August 28, 2014
This week’s parsha of Shoftim deals mainly with the laws that are relevant for the running of a just society. The Torah teaches how this can be accomplished.
Deuteronomy 16:19 “You must not pervert judgement, nor show favouritism; you must not accept a bribe, for bribery blinds the eyes of the wise and distorts the words of the righteous.”
You shall not accept a bribe – Rashi: Even in order to judge justly.
What does bribery “to judge justly” mean? Bribes are usually given to influence the judge to decide in a dishonest way, to swing his verdict. If the person giving the bribe thought he was in the right and justice was on his side, he would have no need to bribe the judge. And if, in spite of this, he did give a bribe and the judge thought his case was just, why would this be considered “bribery”? And what is so wrong with accepting bribery if the judgment is correct?
The verse already says “Do not pervert judgement,” which is the same as swinging a judgement in favour of the one who gave a bribe, if, in fact, he was not in the right. So, if we interpret “You shall not accept a bribe” to mean “don’t take money in order to pervert the judgement,” then we would have the same prohibition repeated twice in the same verse. It is for this reason that Rashi interpreted these words in the unusual way he did.
Actually, Rashi is quite consistent in this regard. He sees each phrase in this verse as a different commandment.
Look at his comment on the words in this verse:
Do not show favoritism – Rashi: Not even during the deliberations. The is a warning to the judge that he should not be considerate with one and harsh with the other; having one stand while the other sits, because when he sees that the judge defers to his fellow, his arguments are stifled (i.e. he is not at his best in defending himself).
Obviously, the simple meaning of “showing favoritism,” is to decide the case in favor of the disputant that you favor, even though justice is not on his side. Yet, Rashi does not accept this as p’shat. We see here, as we did above, that Rashi searches for an interpretation that is not identical to “distorting judgement,” (its obvious meaning) in order to avoid having the verse express the same prohibition, but in different words.
Thisis a basic principle in Torah interpretation.
There are no unnecessary repetitions in the Torah. Therefore, when the Torah appears to repeat itself unnecessarily, the commentators, frequently on the basis of the teachings of the Talmudic Sages, search for additional meanings.
Now let us return to our second question. What is wrong with accepting money to judge justly?
Who gave this bribe? If it was one of the disputants, then what sense does it make to say that he gave it so the judge would “judge justly”? If he didn’t give any bribe, he would have also judged justly. But now that he received money from one side, his chances of being objective and judging without bias are close to zero.
Another possibility is that the judge received money from a third party in order to judge the case justly. As is done today, judges are paid by the government or by some Rabbinical organization. But if such is the case, what is wrong with receiving money in this way? Is this a bribe in any sense of the term?
The Talmud deals with this question explicitly in Tractate Kesubos (105a) the following analysis:
Karna (A Babylonian Sage of the third century) used to take one istra from the innocent party and one istra from the guilty party. And then informed them of his decision. But does it not say “you shall not accept a bribe”? Perhaps you will answer that the verse applies only where he does not take from both parties since he might be biased towards the party he received from, but Karna took from both parties and he would thus not be biased. But is even this permitted? Have we not learned: What does the verse “You shall not accept a bribe” refer to? Does it mean one should not acquit the guilty and make guilty the innocent? But the Torah already says “You shall not distort judgement.” So the verse must refer even to a case where he proclaims the innocent to be innocent and the guilty to be guilty (Note: this is the basis for our Rashi comment) [therefore it says] “You shall not accept a bribe.” You may answer that this only applies where the judge took the money as a bribe (before deciding the case) but Karna took the money as a fee (after deciding the case). But is even this permissible [to take money as fee]? Have we not learned that the legal decisions of one who takes a fee are null and void?
[Answers the Talmud:] This applies only when one takes a fee for pronouncing judgement; while Karna was only taking compensation for loss of work.
The upshot of this passage is a startling and profound condition of the Jewish judicial process. That is that a judge may not take payment even to perform faithfully the task of an honest judge. This means even if the payment comes from a third party or from both litigants, all he is entitled to is compensation for loss of work (income), that he could have earned had he not been occupied judging this case.
This is what Rashi means when he says that the command “you shall not take a bribe” is intended even in cases where the judge is asked to judge fairly.
Why should a salary for a judge, if it comes from the government or from a disinterested third party, be considered a “bribe”? This certainly sounds strange.
This law shows us the profound psychological sensitivity the Torah evidenced in the judicial process. A judge is only human, after all. If he receives a comfortable salary for his work, he will be cautious to do the “right” and the “politically correct” thing in his legal pronouncements. His advancement within the system is dependent on how his superiors evaluate his work and the leanings of his judgements. Is he politically “Right” or “Left”? Do his decisions square with the legal outlook of his superiors? In such a case, his salary would have hidden strings attached to it. This would turn his salary into a “bribe” because his legal decisions would not be free of bias.
This is truly an amazing insight. The Talmud is replete with stories of Jewish judges who refused to take on a case because one of the litigants had some innocent, even commonplace, dealing with the judge. (See Deut. 17:7). We learn from this that a judge’s bias can come from many quarters, not just from one of the disputants; he can be influenced to judge unfairly in order to keep his job. How then can a Jewish judge support himself, if he is not to take a salary? The Talmudic passage above makes it clear that he is entitled to receive the same salary that he could have earned in the free market doing any other work he is capable of. When the judge earns no more money than he could earn otherwise, we can understand that he will feel no threat to his income if he judges a case fairly, even if it goes against the grain of those who pay his salary. If he is fired as a judge because of his judgements, he can always take on a job in his alternative vocation, with no loss in salary. He can truly be objective in judgement.
Such standards are hard to find even in today’s enlightened, human-rights sensitive, secular courts, as they are in Jewish courts, as well. I must say that in England the judges earn less than the barristers and so their salaries cannot be considered as bribery.
I had better keep silent about the Israeli system both secular and religious which is a daily Hillul HaShem of gigantic proportions!
Rabbi Meir Wise