Appointment of Judges
IN LOVING MEMORY OF
Jeffrey Paul Friedman
August 15, 1968 – July 29, 2012
יהודה פנחס בן הרב שרגא פייוועל
כ"ב אב תשכ"ח – י' אב תשע"ב
Adapted by Binyamin Frankel
Translated by Kaeren Fish
The importance of appointing judges
The speeches that Moshe Rabbenu gives in Sefer Devarim portray an outstanding leader and military commander and strategist, who succeeded – with Divine aid – in defeating foreign armies: “After he had slain Sichon, king of the Emori, who dwelled in Cheshbon, and Og, the king of Bashan, who dwelled at Ashtarot in Edre’i” (Devarim 1:4). Later on we read:
“And the Lord said to me, Behold, I have begun to give Sichon and his land before you; begin to possess, that you may inherit his land. Then Sichon came out against us, he and all his people, to fight at Yachatz. And the Lord our God delivered him before us, and we smote him … there was not one city too strong for us; the Lord our God delivered all to us.” (Devarim 2:31-36)
In addition, Moshe is depicted as a rosh yeshiva and spiritual guide: “Beyond the Jordan River, in the land of Moav, Moshe began to declare this Torah, saying…” (Devarim 1:5).
However, it seems that Moshe himself chooses to highlight a different aspect of his role as the focus of his speech. The first event that he describes in his speech is the appointment of the judges:
“And I spoke to you at that time, saying, I am not able to bear you myself alone; the Lord your God has multiplied you, and behold, you are this day like the stars of heaven for multitude (the Lord God of your fathers make you a thousand times so many more as you are, and bless you, as He has promised you). How can I myself alone bear your care, and your burden, and your strife? Take wise men, and understanding, and known among your tribes, and I will make them rulers over you.” (Devarim 1:9-13)
The focus on the appointment of judges as the opening of Sefer Devarim testifies to the importance of courts. Let us try to examine the nature of the obligation to establish courts, and its implications for our own times. For this purpose we shall start by reviewing the list of characteristics and traits required of a dayan.
The verses offer a brief list of criteria:
“And you answered me and said, The thing which you have spoken is good for us to do. So I took the chief of your tribes, wise men, and known, and made them heads over you – captains over thousands, and captains over hundreds, and captains over fifties, and captains over tens, and officers among you tribes.” (vv. 14-15)
In Sefer Shemot, Yitro mentions some other traits:
“Moreover you shall provide out of all the people able men, such as fear God, men of truth, hating unjust gain, and place such over them, to be rulers of thousands, and rulers of hundreds, rulers of fifties, and rulers of tens.” (Shemot 18:21)
A further point to consider is the command, “You shall not respect persons (literally, ‘recognize faces’) in judgment” (Devarim 1:17). The plain meaning of the text directs this command to the judges themselves, and the Gemara (Sanhedrin 7b) understands it accordingly. However, the Sifri disagrees, maintaining that the command comes to obligate those authorized to appoint the judges, to choose properly:
“[The command is given] lest one say, ‘So-and-so is handsome; I will appoint him as a judge; so-and-so is brave, I shall appoint him a judge; so-and-so is my relative, I shall appoint him a judge; so-and-so once lent me money – I shall appoint him a judge; so-and-so knows every language- I shall appoint him a judge. For thus one ends up clearing the guilty and indicting the innocent.”
The Sifri rules out all sorts of characteristics – physical beauty, bravery, a family connection, a monetary debt – that might influence one’s choice of judges.
The attitude towards general culture
With regard to the final parameter mentioned by the Sifri, the Netziv explains: “‘He knows every language’ – meaning that he is knowledgeable in the ways of the world.” The Sifri lists “knowing every language” as a factor that might influence our decision in choosing a judge, and the Netziv interprets this as familiarity with the general, worldly culture. Those entrusted with appointing judges might be drawn to candidates who “speak the language” of the generation, and caution should be exercised.
In this context we find that the Rambam rules (Hilkhot Sanhedrin, ch. 2):
Halakha 1: “We appoint to a Sanhedrin – whether the Supreme Sanhedrin or a minor Sanhedrin – only men of wisdom and understanding, of unique distinction in their knowledge of the Torah and who possess a broad intellectual potential. They should also have some knowledge concerning other intellectual disciplines, e.g., medicine, mathematics, the fixing of the calendar, astronomy, astrology, and also the practices of fortune-telling, magic, sorcery, and the hollow teachings of idolatry, so that they will know how to judge them.
We appoint to the Sanhedrin only Kohanim, Leviim and Israelites of fine lineage who can marry into the priesthood, as it is written, ‘And they shall stand there with you’ (Bamidbar 11:16) – implying that ‘they should resemble you [Moshe] in wisdom, in the fear of heaven, and in lineage.’”
Halakha 6: “Just as the judges of a court must be on the highest level of righteousness, so too they must be unsullied by any physical blemishes. An effort should be made that they all be white-haired, of impressive height, of dignified appearance, men who understand whispered matters, who understand many different languages so that the Sanhedrin will not need to hear testimony from an interpreter.”
Here the parameters have been significantly broadened, and specific mention is made of the need for some familiarity with the general culture, in order that “they will know how to judge them” and that “they will not need to hear testimony from an interpreter.” We want to minimize the judges’ reliance on middlemen when they hear testimony, and therefore they must be knowledgeable in the ways of the “wide world.”
Essential requirements: good character
The Rambam also addresses judges who do not possess all of the above qualities. They need not be removed from their positions; they may still be appointed to courts:
Law 7: “For a court of three, although we do not demand that a judge possess all of these qualities, he must nevertheless possess the following seven attributes: wisdom, humility, the fear of God, a loathing for money, a love of truth; he must be a person who is beloved by people at large, and he must have a good reputation.
All of these qualities are mentioned explicitly in the Torah. [When relating Moshe’s statement concerning the appointment of judges, in Devarim 1:13], Moshe says, ‘Men of wisdom and understanding’ – this refers to wisdom. ‘Beloved by your tribes’ – this refers to those who are appreciated by people at large. And how do people become generally beloved? By conducting themselves with a favorable eye and a humble spirit, being good company, and speaking and conducting their business with people gently. [When relating Yitro’s advice to Moshe to appoint judges, in Shemot 18:21], the Torah also says, ‘men of power’ – this refers to people who are mighty in their observance of the commandments, who are very demanding of themselves, and who overcome their evil inclination until they possess no unfavorable qualities, no trace of a negative reputation, who were spoken of favorably even during their early manhood. The expression ‘men of power’ also implies that they should have the courage to save an oppressed person from the one oppressing him, as it is written, ‘And Moshe arose and delivered them’ (Shemot 2:17). And just as Moshe was humble, so every judge must be humble. As for ‘God-fearing’ – this is self-evident. The verse also mentions ‘those who hate profit’ – i.e., people who are not overly concerned even about their own money, and who do not pursue the accumulation of money, for anyone who is overly concerned about wealth with ultimately be overcome by want. ‘Men of truth’ – meaning, people who pursue justice because of their own inclination; they love truth, hate crime, and flee from all forms of crookedness.”
What all of this teaches us is that those who appoint judges face a great array of stumbling blocks that can disrupt their good judgment, and the Torah repeatedly warns against this.
On the face of it, one might argue that the warnings that appear here apply only to other sectors of the population, where family connections might influence appointments to batei din. But it is important to keep in mind that we ourselves are not blameless in this regard. In the past we heard a minister identified with the National Religious camp in Israel who boasted of the fact that during his tenure no haredi judges were appointed.
This is precisely the problem of appointing on the basis of “relatives,” “language” and so on – and we dare not acquiesce to this. As a public, we must not encourage appointments that are made on the basis of cultural openness or family connections, without relating to the other parameters and without examining and re-examining motives.
It would seem that the scorn that many secular Israelis feel towards the Chief Rabbinate emanates precisely from this point. The Rabbinate is perceived as a way of obtaining jobs for those who are “relatives” – i.e., those who are related through family, economic or cultural ties – instead of being an institution that operates in accordance with Torah and for the fulfillment of Torah.
It is no coincidence that Moshe starts his speech by noting the difficulty of maintaining a legal system and the challenges that it brings. When the appointment of Chief Rabbis creates such negative publicity and such desecration of God’s Name, we must remind ourselves of the Rambam’s minimal requirements, and ask ourselves what efforts we are making to ensure that the candidates for this important and significant position meet them.
(This sicha was delivered on Shabbat parashat Devarim 5773 .)