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Shabbat Parashat Devarim 5773

Parashat Hashavua: Impartiality of Judges

Harav Yosef Carmel

In Parashat Devarim, Moshe repeats to the people the important matter of establishing a framework of rabbinical courts. He took the opportunity to teach halachot that were not mentioned in previous discussions of the judicial system. The Torah stresses steps dayanim must take to ensure absolute neutrality, including “listening amongst your brother,” from which we learn not to hear one side when the other side is not before him (Sanhedrin 7b). The Torah also commands not to be afraid of either of the litigants (see Devarim 1:15-18).

As we have been known to do from time to time, we will take the opportunity to share with our readership some of the related goings on in our batei din, Eretz Hemdah-Gazit.

The Shulchan Aruch (Choshen Mishpat 9:5) rules very clearly: “Whoever takes pay to serve as a dayan … his rulings are void.” The Netivot Hamishpat (9:9) explains that the Rabbis uprooted from him the status of a dayan.

If a dayan cannot be paid, he ostensibly will need to have another livelihood, but then how will the community ensure that there will be dayanim available to hear their cases when there is a need? The Shulchan Aruch (ibid. 3) explains that there was a fund through which the dayanim were supported on a regular basis, which is appropriate because the broad Jewish community is obligated to support its judges and scholars. There is thereby no problem of either bribery or taking money to judge because the payment is divorced from a direct connection to a specific case.

We are careful about this in our batei din. The administration of the beit din collects a nominal fee for hearing a case. However, the payment that the dayanim receive for freeing up time to adjudicate is unrelated to the question of if and how much the sides did or did not pay.

A while ago we were approached with the request that we take under our auspices a “zabla case, whereby each side chooses a dayan and the two dayanim jointly choose a third. The case at hand was a serious one with an interesting halachic element to it. However, one side agreed to the adjudication only under the condition that they would pay the dayan they chose directly and the two sides would jointly pay the third. The rationale for this major “leniency” is an inference from an Aruch Hashulchan (CM 13:4), who implies that if one receives money from the side that choses him, regardless of the outcome, and can remain totally impartial, it is permitted. However, we followed the opinion of the Panim Meirot (II:159), who took strong issue on this position and refused to take part.

Let us hope that we will see the fulfillment of the prophecy, “I will return your judges as old and your counsel-givers as previously; then you will be called a city of justice, a reliable town” (Yeshaya 1:26).

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