IMREI SHEFER BY RABBI SHLOMO KLUGER
Shoftim
Imrei Shefer - Parshas Shoftim
   

How does having judges in every city help to ensure that they will judge correctly?

(16,18) “Judges and officers you shall place in all your gates which Hashem, your G-d, is giving to you, for your tribes, and they shall judge the people with a righteous judgement.”

Chazal teach in Pirkei Avos 1:1 that one should be deliberate in judgement so that the judges will be able to arrive at the truth, because if they judge hastily it is quite likely that they will make a mistake.

Now, if there are judges only in a few places and not in every city, all the litigants would have to come to one of these few courts. This would put a big work load on the judges and as a result they will make their decisions speedily and not be deliberate in judgement. But if judges are appointed in every city then they will only have to deal with the cases from their city which will not involve too large an amount of work. Thus they will be able to take their time and deliberate the case.

This is why the Torah commands us that “judges and officers you shall place in all your gates” because then “they shall judge the people with a righteous judgement”.

Why will judges be afraid to act falsely?

(16,18) “Judges and officers you shall place in all your gates which Hashem, your G-d, is giving to you, for your tribes, and they shall judge the people with a righteous judgement.”

Another reason why the Torah commands us to appoint judges in every city is because a person does not lie about a matter which is likely to be revealed. Therefore, if they appoint judges in every city the judges will not judge falsely because they will be afraid that the litigants might go to another court close to their city which will rule the opposite, and so the first judges will be caught in their lie. But if they do not appoint judges in every city they might judge falsely since there are no other judges nearby to reveal their falsehood, and it is not likely that the litigants will trouble themselves to go to a another court far away.

And even if there are other Torah sages around, the renegade judges could simply claim that they are not judges and so are not competent in judgements. This we see from the gemora in Bava Kamma 53a which comments that R. Noson was a judge and penetrated the depths of a case, which implies that somebody who is a Torah sage but not a judge is not so expert in judgements.

Therefore the Torah says “Judges and officers you shall place in all your cities”, and thereby “you shall judge the people a righteous judgement” since the judges will not act falsely in a matter which is likely to be revealed.

When should a great Torah sage accept the position of judge?

(16,18) “Judges and officers you shall place in all your gates which Hashem, your G-d, is giving to you, for your tribes, and they shall judge the people with a righteous judgement. You shall not pervert justice…”

Another explanation of these posukim is according to the teaching of Chazal that great Torah sages fled from positions of authority and did not wish to be appointed as judges, and so it is brought in the Shulchan Aruch in Choshen Mishpot. However, this is only true if there are other people fitting to be judges, but where there are no others Chazal taught the opposite and said that the posuk in Mishlei 7:26 “and numerous are all her slain” refers to a student of Torah who has reached the level where he can decide halachah and does not do so. And in Pirkei Avos 2:5 they taught that “in a place where there are no men, strive to be a man”.

This is what the Torah is saying to the great Torah sage of the generation, “Judges and officers you shall place” - you yourself should not accept upon yourselves to be a judge, but rather you shall appoint others to be judges. But this is on condition that “they shall judge the people with a righteous judgement” - if you know that they will judge correctly then you have permission to hold yourselves back from being a judge. But if you know that they will not judge correctly then I caution you that “you shall not pervert justice” - if you refuse then to be a judge you will be held guilty as if you are the one who is perverting justice. Because in a place where there are no men, no one capable of being a judge, it is proper for you to be a judge.

In which situations would it be permissible for a relative of a litigant to judge a case?

(16,18) “Judges and officers you shall place in all your gates which Hashem, your G-d, is giving to you, for your tribes, and they shall judge the people with a righteous judgement.”

The Midrash asks on our posuk if it is permissible for a person’s relative to sit on his case? It answers that the Rabbis have taught that these are the relatives (who are disqualified): his father, his mother, etc. - just as a relative is disqualified to be a witness, so too he is disqualified to be a judge. And from where did you learn this? Said Rabban Shimon ben Gamliel: It is written in Devarim 21:5 “And the Kohanim the sons of Levi shall approach, because Hashem, Your G-d, has chosen them to serve Him, and to bless in the name of Hashem, and by their mouth shall be every dispute and every lesion”. Come and see - the posuk compares negaim (lesions) to disputes, and disputes to negaim. Just as negaim are only examined during the day, so too judgements are only conducted during the day. And just as relatives are excluded from disputes, so too are relatives excluded from examining negaim.

This Midrash is a puzzle - how is all this connected to our parsha? And even more puzzling is that it seems to be asking how we know that a relative is disqualified from being a judge, yet it concludes by learning from disputes that relatives are disqualified from examining negaim, but does not tell us how we know in the first place that they are disqualified from disputes? Maybe the Torah equates disputes and negaim only for the rule that they should both be during the day, but relatives are qualified for both disputes and negaim!

But it seems to me that we can explain all this by first paying careful attention to the wording of the Midrash which asked if a relative is permitted to sit on his case, but did not ask whether he is permitted to judge his case which would have implied judging the case by himself. Also, we note that even though the disqualification of a relative from being a judge is because the Torah decreed that it should be so, had it not done so it would in any case have been logical to disqualify a relative from being a judge because he would be naturally biased towards his relative.

However, there is a difference between whether the disqualification is from a decree of the Torah or from logic. Because if it was only according to logic, if the judge was related to both litigants we would certainly permit him to be a judge. Also, since monetary cases require that there be three judges we would permit one of them to be a relative, because even his opinion is biased towards his relative, nevertheless, since the other two judges are the majority and the judgement follows the majority, they can still decide the case in favor of the other litigant. But if it is because of a decree of the Torah then the relative would be disqualified in both these scenarios.

Now, Rashi explains on our posuk that the phrase “for your tribes” teaches us that it is a mitzvah for the tribes to appoint judges for each tribe separately. The commentaries raised a difficulty with this, because the Torah has already commanded us in the beginning of the posuk to place judges in every city, and so this already implies that each tribe should have its own judges. They answered that this extra teaching is for a situation where there are two tribes in one city, and in that case there needs to be two courts. But it is not clear why this should be so - why is one court not sufficient?

But the explanation is that if there was only one tribe in a city then the litigants can be from that city, because there would be no concern of bias to one of the litigants since they are all of the same tribe. But a city in which there are two tribes, since we can not have a court with an equal number of judges it would be necessary to have the majority of the judges from one tribe. Therefore, if two people from this city have a disagreement, one from one tribe and one from the other, and they come to be judged before this mixed court, perhaps the judges will be biased towards their tribesman and decide the case in his favor. Therefore, it is necessary here to have two courts in one city.

From this it would seem that there is only a problem when a judge is related to one of the litigants, but if he is related to both of them he should be permitted to judge. If so, it is also logical that if two of the judges are not related to the litigants, then the third judge would be permitted to be a relative to one of the litigants, because even if he is biased to his relative the other two can decide the case against him.

This is why the Midrash did not ask if it is permissible for a relative to be a judge alone, because logic would certainly forbid this. Rather the question was whether he can sit together on his relative’s case with two others. On this the Midrash answered that the Rabbis taught that these are the relatives who are disqualified, that is, these relatives which the Rabbis enumerated are completely disqualified by decree of the Torah - just as they are completely disqualified as witnesses, so too they are disqualified to be a judge, even if only one judge is a relative, and even if he is related to both litigants. But with other relatives who are permitted to be a witness or a judge we act according to logic - if the judge is related to both of them it is fine for him to be a judge, but if he is related to only one of the litigants it is proper that he should recuse himself. Therefore, in a city in which there are two tribes there needs to be two courts.

But the Midrash then asks that this itself, that the relatives which the Rabbis enumerated are completely disqualified to be judges, from where do we know it? Perhaps they are only disqualified as a witness because the outcome of a case is decided mainly as a result of the testimony of the witnesses, but they are valid to be judges in those situations where there is no concern of a possible bias in their relatives favor.

The answer of the Midrash to this question can be understood once we understand why the majority of judges during the period of the first Beis Hamikdash were Kohanim or Levi’im, as the Abarbanel writes. He explains that the reason was because they had no portion in the land and no business dealings, and so they were free to involve themselves with learning Torah and thus were fitting to be judges.

But it seems to me that another reason is because in those days only those who had received semichah (Rabbinic ordination) were allowed to judge, and so there were relatively few judges. If so, appointing judges from Yisrael would have been problematic, because what would happen if a father had a dispute with the son or father of one of the judges - since a relative is forbidden to judge, and there were so few judges, in front of whom could he be judged? Therefore, where possible, they appointed judges from the Kohanim or the Levi’im, since it was not so likely that one of their relatives would have a business dispute or quarrel with someone else since they owned no land and had no business dealings. Even though it might happen that a judge may be related to one of the litigants through his Yisrael wife, this would have been a much less common occurence than if the judges had been Yisraelim.

From this it is clear that a judge who is related to a litigant is disqualified by a decree of the Torah, and so would be disqualified even if the two other judges are not relatives. Because if not so, there would be no need for the judges to be specifically Kohanim because it would be possible to appoint three judges who are not related one to the other, and so even if a case would involve the father or son of one of the judges it would still be possible to judge the case since the majority are not relatives. Therefore, it must be that the disqualification is from the Torah.

This is the proof that the Midrash brings from the posuk “and the Kohanim will draw near…and by their mouth shall be every dispute and every lesion”. And how do we know that the reason that they must be specifically Kohanim is for this reason? Because the Torah compared here disputes to negaim, and if it is only to teach that judging disputes must be done by day what relevance does this comparison have to here - why did the Torah need to make this comparison specifically here? Therefore, the posuk must be coming to teach a comparison in the opposite direction which is very relevant to here, that just as with disputes relatives are disqualified to judge by a decree of the Torah, so too with negaim. Because here it writes that “by the mouth of Kohanim” specifically “shall be every dispute” in order that they will not be related to the litigants. Thus we see that relatives are disqualified to judge disputes. And the Torah compared negaim to disputes - just as a relative is disqualified to judge even to decide against his relative, so too a Kohen who is a relative cannot examine negaim even to declare him impure. So it seems to me to be the explanation of this very puzzling Midrash.

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