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Shabbat Parashat Shoftim 5783Parashat Hashavua: How Do We Get a “Righteous Judgment”?Harav Yosef CarmelOur parasha opens: “Judges and officers shall you place in all of your gateways, which Hashem has given you by your tribes, and they shall judge the nation a righteous judgment (mishpat tzedek)” (Devarim 16:18). According to Rashi, the whole pasuk is a commandment to the people – you must appoint judges who will be careful to render proper rulings. The Ibn Ezra understands the end of the pasuk as addressed to the appointed dayanim. The Ran (Derush 11) says that mishpat tzedek delineates the dayanim’s jurisdiction – normal justice. This is as opposed to punishment beyond the letter of the law, known as migdar milta (to cordon off dangerous matters), which are the prerogative of the executive branch, not the judicial. As we like to do on Parashat Shoftim, we will look at something related to the operation of batei din – this time, understanding mishpat tzedek. To begin, we note that there are major differences between the rules of justice in the criminal and financial realms. A major rule in criminal Halacha is that one cannot incriminate himself (Yevamot 25b). The Rambam (Sanhedrin 18:6) tries to explain the rule: we are concerned a distressed person could use the courts to commit suicide. The Rambam concludes, though, that it is a divine decree, whose exact reason we cannot expect to understand. In the financial realm, we find the opposite legal phenomenon: “A litigant’s admission is like 100 witnesses” (Kiddushin 65b). Actually, it is better than 100 witnesses: if 100 say that one is exempt and he admits he is obligated, he must pay. Paradoxically, one can even admit by denying. If Reuven claims that Shimon owes him from a loan and Shimon denies borrowing, and witnesses say that Shimon borrowed but returned the money, we say that denying having borrowed implies admission of not returning, and Shimon must pay (Bava Batra 6a). How the admission of a party becomes binding is the subject of a machloket. The Mahari ibn Lev (dayan in Salonika in the 16th century) is based on the ability of a person to “give a present.” We view his admission as a new obligation he accepts upon himself (in case the admission is not true). The K’tzot Hachoshen (34:4) cites him and disagrees, arguing that the Torah treats an admission as equivalent to the credibility of witnesses (some commentators try to combine the two apparently polar approaches). Going back to the criminal realm, we point out that, as opposed to in Israeli law, we do not allow self-incrimination. We want to avoid relying on admission of guilt that could be the product of pressure. (Those systems that accept self-incrimination employ a reenactment of the crime, which generally cannot be accurate if the person did not commit the crime.) What is the halacha regarding monetary admission that was extracted under pressure or through the litigant’s confusion or mistake? The answer is that beit din has to make sure that such an admission is not be relied upon. This is an application of the idea of mishpat tzedek. Top of page
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We daven for a complete and speedy refuah for: Nir Rephael ben Rachel Bracha Arye Yitzchak ben Geula Miriam Neta bat Malka Meira bat Esther Together with all cholei Yisrael
to the memory of: for our homeland Prof. Yisrael Aharoni z"l Kislev 14, 5783 Rav Shlomo Merzel z”l
Mr. Shmuel & Esther Shemesh z"l Sivan 17 / Av 20 Mr. Moshe Wasserzug z"l Tishrei 20 ,5781 R' Eliyahu Carmel z"l Rav Carmel's father Iyar 8 ,5776 Mrs. Sara Wengrowsky bat R’ Moshe Zev a”h. Tamuz 10 ,5774 Rav Asher & Susan Wasserteil z"l R' Meir ben Yechezkel Shraga Brachfeld z"l & Mrs. Sara Brachfeld z"l Tevet 16 ,5780 R 'Yaakov ben Abraham & Aisha and Chana bat Yaish & Simcha Sebbag, z"l Rav Yisrael Rozen z"l Rav Benzion Grossman z"l R' Abraham & Gita Klein z"l Iyar 18, /5779Av 4 Rav Moshe Zvi (Milton) Polin z"l R' Yitzchak Zev Tarshansky z"l Adar 28, 5781 Nina Moinester z"l Nechama Osna bat Yitzhak Aharon & Doba Av 30, 5781 Rabbi Dr. Jerry Hochbaum z"l Adar II 17, 5782 Mrs. Julia Koschitzky z"l Adar II 18, 5782 Mrs. Leah Meyer z"l Nisan 27, 5782 Mr. Shmuel & Rivka Brandman z"l Tevet 16 5783/ Iyar 8, 5781 Hemdat Yamim |