Translation:Arukh ha-Shulchan/Choshen Mishpat/1

by Yechiel Michel Epstein

This chapter contains twenty-six sections: 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26

All the laws explained herein are with permission of the Czar's government: "The law of the land is the law."

Section 1

It is a command of the Torah to appoint judges, as it says, “Judges and officers you should provide yourselves” (Dvarim 16.18). They must be ordained in the land of Israel by at least 3 sages, one whom has been ordained (Rambam, 4 chapter of the laws of the court ‘Sanhedrin’). When a sage who can rule and teach is recognized he should be ordained and acquires the title “Rabbi”.

Historically, Moshe Rabbenu ordained Yehoshua and the 70 sages by G-d’s command. They, in turn, ordained the next generation and so on, so that all ordained are as if they were ordained by Moshe from the word of G-d. However, because of our sins and the ensuing diaspora, this chain of ordination was broken and we are all considered as lay people. The Rabbis understood that if this fact caused judges to cease from the Jewish people there would not be lending nor business activity, and unethical behavior would prevail. Therefore they established the continuation of ordination, as agents of the earlier generations, for the good of civil society.

Because there are no true judges now we only rule on common issues and cases involving monetary loss. Cases that do not involve loss, such as fines and the like, and cases that are uncommon, such as domesticated animals damaging people or goring other animals are not heard in court.

There are, however, non monetary cases that are heard today, because their need is great. An example of this is accepting converts Tosafos Yevamos 47.1 and Ran towards the end of Gitin.) Similarly, we arrange divorces when the need arises to protect the daughters of Israel.

Finally, ordained judges are only required when the court has legal sovereignty over the community. If individuals should seek out a judge of their own accord, ordination is not required.

Section 2

In the current era the court hears cases involving admissions and loans, as when a claimant brings witnesses that testify that the defendant admitted completely that he owes the claimant money (as will be explained in chapter 81). Other cases heard include those involving witnesses to a loan, inheritances, gifts, marriage contracts-'kesubos', partnerships,
agencies-'shlichus' and business arrangements, as all of these are common events and involve a loss of money.

Even though gifts do not involve a loss of money they are counted above as people often give gifts expecting some gain in return.

Cases involving damages and employee wages are also heard today, as they are common and involve a loss of money.

Section 3

When a man wounds another he is not assessed for bodily damage, pain, social diminution or embarassment, since all these do not involve a loss of money. Even though bodily damage might be said to involve loss of value, it is not common for bodily damage to be permanent in most cases, as the rabbis explain (Baba Kama 84.2) "A man damaging a man is not assessed in the Exile because it is not common". We know in fact that violence and embarassment do happen, but the Rabbis are referring to permanent damage. This is also the Rambam's opinion (chapter 5, Laws of Sanhedrin), where he writes that medical expenses and lost wages can be recovered in the Exile because there is a monetary loss, while pain and embarassment cannot. Additionally, social diminution cannot be recovered, as in the case of coercive or non-coercive rape. [NEED HELP WITH BRACKET].

Some of our Rabbis argue that the quote above (Baba kama 84.2) also exempts medical expenses and lost wages from being collected. This is the position of the Rosh and the Tur, although both agree that the court can force the guilty to ameliorate the claimant as the court deems apropriate. The Rama also states this.

An animal damaging a man is not assessed as it is not common, while a man damaging an animal is always assessed for complete payment since this is common.

The owner of a domesticated animal will be assessed if his animal damages in the course of its normal behavior - 'Shen v'Regel - 'Eating and Walking', but will be exempt for his animal's violent acts, whether they cause damage or death, even to a person.

Whether or not the damage effected by one's pit (opened in a public area) or fire (damaged caused by its natural progression) are assessed is likewise dependent on whether these damages are considered common, with the Shach stating they are not common and the Shvus Yaakov 136 stating they are 'at times'. Most later authorities concur with the second opinion and it appears to be the law, as it is also supported by the Rambam (chapter 14 of Monetary Damages law 14). This will be explained in detail in chapter 418.

Even though damage or death to persons cannot be assessed the court can enjoin the owner to dispose of the animal, in accordance with the law stated later in chapter 409 whose source is Yorah Deah Chapter 334.

Section 4

Cases regarding theft and robbery are currently heard in court in regard to collecting the principle amount, though fines of double - "Kayfel" and the forth and fifth multiple - "Arba-a v'Chmisha" are not. In general, all fines established by the Rabbis, such as those for shouting in one's ear (non striking damage)[?] or slapping one across the face and such are not assessed.

Even though there are those who claim certain types of thievery cannot be heard today because of the lack of truly ordained judges the majority of later authorities rule that they are heard to prevent lawlessness.

Section 5

Other types of cases heard in court include indirect damages (for example, burning contracts), discussed in chapter 386; the act of informing (to malevolent authorities), discussed in chapter 388; and false 'Zomem'-type witnesses, discussed in chapter 38. If these false witnesses cause the court to wrongly transfer money from the defendant to the claimant and the court cannot recover the funds from the claimant, the court directs the 'Zomem' witnesses to pay. 'Zomem' witnesses, in short, occur when a second pair of witnesses contradicts the first with the testimony "At that time you were with us in a different location than the one you are tesifying about". In this case the second testimony always overrules the first. This is different than classical contradicting testimony, where both groups disagree about the facts of the case and both testimonies cancel each other out. The Zomem witness is a novel decree issued by the Torah, as there is no reason to give greater wieght to the latter witnesses' testimony.

If the Zomem witnesses did not cause a transfer of money, but only exempted the defendant from an oath, and it became clear that had the oath been administered the defendant would have admitted to his obligation, the Zomem do not repay the claimant, as this is an indirect damage (Shvus Yaakov).

Even though in the classic Zomem case they reimburse the claimant if they were revealed before the court issued a final ruling based on their testimony, in the current era we cannot execute that law, since there is no loss of money in that scenario.

Section 6

The Gaonim (post Talmud generation) have decreed that even though fines cannot be assessed today courts should excommunicate the guilty party until he mollifies the claimant. Once the court deems that he has offered reasonable monetary appeasement, they release him from excommunication whether the claimant is mollified or not.

Excommunication does not pass to inheritors of the guilty should he die, as the decree was established to prevent the strong from oppressing the weak, and punishing the guilty party is enough (Urim V'Tumim (11) and Nesivos Mishpat (10).)

Section 7

If the claimant takes money or objects belonging to the guilty party to satisfy a Biblical fine the court cannot order them returned, because technically this fine is the claimant's due and is his money. Obviously, any amounts taken over what was due must be returned. This technicality can work against the claimant also, as when one who accepted an item to watch was found to have sworn falsely about its disappearance and is actually guilty of its theft. Here any money or objects taken to satisfy the fine of 'double payment' or 'fourfold or fivefold payment' have to be returned (Shach), as an oath administered today is not technically in the presence of an Biblically valid ordained court (Nesivos Mishpat 4.)

In the same vein, if a legally docile animal -'Tam' damages, the claimant cannot keep money taken for the fine, unless he takes that animal itself (as is the Biblical law.)

A man cannot have a non-Jew seize money or objects for him, and a claimant cannot ask the court to estimate how much he would receive if a fine could be collected, for that is the same as having the case heard.

Finally, the fact that the court can enjoin the claimant to return money he seized in excess of what was owed does not imply the court's approval of what he seized against the amount owed, as the court is always responsible to protect people against unlawful seizure, and furthermore, the value seized against the amount owed is now the claimant's property, as will be explained in chapter 9.

Section 8

If the claimant seized objects or money in payment for a fine without proof of the claim and the defendant denies that any such claim exists, if witnesses have not seen the seized item in the claimant's possession, or if there are no witnesses to the seizure (even if they have seen the seized time currently in the claimant's possession), the claimant is believed if he takes an oath to his claim. This is because of the claimant's implied counterclaim -'Miggo' that a) he returned the item already (if it isn't seen in his possession) or b) he bought the item free and clear, as will be explained in chapter 133.

Clearly, if there are witnesses to the seizure and his subsequent possession the court orders the return of the object or money if no proof of claim is offered.

The seizure of a fine from orphans of a defendant is never upheld (Nisevos ha'Mishpat) because the moveable property of an orphan is never held on lien for a creditor except in certain cases promulgated by the Gaonim (Post-Talmud generation) which will be explained in chapter 107.

Section 9

If the defendant should take back what was seized there are two opinions on the matter. The Nesivos ha'Mishpat argues that the money is not returned to the claimant, for the court to order its return is equivalent to enforcing fines. Rabbi Akiva Eiger states that the money is returned to the claimant since the money is now the claimant's property, and the case is no longer related to the laws of fines. This second opinion is settled law.

Section 10

Biblically speaking, an admission of wrongdoing exempts one from a fine, but that is only in the presence of a Biblically valid ordained court, which is not found today. Therefore admission does not prevent the efficacy of the seizure of money or objects for a fine. However, if there are no witnesses to the damage any seizure is reversed by the court, as there is no valid seizure without witnesses to the damage, even with admission (Nisevos ha'Mishpat.) For the law when witnesses came after the admission, see chapter 348 section 9.

Section 11

Although the general rule against enforcing fines was already stated, there are extralegal situations where the court can enforce a fine, such as may be needed to strengthen the practice of Torah law in the community. [This is the intent of the Rama in Siman 5 which answers the question of Tosfos.]

Section 12

If one is shamed with words the court should excommunicate the perpetrator until he appeases the victim with value commensurate with his honor and the damge it suffered.

When a Torah scholar is shamed, although the court cannot enforce the fine of a 'litra of gold' (perhaps .48 pounds, or .22 kilos), as stated in the Yora Deah, chapter 243, they should require payment for the disparagment to the Torah over and above the scholar's own honor payment, for if they do not, the Torah's honor would be diminished, G-d forbid. See further in chapter 420 (Urim v'Tumim).

Section 13

Though the court cannot enforce fines it behooves the responsible party to pay the fines established by the Torah, Tanayim (Mishanic era), Amoroyim (Talmudic era), and Geonim (post Talmudic era) in order to be blameless in the eyes of heaven.

If the parties to the court case agree to be judged by the laws of fines their agreement is binding, just as when they agree, for example, to accept realtives or other invalid individuals as witnesses (as is explained in chapter 22). Once they agree to this they cannot reneg. Though there are those who disagree with this law, it appears to be the accepted position. Afterall, a judge who is not 'Biblically' ordained is also technically not a judge, and not any more valid than witnesses who are relatives to the parties or otherwise invalid. (K'tzos ha'Choshen)

Section 14

A note about current judicial ordination: The type of ordination we employ today (in Yoreh Deah, chapter 242) is just a remembrance of the Biblical ordination, not ordination itself. It serves as a 'license to practice', and establishes a baseline formal qualification, as is appropriate for one who will arrange marriages, divorces, Chalitza-divorces and other serious matters.

Section 15

In the times of the Temple how was the judicial system arranged? The Rambam, in the first chapter of the Laws of the Court -'Sanhedrin', explains as follows:

"Originally, the Great Court sat on the Temple grounds. It was comprised of 71 members, after the verse 'Gather for me seventy men from the elders of Israel', and of Moshe, 'And they will stand (to serve) together with you'. The greatest in wisdom was the head of the assemblage, given the title President –‘Nasi’ by the Rabbis. This individual is in place of Moshe. The next greatest in wisdom is the Chief Justice –‘Av Beis Din’, who sits to the right of the President. The remaining members sit to the left of the president, all arranged from greatest to least according to their age and stature. All the members are arranged in a semi-circle, so that the President and Chief Justice are able to see them all.

Additionally, there are two subsidiary courts of twenty three members, one sitting in the Temple courtyard and the other sitting at the entrance to the temple mount.

Each city of 120 inhabitants is also enjoined to have a court of twenty three members, as the Torah states 'Establish judgment in the gate'. Here too the greatest in wisdom is appointed the head and they all sit in a semi-circle in clear view of the head of the court. A city of less than 120 inhabitants appoints a court of three judges as that is the minimum possible to enable a majority and minority opinion."

There are those who explain that the members of a court sit on each side of the President (Hagahos Mayimony) and that seems sensible, as it is easier to construct a semi-circle in this way. This also seems to be the opinion of the Yerushalmi in the first chapter of Sanhedrin which states that the President sits in the center.

This might be the opinion of the Rambam as well, and when he states that the members are arranged to the left of the President [NEED HELP WITH THIS EXPLANATION]...

On the Great Court age is given preference to wisdom when arranging seating. This was so even though in Yoreh Deah, chapter 244, it states that in a religious assembly honor is given to wisdom over age. It appears to me that this was because the difference between the members' great wisdom was hard to discern, so preference was give to age (see Kesef Mishna.) [NEED HELP WITH BRACKET]

Section 16

In temple times the court system was divided into three basic levels: 1) The Great Court, whose rulings affected all the people of Israel. 2) Twelve Chief Tribal Courts of 23 members, each whose rulings affected their own tribe - 'Shevet'. (Source: the verse "Shofetim...li'Shvatecha", see Sanhedrin 16.2) 3) the courts which functioned in every city and ruled for their city (source: the verse "Shofetim...b'Chol She'arecha", see Sanhedrin 16.2). Each Chief Tribal Court, whose members were the wisest sages of their tribe, had jurisdiction over all of its tribe's cities. Therefore, a member of the a tribe could summon another member of his tribe to case in the Chief Tribal Court although they come from another city other than where the Chief Court is located (Ramban, Parsha (weekly Torah portion) 'Shoftim'.)

There also existed a series of District Courts (last chapter in Gemara Makkos), however they probably only existed in the Second Temple Era, when the tribes' members were intermixed in the Land of Israel, and Tribal Courts could not exist as they had in the First Temple Era. The land was split into different districts, and all cities falling into a specific district was under the jurisdiction of its District Court. This is the apparent position of the Rambam, who writes in one location (chapter 1) that it is a commandment to establish courts and officers to enforce the court's rulings in every city and district without mentioning tribal courts and writes in another location (chapter 5) that there is a need for tribal courts. What he is doing is equating tribal courts with district courts. [This is an answer to those who mention this contradiction, although see Lechem Mishnah. It is also noteworthy to mention that the Rambam seems to call a city 'medina', which usually denotes a country, in his commentary on Mishnaiyos, 4th chapter of Rosh Hashana. Additionally, note Tosfos on Sanhedrin 16.2, who mentions that a city with two tribes living therein needs a tribal court for each.]

Section 17

Every individual court appoints officers to enforce its rulings in its jurisdiction, as the verse states "Judges and officers you should provide for yourselves". The officers are also responsible to oversee the local economic activity, assuring accurate weights and measures and general compliance with Jewish law. Their powers include the legitimized use of force against those who would not comply with the accepted law. There is no ceiling on how many officers the court can employ; it is based on the court's assessment of what their jurisdiction requires.

The rabbis expound from the verse "This is the law that you should place before them" that there is requirement to have basic implements representing the court's ability to use force present in a court. For example, Rav Huna, the Talmudic sage and political head of the Diaspora community in his time would request a staff (for lashes mid'Rabanan), a leather strap (for lashes mid'Oraisa), a shofar (for ‘Niduy’ - excommunication), and a shoe (for Chalitzah) when presiding as a judge (Sanhedrin 7.2). Though this law is recorded, and Rav Hai Gaon (post Talmudic generation) corroborates that a court should have these items as well as a Torah scroll (for taking a oath), the Rabbis of the Shulchan Arukh have omitted this law because this would only apply during the times of the Temple. From the Ramban's language this is understood as well. Although Rav Huna himself lived after the Temple period, the political position of Head of the Diaspora and his role as judge was not merely a religious title, but a title with real sovereignty and force of law by the decree of the Babylonian leadership his lived under. [This is what it seems to me. The Urim v'Tumim wonders why the Rambam did, in fact, leave out this law, since he often mentions laws that only applied in the days of the Temple. However, it really was not left out, and can be found when he writes about the officers employed by the courts.]

Section 18

It is important to realize that the details mentioned in sections 15 through 17 only apply in the Land of Israel during the days of the Tample. Outside of the land, even during the Temple days, there is only a command to establish courts in each district (Gemara Makkos). It seems to me that that is referring to the court of 23 members. A simple court of 3 members certainly should be set up in each town, as it does not make sense to force people to travel to a district's capital city for every dispute. Interestingly, the words of the Rambam seem to indicate that outside the land there should be a court in every city, while a district court is not necessary.[See law 2 and the Ksef Mishna and Lechem Mishna thereon, who seem to support this reading.]

Section 19

In truth, is would seem that having a court of 23 members would be a rare thing indeed, considering the requirements:

a) The Rambam writes that any city that does not have a least one sage who is knowledgeable in and can teach all areas in the Torah, and another sage who can incisively analyze any question and provide a correct answer should not establish a court, even if there are thousands of citizens living there. He further writes that a court with two such members is a 'Basic Sanhedrin', a court with three such members is 'Mid-Level Sanhedrin' and a court with four such members is a 'Knowledgeable Sanhedrin'.

b) There is an opinion that at least two members must understand and speak all seventy languages (This appears to be a figurative term for all known languages in the geographic region, see section 24) and an additional member must be able to understand it even if he cannot speak it. (Rashi Makkos 14.2 and Yerushalmi Shkalim chapter 5 clearly states such).

Regardless of the practical difficulty of attaining a court of 23, the basic 3 member court type, which we employ, does not require these skills and is established in all communities.

Section 20

Optimally, a 23 member court requires even more than 23 members. Three rows of 23 sages each sit before the court, and in each row the sages are seated according to their knowledge, so that the lowest of each row is greater than the greatest of the following row. If the court should be divided on a matter and another opinion is needed to make a majority of two they ordain the wisest of the first row. He leaves his place at the first row and joins the seated judges, while his seat is filled by his neighbor on the first row. This causes all the sages to shift over by one seat, with the empty seat at the end of the row being filled by the highest member of the second row (Rashi). The second row then adjusts itself as the first row had done, and its empty seat at the end of the row is filled by the highest member of the third row. The final empty seat in the third row is filled by someone chosen from the congregation, who is quoted the aphorism in Pirkei Avos 4.15 “be a tail to lions and do not be a head to foxes” as mollification.

If the court needs two or three more judges, or if a member of the judges or sages dies, the process above is repeated to fill the missing seat where ever it should occur.

Whenever a court of 23 is constructed there should be two court reporters. One stands to the right of the judges and one to the left. There are two opinions on what they record. One states that the right court reporter records the words of the judges who argue for the defendant’s innocence while the one on the left records the words of the judges who argue for his guilt. Another opinion states that both record all the judges’ words to better be able to compare notes and correct any misquote (Rashi, Gemara Sanhedrin 36.2). The Gemara in Sanhedrin 3.1 seems to imply that this whole section [?] only applied to cases involving the possibility of capital punishment.

Section 21

The Rabbis in Gemara Sanhedrin explain:

”Originally, when arguments about what the settled law was were not so widespread in Israel, the path a case took through the levels of the court system was as follows: If two parties had a dispute it was brought before the court in their city. If the court did not know the settled law, the case would then brought to the court ‘nearby his city’ (it seems to me this is the tribal or district court). If that court does not know the settled law the case would be brought to court at the gate of the Temple Mount. If it is still undecided there, it was brought to the court at the gate of the Temple Courtyard. Finally, if the settled law was still not known the case was brought to the Great Court of 72 in the Stone Chamber – ‘Lishchas haGazis’ in the Temple, which sits from the time of the morning sacrifice – ‘Tmid shel Shachar’ until the evening sacrifice -‘Tamid shel Bain ha’Arbayim’ (on Shabbos and Yom Tov they sit in the Beis Medrash (Yeshiva) on the Temple Mount). The parties present their case and if the law was known it was told to them. If the law was not known, the matter was debated and the Great Court members vote their position on the matter, with the law following the majority. After the law was determined it was promulgated to all the cities in Israel.

The Gemara continues:

”Anyone found to possess the qualities of knowledge in the Torah, fear of sin, humility, [TRANSLATION], a distinguished appearance, and developed social and diplomatic skills that allow him to interact well with people is ordained a judge in his city. From there his skills and abilities can cause him to be appointed first to the court at the Temple Mount, then the court at the Temple Courtyard and finally to the Great Court itself.”

Section 22

Why does a 23 member court require a city of at least 120 inhabitants? In order that there are 23 judges to staff the court, 3 rows of 23 sages each (mentioned previously), 10 men who are supported by the congregation always present in the synagogue for a quorum, 2 scribes, 2 court officers who carry out the court’s corporal punishment as well as serve subpoenas to the litigants, the 2 litigants themselves, 2 witnesses, 2 additional citizens available to testify that the original witnesses are false (to keep the original witnesses honest) and 2 more citizens to prove the second group of witnesses false (to keep them honest) (Rashi Sanhedrin 17.2). Even though all the aforementioned people can themselves be the witnesses (except the judges themselves), people are more afraid of the ‘unknown witnesses’ that may come than the religious service personnel mentioned (it seems to me).

Thus far the total number of citizens is 114. Add to this sum 2 communal charity collectors, and 1 more charity service worker to help distribute the funds, (as communal charity drives are collected by two and distributed by three (Yorah Deah, chapter 256)), 1 experienced full-time doctor, 1 tailor, and 1 teacher of young children. This totals 120.

Furthermore, it seems to me that all these people must be age twenty or greater, and all the judges and the three rows of sages should not be exceedingly aged, impotent or otherwise without children because these states render a person invalid for appointment for the court, as will be explained. This total of citizens and their communal occupations is the ‘theoretical city’ as defined in the Talmud.

Section 23

The Rambam writes in chapter 2 of the laws of the court that a Great Court of 72 members or a 23-member court both require men of wisdom, understanding, and encyclopedic knowledge of Torah law. In addition, they must be men of general understanding, being familiar with various branches of knowledge such as medicine, mathematics, astronomy and seasons, the various schemes and skills of those claiming supernatural abilities, as well as the popular culture among the nations in order to be able to understand the scientific and cultural context of cases that come before them.

Even though it was stated previously that only one member needs to be able to rule in all matters across the spectrum of Torah law and one additional needs to be able to analyze questions correctly, as stated in Yoreh Deah chapter 19, all members, as stated above, must have encyclopedic knowledge of the Torah, though they might not be qualified to rule in all areas. [Here the comment of the Lechem Mishnah is difficult. Compare with Tosfos Gemara Menachos 65.1 “… and knowledgeable…”. This seems why the Rambam used the phrase “to teach and rule in the whole Torah…”]

Section 24

Furthermore, the Rambam continues explaining that the court members should also be of mature, regal, and imposing appearance, without noticeable physical deformities that would detract from their bearing. [TRANSLATION: “NIVUNEI LACHASH”?] They should be familiar with most languages so that they do not require an interpreter.

The Rambam’s text in this section (24) seems to be the ideal, but not indispensable requirements when constructing a court. The previous section, however, does seem to be a requirement. Even though the Rambam took this text from the Talmud in Gemara Manachos, where both texts are written together, it seems reasonable that this section is simply to instill awe in the litigants who come before the court (Lechem Mishnah).

In addition, finding members who know most languages seems highly unlikely, and would probably prevent a court from ever being constructed. In fact, in the Talmud it seems that Mordecai (of the Purim story) was noteworthy specifically because he had this very unusual linguistic skill.

Of course, a basic 3 member court does not have these requirements, though it does still demand seven characteristics: Men of wisdom, humility, fear of sin, an absence of greed, a love of truth, a love of people and a good reputation. This will be further explained in chapter 7. Certainly, a court of 23 or higher requires these traits.

The Rambam’s comment about knowing “most languages” is a paraphrase of the Talmud’s 70-language requirement, which he understands be a phrase that means familiarity with the languages currently spoken in the nation the court is situated in. (see Lechem Mishnah)

Section 25

Only a Jewish person whose genealogy is certain enough to allow him to marry a cohen (member of priestly heritage) can be appointed a judge to a 23-member court (or a Great Court). (Translation note: As the effectiveness of a court is largely based on it's esteem in the eyes of the public, this prevents the disparagement of the court by prejudiced individuals.) Acceptable lineage is defined as a person whose daughter can legally marry a cohen. However, there are two categories here. Shulchan Aruch Even ha’Ezer chapters 6 and 7 define a category of people who cannot be a judge in a monetary or capital case as well as a category of people who can judge a monetary, but not a capital one. Although this second group is not invalid as civil judges in a 23-member court they cannot be appointed in any event, because as a general rule a judge cannot be appointed to a court if he is only partially valid. This restriction would not be a problem in a basic 3 member court as such a court only hears civil cases [This rule clarifies the Rambam’s statement in chapter 2, law 1]. This law is derived from the dictum “Just as one’s integrity must be clean of any blemish so must his genealogy”. The Rabbis derived this from the verses “And they shall stand (in judgment) with you”, and “They shall bear the burden with you”. Even though it is impossible to be like Moshe our teacher nevertheless we learn that the lack of wisdom, fear of G-d and pure genealogy invalidates a potential judge.

In the Great Court it is meritorious to search after members of the priestly and levitic family line. However, even if the court is all staffed by Jews who are neither of the priestly or levitic line it is valid as long as their lineage is pure. The Rabbis have derived this from the medrashic Sifrei which states that the words “…to the judge…”, which implies whomever it may be, even a regular Jew. For a 23 member court this meritorious practice does not apply, as the verse “…to the judge…” refers only to the Great Court.

Section 26

A king is not ordained as a judge, since the Torah prohibits contradicting him directly, and anyone who disputes the king’s word is considered to be rebelling against the king, which is a capital offence. If the king should voice a position how would the debate among the judges continue? The Chief Priest –“Cohen Gadol”, on the other hands, enjoys no such status, and he can be disagreed with.

A king from the Hose of David has a special dispensation from the Bible that allows him to judge by himself, and not as a member of a court. This is due to the verse “so says G-d, administer justice every morning...” Because he can judge, he can be judged by the court if there is a case against him, as one who can judge must be able to be judged. It should be noted that the king can only judge civil cases and cases that impinge on his honor, as King David judged Naval for insubordination of his word (Tosfos Gemara Sanhedrin 19.1/.) [IS THIS CORRECT?]

The case of one who rebels against the king is heard even at night, unlike regular cases before the court, and he is executed immediately (Gemara Megillah 14.2.)

Jewish kings not of the Davidic line are not judged nor do they judge, as the imbalance of power that would result were they able to judge would invariably lead to harm. The Yerushalmi states that a king is not judged by man but by G-d alone, as the verse states “Let my judgement come from your presence...”.

In any type of court [EVEN A 3 MEMBER COURT?] a elderly man is not appointed a judge, rather one who has reached middle age maturity. A man of advanced age has probably forgotten the pressure of raising a family and will not be sensitive to the litigants’ needs and have the proper mercy (Rashi, Gemara Sanhedrin 36.2.) One who is impotent is not appointed as he tends towards a type of cruelty and one who has no children, even if he had and they passed away, is similarly not appointed. [It appears to be that both cases would be one and the same, but see Rashi, Gemara Horious 4.2, on the words “or an elderly man”. This needs some research.]

Reference Links

English - Judaica Press Tanach with Rashi

English - Daf Yomi Advancement Forum

Hebrew - Tanach with Rashi, Ramban, Rashbam, Ibn Ezra, Radak, and others

Hebrew - Rambam | (Bio) with commentaries

Hebrew - Shulchan Aruch, Chapter 7 | (Bio) with Sefer Mi'eros Anayim (Bio) and the Shach (Bio)

Hebrew - Nesivos haMishpat | (Bio)

Hebrew - Urim v'Tumim | (Bio)

Hebrew - Birkei Yosef | (Bio)

Hebrew - Levush | (Bio)