The Pasuk (Devarim 16:19) teaches us: “Bribery makes blind the wise and upsets the pleas of the just.” For this reason, the Torah states that it is forbidden to take bribes. As the Pasuk (16:20) continues, it is incumbent upon us to pursue justice: “Justice, justice, you shall pursue, that you may live and possess the land which Hashem your G-d is giving you.” Bribery is an obstacle to justice.
The Talmudic Sages describe the prohibition against bribes in the strictest terms. In one place, the Gemara curses those who take bribes, stating, “Their souls should depart them” (Kesubos 105b). Elsewhere, Chazal write that any judge who accepts bribes brings [Divine] anger upon the world (Bava Basra 9b). The Sages (Midrash Mishlei 1) also say that a judge who accepts bribes gains nothing: He is destined to lose the money, and eventually even to lose his life.
In the present article we will discuss the prohibition against taking bribes. What is the nature of the prohibition? What it the extent of its application? Is it forbidden to bribe non-Jewish judges? Can the injunction extend beyond a judge taking a blatant bribe, to holders of public office, to elections, and to fields other than the judiciary?
We will address these questions, among others, below.
A Judge who Accepts Bribes
The prohibition against accepting bribes applies irrespective of the result: Even if the final judgment is correct, it remains a full prohibition. Rashi explains (in his commentary to Shemos 23:8): “You shall not take bribes: Even to judge truthfully, and the more so to pervert the judgment, for concerning swaying the judgment the verse has already stated: Do not pervert judgment.”
The Gemara (105a) writes that it is forbidden to accept bribes even where the final judgment will not be affected, for instance where bribes are accepted from both parties. The result of the case is immaterial to the injunction not to take bribes, which applies universally.
The reason for this universal prohibition (as explained by the Gemara) is that when a judge accepts a bribe from a litigant, “he becomes close to him, and it is as though he was the litigant himself—and a person does not pass negative judgment on himself.” The word shochad is interpreted by the Gemara to read she-hu chad, he is one: The giver and the receiver become as one heart (Rashi).
We see that bribery affects the capacity of a person to judge and to make proper decisions, even if the person is unaware of this. The judge becomes “one” with the litigant, and is unable to assess the case in an objective and detached manner, which is his obligation as a judge. Even if he is certain of his righteousness, his decisions are liable to be biased.
Therefore, the Torah does not only forbid the deliberate perversion of justice, but even prohibits taking bribes.
Bribes of Words
Not only is financial bribery forbidden, but the prohibition applies even to bribery of words. Any way that a litigant benefits the judge is liable to disqualify the judge from taking part in the case—even where there is no direct connection between the bribe and the case (see Kesubos 105b)..
The Rambam (Sanhedrin 23:3) rules: “Not only is financial bribery prohibited, but even bribery of words.” This ruling is cited by the Shulchan Aruch (Choshen Mishpat 9). The Sema explains that “bribery of words” refers to “bribes of [any] matter.” Any benefit that a litigant bestows on a judge disqualifies the judge from the case.
The Rambam mentions a number of examples of this type of bribery (based on the Gemara in Kesubos 105b). One is a case in which a judge was sailing on a boat and somebody held out his hand to help the judge go ashore. Later, when the person in question came to court, the judge declared himself disqualified from judgment. Another case refers to somebody who cleaned some dirt off of a judge’s coat. The judge told him: I am disqualified to judge your court case.
The Rambam cites other examples, where each example comes to demonstrate the delicate nature of the prohibition: Even where the benefit is indirect, non-financial, and does not involve close contact with the judge, a dayan must avoid receipt of any benefit.
According to Tosafos (Kesubos 105, s.v. lo), the anecdotes mentioned by the Gemara refer to issues of midas chasidus, and not to the actual prohibition of bribery. However, a simple reading of the Rambam and Shulchan Aruch suggests that the cases involve a full prohibition (as implied also by the Sema 9:4). See also Pischei Teshuvah (9:3), who cites a wide ranging dispute among authorities over this matter.
The Prohibition of Giving Bribes
The prohibition of bribery applies not only to the judge who receives the bribe, but also to the person who gives the bribe. The Shulchan Aruch (9:1, citing the Rambam) writes that somebody who gives bribes transgresses the prohibition, “You shall not place a stumbling block before the blind”(Vayikra 19:14).
It is important to note that this prohibition applies even to non-Jewish judges. Even non-Jews are commanded to establish fair courts of law, and the prohibition of taking bribes applies even to them, so that bribing a non-Jewish judge also involves a transgression (see Pischei Teshuvah 9:3, who cites numerous authorities who make this point).
Having said this, historically, bribing non-Jewish rulers, officials, and judges was generally considered a legitimate form of lobbying on behalf of the Jewish community. In view of their strong bias against Jews, this attitude is not problematic. Bribes were essential to achieve a fair hearing and a true judgment, and under such circumstances no prohibition applies (in a similar sense, the Pischei Teshuva explains that this permitted, since it is a bribe in order to remove prior bias).
Indeed, it is clear from Scripture that it was quite common to bribe kings (see Melachim I, 15:19; Melachim II, 16:8; Berachos 28b), and this is true of rulers and political leaders throughout the ages.
Today, in countries where the judicial system is fair and impartial, and anti-Semitism generally does not affect public policy (at least in the personal sphere), there is no permission to use bribery to achieve one’s personal aims.
Penalty for Taking Bribes
No particular penalty is prescribed in the Torah for taking bribes, and the penalty is therefore to be flogged (see Makkos 16a). In the case of bribery, this provision is largely academic, because the requisite witnesses will not normally be available—the bribery is commonly committed in secret (see Ibn Ezra, Devarim 27:14). However, it is possible that the judge will suffer the penalty of his judgment being voided.
Based on the Gemara, the Shulchan Aruch (9:5) rules that the judgments of somebody who is paid to pass judgment (a prohibition derived from the concept of bribery) are null—with the exception of cases in which we know that no bribe was given. The invalidation of the proceeding is a form of penalty (kenas) imposed on the judge for taking fees (see Tosafos to Kiddushin 58b; Sema 9:13).
As the Bach (Shut Ha-Bach 51) and other authorities (see Radvaz to Rambam, Sanhedrin 23:6) rule, this penalty surely applies to the actual receipt of bribes. The nullification of a ruling may also affect a judge’s liability to pay damages for cases in which a party had already acted on his judgment.
Note that the Radvaz (Sanhedrin 23:6) writes, based on Tosafos, that the judgments of a judge who receives bribery of words are not disqualified.
Another penalty for taking a bribe is that the bribe must be returned (see Rambam, Sanhedrin 23:1; Shulchan Aruch, Choshen Mishpat 9:1). According to some authorities, the obligation to return the bribe applies only if it is claimed by the person who gave it (see Pischei Teshuva 9:2).
Bribery of Public Officers
The Torah refers specifically to bribery of judges, and Talmudic literature is generally likewise limited to the bribing of judges. Can the prohibition extend beyond the judiciary, even to public officers?
Several sources indicate that the prohibition is not restricted to judicial roles alone. Rather, it applies to any person discharging a public function who is in a position to adopt decisions that may either benefit or harm the person offering the bribe.
The ruling of the Aruch Ha-Shulchan (Choshen Mishpat 9:1) is particularly clear: “And not only the judge is enjoined from receiving bribery, but all officials and persons involved in public matters, even though their decisions do not have the status of the law of the Torah, are forbidden to be biased in any matter as a result of friendship or hostility, and all the more so by the taking of bribery.”
A similar statement is made by the Pilpula Charifta. The Gemara (Sanhedrin 27a) relates an anecdote concerning Rabbi Abba bar Yaakov, who was appointed to investigate whether a certain Bar Chama was guilty of murder (as he had been accused) or not. If guilty, Bar Chama’s punishment was to have his hand cut off, though this was not the appropriate Torah punishment for his crime. It was, rather, a fine (kenass), which the Reish Galuta could legitimately impose. The investigator found Bar Chama to be innocent. By way of thanks, Bar Chama exempted Rabbi Abba from payment of taxes.
The Rosh (3:17) explains that the exemption from taxes did not involve a halachic issue of bribery after the event, which is rabbinically forbidden, because as a Torah scholar, Rabbi Abba was in any case exempt from taxes.
The Pilpula Charifta (as cited by the Pischei Teshuva, Choshen Mishpat 34:27) comments: “Come and see the great matter that our Rabbi teaches us, namely, that bribery is prohibited even where the matter does not involve the application of Torah law, but only of a punishment by way of a fine, such as in this case. […] I have written this to instruct those appointed over the community that although their judgments are not judgments of the Torah, they must nonetheless be careful not to accept gifts for their judgment.”
Another extension of the prohibition of bribery concerns election fraud.
In a different context, the Rema rules (Choshen Mishpat 37:22, citing the Terumas Ha-Deshsen) that appointees to public duties are disqualified by the same disqualifications as rabbinic judges: “Those appointed to deal with public matters are considered judges, and it is therefore forbidden to appoint somebody who is disqualified because of his sinfulness.”
The Chasam Sofer (Choshen Mishpat 160) relied on this principle to rule that where competent witnesses testify that members of an electoral body received bribes, it invalidates the appointment of the elected rabbi, and necessitates new elections. Those making decisions must do so “for the sake of Heaven,” and not for the sake of monetary recompense. The Chazon Ish used to emphasize that this is true for voters, as well—one must vote for the candidate who will be of greatest benefit to the community, and not out of personal interest.
The Chasam Sofer further added: “If there are witnesses that the rabbi himself offered a bribe, then he is absolutely disqualified from being a rabbi until he repents.” As for the recipients of bribery, he ruled that they might be disqualified for any public office, but in any event were no longer permitted to participate in the new elections for the appointment of the communal rabbi, even if they had returned the bribe they received, had repented and had undertaken by oath never to repeat such actions. The reason given was: “For they already have an affinity for him and they will always remain biased.”
Not Every Gift is Bribery
Having noted the stringency of bribery, it is important to note that not every benefit bestowed on a judge constitutes bribery.
An example illustrating this principle is found in the Tur (Choshen Mishpat 9), who rules as follows: “A judge must be exceedingly careful to avoid receiving bribes, even to rule a true ruling. […] Therefore any judge who needs to borrow an item from his neighbors, is disqualified from presiding in judgment over them. However, if he also lends them, he is qualified to preside over them, because this is only a payment for his lending.”
The wording of the Shulchan Aruch implies that there is no actual need for the judge to have lent items to his neighbor, and it is sufficient for him to own items worthy of lending. Because of his capacity to lend back, we see the act of borrowing as part of a give-and-take relationship and the judge is not disqualified. The Rema adds that in any case a judge is not disqualified by a single act of borrowing, but only when he regularly borrows from somebody.
We thus learn that not every case in which a judge receives benefit from somebody is considered bribery. The crime of receiving bribes depends rather on the specific nature of the giving, and the impression made on the judge in question.
Another ruling mentioned by the Shulchan Aruch is that a gift sent in advance of a hearing, before the suit has been filed, does not disqualify a judge. However, the judge may disqualify himself from presiding over the case, out of piety.
Authorities discuss exactly which type of gift this refers to, and whether the halachah applies even when the judge understands that the gift is given on account of a forthcoming court case (see Bach; Shut Mahari ben Lev Vol. 3, no. 97).
We see, in any event, that the issue of bribery is not always clear-cut and depends on the specific circumstances of each case, although usually it is fairly clear.
There are few prohibitions that the Shulchan Aruch introduces with the words, “me’od me’od (exceedingly).” The Torah and the Sages view the prohibition of bribery with extreme stringency, and a person serving as a judge must be very wary of receiving gifts and benefits from litigants.
As we have seen, this prohibition can extend to those holding public office, whose role involves an element of decision-making that affects others. Certainly election bribes must be treated with the utmost severity.