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Book Excerpt from Gemara Wisdom

Gemara Wisdom: Understanding the Ethics in Torah Law By Haim Perlmutter The Jewish Gemara & Talmud: Learn how justice & ethics are the basis of Gemara thinking with this masterfully written, yet eminently readable book on Gemara & ethics, by Grow with Gemara author Haim Perlmutter. Buy Gemara Wisdom at a special online price at www.targum.com

Chapter 1

Equality before the Court: The Underlying Principle of Torah Jurisprudence

The Torah explicitly states that the judicial system’s chief aspiration is the administration of justice. In order to attain this goal, the Torah commands us to appoint “judges and officers...in all your gates...[so that] they shall judge the people with righteous judgment.”¹

Lest we miss the emphasis on righteousness, Rashi comments: “Appoint expert and righteous judges to judge righteously.” When Moshe Rabbeinu addresses the judges he had appointed, he also reiterates this point: “Hear the causes between your brethren, and judge righteously between every man and his brother and the stranger who is with him.”²

Later halachic decisors, including the eighth-century Rav Achai Gaon and the eleventh-century Rambam, also point out this focal point of the legal system. Discussing the obligation to judge, Rav Achai Gaon defines it as the attainment of “true judgment.”³

The Rambam, deriving this concept from an earlier source in the Torah, rules that “it is a positive commandment for the judge to judge justly, as it says: ‘In righteousness you shall judge your neighbor.’ ”⁴

Determining that this is the main goal of Jewish jurisprudence is relatively simple. However, in establishing the steps to be taken to ensure this outcome, sometimes procedure seems to triumph over content, and thus one may lose sight of the original objective.

The Torah seems to begin this trend by issuing a string of laws on the matter, some more general and some more specific. Therefore, in order to emphasize that the goal is justice, in Devarim the Torah states: “If there is a controversy between them...then they [the judges] shall justify the righteous and condemn the wicked.”⁵ Torah justice, quite sensibly, demands a ruling in favor of the individual who is righteous (that is, innocent, in the particular case at hand) and against the individual who is culpable. A court procedure where the innocent party loses is a miscarriage of justice.

This general striving for justice is shored up by the many specific biblical warnings against judges compromising their objectivity: “Do not do an injustice in court, do not favor the face of the poor, and do not honor the face of the mighty”;⁶ “You shall not pervert the judgment of your poor in his cause”;⁷ and “You shall not pervert judgment, you shall not favor a person, nor shall you take a bribe, for a bribe blinds the eyes of the wise and perverts the words of the righteous.”⁸ Thus the Torah itself stresses that the path to justice begins with judicial objectivity and sets down many technical rules to ensure it is maintained.

Rabbinic Law: Procedure over Content?

When we learn dinei mammonos (monetary law) in the Gemara, these important underlying principles concerning judicial integrity are not even cited. They are only found in tractate Sanhedrin, which deals with judicial integrity. In the other tractates, rabbinic law appears to pay no attention to the promotion of justice as the raison d’être of the juridical system; it concerns itself solely with the technical, establishing formal rules of litigation to be utilized in particular situations. By omitting to explain how each law specifically upholds justice, the Rabbis seem to turn the creation of a legal system into a goal in and of itself. The Gemara makes its students feel that rabbinic law is the triumph of procedural rules over content.

However, this is not the case. Our Sages were well versed in the Torah and implemented its ethical teachings in all their actions. Many Gemara discussions are based on a passage from the Torah,⁹ and the Talmud is strewn with innumerable aggadic state- ments that prove this, such as “Every judge who decrees a perfectly truthful verdict, even for one hour, the Torah views it as if he is a partner in the creation of the world.”¹⁰

Certainly, the Torah believed that the purity (nikayon kapayim) of the legal process itself — the technique or procedure employed — far from stemming from a concern with dry legal technicalities, was essential to arriving at a just outcome. In other words, the procedure itself is crucial to reaching the truth and ensuring a just outcome.

In the remainder of this chapter, we will explore the modus operandi of the justice system in order to see why it deserves this name.

Procedure Determines Outcome: The Qualities and Conduct of a Judge

In a Jewish court, a number of legal procedures are followed to ensure equitable court rulings: (1) The Torah demands the appointment of judges who are learned, wise, and G-d-fearing in order to guarantee their integrity.¹¹ (2) The judges are commanded to aspire to objectivity and to have no vested interest in the outcome of the case being tried. (3) The judges are expected to be alert, so that they will not be misled by either plaintiff or defendant. Judicial indolence is unacceptable.¹² (4) In order to achieve justice, the judge, in the words of the Rambam, “justifies the ruling in his heart and then delivers his sentence.”¹³ As the Mishnah in Avos advises, “Be patient in jurisprudence.”¹⁴ There must be no doubt in the judge’s mind that his ruling is equitable, no matter how long it may take him to reach that ruling.

However, the integrity of the judges and the technical provisions for litigation on their own does not guarantee an irreproachable court system. Equality must also be exercised by the judges in court so that both litigants feel that they have received equal treatment.

Thus the halachah translates the Torah requirement of equal treatment into specific rules and regulations that the judges must follow and dictates several specific modes of behavior to guarantee equality. For example, both plaintiff and defendant should be spoken to in the same tone of voice by the judge, and both must be given equal amounts of time to present their cases.

The Rambam defines this requirement succinctly:

What is justice in a trial? Making the two litigants equal in all respects. It should not happen that one speaks as much as he wants, and to the other he [the judge] says, “Speak briefly.” He [the judge] should not be friendly to one and speak softly to him and be harsh with the other.¹⁵

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1. Devarim 14:18.
2. Ibid. 1:16. This passage also emphasizes the importance of treating the stranger equally.
3. Sheiltos D’Rav Achai Gaon, sheilta 149. The expression “true judgment” follows the version suggested by the Netziv (Rabbi Naftali Tzvi Yehudah Berlin, 1817– 1893) based on manuscripts. The printed version replaces “true” with “holy.”
4. Mishneh Torah, Hilchos Sanhedrin 21:1. The passage he quotes is from Vayikra 19:15.
5. Devarim 25:1. See Sanhedrin 10a where the Amora Ula posits that the verse deals with the more complex case of false witnesses. These, not the plaintiff or defendant, are the people referred to as “wicked” in the verse. In his comment on this verse, Ramban argues that this is the peshat of the text: now that the false witnesses have been exposed and refuted, the court rules in favor of the righteous and condemns the wicked.
6. Vayikra 19:15. This is the beginning of the passage quoted by the Rambam above. This verse has been translated literally in order to emphasize the point.
7. Shemos 23:6. The next verse, Shemos 23:7, deals with the prohibition of killing someone who is innocent.
8. Devarim 16:19.
9. The Gemara constantly searches the Torah for proofs and source texts for the law, as seen by the use of the terms .... and ... ... .... (literally, “from where” and “from where are these words”) in tractate Berachos (12b, 32a, 43b, 54a, 54b) and tractate Yevamos (3b, 48b). Furthermore, sometimes the Tanna based his discussion on a verse that everyone was expected to know, as seen from the phrase ... .... ... (literally, “the Tanna is standing on a verse” — in other words, when a Tanna taught this mishnah, he was starting from a passage in the Torah and teaching us the Oral Torah’s explanation of the verse); see Berachos 2a and Nazir 2a.

Indeed, all scholars were expected to be fully conversant with the Tanach because this was something they should have “read” with the rebbe in cheder. See Sanhedrin 33b and Horayos 4a for two of many examples of this.
10. Shabbos 10a.
11. Shemos 18:21. In the time of Yeshayahu (approximately six hundred years after the Torah was given), the people of the kingdom of Yehudah were reprimanded both for the way judges were appointed and for the way they conducted themselves. See Yeshayahu 1:21–23, 26–27.
12. Sanhedrin 40a reports that Rabbi Yochanan ben Zakkai checked the stems of figs in order to make sure that witnesses in a certain case were not lying. The witnesses in the case said that the crime took place under a fig tree. Since the accused would receive corporal punishment for this crime if found guilty, Rabbi Yochanan wanted to be certain that the witnesses were not lying. He asked them for a description of the figs and their stems and then went to see the tree to verify their description. Some say he asked each witness to describe the stems and then compared their testimonies to see if they matched (see Rashi there; cf. Likutei Rashi, ad loc.).
13. Mishneh Torah, Hilchos Sanhedrin 21:9.
14. Avos 1:1. This statement is attributed to the Anshei Knesses HaGedolah (Members of the Great Council), the Sanhedrin operating at the beginning of the Second Temple period. As wisdom handed down from the ancients, this statement became a vital piece of advice to judges.
15. Mishneh Torah, Hilchos Sanhedrin 21:1.

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