The injunction not to take bribes is repeated several times in the Torah, the first of them being in our parashah, Parashas Mishpatim. On two occasions, including our parashah, the reason given is, “Bribery blinds the wise and distorts the words of the just” (Shemos 23:8; see also Devarim 16:19).
The Talmudic Sages describe the prohibition against taking bribes in the strictest terms. In one place, the Gemara curses those who take bribes, stating that “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. In particular, we will address the instances in which the injunction applies. The Torah mentions the prohibition specifically with regard to judges. Does it apply also to holders of public office, to elections, and to other areas? We will address this issue, and related questions, below.
A Judge who Accepts Bribes
The prohibition against accepting bribes makes it a sin irrespective of whether or not the judgment was swayed as a result of the bribe. Rashi explains in his commentary to our Parashah: “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.”
In fact, the Gemara (105a) writes that it is forbidden to accept bribes even where the final judgment is not affected, for instance where equivalent bribes are accepted from both parties. The result of the case is immaterial to the injunction not to take bribes.
The Gemara (105b) explains: “Rava said: What is the rationale of [the prohibition against] bribery? Because he who accepts a bribe from a litigant, becomes close to him, and it is as though he was the litigant himself – and a person does not pass negative judgment on himself. What is bribery (shochad)? That he is one (she-hu chad).” Rashi explains: “The giver and the receiver become as one heart.”
Bribery affects the capacity of a person to judge and to make decisions, even if the person himself is unaware of this. The judge “becomes one” with the litigant, and is unable to address the case in an objective and detached manner, which is his obligation as a judge. Even if he thinks he is being objective, his decisions are liable to be biased.
Therefore, the Torah not only forbids the conscious 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 benefit that a litigant brings 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.
The Rambam (Sanhedrin 23:3) thus 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 this 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. One example is a case in which a judge was sailing on a boat, and somebody held out his hand to help the judge ashore. Later, when the person in question came to court, the judge declared himself disqualified to judge him. In another case, somebody cleaned off some dirt from a judge’s coat. The judge told him: I am disqualified to judge your court case.
The Rambam cites other examples. Each example demonstrates the subtle nature of the prohibition: Even where the benefit is indirect, non-financial, and does not involve close contact with the judge, a dayan who receives it must avoid judging the bestower.
It is noteworthy that 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 they disagree with Tosafos and maintain that these 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 Against Giving Bribes
The prohibition of bribery applies not only to the judge who receives the bribe, but also the person who gives the bribe. The Shulchan Aruch (9:1, citing the Rambam) writes that the giver of bribes transgresses the injunction, “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 to them, so that bribing a non-Jewish judge also involves a transgression (see Pischei Teshuvah 9:3, who cites numerous authorities who note this point).
Having said this, historically bribing non-Jewish rulers and officials was generally regarded as legitimate. In view of their strong bias against Jews, this attitude is hardly surprising; bribes were essential in trying to achieve a fair hearing and a true judgment, and under such circumstances no prohibition can apply. 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.
However, in countries where the judicial system is fair and impartial, and anti-Semitism does not govern public policy, one may not 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 default penalty is thus flogging (see Makkos 16a). In the case of bribery, this provision is largely academic, because the requisite witnesses will not normally be available – the act of bribery being usually committed in secret (see Ibn Ezra, Devarim 27:14).
However, it is possible that the judge will suffer a penalty due to his judgment being nullified.
Based on the Gemara, the Shulchan Aruch (9:5) rules that judgments of somebody who is paid for passing judgment – a prohibition derived from the concept of bribery – are invalidated. Invalidation of the proceedings is a form of penalty (kenas) imposed on the judge for taking fees (see Tosafos to Kiddushin 58b; Sema 9:5).
As the Bach (Shut Ha-Bach 51) and other authorities (see the commentary of the Radvaz to Rambam, Sanhedrin 23:6) rule, this penalty surely certainly applies to a judge who accepted a bribe. It is even possible that a judge can be liable for a ruling that is rendered invalid. This occurs when a party acted irreversibly based on his original judgment.
Extension of the Prohibition: Public Office
An important issue that requires clarification is the scope of the prohibition. The Torah refers specifically to bribery of judges, and Talmudic discussions are generally likewise limited to the bribing of judges.
However, several sources indicate that the prohibition is not restricted to litigants and their judges. 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 briber.
The ruling of the Aruch Ha-Shulchan (Choshen Mishpat 9:1) is of particular note in this context: “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 taking bribery.”
A similar statement is made by the Pilpula Charifta. The Gemara (Sanhedrin 27a) relates an anecdote of Rabbi Abba bar Yaakov who was appointed to verify whether a certain Bar Chama was guilty of murder as he had been accused, or not. Should Bar Chama be found guilty, his punishment was to have his hand cut off – although this is not the Torah punishment for his crime. The investigator found Bar Chama to be innocent, and by way of thanks, Bar Chama exempted Rabbi Abba from payment of taxes.
The Rosh (3:17) explains the exemption from taxes does not involve a halachic issue of bribery after the event, 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 even of a punishment such as 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.
The Rema rules (Choshen Mishpat 37:22, citing from the Terumas Ha-Deshsen) that appointees to public office 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 to appoint a new rabbi received bribes, it invalidates their appointment of a rabbi, and necessitates new elections. Those making decisions must do so “for the sake of Heaven,” and not for the sake of monetary recompense.
He 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 stated that they might be disqualified for any public office, but in any event were not 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 under oath never to repeat such actions. The reason given was, “for they already have an affinity for [one candidate] and they will always remain biased.”
Not Every Gift is Bribery
Having noted the stringency of bribery, it should be noted that not every benefit that a person bestows on a judge must be considered bribery.
An example that illustrates this principle is found in the Tur (Choshen Mishpat 9), who rules: “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 invalid to preside in judgment over them. However, if he also lends them, he may preside over them, because this is only a payment for his lending.”
The wording of the Shulchan Aruch implies that there is no need for the judge to have actually lent items to his neighbor, and it is sufficient for him to own items worthy of lending. Because of his capacity to lend back on another occasion, we see the act of borrowing as part of a give-and-take relationship, and the judge is not disqualified. The Rema adds that 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 some benefit from somebody is considered bribery. The crime of receiving bribes depends on the specific nature of the giving, and the feeling created in 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 invalidate a judge. However, the judge “can 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.
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 may 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.
However, not every case of a benefit is considered bribery, and each case must be weighed carefully, to see if the benefit given is, indeed, cause for disqualification.