Shabbat Parashat Shoftim 5778

Parashat Hashavua: Each One Chooses One

As is our practice each year on Parashat Shoftim, we will deal with a matter that is connected to our network of batei din, “Eretz Hemdah-Gazit.”

Our parasha opens: “Judges and officers you shall appoint in all of your gateways … and they shall judge the nation a judgment of justice” (Devarim 16:18). Consequently, the Torah commands us to have a set court apparatus, with a cadre of dayanim ready to serve, and from them three judges will be chosen for each case.

In this short piece, we will not explain all of the logic behind how our administration assigns dayanim for each case. Certainly, the overall consideration is how best to serve the public and make it possible to arrive at a just judgment.

The mishna (Sanhedrin 3:1), though, describes another means of putting together a beit din panel of three. “This [litigant] chooses one, and this [litigant] chooses one, and the two [litigants] choose another one. These are the words of Rabbi Meir. Chachamim say: the two dayanim choose the third.” We rule like Chachamim, that it is the two dayanim who choose the third (Shulchan Aruch, Choshen Mishpat 13:1). We often refer to this system by roshei tevot – zabla. The gemara (Sanhedrin 23a) explains the advantage of this system: “since … the ruling will come out truthfully.” Rashi explains the gemara’s intention: “Because the litigants will listen to the ruling. Each will say: ‘the person I appointed certainly raised every claim that can be made for my position.’ And the judges also will find it easier to look for the strength of each position because each litigant chose them.” Rashi seems to be saying that there are two separate reasons. Tosafot (ad loc.) writes that the simple reading is that due to this system, there will indeed be balance in the attempt to look for arguments for each side.

The Rambam (commentary on the mishna) implies that it is the third dayan who will not see things along the lines of one litigant over the other. However, it is difficult to say that the other dayanim are to show any sort of favorites. Rather, the halacha is taking into consideration the leaning toward the side who flattered him by choosing him as a judge. However, it is each dayan’s job to try to overcome this, and it is the job of the third judge to make sure this is happening.

Despite the above, these issues have to turn on a warning light: a system that chooses judges based on zabla must not have a situation in which one of the judges sees himself as a representative of the one who chose him. We should not allow a situation in which these dayanim receive payment from one litigant or that there will be ex parte communication between them. In our beit din, it is the administration which chooses the dayanim without input from the sides. (Only in very special cases, where there is no choice, are the litigants allowed input.)

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