Jewish and Gentile Judges
I. Different Kinds of Judges
Judges need to resist any pressure, direct or indirect, that is applied to them. But is there a difference between the requirements of a Jewish and a Gentile judge? Surprisingly, Rashi seems to say that there is.
Moshe complained: “I am unable to carry you myself” (Deut. 1:9). Rashi explains this and compares it to a complaint by Shlomo, based on the midrash:
Is it possible that Moshe was not able to judge Israel? The man who brought them out of Egypt, and split the sea for them, and brought down the manna, and drove up the quails — he was unable to judge them? This is what he said to them: “God has multiplied you” — He has made you superior and elevated you above your judges. He has taken away punishment from you and placed it on the judges… Is it possible that [Shlomo the wise] should say, “Who is able to judge?” Rather this is what Shlomo said: The judges of this nation are not like the judges of the other nations. If they judge and kill and punish and pervert justice there is nothing in that. But if I cause money to be paid unjustly my soul is demanded in return.
This raises the question why there is any difference between a Jewish and Gentile judge. Why, when a Gentile judge distorts justice, is nothing in that? Gentiles, after all, are obligated to maintain justice as one of the seven Noahide laws. I would have thought that perverting justice is therefore a significant matter.
II. Falsification of Torah
I’d like to suggest that when a Jewish judge publicly rules against the proper conclusion, he is not only denying justice but publicly distorting the Torah. This is a ziyuf ha-Torah, a falsification of the divine law.
Regarding a Gentile’s Noahide obligation to maintain justice, there are some who argue that any laws are sufficient (the Rambam, according to Responsa Rema, no. 10). As long as the rules are just, they are a fulfillment of the obligation. According to this view, if a Gentile judge intentionally rules improperly, he is committing a serious injustice but is not perverting the Torah. This distinction is significant.
We can suggest that the above midrash is not talking about a willful distortion but, rather, one done under duress. The Maharshal (Yam Shel Shlomo, Bava Kama 4:9) rules that while, ordinarily, all laws other than idolatry, murder and licentiousness are set aside under mortal danger, one may still not falsify the Torah. Ziyuf ha-Torah is not overridden by piku’ach nefesh. Therefore, if the life of a Jewish judge is threatened, he must be willing to submit to martyrdom rather than rule incorrectly. A Gentile judge, however, will not be perverting the Torah by intentionally ruling incorrectly and therefore need to not submit to martyrdom. Perhaps this is what Moshe meant by the difference.
III. Regulations
We can even take it one step further. The Gemara (Sanhedrin 74b-75a) discusses whether a Gentile is obligated to suffer martyrdom rather than violate one of the Noahide commandments. The conclusion, apparently, is that he need not (cf. Tosafos, Sanhedrin 75a sv. ve-im). Therefore, even according to those who believe that a Gentile is obligated to implement Torah regulations of justice (the Ramban, according to the above Rema), a Gentile judge still need not give up his life to avoid ruling incorrectly.
(I know this is on last week’s Torah portion but with Tisha B’Av coming, it didn’t seem appropriate. So here it is a week late.)
But if I cause money to be paid unjustly my soul is demanded in return.
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Even though if properly appointed I am not responsible to pay it back?
KT
Re: Maharshal on Ziyuf HaTorah:
Rabbi Heinemann used this (“he would be chayav to be moser nefesh — which I am right now, rabbosai”) in explaining why he wasn’t withdrawing his heter for Sabbath-mode ovens, “if in fact I am a daas yachid as is claimed.”
to joel rich:
under halacha, a judge is (not always, but usually) required to pay it back.
under secular law, judges are not liable for their mistakes, even if the know they erred, or even if they received bribes for the wrong judgenent.
to shalom r:
its not shabath mode — its yom tov mode. to begin with.
Sanhedrin 5a?
KT
“under secular law, judges are not liable for their mistakes, even if the know they erred, or even if they received bribes for the wrong judgenent”
because they control the law-as distinguished from the lowly constable and sanitation worker who can be personally liable.
mycroft — besides the “sovereign immunity” the sanit worker has, the judges have a separate concept of “judicial immunity”. even after they are convicted of bribery.
if a hatzalah ambulance, god forbid, has an accident on a call, they are liable.
if a city ambulance has an accident on a call, they are not liable.
not because of the call, but because of “sovereign immunity”.
Of course, Jewish judges are held to a higher standard. According to the Rambam, Laws of Sanhedrin, Chapter 2, paragraph 7:
“It is said: ‘wise and thoughtful men’- from this we learn that he must be wise.
‘And known to their tribes’- those that the spirit of all creatures is comfortable with.And in what shall they be loved by all creatures? When they will have a good eye and a humble soul, and their company will be good and their speech and negotiations pleasant. Thereinafter it is said: ‘People of might’ – these are those that are courageous in mitzvoth and stringent upon themselves, and conquer their evil inclination to the point that they have no ignominy or disrepute, and they should have an unblemished reputation. And within the definition of ‘people of might’ – that he should have a brave heart to deliver the oppressed from his oppressor, as it is written: ‘And Moses rose up and rescued them.’
And just as Moshe Rabeinu was humble so every judge must be humble.
‘God fearers’- literally.
‘Lucre haters’- even their own possessions do not agitate them and they do not pursue the amassment of wealth
For anyone concerned with fortune will come to lack.
‘Men of truth’- that they will pursue justice of their own volition.
Lovers of truth and haters of oppression who shun all forms of injustice.”
Re Maharshal:
I happened accross a sifre, also in devarim, which explicitly states that a judge is required to disregard threats to the lives of his family members rather than distort the law.
link to sifre:
http://www.daat.ac.il/daat/vl/sifri/sifri06.pdf
page 5, halfway down the first column “davar acher, lo saguru”
to lkwdguy:
they might have to disregard threats against family members, but dayanim are constantly afraid of being sued, even if they know the civil suit has no basis (legal fees, etc still add up)
Since I just read some of the answers to questions I didn’t know were asked, it’s like listening to one end of a telephone conversation. But I will jump in with some opinions.
a) re: Jewish judges paying- that is discussed in Sanh. under the general category of Tah bedvar mishna and shikul hadas. and the circumstances when he must pay out of pocket. Also, what does your message mean about Feedburner for receiving future hirhurim notes, and how do I go about doing what I must in order to keep hirhurim coming? Before I retired, I would simply call the IT dept. with my questions, but now I’m on my own. Ted Resnick