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Appointment of Judges in Halachah

In Parashas Yisro we learn of how the first judicial system in Israel came to be established. Initially, upon the departure of the Jewish People from Egypt, there was no “system” to speak of. Parties who had cause for adjudication would present their arguments before Moshe, the great leader of the nation, who would pass judgment on the case.

Thus, when Yisro came to see his son-in-law Moshe, he found Moshe sitting in judgment “from morning until evening” (Shemos 18:13). A leader in his own right (in his native Midyan), Yisro quickly saw the inefficiency inherent to the situation:

“When Moshe’s father-in-law saw all that he was doing for the people, he said: What is this that you are doing for the people? Why do you sit alone, and all the people stand around you from morning till evening? Moses said to his father-in-law: Because the people come to me to inquire of God; when they have a dispute, they come to me and I decide between one person and another, and I make them know the statutes of G-d and his laws. Moshe’s father-in-law said to him: What you are doing is not good. You and the people with you will certainly wear yourselves out, for the thing is too heavy for you. You are not able to do it alone.”

In place of the one-man tribunal that he saw, Yisro advised Moshe to establish a hierarchal system, at the top of which Moshe himself would preside, so that responsibility for judging the people would be shared with others. “Small matters,” in the words of Yisro, will be brought before the lesser judges, whereas “great matters” – the toughest cases to decide – will be brought before Moshe.

For the purposes of the current article, the relevant part of Yisro’s advice is the criteria that he recommends for picking out worthy judges (Shemos 18:21): “Select capable men from all the people – men who fear G-d, trustworthy men who hate dishonest gain – and appoint them as officials over thousands, hundreds, fifties and tens.” The basic criteria for judges of Israel – in the eyes of Yisro – are able men who fear G-d, are trustworthy, and who hate dishonest gain.

Moshe did as his was advised (Shemos 18:24-26): “Moshe listened to his father-in-law and did everything he said. He chose capable men from all Israel and made them leaders of the people, officials over thousands, hundreds, fifties and tens. They served as judges for the people at all times. The difficult cases they brought to Moshe, but the simple ones they decided themselves.”

We take the chapter as a cue to discuss the question of how Torah law relates to the appointment of judges. Which criteria were traditionally used? What is the process by which judges are appointed today? How does it differ from that of secular-law judges? These, among other questions, are discussed below.

Two Sets of Torah Criteria

In the criteria mentioned by Yisro, which are accepted by Moshe, we find an emphasis on capable men (anshei chayil[1]) – men who are brave and able, who fear G-d and not man, and who will thus be ready to carry out justice without fear of retribution from one of the parties.

By contrast, in the book of Devarim we find a different set of criteria. Here, specifically the wisdom and insight of the judges are underscored as required qualities for appointment as a judge:

“At that time I said to you: You are too heavy a burden for me to carry alone… How can I bear your problems and your burdens and your disputes all by myself? Choose some wise, understanding and respected men from each of your tribes, and I will set them over you… I took the leading men of your tribes, wise and respected men, and appointed them to have authority over you – as commanders of thousands, of hundreds, of fifties and of tens and as tribal officials.”

Ibn Ezra (Shemos 18:21) suggests that Moshe was referring to the same advice given by Yisro. When Moshe noted wisdom and discernment, this corresponds to fear of G-d – for “only somebody who is wise and discerning can truly fear G-d.” It is also possible that Moshe meant to add to the criteria noted by Yisro. The system known to Yisro required men who are brave, willing to pass judgment even in the face of threat and danger. To these qualities, Moshe added the requirements of wisdom and discernment.

Brave Judges

The requirement of bravery as a necessary quality for a Torah judge is indicative of the nature of judging in Torah law. By contrast with almost all modern judicial systems, in which the judiciary is kept separate from the executive (usually the police), in the traditional Torah model the judge not only passes judgment, but also executes it.

In previous times judges used to sit in Beis Din with rods at hand, ready to administer judgment by the stick should it be required (Tur, Choshen Mishpat 1; the Tur notes that a Shofar should also be close at hand, for purposes of excommunication, should it be required).

Moreover, the Gemara mentions that in certain cases judges actively take money from one litigant and hand it to the other (Sanhedrin 33a). Even when this is not done, the judges themselves preside over the execution of judgment (such as a writ of execution), the Torah shotrim serving as sheriffs of sort for the shoftim (Rashi, Devarim 16:18).

Thus, Moshe instructs the judges of Israel: “You shall fear no man” (Devarim 1:17). Likewise, many Torah passages underscore the judicial obligation to save the meek and the poor from the hands of those stronger than they, and criticize judges who fail to do so: “They judge not the orphan; neither does the cause of the widow come before them” (Yeshayahu 1:23; see also Yirmiyahu 5:28).

The Torah judge must therefore be a strongly minded and brave individual, who will not cave in to pressure from the stronger of the two litigants in defiance of true justice.

Criteria Mentioned in Halachah

To serve on the Sanhedrin, and to administer certain punishments, a Torah judge must have proper ordination – semichah-in a direct line to Moshe. We do not have the traditional semichah institution today. Nevertheless, the Rambam stresses that the characteristics demanded for regular judges (who serve on a panel of three) remain in place.

He lists seven demands, backing each of them from a Torah passage: “A judge must be wise, humble, G-d-fearing, unmoved by money, a lover of truth, loved by the people, and of good repute” (Rambam, Sanhedrin 2:7; Shulchan Aruch, Choshen Mishpat 7:12).

Most of these qualities are self-understood. The Lechem Mishnah explains that the quality of humility refers to somebody who is patient and tolerant. A judge must be unmoved by money, meaning that he is not obsessive about his own wealth, and does not chase after every opportunity of financial gain. He must be a lover of truth, and beloved by all – looking at others with a positive eye, and friendly with all. He must likewise have a good name, well known in the community as being meticulous in mitzvah performance and avoidance of sin.

Concerning the quality of wisdom, the Mabit (1:280) writes that this refers to greatness in Torah wisdom. However, the Bach (Choshen Mishpat 7) explains that it refers even to human intellect, which is required in tandem with Torah knowledge.

Concerning the seven noted qualities, the Chida (cited in Pischei Teshuvah, Choshen Mishpat 7, 24) writes that apply specifically on a lechatchilah level; where people with such qualities absolutely cannot be found, we can appoint judges that lack some of them.

Flexibility in Required Qualities  

Certainly, a prerequisite for a Torah judge is knowledge of Torah law. The Shulchan Aruch (Choshen Mishpat 3:4) makes this clear: A Torah judge must be knowledgeable in the Torah’s monetary laws.

However, the extent of Torah knowledge that qualifies a Dayan for service, as part of a panel of three, is not as we might think. According to the Shulchan Aruch, for this purpose a judge must be knowledgeable enough that if someone would explain him the correct law, he would comprehend it.

The reasoning behind this is that it is sufficient that one of the three judges in the panel is expert in halachah; if all three meet the basic level, it is assumed that at least one of them will be knowledgeable, and know the correct law. The question of what happens when the knowledgeable judge finds himself in a minority against lesser judges, is discussed by the Pischei Teshuvah.

The Chazon Ish (Even Ha-Ezer 101:18) goes a step further, and compares the requisite character traits of a Torah judge to knowledge in Torah law. Just as with regards to Torah knowledge, comprehension of somebody else’s understanding is sufficient, so too for the other qualifications: It suffices – again, on a bedieved level – that a judge he does not conduct himself contrary to any of these qualities.

The Professional Imperative

It is important to stress that although the lesser level of Torah knowledge as noted above is acceptable bedieved (post facto), when we appoint judges for a permanent position it is incumbent on the relevant Beis Din to seek the most knowledgeable and expert judges possible (see Mabit, loc. cit.).

In fact, there is a full prohibition against appointing an unfit person to serve as a judge, and this includes appointing a judge that is not entirely fit for the job when better judges are available (see Shulchan Aruch 8:1; Mishpetei Tzeddek).

Unfortunately, some Batei Din are somewhat lenient in their standards for appointment of judges. Beyond the inherent flaw in having Dayanim who do not match the highest possible standard adjudicating cases – and such people are available, if we only seek them out – there is an added problem in the negative impression made by sub-professional standards.

Regretfully, this situation has caused many Jews – even those who are otherwise Torah observant – to make use of secular courts. While this behavior violates a full Torah prohibition, it is imperative to bring Batei Din to the highest level of professionalism, for the sake both of the particular case and of the entire system.

Minimum Age for a Judge

What is the minimum age for a rabbinical judge? Can a young and competent Torah scholar serve as a dayan, or must he first reach a certain age before qualifying to sit on a Beis Din?

The Gemara (Shabbos 56a) tells of King Yoshiyahu, who became king over Yehudah (the southern kingdom) at the age of eight. Upon reaching the age of eighteen (according to one view in the Gemara), Yoshiyahu reevaluated all the cases over which he had presided during the previous ten years. In some instances, he reversed his initial ruling and ordered that the money be returned.

Yoshiyahu did this because he realized that one becomes qualified to serve as a judge only upon reaching the age of eighteen. As such, all the cases he had adjudicated before his eighteenth birthday had to be retried once he reached the suitable age (see, however, Maharsha, who interprets the passage in a different light).

On the basis of this Gemara, one opinion in the Tur (Choshen Mishapat 7:3) is that the minimum age for a Dayan is 18 years old. However, he cites another opinion, based on the Yerushalmi (Sanhedrin 4:7; see however Rashba 6:179), whereby even a Torah scholar of 13 can serve as a rabbinical judge. Some defer the proof from the above Gemara: It is possible that the money was returned because of the concern for mistakes, and not because of actual disqualification.

This halachah refers specifically to a rabbinical judge who will be sitting on a panel of three judges. Concerning somebody who will be issuing independent rulings, some authorities require a Torah scholar to have reached the age of forty (see Avodah Zarah 19b; Rif, Avodah Zarah 5b; Rosh, Avodah Zarah 1:18). We will please G-d expound on this topic in a separate article.

Rabbinic and Secular Judges

In Israeli secular law, as in all western legal systems, there are no formal requirement that relate to the dispositions and character traits of a candidate for the judiciary. The only requirements are that the candidate has an appropriate legal education (from an approved academic institution), has passed the examinations of the bar, and has garnered five years of legal work experience (Clause 4 of the Law of Courts of Law, 5744-1984).

By contrast with this, the demands for appointment as a rabbinical judge in the Israel Rabbinate include a number of requirements that go beyond formal training in Torah law. These include the following: The candidate must be at least thirty years old; he must be married (or was once married); his way of life must be appropriate for a rabbinical judge (Clause 1 of By-Laws for Rabbinic Judges).

It is difficult to judge a person’s qualities and dispositions as a “man of truth” and somebody who does not covet monetary gain. However, by referring to the candidate’s general lifestyle, the Rabbinate hopes to at least ensure that the candidate is somebody who fears G-d – a criterion that according to the Maharashdam (Yoreh De’ah 161) is more important even than Torah knowledge. The hope is that if he is truly G-d fearing, the other qualities are likely to follow suit.

The difference between the systems gives expression to the fact that rabbinical judges are responsible for the execution of Torah law – a law that derives first and foremost from the word of Hashem. This is by contrast with secular law, which has no implications for questions of religion or even of morality in general. The demand for a person who fears G-d, and who lives by a particular lifestyle, is therefore unique to Torah law.

May we speedily merit the fulfillment of the prayer, “Return our judges as in former times, and our advisors as in the beginning.”

[1] The expression is translated in a number of ways by different commentaries. Rashi (Devarim 8:14) writes that the reference is to wealthy people, who will not be prone to bribery; the Rambam (Sanhedrin 2:7) writes that the intention is people who are strong in their mitzvah observance. The simple meaning, however, relates to bravery and readiness to do the right and truthful thing come what may.

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