Translation:Arukh ha-Shulchan/Choshen Mishpat/3

by Yechiel Michel Epstein

This chapter contains twenty sections: 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20

Section 1

In the current era there is no seated court of less than three judges. A court can even be constructed of lay people, and they can even exercise the same powers as any court, including forcing the defendant (who lives in their city) to present himself before the court. However, in order for this court to be valid, one member must be familiar with Jewish civil law and be able to reasonably weigh opposing arguments and understand how the Torah law would apply to those arguments. If none of the members possess this ability, this court is not recognized as such unless the litigants agree to their arbitration, as litigants can likewise accept as judges relatives or other people inappropriate to be a seated judge, as will be explained in chapter 22 (Shvus Yaakov).

An invalid court is allowed to record the claims of both of the litigants and send that information to a recognized expert for a response. [CAN THIS BE RESPONSE BE ACTED UPON?]

Section 2

The ability for an impromptu court of three members to force the defendant to appear is limited to a scenario where he does not want to appear before any court in his city. However, if he wishes to choose his own judge then he and the claimant each choose one judge and mutually agree on a third, as will be explained in chapter 13. If the city regulates its own official court system the litigants cannot choose their own judges. The fact that this law is often ignored is simply because the Jewish courts today lack the martial force to impose this ruling, but the litigants will one day have to answer before G-d for the righteousness or lack thereof of their substituting their own court for the recognized local court.

Section 3

If one of the litigants wants his claim or defense to be arbitrated by the industry or professional association that they belong to, and that is in fact the standard custom where they plied their trade, the case is heard by their professional association instead of a court. (Rabbi Akiva Eiger)

Section 4

Generally, a court can never have less than three members. Any admissions made before a group of two are considered out-of-court admissions, and any claims stated before them can be later reversed or modified. One who is found to have lied in front this group does not have the status of a perjurer. This group has the status of witnesses, especially if the claimant uses the formulation “You are my witnesses…”, which will be described in chapter 81. [PLEASE HELP WITH END OF THIS SECTION].

Section 5

There are notable exceptions to the 3-member rule. If the litigants accept these two as a court, or if there is one individual Rabbi who is an expert in civil law and rules in these matters for the community, he or they are accepted as a court. Admissions made before them are considered as if made before court, and claims stated before them cannot be changed. Additionally, a defendant can receive the status of a perjurer if witnesses show him to have lied. These two (or one individual expert) can force the defendant to appear and can accept witnesses’ testimony.

In one manner they (or he) differ from a court of three. Any written record of admissions, claims, counterclaims and rulings that take place in a court of three have the full force of a signed contract, and can be presented in any other court as given facts, or in the case of a ruling as a basis for summary judgment. This contrasts with the written proceedings of a court of two or an individual expert, which only has the status of a verbal agreement before another court. For a court to rule based on this record would be the equivalent of ruling based on hearsay, which is not valid testimony according to the Torah. The two judges or the individual expert must personally state what transpired in their presence before this court in order for that information to be acted upon. Other than this difference, they have the same judicial powers (Nisevos ha’Mishpat.)

Section 6

Even though an individual expert can act as judge, it is a command of the sages that he sit others with him if possible. There are those that caution that an individual should never act as a judge alone, unless he clearly states to the litigants that he is not knowledgeable enough to act as a judge and they nevertheless accept him even on the condition that his ruling is incorrect (Shach). In truth, the populace does not seem to follow this practice, and it is known that many a Rabbi in small towns will judge alone without specifying any precondition. One must say that the above practice is already assumed by all who take part in a case with one judge, that they realize he is a single judge using his best discernment, and they are accepting his ruling even if it is incorrect.

Section 7

Although a court of three is a perfectly legitimate court, whenever there are more members it is praiseworthy, even it is eleven judges instead of ten. All who do sit on a court should be scholars who are qualified for this responsibility. Therefore, it behooves a scholar to be aware of whom his fellow judges will be before he agrees to take part, lest he be party to an irresponsible miscarriage of justice (Rambam and Tur.) Though the Rambam and Tur seem to phrase this directive as a prohibition, it seems more likely that it is a strongly worded warning rather than a prohibition, as it is only forbidden to judge with a known sinful individual, as is stated in chapter 7. Additionally, the gemara in chapter 3 of Sanhedrin characterized judges who check whom their fellows will be the "the clean (or fastidious) men of Jerusalem", which implies that this was not the basic law, but rather a meritorious practice. Furthermore, the average person always has presumption of good character according to Torah law. Finally, why assume the litigants would choose a sinful person as judge. Therefore, direction to check the fellow judges is simply a meritorious purpose.

Section 8

The ruling of a man who is not learned, is lacking a discerning mind, and is not accepted by the litigants has no legal standing, regardless of the authority that conferred judgeship upon him. One who indirectly assumes judgeship, without communal consent, causes pain to the community and there is no end to his punishment. On this the early authorities - Rabbenu Tam, Rashbam, Ravan, and 150 rabbis [CORRECT?] enacted the rule that no one may take any leadership position for himself without consent of the local Torah community and the recognized righteous scholars of that locale. One who does so will not see good in this world or the next.

Section 9

Another note on the requirement to have at least three judges: The Rambam states (Chapter 2, Laws of Courts -"Sanhedrin"):

"Even though a court does not consist of less than three members, an individual can act as judge according to the Torah. This is as the verse states: "With righteousness judge my people...". Subsequently, the Rabbis enacted that a court requires a minimum of three judges. The ruling of two who act as judges is invalid, but if an individual expert receives the communal consent (actively or passively) or has been approved by a valid court to function alone as a judge in their jurisdiction he is permitted, although he is not considered to be an actual court of law."

His opinion is difficult in light of the Gemara in the beginning of Sanhedrin that states that "since an individual can act as judge alone, certainly the ruling of two judges is valid". It seems to me that this gemara is referring to the basic Torah law. The rabbinical standard still requires three, so that if three men from the street should form a court, it is probable that at least one will have some familiarity with the law. Moreover, the individual judge permitted by the Torah has to be a Torah-level ordained judge, which we do not have in the current era (Chapter 1), and only his ruling would be valid, while he himself is not considered to be running a court. [When the gemara states that Rav Acha sides with Shmuel's dictum - that a court of two is valid, it too is only referring to his agreement with the technical Torah law. However, he would still agree that the law in practice is that of the Rabbis (requiring three judges). Only Shmuel and Rabbi Avahu argue about the validity of a court of two on a Torah level, as is seen on Sanhedrin 87.2, by the case of the 'rebellious elder'.]

Section 10

Concerning the traditional ceremony or 'ordination' in Temple times and thereafter: The Rambam writes in Chapter 4 of Sanhedrin:

What is the ceremony of ordination? (Even though the Hebrew term 'Smicha' often means the placing of the hands on top of some object,) It is not placing of the hands on the individual, rather he is pronounced 'Rabbi' and they say to him 'you are hereby ordained, and you have license to practice jurisprudence and even levy fines.'

This does not mean he judges alone, rather with two others (Lechem Mishna). However, the classical Torah permission to judge alone is applicable to situations when the claimant admits is liability or cases dealing with loans (so Rashi writes on Sanhedrin 3.1).

If one should wonder about Moshe's ordination of Yehoshua, which was an example of 'placing of hands' on Yehoshua's head, that was explicitly at G-d's command -'And you should place your hands upon him' (Bamidbar 27.18), and the purpose was not to confer judgeship on him, rather to confer prophecy and G-d's presence on him, as the verse continues '...and place of your glory upon him'.(so to from the language of the Rambam.)

Section 11

The Rambam continues:

At first, all who were ordained conferred the same on their students. Then, in the days of Hillel, the Rabbis enacted that the President -'Nasi' of a court and its Chief Justice must ordinate people together. This was done for the honor of Hillel. Another ordained Rabbi may confer the title with the permission of the President-'Nasi' as long as two others join with him, for ordination requires three.

Yirushalmi Sanhedrin, Chapter 1, also points out that the custom altered over time:

At first each Rabbi ordained his own students...after a time the policy was changed so that honor was given to the President-'Nasi' by allowing him to ordain without the court's agreement while the court could not ordain without his agreement. Subsequently, the policy was again changed to require the Nasi and the court members to agree on each candidate.

These arrangements of authority to confer ordination only apply when the community is living at peace in the land. This is demonstrated by the fact that Rabbi Yehuda ben Baba "ordained five elders deep between two great mountains..." (Gemara Sanhedrin, 14.1), implying without the court president's approval, for he lived in a time when the Jewish people were under persecution.

Section 12

Classical ordination can only be practiced by ordained individual in the Land of Israel on other individuals present in the Land of Israel. If either is outside of the land, the title cannot be conferred. The individual to be ordained does not have to be present at the ceremony, he can be sent a communication that he has been ordained and can act as judge. In regard to the identification of the geographic area called 'the Land of Israel', the Rambam maintains that even the areas conquered by the generation of the Egyptian exile, above those conquered by the generation of the Babylonian exile, are appropriate for ordination. This is in contrast to his position in the laws of Priests' Gifts -'Terumah', chapter 1, where he states that the holiness of the land only covers the area conquered by those returning from the Babylonian exile. It seems that he distinguishes between the earth and the environs (lit. 'air') of the Land of Israel. Terumah is related to planted crops, but ordination is related to the environs of the land, and it retains it's holiness for this purpose. Furthermore, we see that Moshe ordained Yehoshua in the desert, because at that time those environs contained the greater holiness, owing to the Divine Presence and the Aron Hakodesh. [The Kesef Mishna notes that the validity of the area conquered by the generation of Egypt can be learnt from the fact that the Rambam rules that cities on the borders are also 'the land'. I wonder about this proof, since in reality the law is that those cities can only be judged as though in Israel, but judges cannot be ordained there.]

Section 13

The Rambam further writes that "even a hundred men can be ordained at once. In fact King David once ordained thirty thousand men on one day". We even have a reading of the Gemara Yirushalmi in Chapter 'Chelek' that states he ordained ninety thousand.

The Rambam continues: "Ordination can be limited to various functions and periods of time. A man, even if he be knowledgeable in the entire Torah, can be ordained to judge civil cases, but not ritual law; one or both of these, but not fines; fines, but not laws relating to first born animals; to only annual vows or deal with family purity law. Similarly, he can be ordained until, for example, the president of the court should return, or until he is rejoined with the other court members in the same country, or any such condition. A man who is blind in one eye is not ordained for civil cases, though he may be a great scholar. Even though he is technically valid for civil cases there are other types of law he is invalid for so he is not appointed for this as well. Other situations like this have a similar law."

By way of explanation, when the Rambam mentions that he is not a valid judge for ritual law, the practical result of this would be, for example, whether or not he is exempt for repayment of a loss he caused one to suffer by ruling incorrectly. (See chapter 25.)

All this above is in regard to being a judge. To be a teacher of law one only need receive the permission of his teacher (Lechem Mishnah).

Finally, the Gemara seems to imply that in order to give a limited ordination there must be a good reason, such as to give honor to greater scholar or because the individual in question is an expert in one particular area. [as in Gemara Sanhedrin 5.1, where the answer given is either because honor is given to Rabbah bar bar Channa or because the rabbi in question was especially expert in one area.]

Section 14

The Rambam writes further:

"Whether the Great Court in Jerusalem, a court of 23 or a court of 3, at least one member has to be ordained from one previously ordained, continuing back through time until Moshe. Moshe ordained Yehoshua and the 70 elders, causing the Divine Presence to rest upon them, and they in turn ordained others who in turn ordained others... One can be ordained by the president of the court or another ordained member even though they never were ordained before a court of 23 or greater.[CORRECT?]"

In law 3, the Rambam writes that "ordination for judgeship must be done by 3, and one of the three must be ordained himself."

In law 11, he writes that "if there is only one ordained man in the Land of Israel he can bring two men to his side and ordain with them 70 men at once or one after the other in order to have 70 ordained judges to construct a Great Court. Then they can ordain further to create more courts."

These three quotes require explanation. In the first quote, when the Rambam writes that one of the three must be ordained he means that each and every one of them must be ordained. This is true by all court sizes. If a court of three has two members that are not ordained this court cannot adjudicate, it can only ordain other individuals. That is what is meant in the second quote above. Regarding the third quote, when the Rambam writes that the Great Court of ordained judges can create more courts, he does not mean without them it would be impossible to create courts, as we saw that one ordained judge together with two lay men can ordain even seventy judges. The meaning here is simply that the responsibility to set up courts all over the country won't devolve wholly upon the original ordained judge, rather the court that he create will divide the burden amongst its members.

Section 15

The Rambam continues:

"Furthermore, it seems to me that if all the sages in the Land of Israel agree to ordain judges those individuals are ordained and they can enforce the laws of fines. They can also in turn ordain others. If this is true why were the sages so careful to try to continue the line of ordination (from Moshe)? The reason is that the Jewish people are spread out and it is difficult to arrange such a unanimous agreement among all the sages in different locales. Because of this the laws of levying fines (which encompass many commandments) would be in danger of being lost from the Jewish people. However, if an individual is ordained from a previous ordained rabbi his status is not based on unanimous agreement (and is therefore easier to preserve and transfer to future generations). This needs some clarification."

His intention here is that in an earlier era all the sages in the Land of Israel would agree to ordain one individual who would the serve at the 'head of the yeshiva' and he would judge with all authority as though he were the head of a court. Then he would join himself with two others and ordain whomever he saw fit. The Rambam writes along similar lines in his commentary on the Mishna in Chapter 1 of Sanhedrin:

"It appears to me that when an agreement is reached among all the sages and their students to sanctify one man from the academy -"yeshiva" and place him as a head over them - as long as this takes place in the Land of Israel as we have mentioned - this man leads the academy and is ordained and may ordain whomever else he so chooses. If one does not say this, it would be impossible to ever again create the Great Court, where each member is ordained. This does not make sense, as G-d himself has testified that it will exist again, as the verse states: "I will restore your judges (justice system) as it originally was." This belief is without a doubt, that G-d will one day correct the hearts of man, and their merits will multiply, as well as their desire for G-d and his Torah, with their wisdom increasing preceding the arrival of the Messiah."

I for one am not sure how the Rambam arrived at the notion that the agreement of all the sages in the Land of Israel to ordain results in a valid ordination when none of these sages are themselves ordained. Perhaps the comment he makes is the very reason, that without this procedure ordination would never be able to be restored. He does not want to accept that a prophet will restore it, since the Torah is supposed to function correctly within its system of principles without the need for external assistance -"The torah is not in the Heavens" (idiom). Additionally, a prophet is not allowed to create a new law or procedure that cannot be derived from the Torah. It must therefore be based on the agreement of all the sages.

As an additional reason, the basic advantage of ordination is to certify that the individual is worthy of occupying the position as judge. If there is a direct line of rabbi to rabbi ordination from Moshe and Yehoshua certainly they know the worthiness of their appointments. Similarly, if all the rabbis in the Land of Israel were to agree on one man this individual must certainly be worthy. Therefore he is ordained and can ordain others. In point of fact, this very procedure was tried over 300 years ago in Israel, though since there were rabbis who protested against it, ordination was not restored at that time.

Section 16

A court whose members were ordained in the Land of Israel which then relocated to the Diaspora can levy fines in the Diaspora, as an ordained court can function both inside and outside the borders of Israel.

Section 17

In the era of the Talmudic sages the Jewish people had two political leaders; one functioned in the Land of Israel and one in the Diaspora. The one in Israel proper was called the "President" - 'Nasi', and his office had the approval of the local Roman government (controlling Israel at the time). The other was in Babylon, and his title was the "Head of the Exile" - 'Resh Gelusa'. He received his authority from the Persian Empire, which was in control of Babylon at that time. Both of these individuals were from the Davidic family line, although the Head of the Exile was known to have come from the patrilineal line while the President came from the matrilineal line (Yirushalmi.)

Their respective powers were as follows: As far as wisdom in Torah, such as rulings in ritual law - 'issur v'heter', laws of purity and matters of civil and criminal judgment the sages of Israel exceeded those in Babylon and the Babylonian sages had to follow their rulings (Tosfos, Gemara Sanhedrin 5.1). Nevertheless, since the genealogical lineage of the Head of the Exile trumped that of the President when he (the Head of the Exile) appointed someone as judge that individual (although he could not levy fines since he was not ordained in Israel) could render a person's money public property -'hefker', just like an appointee of the President. Also, if this judge issued a mistaken ruling he is not liable to repay the loss (as explained in chapter 25), just like an appointee of the President. In regard to the power to force one to appear before court the Head of the Exile was likewise equivalent to that of the President.

In one area the power of the Head of the Exile exceeded that of the President. The President could only empower individuals to act as judges in the Land of Israel, though he himself could judge anywhere. Even were he to judge outside the Land of Israel, he could not levy fines unless the litigants agreed to allow him that power. The Head of the Exile, on the other hand, could empower judges to force appearance of litigants and to issue ruling anywhere in the world, including inside Israel. The only caveat is that his judges could not levy fines in Israel except with the permission of the President and sages of the Land of Israel.

This was expounded by the Rabbis in the verse "...the staff of judgment will not depart from Yehuda...”(Beraishis 49.10) which they defined as relating to the Head of the Exile, who can judge in all places, and "...and the engraving tool from between his feet." as referring to the descendants of Hillel, who were Presidents in Israel and expounded Torah publically. They understood the 'staff' to be a reference to a greater power than the 'engraving tool'.

The Rambam writes that "he who is not worthy to be a judge because of his lack of clear knowledge of the law or his bad character traits cannot receive an appointment, and his appointment would be invalid, just as one who sanctifies a blemished animal for the altar has not performed any sanctification at all."

All of this above pertains to the Talmudic era. Nowadays we do not have any authority except that which the Czar's government allows. "The law of the land is the law"; however if two litigants should ask us what the ruling would be according to our Torah we are obligated to tell them.

Section 18

Laws of fines, such as those that might occur for robbery or injury, such as double payment and four and fivefold payment (for robbery); for a seducer or a rapist; or other similar laws are only adjudicated by expert judges in those areas. Regular courts, however, judge admissions of liability, loans, conflicts in business practice, partnerships, agencies -'shilchus', work-for-hire disputes, rental disputes, payment for lost deposits, and other cases of similar nature. For these experts are not needed, and even 3 lay people (who form a court) or a single expert can adjudicate and even force the litigants to appear (as was written in Chapter 1, Section 1). Capital cases are only heard before a court of at least 23 members. The reason for this is the verse that states "The congregation judges and the congregation saves..."(Bamidar 35.24-25) meaning that a congregation is needed to judge and pronounce guilt or innocence. Actually, a 'congregation' is at least 10, as we see by the account of the 12 spies in the desert, as the verse states "until when will this evil congregation..."(Bamidbar 14.27), and this is excluding Yehoshua and Calev. Therefore, once the fact of the verse's requirement of 10 to pronounce guilt or innocence is combined with three other Torah commands - a) to follow the majority in ruling, b) to avoid an even split between the judges, and c) the requirement for guilt by a majority of two, it becomes clear that a court would need 23 members, with 10 for guilt, 10 for innocence, 2 for guilt above the 10 and one to break the possible tie. (More about this in chapter 18).

The judgment to kill and animal (an ox that gored or an animal that had a sexual sin committed with it) likewise requires 23, as the verse states "the ox is stoned and also the owner will die", which our accepted tradition states is a reference to the animal's death requiring the same legal proceeding as a human's death. Even if one's domesticated lion, bear, or cheetah kill they are judged by a court of 23, since they do not commonly damage. Animals that are not domesticable, such as a snake, do not require a judgment when they kill and even a single individual can kill them. There are those who dispute this ruling (Ravaad).

Cases that would proscribe lashes can be heard by a court of three. Even though there is a chance of death when lashes are administered, at the time when the case is heard it is not a capital case. Furthermore, medical professionals estimate how many lashes the defendant can withstand during sentencing.

The law of 'Eglah Arufah' (a murdered corpse found between two cities) is judged with a court of 5 members. (As will be explained in chapter 425.)

Calendrical functions, such as adding a day to a month or a month to a year are enacted by a court of 7 members, as the Rambam writes in the Laws of Sanctifying Months, Chapter 4.

All the judges in the above cases must be ordained by the President of the court (or with his approval).

In the current era capital cases are judged only by the secular government and it is prohibited for us to rule on any capital case.

Section 19

When a man marries a previously unmarried woman and he accuses her in court of previously having relations with another man after their engagement the classical rule in the Torah is that should she be found to have committed adultery she is stoned. If the man's claim is found to be a lie he is lashed and pays a hundred-selah fine. This type of case was heard before a court of 23 for if she is found to be guilty it is a capital case. If she is innocent her countersuit can be heard before a court of three. (This is according to the Rambam's agreement with Ulah's position in Gemara Sanhedrin 8.1 "because all of Ulah's peers learnt the braisa presented as Ulah did".)

Section 20

There are certain cases that were only heard by the Great Court on the Temple Mount. These include a) whether to establish a tribal or district court (as was mentioned in Chapter 1), b) judging a tribe that admitted it has become steeped in idol worship, c) prosecuting a false prophet, d) prosecuting a High Priest for a capital offense, e) prosecuting a city that worshipped idols -'Ir Haneedachas', f) prosecuting a rebellious sage who defies the ruling of the court - 'Zuken Mamre', g) performing a Sotah ritual (wife suspected of adultery), h) annexing land to Jerusalem, i) adding to the temple courtyard, j) and initiating a war of choice. All these cases and issues are debated by the Great Court. In addition, whenever the distance to the closest city has to be measured for the law of 'a corpse found between two cities' 3 judges of the Great Court are required, as will be explained in chapter 425.

When a rebellious sage is found guilty by the Great Court he can then be sentenced for capital punishment by a court of 23. If he is sentenced to death, the court holds him until the next pilgrimage festival (Pesach, Shavuot or Succos) and executes him then. This is done in order to instill fear of the court and the law in the populace who are present in Jerusalem. (Rambam, chapter 3, Laws of Rebellious Sages). All these laws mentioned in this section are known primarily from their traditional transmission in oral law. They are secondarily sourced from various verses in the Torah.

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)