Judicial Authority

 

the rule of law

     Halakha attaches supreme importance to the rule of law. We cite here the well-known words of Rabbi Ya'akov ben Asher, the author of the Tur, at the beginning of Hilkhot Dayanim:

 

This was the intention of our Rabbis of blessed memory when they said: "Whoever issues a true judgment is considered as if he had become a partner of the Holy One, blessed be He, in creation." For the Holy One, blessed be He, created the world so that it should exist, whereas the wicked who rob and steal destroy it through their deeds. As we find regarding the generation of the flood that their decree was sealed only on account of robbery, as it is written: "For the world was filled with robbery" (Bereishit 6:13), and [immediately] afterwards it says: "And, behold, I will destroy them with the earth" (ibid.). Thus, a judge who breaks the raised arms of the wicked, removes spoil from their hands and returns it to its owners maintains the world and brings the will of the Creator, may His name be blessed, to completion, for He created it so that it should exist. Hence, [the judge] is considered as if he had become a partner of the Holy One, blessed be He, in creation. God knew our patriarch, Avraham and called him "My beloved," only because he walked in the path of justice and guided his children in it, as it is written: "For I know him, that he will command his children and his household after him, and they shall keep the way of the Lord, to do justice and judgment" (Bereishit 18:19)… As great as is the reward [for doing justice], so too is the punishment for nullifying or perverting it, as we have learned: "A sword enters the world for delaying the execution of justice and for perverting justice."… And Jerusalem was destroyed and Israel was exiled only because justice was nullified… And in the future it shall be redeemed through justice… And it brings redemption closer, as it is written: "Keep judgment, and do justice; for My salvation is near to them, and My righteousness to be revealed" (Yeshaya 56:1). And the Holy One, blessed be He, desires it more than all the sacrifices, as it is written: "To do justice and judgment is more acceptable to the Lord than sacrifice" (Mishlei 21:3). (Tur, Choshen Mishpat 1)

 

With all of Judaism's idealism and exalted demands, Halakha has always recognized that some people are not motivated and influenced by lofty commands alone. It has, therefore, always insisted upon a court system that will judge wrongdoers and punish them. The establishment of a judicial system is one of the seven Noachide laws binding upon all of mankind. In other words, we are dealing here with a basic requirement for the perpetuation of human society. Indeed, the Tur places primary emphasis on the interpersonal dimension – fighting the wicked and coming to the defense of the oppressed and exploited. As the Tur writes, a judge completes God's work in that he contributes to the moral perfection of the world.

 

The various courts

 

     Already in the Tannaitic period, Israel had a highly developed court system. This is evident from the Mishnayot in the first chapter of tractate Sanhedrin, which detail the division of jurisdictions among the various courts:

 

Monetary cases by three. Robberies and inflicted injuries by three. Damages and half-damages, double compensation, and fourfold and fivefold compensation by three…

Lashes by three. In the name of Rabbi Yishmael they said: By twenty-three…

Capital cases by twenty-three…

A tribe or a false prophet or a High Priest may not be tried except by a court of seventy-one. [The people] may not be sent to an optional war except by a court of seventy-one. Additions may not be made to the city or to the Temple courtyards except by a court of seventy-one. [Lesser] Sanhedrins may not be established for the tribes except by a court of seventy-one. A city may not be condemned as an idolatrous city except by a court of seventy-one… (Sanhedrin 2a)

 

In this lecture we shall deal primarily with the division of the various judicial powers. We see in these Mishnayot a clear hierarchy of courts. In general, courts of three judges are authorized to adjudicate civil matters, courts of twenty-three are entitled to judge capital cases, and a court of seventy-one is authorized to deal with national issues – declaration of war, expansion of Jerusalem, supervision over the judicial system as a whole, etc. It is interesting to note that while Halakha distinguishes between civil and capital cases, it makes no distinction between civil cases based on the monetary sums involved:

 

"Hear the small as well as the great" (Devarim 1:17). Resh Lakish said: That a judgment regarding a peruta should be as dear to you as a judgment regarding a hundred maneh. For which law? If you say to consider it and rule about it, this is obvious. Rather, to give it precedence. (Sanhedrin 8a)

 

It is forbidden to give precedence to a case involving a hundred maneh over a case involving a peruta. This does not mean that Halakha does not recognize a hierarchy of judicial authorities based on the severity of the penalty. Halakha certainly distinguishes between civil and capital cases. But Halakha establishes absolute boundaries, not relative ones. Morally speaking, capital punishment differs in its very essence from all other types of punishment. Hence, a higher court is needed to hear a capital case. Morally speaking, however, a million-dollar claim is no different from a three-dollar claim, and so the same court may adjudicate both cases. Halakha clings to the ideal moral plain and refuses to compromise with practical reality; for in the real world, a million-dollar claim has consequences that are very different from those of a three-dollar claim. There is a profound moral message here, teaching man to consider matters to their depth and appreciate the essential distinctions and moral issues, rather than to satisfy himself with superficial practical thinking. We shall see below that this is one of the basic attitudes that characterize Jewish law.

 

     Rambam formulates the hierarchy among the various courts in a slightly different context:

 

When the Great Sanhedrin was in session, there were never any [prolonged] differences of opinion among the Jewish people. Instead, if a doubt arose in a Jew's mind over any law, he would inquire of the court in his city. If they know, they reply to him. If not, the questioner and the court – or its agents – ascend to Jerusalem and ask the court which holds sessions on the Temple Mount. If they know, they reply to him. If they do not know, everyone comes to the court that holds sessions at the entrance to the Temple courtyard. If they know, they reply to him. If not, everyone comes to the Chamber of Hewn Stone, to the Great Sanhedrin, and presents the question. If the matter that was unresolved by all [the others] was known to the Great Sanhedrin – either as part of the Oral Tradition or because of its derivation through the principles [of exegesis] – they relate [the decision] immediately. If, however, the decision was unclear to the Great Sanhedrin, they deliberate about the matter at that time and debate it back and forth until they reach a uniform decision, or until a vote is taken. [In such a situation,] they follow the majority and then tell all of the questioners: "This is the halakha." [The questioners] then all depart.

After the Great Sanhedrin was nullified, differences of opinion multiplied among the Jewish people. One would rule [an article] is ritually impure and support his ruling with a rationale and another would rule that it is pure and support his ruling with a rationale. This one would rule [an article] is forbidden and this would rule that it is permitted. (Rambam, Hilkhot Mamerim 1:4)

 

Rambam expresses here in a most resolute fashion his fundamental position regarding halakhic controversy. According to Rambam, a sworn rationalist who firmly believed in the power of reason to provide unequivocal answers to every question, controversy is a very undesirable phenomenon. Rambam laments here the loss of the Great Sanhedrin, and with it the mechanism of resolving disputes and removing doubts.

 

     Our interest, however, lies in a different point: Rambam describes here a hierarchy of courts, which is not a hierarchy of judgment! Rambam is not dealing here with a judicial proceeding involving a case that came before the court for adjudication, but rather with a halakhic question that was posed before the court, a law concerning which there arose a doubt. A civil court, as is well known, does not address questions that are not presented before it by way of a legal suit. A person cannot appear before a court and ask for its interpretation of a particular statute, in order to protect himself and act in the proper manner. Only after he has acted in accordance with his understanding of the statute can he be prosecuted, and the court will then have its say. This is appropriate for a civil court, whose sole purpose is to resolve problems and extinguish fires. If there is no fire, the court does not get involved. As we have seen already in the Tur, Halakha has a far more pretentious objective. Halakha aspires to perfect the world. Therefore, halakhic courts do not limit themselves to ruling on legal suits, but rather they assist people to clarify the law in advance and instruct them how they are to act. In this way, they contribute to the creation of a more perfect society and a more moral world.

 

Sanhedrin and King

 

     Rambam includes the dispensation of judgment among the primary functions of a king:

 

…For the entire purpose of appointing a king is to execute justice and wage wars, as it is stated: "And that our king shall judge us, and go out before us, and fight our battles" (I Shemuel 8:20) (Rambam, Hilkhot Melakhim 4:10)   

 

What type of judgment falls under the jurisdiction of the king? What is the relationship between the king's authority and the authority of ordinary courts, and especially that of the Great Sanhedrin? In order to understand this we must consider Rambam's words in several different places.

 

[In the following instances] – a murderer against whom the evidence is not [totally] conclusive, or who was not warned [before he slew his victim], or even [one] who [was observed by only] one witness, and similarly, an enemy who inadvertently killed [one of his foes] – the king is granted license to execute [the killer] and to improve society according to the needs of the time. He may execute many on one day, hang them, and leave them hanging for many days in order to cast fear into the [hearts] and destroy the power of the wicked of the earth. (Rambam, Hilkhot Melakhim 3:10)

 

Rambam points out that the king is granted judicial authority that goes beyond the ordinary framework of the law. The king has the authority to deviate from the regular rules of Halakha, which insist on proof that is often difficult to obtain, in order "to improve society according to the needs of the time." From where does Rambam derive this authority of the king? The commentators point to an incident reported in the Yerushalmi Talmud:

 

It once happened that a pious man was walking along the road, when he saw two people coupling with a dog. They said: "We know that he is a pious man. If he goes and testifies against us, our master David will execute us. (Yerushalmi, Sanhedrin 6:5)

 

The two sinners were concerned that King David would punish them for their abominable conduct and have them executed. We see from here that a king is authorized to put criminals to death on the basis of the testimony of a single witness. He has the authority to inflict severe punishments even without complying with the ordinary rules of evidence. He is also permitted to disregard the prohibition against delaying burial.

 

In exceptional circumstances a regular court is also authorized to inflict punishments outside the framework of the law:

 

A court has the authority to administer lashes to a person who is not required to receive lashes and to execute a person who is not liable to be executed. [This license was] not [granted] to overstep the words of the Torah, but rather to create a fence around the words of the Torah. When the court sees that the people have broken the accepted norms with regard to a matter, they may establish safeguards to strengthen the matter according to what appears [necessary] to them. All [the above] applies with regard to establishing directives for the immediate time, and not with regard to the establishment of halakha for all time.

An incident occurred where they had a man lashed for engaging in relations with his wife under a tree. And an incident occurred concerning a person who rode a horse on Shabbat in the era of the Greeks and they brought him to the court and had him stoned to death. And an incident occurred and Shimon ben Shetach hung eighty women on one day in Ashkelon. All of the required processes of questioning, cross-examination, and warnings were not followed, nor was the testimony unequivocal. Instead, [their execution] was a directive for that immediate time according to what he perceived as [necessary]. (Rambam, Hilkhot Sanhedrin 24:4)

 

We see then that a court is also authorized to deviate from Torah law, when it sees that "the people have broken the accepted norms." It should be noted that Rambam emphasizes that we are dealing here with an extraordinary ruling in cases of emergency, and not with standard law. Within the bounds of extraordinary rulings, however, the court has the authority to inflict punishments outside the framework of the law and without complying with the stringent rules of evidence.

 

     Rambam explicitly relates to the similarity between the king's judicial prerogative and the court's extraordinary rulings in cases of emergency:

 

Regarding any of these or similar murderers who are not subject to being condemned to die by verdict of the court, if a king of Israel wishes to put them to death by royal decree for the benefit of society, he has a right to do so. Similarly, if the court deems it proper to put them to death as an emergency measure, it has the authority to do as it deems fit, provided that circumstances warrant such action. (Rambam, Hilkhot Rotze'ach 2:4)

 

The difference in formulation implies that regarding the king we are dealing with a far more fixed procedure, one whose objective is much more comprehensive: the betterment of society. Regarding the court, however, we are dealing with an exceptional situation, whose objective is much narrower – "circumstances warrant it." It is very possible that, for the benefit of society, the king is permitted to administer an entire system of laws that deviate from Torah law. The court, on the other hand, may only exercise its exceptional authority on a temporary basis, and in real situations of emergency.

 

     Rabbenu Nissim (Ran) in his Derashot relates to these two sets of judicial authorities. He identifies the major principles regarding judgment executed outside the framework of the law:

 

Surely, we have learned in chapter "Hayu bodekin": Our Sages have taught us: "Do you recognize him? Did you warn him? Did he accept the warning? Did he surrender himself to death? Did he kill within as much time as is needed for an utterance?" All this is undoubtedly appropriate for true justice, for why should a person be put to death unless he was aware that he was entering upon something that carries the death penalty and nevertheless he committed the offense? For this it is necessary that he accept the warning, and all the rest of what is mentioned in that Baraita. This is true justice itself that is handed over to the judges. But if an offender could only be punished in this manner, the social order would be entirely destroyed. For murderers would multiply and they would not fear punishment. In order to promote civilized society, therefore, God commanded that a king be appointed … And the king can issue a judgment even if a warning had not been given, as he sees is necessary for the political society …

For the king that we set upon us will complete that correction [of the social order]. But the objective of the judges and the Sanhedrin was to judge the people with true justice, just in itself. This will cause Godliness to cling to us, whether public matters will become perfectly ordered therewith, or not. For this reason, some of the laws of the Gentile nations may be closer to the perfect social order than some of the laws of the Torah. We, however, lack nothing, for whatever is missing from the perfect order, the king would complete.

Do not raise an objection against me from what we have learned in chapter Nigmar ha-Din: "It was taught: Rabbi Eliezer ben Ya'akov says: I heard that a court may flog and punish when not [required] by Torah law, and this is not to violate the words of the Torah, but rather to erect a fence around the Torah" (Sanhedrin 46a). It would seem from there that the court's mission is to judge in accordance with what is needed at the time. But this is not so. When Israel has a Sanhedrin and a king, the Sanhedrin must judge the people solely in accordance with righteous judgment, and not try to improve the situation with more than that, unless the kings bestows upon them of his power. When there is no king in Israel, the judge combines the two powers, the power of a judge and the power of a king…

It might also be suggested that everything pertaining to the mitzvot of the Torah, whether it is in accordance with righteous judgment or it is in accordance with the needs of the hour – is handed over to the court. That which is between man and his fellow, however, only that which is righteous is handed over to the court, as it says: "And they shall judge the people with righteous judgment" (Devarim 16:18). But their improvement which goes beyond that is handed over to the king, and not to the judge. (Derashot ha-Ran, no. 11)

 

Ran's position is novel and revolutionary. Let us review his major points one by one. As we know, punishment has two primary objectives: the execution of justice and deterrence. Ran argues that the Jewish people are supposed to be governed by two parallel judicial systems, the one whose goal is the execution of justice, and the other whose purpose is deterrence. The courts judge according to Halakha, which always gives expression to absolute justice: the punishment that the convicted party truly deserves. Were we, however, to judge solely according to the recompense that the offender truly deserves, the deterrent factor would often totally disappear. For this reason there exists a second judicial system – the monarchy. The monarchy's goal is the eradication of sin and evil, even if from time to time an injustice is committed against a particular individual. Ran implies that the judicial system of the king is not haphazard and ad hoc, but systematic and orderly, a system that rules in a consistent manner in accordance with the needs of the state.

 

     Ran deals with the sources that suggest that the Sanhedrin also has the authority to judge outside the framework of the law, and he tries to diminish their significance. We too have inferred from Rambam that the court may exercise its extraordinary authority in specific cases, but not in a systematic manner.

 

     In civil judicial systems, considerations of social benefit are part and parcel of the judgment itself. For example, a judge may consider "mitigating circumstances" or "aggravating circumstances," according to his own discretion. He can also rule stringently or leniently depending upon the frequency with which a particular crime is committed. In the halakhic system, on the other hand, punishment is set according to fixed and unequivocal halakhic principles. According to Ran, however, the king has the authority to consider the specific circumstances, and adjust his ruling in accordance with the needs of the hour and the generation. Why are two parallel systems necessary? Why is it impossible to combine the two objectives into a single system, as is the case with civil law?  

 

     Ran argues that the objective of the pure halakhic system is a spiritual goal – "causing Godliness to cling to us." We can speak of another goal – an educational objective. Even when for social reasons it might be appropriate to change Torah law and forsake absolute justice, it is very important to distinguish between these two objectives. The existence of the judicial system of the king allows the judicial system of the Sanhedrin to adhere to pure Halakha. This has great educational significance: it allows every member of the Jewish people to distinguish at all times between pragmatic social considerations which are realized through the actions of the king and eternal considerations of truth which are embodied in the actions of the Sanhedrin.

 

     The author of the Avnei Nezer clarifies and sharpens this distinction between a king and a judge:

 

A judge's primary concern is the Torah, that God's laws should be evident in the world. The king, however, is just the opposite, for he is not concerned with the laws themselves. For were that the case, he would also judge cases of Shabbat violation. Rather, he is entirely occupied with establishing [order in] the land, as it is written: "The king by justice establishes the land" (Mishlei 29:4). Justice is the tool by which he judges and establishes order in the state. His entire concern, however, is the social order. (Avnei Nezer, Yore De'a 312)

 

The objective of a judge – the judicial system of the Sanhedrin – is to execute justice. The goal of a king is not justice: his aim is to establish reasonable stability in his country. One of the tools which he uses is justice, but as the Avnei Nezer clearly discerns, this is just one of many tools. Distinguishing between these two systems is critical if we wish to implant the values of absolute justice and truth, without giving up on a stable administration of society.

 

There were those who sharply criticized the position put forward by Ran. Rabbi Isaac Herzog, who dealt extensively with the clarification of the laws pertaining to the state, related to this approach:

 

All that we now about the law of the king is that he has the authority to execute a murderer who had been exempted from punishment by judgment of the court. But this does not mean that this is the established law, that whenever a court finds a person guilty of intentional murder, but for purely technical halakhic reasons cannot sentence him to death, the king executes him… The situation according to Halakha is as follows: Capital cases fall under the authority and jurisdiction of the Sanhedrin (that is, the lesser Sanhedrin, courts of twenty-three ordained judges). However, even if the Sanhedrin has acquitted the defendant, the king has the authority to execute him, for the benefit of society and in response to the need of the hour. But this does not mean that the monarchy in Israel had its own set of laws, not in accordance with the Torah, and according to which it would judge and appoint judges and qualify witnesses. Rather, in the case of a murderer, the matter is given over to the king's discretion, depending on the moral state of the nation. If there are very few murderers and there is no danger that the acquittals will lead to more bloodshed in Israel, the king should not make use of this [authority] at all. (Rabbi Isaac Herzog, Techuka le-Yisrael al pi ha-Torah, II, pp. 76-77)

 

How different is his approach from that of Ran!  While Ran views the coexistence of the two parallel systems as normal and desirable, Rabbi Herzog is eager to limit the judicial authority bestowed upon a king. He argues that we are not dealing here with a regular judicial system that parallels the halakhic system. Rather, the king is authorized to intervene in cases of emergency and to change the law as is necessary.[1]  It should be emphasized that even Rabbi Herzog recognizes the role of the king as essential, but his approach is clearly very different from that of Ran. Several suggestions may be offered as to Rabbi Herzog's reasoning, all of which constitute possible critiques of the position of Ran:

 

1. According to Ran, the judicial system of pure Halakha does not aim to better society, but only to realize absolute justice regarding the specific matter under discussion. Is this indeed true? Doesn't Halakha also consider "the improvement of society"? Don't we find in the rabbinic sources enactments that were intended to promote civilized society, or to discourage closing the door in the face of borrowers, or the like?

2. Even if we say that Halakha does not aim to improve society, but only to realize absolute justice – who has allowed us to push aside absolute justice on a regular basis in order to improve society?

3. Irrespective of the question regarding the objective of the halakhic judicial system, setting Halakha aside on a regular basis at the discretion of the king poses a severe educational problem. This pushing aside of Halakha may have a destructive educational influence upon people's attitude toward Halakha in their private lives.

 

We have seen then two basic approaches regarding the relationship between the king and the Sanhedrin, between absolute truth and its practical realization in a complex world. There is no doubt that these two approaches may lead to very significant conclusions impacting on various aspects of our lives.

 

FOOTNOTES

 

[1] Some understand that according to Rambam the king's judicial prerogative is restricted to cases of homicide, this being an additional limitation on his judicial authority.

 

(Translated by Rav David Strauss)