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The Judiciary and the Executive: A Torah Perspective

In Parashas Shoftim we learn of the different agencies in operation after Israel reaches its land: The king, the prophet, the Kohanim, the judges and the officers. The Torah defines these roles and provides their basic laws.

The beginning of the parashah mentions judges and officers – shoftim and shotrim. Rashi explains that these refer to two distinct arms of the law. Judges are “judges who issue judgments,” whereas officers are entrusted with enforcing judgments: “They enforce the judgments with the rod and with the strap until they accept the ruling of the judge” (Rashi, Devarim 17:18).

The Rambam (Sanhedrin 1:1) adds that the officers are also responsible for maintaining the public order and for distancing people from sin.

“It is a positive Scriptural commandment to appoint judges and enforcement officers in every city and in every region, as it states: “Appoint judges and enforcement officers in all your gates.” “Judges” refers to magistrates whose attendance is fixed in court, before whom the litigants appear. “Enforcement officers” refers to those equipped with a rod and a lash who stand before the judges and patrol the marketplaces and the streets to inspect the stores and to regulate the prices and the measures. They inflict corporal punishment on all offenders. Their deeds are controlled entirely by the judges.”

The Midrash stresses the need for both of these roles: “Without the enforcement officers, there is no judge. For if the court finds a person guilty, once he leaves (the courtroom) the judge is powerless unless the enforcement officer takes control” (Tanchuma, Shoftim, 2).

In the present article we will discuss the division between judges and officers.

The Judgment and its Execution

It appears at first glance that judges and officers make up two separate agencies each possessing one particular authority. Neither of the two agencies interferes with the other, and each performs its own specific duty. This would be something like the modern-day division of powers between the judiciary and the executive: Each performs its own task.

However, we find that Torah judges also serve as officers of the law. For instance, we find a special term for a judge who issues the judgment and then executes it himself – a procedure known as “nasa venasan beyad” (Sanhedrin 33a). According to the Chazon Ish (Sanhedrin 16:5) even indirect means of coercion applied by the Dayanim, such as excommunication, are considered “taking from one and handing over to the other.”

 

In the most basic sense this means that the judges executed their judgment by taking the money from one party and giving it to the other. This indicates that the Torah judiciary is not separate and distinct – at least not entirely – from the execution of judgment.

Note, however, that according to some authorities the halachah of “nasa venasan beyad” applies even when the judges execute the judgment by means of officers who serve as their agents (see Tumim 25:10). According to this approach there is less of a proof of the involvement of Dayanim in the execution of judgment.

The Rod of the Judge

Besides the halachah mentioned above, we find many cases in which judges actively apply their judgment. For instance, Dayanim may arrange for a payment schedule to enable debtors to repay their debts or suggest options for securities, and they generally take a keen interest in the execution of the judgment.

Moreover, Beis Din oversees the punishment administered in criminal matters. Wherever possible, the punishment is meted out by the witnesses to the offense (Devarim 17:7). Even when this is not done, the judges themselves preside over the execution of judgment (such as an execution), with the shotrim serving as sheriffs of a sort for the shoftim (Rashi, Devarim 16:18).

The Tur even records that judges would sit in Beis Din with rods at hand, ready to administer judgment by the stick should it be required (Choshen Mishpat 1). The Tur notes further that a Shofar should also be close at hand, for use in excommunication, should it be required.

It is possible that the lashes and the shofar blasts would be carried out by officers of the law, and not by the Dayanim themselves. Nonetheless, the presence of these instruments in the traditional courtroom indicates the close connection between judgment and execution, and demonstrates a measure of responsibility that the judges have for the execution of their judgments.

This comes as something of a contrast with modern law, which is careful to ensure a clear-cut separation between the judiciary and the executive. For instance, in one Supreme Court verdict in Israel the court emphasized: “The execution of a decision is not the responsibility of the court; the executive was established for this purpose. This matter is self-understood” (CA 447/92 Rot vs. Intercontinental).

Torah law also separates to a degree between judging and executing judgment. However, this separation is certainly less sharp than that of modern law, which is why we sometimes find a close involvement of Dayanim in the execution of their own judgment.

A Mistaken Judgment

The question of whether the Dayan was involved in the execution of the judgment, or only in its issue, is important if a Dayan makes a mistake.

If a Dayan gave a mistaken verdict and there is no longer any way of rectifying the financial loss that was caused as a result, we find a dispute among Poskim as to the Dayan’s liability to compensate the financial damage.

The Shulchan Aruch rules that the Dayan is exempt from payment, because “although he caused financial damage, this was done inadvertently” (Choshen Mishpat 25:1). The rationale given by the Shulchan Aruch appears difficult: If damage was caused (assuming this is not considered indirect damage [gerama]; see Sema 25:1), why do the Dayan’s good intentions make a difference?

The Sema (25:6) explains that the exemption is a rabbinic enactment. If Dayanim were liable for damages caused by their mistaken judgments, “they would never judge.” For this reason, Dayanim who cause financial loss are exempt from paying the damage.

The Rema notes that the exemption for Dayanim is not accepted by all authorities in his time. However, the Aruch HaShulchan writes that more recent authorities agree that Dayanim are exempt from financial liability, as ruled by the Shulchan Aruch.

A Dayan who Executed the Judgment

The rulings above apply only to cases in which the Dayan in question did nothing more than issue his ruling. Where the Dayan was actively involved in executing the judgment, all agree that the Dayan is liable to pay for the financial damage inflicted (Shulchan Aruch, Choshen Mishpat 25:3).

The Rosh (Sanhedrin 4:5) explains that in this case, the Dayan is considered to be negligent (poshe’a) in executing the judgment: “He is considered negligent, for why did he have to directly execute the judgment?” A Dayan’s main role is to pass judgment. Although he has the authority to execute his own judgment, it is not incumbent on him to do so. By voluntarily taking on the execution phase, the Dayan is negligent in bringing about the mistaken result.

An exception to the rule is a Dayan Mumcheh, an expert judge who is exempt even if he directly executes a mistaken judgment. The reason for this (Shach 25:34-35) is that an expert judge can rely on his verdicts and assume them to be correct, so that his execution of the judgment is not considered negligent. This will of course not apply to a judge who is not expert. Of course, the distinction between an expert judge and a non-expert judge is not simple.

Note that in secular law this distinction does not exist; both branches, the judiciary and the executive, are given immunity with regard financial damages.

Conclusion

In his prophecy about the times of Mashiach, Yeshayahu mentions judges, but not police: “I will restore your judges as they were at first, and your advisers as they were in the beginning” (Isaiah l:26). This statement is reflected in the parallel berachah of the Amidah prayer.

It is possible that the executive is omitted because in future times evil and selfishness disappear from the world (see Zechariah 13:2), so that there will be no need for policemen who force people to be righteous. However, there will remain a need for Dayanim who will issue verdicts when questions arise between litigants, as well as providing practical direction to the people in matters of Torah and its commandments.

This demonstrates the secondary nature of the executive to Dayanim. Only where the Dayan is incapable of enforcing justice, must one resort to policemen to force the guilty party to accept the decision.

May we see those times speedily and in our days.

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