Home :: Seven Laws :: First Law is Courts
First Law is Courts
Total visits: 13817
One of the most interesting things coming to mind when thinking about unveiling of righteous Mashiach (Messiah - Biblical language translation; may it happen soon, in our days) is definitely all-over-the-world reigning of Seven Laws Code of the peoples of the world - Noah Descendants - with establishment of courts and appointment of judges accompanying it. It should be done in strict accordance with all nuances of Scripture and they are a lot. Let's see what's written about that in corresponding sources, such as RAMBAM's "Mishne Tora", for example. It's written there ("Mishne Tora" Religious Code, Laws of Kings and Their Wars 9:14):
"How is establishment of courts and appointment of judges Law observed? The peoples of the world must appoint judges and deans for each region and each town so that they judged on the basis of Six undermentioned Laws and warned people from infringement upon them. And the one who breaks one of those Seven Laws is to be sentenced to the death penalty with sword. That is the one who worshipped idols, and the one who cursed the name of G-d, and the one who deliberately killed somebody, and the one who had banned sexual affair by one of six appropriate ways, and the one who robbed, even at the rate of fewer than the smallest coin value, and the one who ate flesh of any size from living creature, and the one who saw another infringe upon one of these Laws but didn't bring him to the court - those are to be sentenced to the death penalty with sword. The capital sentence can be passed on the testimony of a single witness, by a single judge, and without the warning about punishment, and even on the testimony of relatives; only not by the testimony of woman, and woman may not be judge."
This is a brief description of the only imperative Law - an attentive reader could already notice the other Six Laws have a prohibitive character. It's not occasionally that Courts take first position among Seven Laws, coz without Courts' establishment it's just impossible to create an appropriate system of control for observation of the other Six Laws.
Now let's approach Biblical source of all practical laws - Babylonian Talmud. It's written there (Babylonian Talmud, Tractate Sanhedrin 56b):
"As it's commanded to Israel to establish Batei-Dinin (courts - Biblical language translation) in each region and in each town, as it's commanded to the peoples of the world to establish courts in each region and in each town."
RASHI's comment explains Talmud means appointment of judges when speaking about establishment of courts for Israel. Tora's verses are adduced as a proof (Dvarim 16:18): "You shall set up judges and law enforcement officials for yourself in all your gateways." Then RASHI says this Law refers to the peoples of the world as well since it's written in Scripture (there): "...and they shall judge the people with righteous judgement." But how is it commanded to Israel to appoint judges? RAMBAM writes (Sefer Hamitzvot, Imperative Commandment 176): "This is an imperative to appoint judges and law enforcement officials who will ensure observation of Tora's laws, returning those stumbled into true way, directing people to good deeds and warning them from bad deeds. And they will set up fences guarding against infringements, so that following after Tora's imperatives and prohibitions would not be defined by world-outlook of each separate person. And also law enforcement officials and inspectors who accomplish supervision in public places and control over financial operations so that there would be no lawlessness in the smallest deals."
According to RAMBAM, the Law is being observed if judges are appointed and can judge on the basis of Six Laws. But Nahmanides (RAMBAN) writes in his comment on weekly Tora's section Vayishlach, that, besides very judges, peoples of the world must establish courts by law branches - that is courts which will be occupied with hearing of cases referred to theft, fraud, oppression of hired worker, his wages, taking property for keeping, sexual violence and seduction, causing of property damage, arguments between lender and debtor, buying-selling deals and the like - in accordance with how it's commanded to Israel about those courts. And the death penalty follows for such infringements like if one stole or delayed another's wages, raped or seduced his neighbor's daughter, set his sheaf on fire or damaged it.
Why death sentence may be passed by a single judge, and on the testimony of a single witness, without the warning about punishment, and even on the testimony of relatives? And why woman may be neither judge nor witness? The answer can be found in Talmud (Babylonian Talmud, Tractate Sanhedrin 57b):
"Rav Yehuda said it's written in Scripture (Bereshit 9:5): But your blood, of your souls, I will demand - that is even by a single judge. From the hand of every beast - that is even without the warning about punishment - I will demand it. And from the hand of man - that is on the testimony of a single witness. From the hand of male - but not from the hand of female. His brother - that is even on the testimony of relatives, as far as rabbi Ishmael said - even for fetus. What did he mean? It's written (Bereshit 9:6): One who sheds the blood of man in man, shall his blood be shed. What is that man who is in man? He said - it's fetus in mother's womb."
Further "Mishne Tora" says ("Mishne Tora" Religious Code, Laws of Kings and Their Wars 10:11 - Maimonides (RAMBAM)):
"Beit-Din (court - Biblical language translation) of Israel is bound to prepare judges for "settlers" (Noah Descendants who have right to live in the Land of Israel - Author's note), so that they judged according to those Laws and so that world did not perverted. If court of Israel found possible to appoint judges for them from them - appointed. But if it found necessary to appoint judges for them from Israel - done like this."
RADBEZ's comment explains that if they themselves didn't establish court for themselves, or there appeared to be no person among them who possessed necessary knowledge, then court of Israel must prepare judges for them. Let's stop here for some more details.
Appointment of Judges
The claimant for the post of judge is taught and then carefully examined for competence in three spheres: Tora's knowledge in sections corresponding to Bnei Noah, resourcefulness and ability to judge. If he possesses necessary abilities and level of knowledge, then he who before got appointment from the other judge declares to him: "You are appointed judge".
The man who appointed unqualified judge is equated to him who planted Ashera (a special kind of tree planted by idolaters next to their temples). Coz, like idolatry, infringement upon justice leads to Shechina's (G-d's presence - Biblical language translation) removal. And as the idol is false interpretation of Divine entity, as unexperienced or dishonest judge is some type of caricature on the concept of justice.
Six steps led the throne of king Solomon. They represented six prohibitions:
1. Not to pervert justice;
2. Not to display benevolence to any of litigants;
3. Not to take bribe;
4. Not to plant Ashera - that is not to appoint unworthy judges, coz he who appoints unqualified judge is equated to him who plants Ashera;
5. Not to set up Matzeva (a building for holding of idolatry rites) - that is not to appoint deans who are not G-dfearing people;
6. Not to bring sacrifices of animals with defects - that is to pray with full concentration and learn Tora with diligence. Read here about this.
General Prescriptions for Judges
Judge must imagine there's a sword over him and Gehinom (hell - Biblical language translation) under him. If he is to judge fairly, neither a sword nor Gehinom will overtake him. But if not - both of them will overtake him.
Judge must not fear to pass wrong sentence coz of scarcity of facts. He is responsible only for the information he was given.
Judge is considered to be G-d's associate in the act of creation and he is compared to firmament.
Judge can not base his opinion on the opinion of more authoritative judge or majority of judges, asserting: "Their decision is undoubtedly fair". Judge is bound to understand the case on his own and to decide by conscience even if his decision doesn't coincide with the decision of majority of judges. And if majority doesn't agree with his opinion - he's not responsible for consequences. One may freely act contrary to majority, coz "majority of people go after advice of Yetzer Hara (wicked origin)" (r. Itzhak Petersburger).
When holding trial, the defendant must be approached: "Stand up, so-and-so! And standing listen to the testimony of witnesses. You're standing not in front of us but in front of Him Who created universe."
Shotrim (law enforcement officials - Biblical language translation) help judges. They look after the execution of judges' decisions.
It's written in Tora (Shemot 23:7): "Distance yourself from a false matter". It's prescribed for the judge to avoid everything that may distort the correct way of his judgement.
It's very important to prevent unfair judgement. If judge (or witness) is sure one of his colleagues is not honest, then he must refuse from cooperating with him.
If judge has an impression the witnesses lie byt he can not prove it, he must leave judicial sitting but not to pass the sentence. He may not say: "I'm not responsible for that, it's witnesses' fault".
Judge who understood he made a mistake must not aspire to find proofs to confirm false statements he made. He must not aspire to avoid confession of his fault.
If he who represents one of litigants is dressed elegant way and the other is dressed in rags, then both of them should be ordered to dress themselves similar way for trial. The objectivity of judge shouldn't be influenced by their clothes.
The same way they both should be given with the equal quantity of time to give an account of their arguments and objections. It must not happen the way when, G-d forbid, important person is not interrupted and simple person is said: "OK, be shorter".
It's written in Tora (Shemot 23:8; Dvarim 16:19): "You shall not accept a bribe". Judge is prohibited to take gifts from any of litigants. He's bound to refuse even if the gift was presented with understanding he's going to judge fairly and even if he has firm intention to judge true inspite of gift. Besides a tangible gift, bribery also includes any service or flattering word, judge can get or hear from any of litigants.
One must be careful and beware of judging the cases in which, according to the Sages' opinion, judge may be even a little not objective. The nature of bribery is of such kind that it makes judge identify himself with him who gives bribe. Bribe-taker gets one of the following punishments: he either loses clarity of knowledge, or gets poor till he has to become a beggar, or fails eyesight.
Judge must prevent lawlessness in the community, or at least to protest against it. But if he keeps silence when he should protest, he will get Heavens' punishment.
Judge is prohibited to be cursed or abused.
Report of Witness
Judge is prohibited to hear out the arguments of one of litigants when the other one is absent. Both litigants must be present simultaneously.
Tora says (Shemot 23:7): "Do not kill a truly innocent person or one who has been declared innocent". If court passed death sentence and then somebody found new arguments in convict's favour, or if he himself presented some new arguments in his defence - the trial is to be renewed even if sentenced person is already brought to execution's site. The case is going to be reviewed as many times as essential arguments appear. But if some person is justified by court, his case is not renewed even if new proofs of his guilt are found.
It's prohibited to execute death sentence based on indirect testimony, even if they are obvious and absolutely undoubted. According to Tora's law, the sentence can be passed only on the basis of report of witness who watched the crime with his own eyes.
Judge must hear the direct testimony of single person. The testimony of mediators or indirect testimony can not be accepted. If, after careful learning of testimony, judge defines it is truthful, the sentence follows.
The court may not hear out the testimony of villain. That is, for example, someone who lets his cattle graze at someone else's field, and someone who is professional player of games of chance - according to the list assembled by the Sages.
One may not lay indirect testimony, rumours or written report into the basis of his decision - only oral testimony of eye-witness who came into the court.
The witness is carefully interrogated by the judge. Halacha (practical law) means clear procedure of cross-examination. But if the witness gives false testimony so convincingly that even interrogation can find no deceit, then Tora doesn't make the judge responsible for hidden facts he didn't manage to unveil. And if finally the person was sentenced to the death penalty, it means there was some different sin upon him, and G-d deprived him of life this way.
If there are two witnesses who give contrary testimonies about happened event, then no testimony is accepted. But if the second one can prove the first one wasn't present at locus delicti despite he states like that, then testimony of second witness is accepted providing he satisfactorily passed judicial verification. The witness may not give testimony about himself, thus first witness can not make such statement. But he may protect him by bringing a third witness who can confirm his presence at locus delicti.
False witness can be declared Ed Zomem (witness-malefactor - Biblical language translation). He is to be sentenced to the same punishment he wanted his victim to be done to. But it's if witness' malefactory was unveiled before the victim was put to death. If malefactory was unveiled after the execution of court's sentence - he gets forty hits with knotted rope for false testimony. Tora says (Dvarim 19:19): "You shall do to him a he plotted to do to his brother" - that is he's punished for his plot but not post factum.
Up | Back | All Column Articles | Home