of them with the consent of the townspeople, although they are not fit [to be] Judges.⁷Mishna San. 23a according to which R. Meir holds that each litigant may refuse to accept the Judge chosen by the other and the Gemara (ibid.) explains that R. Meir maintains thus only in the case of Syrian Courts whose Judges were unversed in Jewish law; but the Sages hold that if they are fit, they are regarded as Mumḥin appointed by the Beth Din and cannot be disqualified, i.e., since they were accepted by all the townspeople as Judges they may not be disqualified, provided there are no Mumḥin available there. , supra § 3, n. 4. However, once the townspeople accepted them [as Judges] no other person can disqualify them.⁸, previous note. Likewise, [the members of] an entire community can accept a Court of Law [that consists of Judges] who are not fit [to judge] Biblically.⁹B.Yos. on the authority of RaShBA, Resp. — G. , infra § 33, 18 Gloss. And every Judge who gets appointed on account of silver or gold, — [the law is that] it is forbidden to rise before him;¹⁰Caro’s text has לפניו which should be corrected to מפניו. Thus Y. , following note. and what is more, it is a religious duty to treat him with disrespect and to despise him.¹¹ supra § 3 end — G. Yad, Sanhedrin III, 9; Tur. Derived from Y. Bik. III, 3(65d); Midr. Sam. VII: ‘R. Mani spoke with disrespect of those that get appointed to office for money. R. Imi would apply to them the Scriptural verse, gods of silver, or gods of gold, ye shall not make unto you (Ex. XX, 20). Said R. Joshiah: His official cloak is as befitting to him as the packsaddle of an ass. Said R. Sheyan: For one who is appointed to office on account of money, one should not rise, nor is he called Rabbi etc.’ , San. 7b: ‘It is written: Ye shall not make with Me gods of silver or gods of gold (Ex. ibid.). Does it mean that only gods of silver and gold are not to be made, but those of wood are permissible? — The verse, said R. Ashi, has reference to Judges appointed through the power of silver or gold.’ Cf. San. 63b: ‘All scoffing is forbidden except the ridiculing of idols (by perverting their names).’ Hence, just as idolators may be treated irreverently, so also Judges who are appointed through the power of money. This refers to a Judge unversed in Jewish Law, but if he is learned in the Torah, even if there are others greater than he in that city, there would be no prohibition against rising in his presence, provided he did not buy his judgeship for money, but was appointed to office because he was wealthy. For if he paid money to be appointed, even if he is the most learned in the city, the prohibition stands. Thus BaḤ. However, according to Tosaf. Yeshanim to Yoma 18a, s.v. מרתא in the case of R. Joshua b. Gamala who was appointed to the High Priesthood for money, only if there are others superior to him in learning does the prohibition apply, but not otherwise. Thus Ḥatam Sofer contra BaḤ.

§Rav Huna says that Shmuel says: The halakha is in accordance with the opinion of Rabbi Yosei. Rav Yeimar said to Rav Ashi: But if so, with regard to that which Rav Yehuda says that Shmuel says: Anyone who does not know the nature of bills of divorce and betrothals should have no dealings in them, i.e., he may not serve as a judge in cases of this kind lest he permit that which is prohibited, does this principle apply even if that individual did not hear this halakha that Rav Huna says that Shmuel says? Since this type of case is uncommon, should such an individual be considered unfamiliar with the halakhot of bills of divorce and betrothals? Rav Ashi said to him: Yes, it is indeed so; this person is considered to lack the requisite knowledge to deal with these cases. This ruling is an important matter with regard to the halakhot of betrothal, and one who is unaware of it might err.

"He should not have dealings with them." Rashi's explanation: He shouldn't be a judge in this matter, lest he permit a forbidden sexual sin, and this is a bent thing that cannot be repaired (see Kohelet 1:15)." But Rabbenu Azriel's explanation: That he [the prospective husband] shouldn't talk with women about subjects of kiddushin to betroth them, for sometimes she will be betrothed through their speech or their giving and will not understand. Problem [on Rabbenu Azriel]: This is fine for kiddushin, but for divorce [which the Talmud also included in this], why do we care if she thinks that she isn't divorced!? [Her consent is not required for divorce, only for betrothal!]. Solution: There is a problem [if she wants to get married] to a kohen [who can't marry a divorcée]. New problem: The language of "with them (pl.)" doesn't worth for this, for a man can only give a get to his wife [so it should be singular]! Another problem: It says later in our chapter (Kiddushin 13a) that the concern [of having people who don't pay attention to this Rav Yehudah-Shmuel traditional] is [having sex with] a married woman [and not a kohen marrying a divorcée] when it says "[Those people] are worse for the world than the generation of the Flood [and see the prooftext there that mentions adultery specifically]"! Solution: It is possible that we are concerned if she stretched out her hand and received a betrothal from another [and this could lead to adultery and the multiple men she is betrothed to could account for the plural language].

(3) Anyone who is not an expert in the make-up of divorces and marriages should not deal with them to teach (about them, because it is easy to err and to permit an erva [that is, a forbidden woman] and cause an increase in mamzerim [that is, children born from illicit relationships] in Israel.

The mishna continues: The mitzva to establish a Sanhedrin with the authority to administer capital punishments is in effect both in Eretz Yisrael and outside Eretz Yisrael. A Sanhedrin that executes a transgressor once in seven years is characterized as a destructive tribunal. Since the Sanhedrin would subject the testimony to exacting scrutiny, it was extremely rare for a defendant to be executed. Rabbi Elazar ben Azarya says: This categorization applies to a Sanhedrin that executes a transgressor once in seventy years. Rabbi Tarfon and Rabbi Akiva say: If we had been members of the Sanhedrin, we would have conducted trials in a manner whereby no person would have ever been executed. Rabban Shimon ben Gamliel says: In adopting that approach, they too would increase the number of murderers among the Jewish people. The death penalty would lose its deterrent value, as all potential murderers would know that no one is ever executed.

§ Abaye found Rav Yosef sitting in court as the judge and compelling husbands to give their wives bills of divorce. He said to him: But aren’t we ordinary people, not ordained judges? And it is taught in a baraita that Rabbi Tarfon would say: With regard to any place where you find gentile courts [agoriot], even if their laws are like Jewish laws, you may not attend them, as it is stated: “Now these are the ordinances which you shall set before them” (Exodus 21:1). It is derived from here that one may go to court only before them, i.e., Jewish judges, and not before gentiles. Alternatively, it is derived that one may go to court before them, i.e., ordained judges, and not before ordinary people. Since we are not ordained judges, how can you perform a distinctly judicial act?

Rather, what is different about damage to an ox caused by an ox and damage to an ox caused by a man, so that Babylonian judges can rule in these cases even though they are not ordained? The difference is that we, the judges of Babylonia, perform the agency of the judges of Eretz Yisrael, just as we do with regard to the halakhot of admissions and loans, as we are permitted to rule in those cases as agents of the ordained judges in Eretz Yisrael. If so, then in cases of damage caused to a person by a person and cases of damage caused to a person by an ox as well, why not say that the judges of Babylonia perform the agency of the judges of Eretz Yisrael, just as it is with regard to the halakhot of admissions and loans?

The Sages state, with regard to the distinction: When we, the judges of Babylonia, perform the agency of the judges of Eretz Yisrael, we do so in matters where the ruling is clear to us; but in matters where the ruling is not clear to us, such as in the case of an injury to a person, which requires an appraisal, we do not perform the agency of the judges of Eretz Yisrael.