Rabbi Bernie
Fox
A
Judge Must Accurately Apply the Law and Effectively Evaluate the Credibility of
the Evidence
Do
not pervert judgment. Do not show
favoritism. And do not accept a bribe –
for a bribe blinds the eyes of the wise and perverts the words of the
righteous. (Devarim 16:19)
Moshe instructs the nation to appoint judges. He instructs these judges to be
equitable. They must not show any
favoritism. Moshe warns the judges that
they cannot accept any gratuity from the litigants. Accepting such a gift will inevitably affect their objectivity.
The Torah previously – in Parashat Mishpatim – discussed
the impact of such gratuities. Moshe is
reviewing this prohibition. However,
Moshe slightly alters the phrasing of the admonition from the previous
presentation. Moshe states that the
bribe “blinds the eyes of the wise and perverts the words of the
righteous”. In Parshat Mishpatim the
Torah states that, “the bribe blinds the clear-sighted person and perverts the
words of the righteous”.[1] Moshe substitutes a reference to the wise
in place of the term “clear-sighted”.
Why does Moshe make this change?
In order to answer this question, we must consider a
related problem. The Talmud in Tractate
Shabbat discusses the importance of the judicial system. The Talmud explains
that a judge who decides a case justly is a partner of Hashem in the creation
of the universe.[2] The simple meaning of this statement is
that society cannot exist without justice.
The universe was created to foster humanity. Therefore, the judge’s role is fundamental to the mission of the
universe. Without upright jurisprudence
society degenerates and humanity cannot develop. The universe and creation are rendered meaningless.
However, there is a difficulty in
the specific wording of the Talmudic text.
The Talmud does not merely state that the judge must render a just
decision. The Talmud uses a very
unusual phrase. It can best be
translated to mean that the decision must be accurate and consistent with
truth. The commentaries observe that
this phrase seems redundant. If the
judgment is accurate, certainly it is consistent with truth! accurate, certainly it is consistent with
truth!
Tosefot respond to this
problem. They explain that there are
two factors that determine the quality of a judge’s decision. First, the judge must accurately interpret
and apply the law. Second, the judge
must appraise the truth of the competing claims and evidence. This requires that he assess the validity of
the evidence. An example will help
illustrate these two considerations.
Assume Reuven borrows money from Shimon. Shimon claims he was never repaid. Reuven insists that he repaid the debt. Reuvben and Shimon
present their respective claims to a judge.
One issue the judge must determine is the specific standard of evidence
Reuven or Shimon must provide in order to release establish their claims. This requires that the judge know the law
and properly apply it to this case.
Now, assume that Reuven produces witnesses who testify on his
behalf. The judge must assess the
credibility of the witnesses and the truth of their testimony. If the judge questions the truthfulness of
the witnesses, he cannot decide the case on behalf of Reuven. This is the message of the Talmud. Only when the judge combines accurate
interpretation of the law with effective evaluation of the credibility of the
evidence is his decision consistent with the truth.[3]
Based on Tosefot’s comments, Rav
Eliyahu of Vilna, offers an additional insight into the Talmud’s
statement. He observes that in order
for this judge to be Hashem’s partner in creation, the judgment must be both
accurate and truthful. Concord is
essential for the effective function of society. He explains that society relies on the courts to foster peace and
harmony within society. This peace and
harmony only emerge from decisions that are both accurate and true. If a litigant looses a case but feels the
matter was judged accurately and with
the objective of discovering the truth, he can reconcile himself to the court’s
decision. However, if he feels the
decision was accurate but did not reflect a earnest search for truth, he will
resent the judgment. He will be
frustrated and disappointed.
Ultimately, he may become estranged.
Therefore, the judge only fosters harmony through decisions that are
accurate and seek truth.[4]
Rav Eliyahu of Vilna concludes that
a judge must be more than a master of the law.
He must also be an excellent judge of character and possess keen insight
into human behavior. The judge needs
this insight to assure that his decisions are not just accurate but also
truthful. T
This resolves our original
problem. The Torah in Parshat Mishpatim
refers to the judge as clear-sighted.
Moshe refers to the judge as wise.
Both of these descriptions are appropriate. The judge must have both of these qualities. The judge must be wise. This term represents the ability to
interpret and apply the law. The judge
must also be clear-sighted. This means
he must have the ability to find the truth through evaluating the veracity of
the evidence.
The two passages explain that a
bribe undermines both of these qualities.
It interferes with the judge’s ability to interpret and apply the
law. It also undermines the judge’s ability
to assess the truthfulness of the evidence.[5]
The
hand of the witness shall be against his first to put him to death, and only
afterwards the hand of the other people.
And you should destroy the evil from your midst. (Devarim 17:7)
The
Torah is not only a code of ritual law.
It also includes an elaborate system of civil ordinances. The various laws are interpreted, applied,
and enforced by a system of courts and officers. Our parasha discusses the appointment of judges in the
Land of Israel. The parasha
describes some of the guidelines followed by the courts. For example, the courts cannot execute a
person based on the testimony of a single witness. The Torah requires a minimum of two witnesses in such cases.
Our
parasha also briefly describes one of the four basic forms of
execution. This is s’kilah –
stoning. Our parasha does not
describe all aspects of this execution.
Our Sages provide the essential details. The person to be stoned is pushed from a height. If the convicted person dies from the fall,
the execution is completed. If the
condemned survives, then a large stone is pushed from the height upon the
person. If this, too, is survived, the
person is stoned until dead.[6]
Our
pasuk explains that the witnesses must participate in the
execution. Our Sages explain the
details of this requirement. One of the
witnesses pushes the condemned from the height. The second witness is responsible for pushing the large stone
from the height upon the convicted person.[7]
It
is interesting that Maimonides does not count this requirement as a mitzvah. In other words, there is no separate mitzvah
that requires witnesses to participate in the execution of the condemned. Instead, Maimonides indicates that this
requirement is part of the mitzvah of performing executions. The courts are charged with the
responsibility of carrying out executions.
The Torah specifies the means of execution in detail. Each form of execution is embodied in a
specific mitzvah that enjoins and authorizes the courts. Within this mitzvah is the
requirement that the witnesses participate in the execution.[8]
Why
must witnesses assume a leadership role in the execution of the condemned? Maimonides discusses this issue in his
Commentary on the Mishne. He explains
that the witnesses have first-hand knowledge of the crime. The court bases its judgment solely upon the
testimony of these witnesses. The
judges have no direct knowledge of the crime; their knowledge is second-hand
and based upon the testimony of the witnesses.
It is reasonable that those parties who are the primary source of all
knowledge of the crime perform the execution.
These are the witnesses.[9]
Gershonides
offers an alternative explanation. He
explains that witnesses must be aware of the impact of their testimony. This awareness encourages the witnesses to
carefully consider the evidence they will provide. This is especially true in the case of a sin punishable by
death. We do not want the witnesses to
view their testimony lightly. A life is
at stake. How can the Torah help assure
that the witnesses fully appreciate the significance of their testimony? The witnesses are made responsible for the
execution. The witnesses must be sure
of their testimony to the extent that they are prepared to personally execute
the person that will be condemned.[10]
There
is a significant difference between these interpretations. As explained above,
Maimonides interprets the requirement for the witnesses to participate in the
execution as a detail within the mitzvah for the courts to carryout
executions. His suggestion regarding
the rational for the requirement is consistent with this interpretation. The
most appropriate person should perform the execution. Who is most appropriate?
The witnesses – they have first-hand knowledge of the crime.
Gershonides
seems to disagree with Maimonides’ basic assumption. He does not regard this requirement as an aspect of the mitzvah
to perform executions. In other words,
the participation of the witnesses is not required in order to render the
execution more fitting or appropriate.
Instead, Gershonides regards this requirement as an element of the laws
of testimony. The testimony in a case
that could result in the death penalty must meet the highest standard of
credibility. The Torah creates a test
of this credibility. The witness must
offer the testimony with the knowledge that, if it is accepted, he will
personally carry out the execution.
The Commandment to
Appoint a King
When you come to the land that Hashem your G-d is giving to you and you
occupy it and settle it and you will say, “Appoint upon us a king like all the
nations that surround us”, you will place upon you a king that Hashem your G-d
chooses. You will appoint a king from
among your brothers. You are not
permitted to appoint a stranger that is not your brother. (Devarim 17:14-15)
Moshe
relates to Bnai Yisrael the commandment of appointing a king. The simple interpretation of Moshe’s words
is that the nation is commanded to appoint a king over itself. At all times the nation must have a
leader. This interpretation is
supported by an earlier incident in the Torah.
Hashem tells Moshe that the time has come for his death. Moshe asks Hashem to appoint a new
leader. Moshe contends that it is
imperative for Bnai Yisrael to have strong leadership. Hashem responds by appointing Yehoshua. In this incident, the Torah clearly
acknowledges the importance of strong political leadership. Therefore, it is reasonable to assume that
our passage is addressing this need and creating the institution of
kingship. Maimonides accepts this
interpretation of our pesukim.
In his Mishne Torah, he writes that Bnai Yisrael became obligated in
three commandments when they entered the Land of Israel. One of these mitzvot is to appoint a
king. Maimonides quotes our passage as
the source for this commandment.[11]
However,
there is a problem with this interpretation of our passages. After the death of Moshe, the nation was
lead by a series of judges and prophets.
The last of this series was the prophet Shemuel. The nation approached Shemuel and asked him
to appoint a king. They explained that
they wished to be led in a manner similar to the surrounding nations. These nations were ruled by kings. Bnai Yisrael wished to also be ruled by a
king. The Navi explains that Shemuel
felt that the request was evil and inappropriate.[12] This reaction seems to contradict our
passage. The Torah apparently requires
the appointment of a king. How can
Shemuel contest the appropriateness of Bnai Yisrael’s request?
Don
Issac Abrabanel suggests that our passages do not actually require the nation
to appoint a king. In fact, the nation
is not required to establish an institution of kingship. It is preferable to be led by prophets and
judges. However, the Torah also
recognizes that Bnai Yisrael may succumb to the desire to emulate other nations. Bnai Yisrael may ask for a king. Our pesukim respond to this
issue. If the request is made, it is
permitted to appoint a king. However,
the above passages outline specific perimeters. For, example, the king must be a member of Bnai Yisrael. Abrabanel is acknowledging that our passages
are a mitzvah. However, he
argues that this does not create any absolute obligation. Instead, the mitzvah deals with a
contingency. It provides the response,
should the nation seek a king.[13]
Rabbaynu
Ovadia Sforno supports Abrabanel’s interpretation of our passages. He adds that it is essential for the nation
to have political leadership. The
prophets and judges provided this guidance. In some ways these leaders were
kings. However, they differed from
kings in one fundamental area. They
could not pass their authority to their children. The prophets and judges were not royalty. The institution of kingship creates
royalty. The king passes his authority
to his son.[14] This is not an ideal arrangement. The king’s son may not be fit to assume his
father’s position. Yet, inevitably he views
himself as vested with the right to be king.
Maimonides
suggests an alternative solution. He
insists that our passages are an absolute command. Bnai Yisrael was obligated to appoint a king. Nonetheless, the nation sinned in
approaching Shemuel. Their request
conformed to the mitzvah.
However, their motivation was corrupt.
They did not ask for a king out of a desire to fulfill the Torah’s commandment. Instead, they wished to escape Shemuel’s leadership. Rather than wishing to observe the Torah,
they sought to escape the influence of a true Torah leader.[15]
We are Required to
Choose Knowledge over Superstition
You shall follow Hashem your G-d whole-heartedly. (Devarim 18:13)
Moshe
instructs the people to reject all forms of superstition and methods of
magically divining the future. He completes his admonition by telling the
people to be whole-hearted in their commitment to Hashem. The commentaries provide various explanation
of this pasuk. According to
Rashi, Moshe is telling the nation to rely on Hashem and accept His judgments
and design.[16] Rabbaynu Ovadia Sforno explains that Moshe
is instructing the people to reject all superstitious means of ascertaining the
future. Instead, the nation should turn
to its prophets.[17]
Nachmanides
takes the same approach as Sforno.
However, he adds two important points.
First, he explains the specific meaning of “whole-hearted”. He comments that this term denotes
completeness and perfection. It
describes a commitment free of any qualification or reservation. Second, he adds that this whole-heartedness
is a positive command.[18]
Nachmanides
is teaching us that there is no room for compromise on this issue. One cannot accept the Torah and
simultaneously retain belief in superstition and magic. Superstition and belief in magical
predictions are inconsistent with complete commitment to the Torah. The Torah teaches us that these practices
are nonsensical. We are required to
guide our lives with wisdom. These
superstitious practices are, therefore, antithetical to the Torah life.
The
command concerning whole-heartedness requires that we make a choice between
these two opposing perspectives. One who chooses the Torah outlook can no
longer accept superstition. Wisdom and
superstition are mutually exclusive.
Conversely, belief in superstition implies doubt regarding the basic
outlook of the Torah.
The Role of the Sages in
Establishing Customs
According to law that they will teach you and the judgment that they
will tell you, you should behave. You
should not deviate from that which they tell you to the right or left. (Devarim 17:11)
This
passage describes the authority of the Sages.
The Sages are empowered to interpret the Torah and create new
prohibitions. We are obligated to
adhere to these instructions. It should
be noted that this pasuk includes a positive and a negative
command. The positive command is to
obey the Sages. The negative command is
to not deviate from their instructions.
Maimonides
discusses the authority of the Sages in detail. He explains that this authority is manifested in the High Court
in Jerusalem. This court is sanctioned
to interpret the Torah. The High Court
can also institute new decrees, prohibitions and customs.[19]
Before
analyzing Maimonides comments we must recognize an important point. Many individuals believe that customs are
somewhat less binding than other laws and Torah practices. Maimonides is clearly correcting this
misconception. He is explaining that we
are commanded to obey all instructions of the court. He includes customs.
Maimonides makes no distinction between our obligation to observe a
Rabbinical decree and a custom sanctioned by the court.
Let
us now analyze Maimonides’ position. We
can understand the function of the High Court in the interpretation of the
Torah, and in the establishment of decrees and prohibitions. However, what is the role of the Sages in
establishing customs? A custom is an
accepted practice or convention. It
emerges from the behaviors of the people.
How can the court create a custom?
Furthermore, if customs do emerge from the action of the court,
how do they differ from decrees and new prohibitions? Finally, we know that customs continued to emerge within Bnai
Yisrael after the destruction of the Temple and the dissolution of High
Court. If the court’s sanction is
required to establish customs, it should be impossible for customs to develop
without the authorization of the court!
In
order to resolve these questions we must better understand the concept of minhag
– custom. It is often assumed that any
religious behavior adopted by a Jewish community is a valid custom. This is not completely true. A valid custom must be consistent with the
laws of the Torah. Therefore, a minhag
that lacks basis in Torah law is not valid and is not binding. In other words, a custom is a hybrid
phenomenon. It emerges from the
behavior of the community but it must also be consistent with the laws of the
Torah.
An
example will help illustrate this issue.
The exact text for the Selichot prayer service surrounding Rosh
HaShannah and Yom Kippur varies among communities. In many communities, the conclusion of the
service includes the prayer Machnesai Rachamim. In this short prayer we beseech certain
divine messenger or angels to bring our prayers before Hashem.
Maimonides
explains that we must only worship and pray to Hashem. Serving any creation is a form of
idolatry. This prohibition includes
petitioning the ministering angels.[20] The prayer of Machnesai Rachamim
seems to violate this principle. Rav
Aryeh Lev Gordon Zt”l explains that numerous Sages prohibited recitation
of this prayer or altered its language to remove the problematical phrases.[21] In this example, we encounter a behavior
prevalent within a community. Nonetheless,
various Sages judged this behavior to be inconsistent with Torah law. Therefore, they insisted that this was not a
valid minhag and took strong measures to halt the practice.
We
can now appreciate the role of the Sages and specifically the High Court in the
establishment of customs. The minhag
can emerge from the behaviors of the community. However, in order for the custom to become binding it must be
evaluated for its consistency with Torah law.
This is the role of the court.
Both the community and the court have a role in the creation of the
custom.
We
can now answer our questions. The court
has a clear role in the creation of customs.
The action of this body is required to establish the validity of the
practice within the framework of halachah. It is clear that custom is very different from decrees and new
prohibition. Decrees and prohibitions
do not emerge from the practices of the community. They are created solely through the action of the court. In contrast, minhag need not be
created by the court. However, the court must determine the legal validity of
the practice.
We can now explain the emergence of
customs after the dissolution of the High Court. The action of the High Court is not required to create a
custom. However, this Court is the
ultimate authority in halachah.
Therefore, only these Sages can judge the validity of a custom. With the dissolution of this Court, the
authority to judge the validity of a community practice passed to the Sages of
the time. These Sages now have the
sanction to judge the consistency of a practice with Torah law.
[1] Sefer Shemot 23:8.
[2] Mesechet Shabbat 10a.
[3] Tosefot Baba Batra 8b.
[4] Rav Eliyahu of Vilna (Gra), Kol Eliyahu,
Parshat Shoftim.
[5] Rav Eliyahu of Vilna (Gra), Kol Eliyahu,
Parshat Shoftim.
[6] Mesechet Sanhedrin 45a.
[7] Mesechet Sanhedrin 45a.
[8] Rabbaynu Moshe ben Maimon
(Rambam/Maimonides) Mishne Torah, Hilchot Sanhedrin, 15:1.
[9] Rabbaynu Moshe ben Maimon
(Rambam/Maimonides) Commentary on the Mishne, Mesechet Sanhedrin 7:3.
[10] Rabbaynu Levi ben Gershon
(Ralbag/Gershonides), Commentary on the Torah, p 223b.
[11] Rabbaynu Moshe ben Maimon
(Rambam/Maimonides) Mishne Torah, Hilchot Melachim 1:1.
[12] Sefer Shemuel I, 8:4-6.
[13] Don Yitzchak Abravanel, Commentary on
Sefer Devarim, pp. 166-167.
[14] Rabbaynu Ovadia Sforno, Commentary on
Sefer Devarim 18:14.
[15] Rabbaynu Moshe ben Maimon
(Rambam/Maimonides) Mishne Torah, Hilchot Melachim 1:2.
[16] Rabbaynu Shlomo ben Yitzchak (Rashi), Commentary
on Sefer Devarim 18:22.
[17] Rabbaynu Ovadia Sforno, Commentary on
Sefer Devarim, 18:22.
[18] Rabbaynu Moshe ben Nachman
(Ramban/Nachmanides), Commentary on Sefer DEvarim 18:22.
[19] Rabbaynu Moshe ben Maimon
(Rambam/Maimonides) Mishne Torah, Hilchot Mamrim 1:2.
[20] Rabbaynu Moshe ben Maimon
(Rambam/Maimonides) Mishne Torah, Hilchot Avodat Kochavim 2:1
[21] Rav Aryeh Lev Gorden, Siddur Avodus
HaLev, Introduction, part 3.