Class Notes - Class #16

The mitzvot in this class deal with the judicial system.  Before we explore that content, let me make some observations about the author’s pedagogy.  The author writing style has changed.  His writing is much clearer and more straightforward.  He is giving us background and basic information.  There are many fewer tantalizing questions without answers that we saw earlier.  The dinei hamitzvah sections are lists of questions that test the borders of the main ideas he articulates.  He has mostly covered how punishments work.  He is developing the main ideas in his approach to shorshei hamitzvah.  We need to watch for what he will chose to do with his newfound clarity.  We need to read carefully enough to understand the cases and concepts he is explaining.

 

Mitzvah #74 has several layers.  The source verse tells us not to “take up a worthless report.”  Reading in light of the surrounding verses, the topic seems to be about judicial procedure. The judge should not encourage false testimony by hearing one litigant in the absence of the other litigant.  One is more likely to shade the truth if his opponent is not present.  There are other obvious advantages to prohibiting a judge from hearing one litigant when the other litigant is not present.  It avoids the appearance of unfairness, it protects the absent litigant from a disadvantage for not knowing everything that has happened in the case, and it helps avoid bribery.  The prohibition here is not just on the judge but on the litigants as well:  do not argue your case to the judge when your opponent is not present even if the judge would be willing to hear you. 

            The author extends this mitzvah by requiring the judge to refuse to decide a case where the judge knows one of the litigants is lying.  The judge might be tempted to say, “I will decide this case.  I might get the wrong answer because the testimony is not honest, but that is the liar’s fault, not mine.”  But that corrupts  the judicial process, which is based on the notion that testimony will be truthful.  That is very different from our system, where we assume that everyone might be lying but the trier-of-fact will sort it all out somehow.

            Our author reads the source verse here in conjunction with another verse to expand the scope of this mitzvah even further.  “Stay far away from anything false.”  (Exodus 23:7.)  That verse is unusual.  Most verses that prohibit behavior are straightforward: this behavior should not be done.  But this verse goes beyond prohibiting lying, it instructs us to stay away from falsehood.  It’s not “No Parking,” it is more like “Don’t even think about parking here.” Thus, our author mentions several other areas where this mitzvah applies.  Do not give false testimony.  Do not speak “lashon hara,” spreading information about people who might prefer that information be kept private.  Do not listen to lashon hara. Do not listen to someone telling you things that might not be true.

            As we have seen before, our author says the judicial aspect of this mitzvah applies only to men, but the other aspects of the mitzvah apply to men and women equally.  He will have more to say on this topic in mitzvah #77.

            The shoreshei hamitzvah section of this mitzvah/essay adds a layer to the author’s understanding that mitzvot not only regulate our behavior, but also serve as the core of a precedent for character traits we should aspire to.  Here, the author connects that enterprise with the concept of imitatio dei.  If we understand what we can about God, we will understand God’s qualities, and those qualities are the source of the character traits we should develop in ourselves.  Thus, falsehood is abhorrent to God, God values truth, so we must be truthful and avoid falsehood.  God is compassionate, and we should be also.  God is kind; we strive to be kind.  When we behave in ways opposite of those qualities, our behavior brings not blessing but the opposite of blessing.

Of course, as we have seen, our author knows that we cannot actually understand anything about God.  God is beyond our comprehension.  So when we talk about God’s characteristics, we indulge in anthropomorphism.  But anthropomorphism is the best we can do.

 

Mitzvah #75 adds to our understanding to the role of truth in the judicial system by prohibiting people who are not trustworthy from giving formal testimony.  As the author explains, someone who commits evil deeds is suspect of being dishonest about others. 

            Our author is less clear than he might be about exactly what bad behavior disqualifies a witness.  If we assume that anyone who sins is disqualified, it will be impossible for anyone to testify.  So we will need to focus on more serious bad behavior.  The one example our author mentions is someone who steals other people’s property.  Another example is someone who eats treifah.  As we noted earlier, the prohibition on eating treifah was expensive, so if someone ate treifah it was probably because the person did not want to bear the financial loss.  Thus, the two examples the author gives are both about being tempted into bad behavior for financial reasons.

            That explains how someone who was disqualified to give testimony can rehabilitate himself: by showing that he no longer gives in to the temptation to behave badly for money.  He can restore the community’s trust in him if he slaughters an animal and then admits it is a treifah, or if he returns an expensive lost object he has found.  However, if he does that in the town where his bad behavior got him disqualified, we suspect this new good behavior is not based in repentance, but is only intended to rehabilitate his reputation.  The good behavior is only convincing if he does it where people do not suspect him of prior bad behavior.

 

In this essay the author distinguishes between Torah law and rabbinic law in several ways.  This is a new emphasis.

            First, the author lists ten categories of people who, according to Torah law, do not give testimony.  Most of these people do not give testimony for reasons that do not imply they are sinners or guilty of bad behavior; the categories on this list are parallel, but the reasons they are on the list may not be parallel. (I have modified the order of the items on the list to make it easier for us to discuss them.)

1. Relatives of the litigants

2. People with a substantial stake in the case

            These folks are not trustworthy because they have something at risk in the case that might tempt them to be dishonest.  The litigants themselves do not testify either.

3. Blind people

4. Children

5. Deaf people/Mute people

6. Mental incompetents, including epileptics in the throws of a seizure, those of limited intellectual ability, the deranged, etc.

            We have reason to think that these people do not fully understand the world around them, or at least that they appear not to understand the world around them.  In the ancient world, educational techniques to help the disabled live full lives had yet to be developed.  Witnesses must be able to hear and see what happened, and testify verbally.

7. Women, tumtum and androgynus.

            Our author said earlier that women do not testify because they cannot maintain the appropriate concentration.  We do not know if the author thinks women are incapable of that concentration, or just unaccustomed to doing so, especially in the intimidating context of the court.  Again, there is more on this topic in mitzvah #77.

8. Slaves, eved ivri and eved c’na’ani, and non-Jews.

            The rabbis were very suspect of the morals of slaves.  The author mentions that someone who is half-slave and half-free is also prohibited from testifying.  That occurs when a partnership of two people owns a slave and one of the partners frees his half.

9. Evil people “r’shaim.”  These are the people who are the prime focus of this mitzvah. 

10. Degraded people

            The author does not define either of these categories.  This last category probably includes people who are social misfits, whose behavior, although not strictly speaking prohibited, makes them suspect.  The evil people may be people whose behavior would merit malkos or capital punishment.

 

Then there are categories of people who are excluded from testimony by rabbinic rulings.  Thus, if someone broke the Torah prohibition on robbery, he would be prohibited from testifying by Torah law.  If someone broke a rabbinic prohibition on robbery, he would be prohibited from testifying by rabbinic law.  The rabbis also extended the category of degraded people to include professional gamblers, people who raise sheep and goats (who typically allow those animals to graze on private property), and people who keep doves in the city, where the doves belonging to others might easily meld into the flock.  The rabbis thought of thesse folks the way we think of used car salesmen.

 

When it comes to testimony, whether the witness is disqualified by Torah law or by rabbinic law matters.  If Torah law disqualifies the witness, the testimony is completely void.  But if the witness is disqualified by rabbinic law, the testimony stands until the witness is adjudicated to be disqualified.  Once that adjudication takes place, the person may not longer testify.

 

The rest of the essays for this class will make more sense if we skip to mitzvah #78 and then circle back.  (In the original plan of Sefer haHinnuch, the positive mitzvot in each parshah came before the negative mitzvot, so #78 would have preceded the other mitzvot in this set.)

            This mitzvah establishes the fundamental judicial principle that decisions are made based on the majority of the judges.  This principle is important to ordinary court cases, both civil and criminal.  It is also important to the judicial, interpretive and legislative functions of the Sanhedrin.

            In the context of an ordinary court case, a majority of the judges determine the outcome of the case.  The author mentions some of the special procedures in capital cases that we will see shortly in other mitzvah/essays.  The judges in capital cases had to be knowledgeable and ordained.

            The author’s focus in this essay is on the Sanhedrin, especially in its role in the development of halachah.  The Sanhedrin decided certain individual cases, for example cases the lower courts were unable to decide.  Those decisions were made by majority vote.  But the Sanhedrin’s most important functions were to interpret the meaning of the Torah as it plays out in halachah, and to legislate.  When the Sanhedrin was meeting and voting, issues that arose about the definition of Torah law and rabbinic law were discussed and decided by majority vote.  Once such a vote was taken, the decision was binding unless a later Sanhedrin reversed the decision.  And rabbinic law intended to fence us off from violations of Torah law or intended to solve social problems was promulgated by majority vote.

            There are real advantages to such a system, primarily by keeping the practice of Jews uniform.  Our author explains that, if each individual Jew created his or her own interpretation of the Torah and acted on that interpretation, there would be no uniform community practice.  There would be many Torahs, not one. The community would begin to fall apart with each person defining proper behavior as an individual. 

Since the Sanhedrin was made up of ordained scholars, all of whom were knowledgeable, their decisions were presumably competent.  That does not guarantee that the decision is correct.  But even if the decision is not correct, the decision is binding.  If we end up behaving improperly because we are following their faulty decision, the guilt belongs to them, not to us.  That is an astounding proposition: even though we admit that the Sanhedrin’s decisions may be wrong, the authority of the Sanhedrin’s precedent is binding.  And that precedent is decided by majority vote, not by consensus or unanimity.

With the demise of the Sanhedrin, the entire system changed.  There was no central authority to interpret the meaning of the Torah or to legislate.  The precedents from the Sanhedrin remained in effect, but no new interpretations or legislation could be promulgated that would be binding on all Jews.  A new system was needed. 

Our author tries to outline this new system, and explains that majority rule still applies.  This time, though, that principle must play out without a central decisive body.  The author suggests that the majority decision of knowledgeable Jews still determines the practice.  But majority is harder to apply when we are dealing with people some of whom are halachic experts and some of whom are halachic novices.  Obviously, those votes ought not to have equal value.  In short, the author says we should all follow the majority of halachic experts, but he does not define who is a halachic expert or define a mechanism for making that happen.

Whatever the advantages or disadvantages of his proposed system, it does not seem to be the system he himself follows.  We have not seen the author listing halachic authorities he respects and following the majority of those authorities. For example, in the mitzvah prohibiting eating treifah, he described a wide variety of rabbinic opinion about various related issues.  He does not encourage us to count up the majority of those opinions to figure out what to do. Nor does he seem to be bothered by the problem of community disunity in his own time.

The implications all of this for our current practice is hard to see.  We might take seriously our author’s suggestion to follow the majority of competent current authorities.  To do so, we would need to reach a satisfying definition of “competent authorities.”

 

Mitzvot #76, 77 and 82 govern special judicial procedures in capital cases.  The author explains the motive for these special rules with a wonderful parable that appears in mitzvah #77.  A man builds a city to house his hundred children.  He establishes a legal system to keep order lest the city deteriorate into chaos.  The father decrees financial penalties if one child harms another and the death penalty for murderers.  Then one of his children murders another child.  The father is tragically torn.  If he does not impose a death penalty, more of his children are likely murder his other children.  If he does, he needs to execute his child.  The father examines every aspect of the accusation in exquisite detail, searching for some exoneration.  But if there is no exoneration, he will, of necessity, carry out the death sentence.  Thus, the author imagines how God must feel about the death penalty, and how the rabbis tried to implement the death penalty.  It is necessary because it deters bad behavior, but we are very reluctant to actually carry it out. 

            Mitzvah #82 limits capital punishment to cases where there are two eyewitnesses who can testify to the crime.  Capital punishment cannot be based on even the strongest of circumstantial evidence.  The author explains the scope of this requirement:  The witnesses see a person holding a knife and chasing another person.  The witnesses warn the pursuer not to kill the person he is chasing.  At the crucial moment, the witnesses close their eyes for just a moment.  When they open their eyes, the pursuer is standing over the corpse of the pursued holding the knife that is now dripping blood.  The witnesses did not actually see the murder, so the pursuer is not guilty.

            The author sees the shoresh of this mitzvah as a “slippery slope” problem.  If we allow conviction on strong circumstantial evidence, we will eventually let the standard slacken, and we will end up convicting innocent people. Ultimately the judge will contribute to the taking of an innocent life.  If that argument seems a bit extreme, consider the results of the various “Innocence Projects” that have sprung up in recent years.

            Both witnesses have to observe the same crime.  If one witness sees the defendant do one capital crime and another witness sees the defendant commit a different capital crime, the defendant cannot be convicted.  The defendant is also not convicted if the witnesses separately saw the defendant violate the same mitzvah, but each at a different time:  one witness saw him worship the sun and the other witness saw him worship the moon.  Further, the two witnesses need to see not only the crime but also each other.  There is an exception to this rule where one person sees the crime and issues a warning to the perpetrator, and that person can see each of the witnesses but the witnesses cannot see each other. 

            Ramban sees another requirement inherent in the source verse here, a sort of double jeopardy rule.  When a defendant was sentenced to death by the beit din, the sentence was carried out very quickly.  If, once a verdict is reached and the defendant is found not guilty, a judge raises a new argument for conviction, the argument is not heard.  There is no double jeopardy.  But if the defendant is sentenced to death and, before the sentence is carried out a judge raises a new argument to exonerate the defendant, the court reconvenes to consider the new argument. 

 

Mitzvah #76 requires a majority of more than one to convict a defendant.  If the court has one more vote for conviction than for acquittal, that slim majority is insufficient and the defendant goes free.  A majority of at least two is required for conviction.  In articulating the shoresh of this mitzvah, the author likens our behavior here to God’s compassion.  Just as God’s loving-kindness leads to His exonerating even when the strict letter of the law would have us guilty, so we too make sure we do not cut things close in the matter where we might be taking an innocent life.

 

Mitzvah #77 gives procedural rules for the course of deliberations in a capital case.  The concern is that every possible argument for exoneration gets a thorough hearing, and that no judge be inhibited from making an argument in favor of the defendant. 

            Each judge is required to make an independent judgment.  A judge should not vote based on respect for a more senior judge; each judge has to actually exercise his own judgment.  The judge may not rely on another judge for basic understanding of the governing law, or for interpretation of the facts of the case.  A judge who wants to be quietly respectful to the more learned or experienced judges on the court is not doing his job. If, rather than making an independent judgment, the judges defer to a colleague out of respect, then, in effect, only one judge is deciding the case.

            The court’s deliberations are structured to make sure every possible argument in favor of the defendant gets heard. Deliberations begin after the witnesses give their testimony.  Judges who want to argue on behalf of the defendant argue first, lest a junior judge who might hesitate to make an argument for fear of disagreeing with a more senior judge be afraid to speak. If the court begins its deliberations with arguments for conviction rather than acquittal, the defendant goes free.  A judge who argues on behalf of the defendant may not later argue for conviction, although the judge may vote for conviction.  If he could not, the deliberations would be meaningless.  The words of the verse might suggest a prohibition on judges making arguments for conviction, but that goes too far; if that were the procedure, there would never be a conviction.

            Some ambiguous deliberations are interpreted in favor of the defendant.  If a judge says he does not know whether or not the defendant is guilty, he may not speak for conviction thereafter.  If a judge made a substantive argument for acquittal, and then the judge dies or it taken ill so the judge is not able to vote on the case, we count his vote for acquittal anyway.  But if a judge says he plans to argue for acquittal but has not yet done so when he it taken ill or dies, we do not count that as a vote.  The defendant can make arguments on his own behalf.

            To understand the details in the dinei hamitzvah section of the essay, we need a little more background about how the Sanhedrin worked.  We are used to the U.S. Supreme Court, which has nine justices who hear each case.  If one of those justices cannot hear a given case, the remaining eight justices decided the case.  The Sanhedrin did not have a fixed membership, and it had a sort of apprenticeship system to train new judges.  There were more than 71 qualified judges.  When the court convened, the most senior 71 qualified, available judges were seated for that session.  Other qualified judges, as well as students, assembled to observe.  If there were not enough qualified judges, the most senior student would take the available slot. 

            Now look at what the author says in the dinei hamitzvah.  If the vote is tied, more judges are added, one at a time, until a decision is reached.  Thus, the court seats the most senior of the observers, and if that person is a student, he becomes a member of the court for this case.  Students who want to argue for conviction may not participate, but students who want to argue for acquittal are heard.  If the student makes a cogent argument, he becomes a qualified judge from then on, so making a cogent argument for acquittal is a very effective career move.  If the student’s argument for acquittal is not impressive, he stays as a member of the court for the remainder of the day so as not to embarrass him, but he does not become a qualified judge.  (I do not know whether he gets to vote.) 

 

Several topics that appear in this mitzvah/essay merit our attention although they are not directly related to the main idea of the mitzvah.

            In explaining that a judge ought not to rely on another judge for basic understanding of the controlling law, the author refers to two interpretive principles that we have not encountered before.  The principle of “hekkesh” is that, when the Biblical text makes an analogy between one topic and another, the rabbis will find at least one way in which the halachah that governs one case also governs the analogous case.  The principle of “g’zerah shavah” is that, when two verses on two different topics use the same word, especially an unusual word, the rabbis will find some halachic parallel between the topics of the two verses.  G’zerah shavah can result in some very unusual comparisons, so we only derive halachah through g’zerah shavah if there is a tradition to do so.

           

Our author comments on mitzvot where several action items are learned from the same language in a verse.  He thinks that the Torah is intentionally cryptic, and his explanation is itself cryptic.  We can try to paraphrase what the author says, and then speculate on what he meant.

            This is what the author seems to say:  One phrase in the Torah can imply many requirements.  This is what the rabbis meant when they said the Torah has 70 faces.  God knew he could rely on his revelation to Mosheh, working with the dedicated and wise Jews of his generation, to tease out meanings.  They will find in the Torah everything they need about how to conduct themselves in the world.  There are many wisdoms in the words of the Torah, which led the rabbis to say that God looked at the Torah as a blueprint when He created the world.

            This paragraph raises the important question of how we derive halachah from the Torah, but the paragraph raises more questions than it answers.  Some verses have multiple meanings.  Were those meanings revealed to Mosheh, who then revealed them to the people?  Did Mosheh work them out with some Divine inspiration or on his own?  What role did the dedicated and wise Jews of Mosheh’s generation play in developing these multiple meanings?  Are the meanings we find in the Torah the meanings God intended, or are people the source of the interpretations?  Assuming the author is speaking here primarily about interpretations found in the midrash halachah, how did it happen that the tradition records disagreements about how to interpret the Torah?  What, if any, is the appropriate role of later generations of Jews, including our own? 

            Later in this paragraph, the author refers to the multiple wisdoms included in the Torah, so that the Torah served as a blueprint for creation.  It is not clear what he means by this either.  He could be referring to the mystical tradition.  Or he could just be a reflecting the intellectual and emotional depth we can find in the Torah is we look carefully.  When the author says we can find in the Torah everything that is needed for the conduct of the world, does he mean the Torah is the source of a comprehensive legal system, or does he mean something more?

           

            At the end of the essay, the author takes up the issue of whether women may be judges.  We wondered earlier whether the language he has used in all of the judiciary related mitzvot, “nashim ainan danos,” women do not judge, was hedging that question.  This paragraph confirms that is was. 

There are several sources that preclude women being judges.  There is an explicit statement in the Talmud Yerushalmi.  The Talmud Bavli also says that someone who is not qualified to be a witness is not qualified to be a judge, and women are not qualified to be witnesses.

But there is an important counter- precedent: the biblical Deborah, who was a judge in Israel.  She could only have been a judge in civil cases, as criminal cases require ordained judges.  Perhaps it was just fine for her to be a judge, or perhaps she needed special permission from the contemporary elders.  Perhaps she judged directly, or perhaps she served as a reference for the official male judges.  But it is clear that, in some capacity, she served in a judicial role.  And the statement about witnesses and judges in the Bavli may not be definitive, since we assume that general rules articulated in the Talmud may have exceptions that are not mentioned in the discussion where the general rule appears.

The author ultimately sides with the opinion that women may not be judges.  But he has been careful not to say “no” when the issue is in dispute.  Given his discussion here, we can resolve the ambiguity in his explanation of why women may not be witnesses.  When we saw that discussion, we did not know if he meant that women were incapable of the kind of concentration it takes to be a witness, or that social circumstances made it unlikely that women would be able to concentrate sufficiently.  The author does not deny that Deborah served as a judicial expert, only that her doing so does not set a halalchic precedent.  Presumably, if Deborah had the mental capacity to serve in a judicial capacity, then some women are capable of the concentration needed to function in court.

     The author’s discussion of this issue is a model of how to formulate a halachic argument.  He outlines the question, and then lays out the arguments on both sides.  The tone of respectful and careful, so as to present the two conflicting arguments clearly and fairly.  Only then does the author express his own opinion.  The passage would be stronger if the author had explained why he chose one side of the argument over the other.  But keep this model in mind; it is what the author is trying to teach us to do.
 

The last three mitzvot in this series try to insure the underlying fairness of the court.  The judge needs to decide the case on its merits and not be swayed by extraneous factors. 

Mitzvah #79 tells the judge not to favor a poor litigant. The source verse is straightforward, “do not favor a poor person in his quarrel.” In a case between a rich litigant and a poor litigant, one might be tempted to favor the poor litigant, thinking that the poor person needs the help and both the other litigant and the judge would be required to support the poor litigant with some form of charity.  It might seem easier just to provide for the poor litigant by finding in his favor, providing resources to the poor person in a dignified way.  But that is not the job of the judge.  The job of the judge is to get the fair legal result.

Mitzvah #81 prohibits the judge from finding against a wicked litigant.  The judge might think that the case at hand provides an opportunity to punish someone who is wicked, but, again, the job of the judge is to get the legally required result in the case at hand. 

The source verse here says, “Do not pervert the justice due to your poor person in his quarrel.”  Our author finds it unthinkable to interpret the verse simply.  He can hardly imagine we need to be told not to slant the system against the poor person.  That is too obvious to need saying.  Rather, we understand the verse to refer to a person who is poor in performance of mitzvot.  We might be tempted to take it out on him in court, but the judge is not permitted to do so.

It seems to me these mitzvot are more complex than they seem.  There are certainly obvious cases where a judge considers who the litigant is rather than the strength of the litigant’s case.  But on a deeper level, it is extraordinarily hard for anyone to see things “objectively.”  We tend to see what we expect to see.  Our evaluation of the facts put before us is always colored by our prior experience.  We will tend to trust the credibility of someone who looks prosperous and competent over someone who is disheveled and distracted.  The recent nomination of Sonia Sotomayor brought many related issues to our attention.

Mitzvah #83 prohibits judges from taking bribes. The judge may not accept a bribe to favor one party over the other, or even a bribe to get the legally mandated verdict.  Even a bribe in the form of flattery is forbidden.  The judge may take the equivalent of a salary to compensate for his time, but that salary is calculated based on what the judge could earn at his regular enterprises if he was not busy deciding the case, and that salary has to be paid equally by the litigants.  The judge is also warned against finding ways to run up the fees the litigants have to pay for scribes, etc.

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