Mitzvah 49: Vandalism

Hi,

By the count of Sefer haChinuch, the Torah's 49th mitzvah instructs us to set up courts to fine people who harm others, or who allow their property to harm others. In addition to paying restitution, the aggressors are sometimes required to pay more than the value of the damage they have caused.

Today, Jewish courts do not have independent authority to levy fines. However, earlier courts authorized their successors - down to our own day - to institute extrajudicial penalties for common cases or cases involving prevention of personal or communal loss. (For further insight and application, see Gittin 88b, Bava Kama 84b; Beit Yosef Even haEzer 11 כתבו , Beit Yosef Choshen Mishpat 1 ומסקינן ,ודוקא .)

Sefer haChinuch notes that our courts are not responsible to mete out Divinely perfect justice. Rather, they are commissioned to create laws of punishment so that civilized society will be able to function and flourish, without fear of aggression.

Have a great day,
Mordechai

The prohibition against false testimony

Hi,

The Torah's prohibition against lying is not limited to courtroom testimony, but the specification of “false testimony” serves as an additional prohibition for court cases. A witness who is caught testifying falsely may, depending on circumstances, be incriminated as an ed zomeim; such a person is punished according to the suffering he intended to cause with his testimony.

The Torah stressed the harm of lying in court, specifically, because undermining the courts undermines Torah and civilization. For this reason, the neviim spent considerable time inveighing against corruption in the beit din (Jewish court).

Pirkei Avot 1:18 echoed this point in noting that honest testimony is part of the foundation on which the world rests: “The world exists on three things: Law, Truth and Peace.” Our Torah is a Torah of Truth, and G-d's seal is Truth.

Have a great day,
Mordechai

Who owns a human life?

Hi,

[The following passage is meant to explain why self-incriminating testimony in a beit din (Jewish court) is accepted in financial matters, but not in matters which could lead to physical punishment by the beit din.]

"One might give some explanation thus: A person's life is not his property; it is the property of Gd, as Yechezkel 18:4 says, 'The souls are Mine.' Therefore, one's admission regarding something that is not his cannot be effective. [This is even true if the admission would lead not to death but only to lashes, for] lashes are a partial death.

"However, one's property is his own, and so we say that a litigant's admission is [valid] like the testimony of 100 witnesses."

ואפשר לתת קצת טעם לפי שאין נפשו של אדם קניינו אלא קנין הקב"ה שנאמר "הנפשות לי הנה" (יחזקאל י"ח) הילכך לא תועיל הודאתו בדבר שאינו שלו, ומלקות פלגא דמיתה הוא. אבל ממונו הוא שלו ומש"ה אמרינן הודאת בעל דין כמאה עדים דמי. 

(Radbaz to Mishneh Torah, Hilchot Sanhedrin 18:6)

Have a great day,
Mordechai

Suicide by beit din

Hi,

"We are biblically instructed that a court may neither execute nor lash a person on the basis of his own admission, without the word of two witnesses... for perhaps the person is not sane in this matter. He may be of those who struggle, with bitter spirit, who wait to die, who stab swords into their bellies and throw themselves from rooves. Perhaps this person will come and say he did something which he did not do, so that he will be killed. In general: This policy is a decree of the King."

גזירת הכתוב היא שאין ממיתין בית דין ולא מלקין את האדם בהודאת פיו אלא על פי שנים עדים... שמא נטרפה דעתו בדבר זה, שמא מן העמלין מרי נפש הוא המחכים למות שתוקעין החרבות בבטנם ומשליכין עצמן מעל הגגות שמא כך זה יבא ויאמר דבר שלא עשה כדי שיהרג וכללו של דבר גזירת מלך היא. 

(Rambam, Mishneh Torah Hilchot Sanhedrin 18:6)

Have a good day,
Mordechai

Warning to a liberal beit din

Hi,

Interesting advice:

"A court which permits two things should not hasten to permit a third."

וכל בית דין שהתיר שני דברים אל ימהר להתיר דבר שלישי. 

(Rambam, Mishneh Torah, Hilchot Mamrim 2:8)

Have a great day,
Mordechai

Helping someone cheat in court to gain his rightful property

Hi,

"Even where one knows that a party has been cheated, and that the opposing litigant is lying, one may in no way teach him claims that will assist him."

ואפילו ידע שהוא עשוק, ושבעל דינו טוען עליו בשקר לפי הכרע הסברה, אין מותר לו ללמדו טענה שתצילהו בשום פנים 

(Rambam, Commentary to Mishnah Avot 1:8)

Have a great day,
Mordechai

The Happy Loser

Hi,

"Someone said, 'One who leaves the court bereft of his cloak should sing as he walks.' 

"Shemuel said to Rav Yehudah: This is Shemot 18:23: 'Also, this entire nation [winners and losers] will come to its place in peace.'"

ההוא דהוה קאמר ואזיל: דאזיל מבי דינא שקל גלימא - ליזמר זמר, וליזיל באורחא. אמר ליה שמואל לרב יהודה: קרא כתיב וגם כל העם הזה על מקמו יבא בשלום. 

(Talmud, Sanhedrin 7a)

Have a great day,

Mordechai

Implying a falsehood

Hi,

"One may not listen to someone who says, 'Come stand beside my single witness, without testifying, so that my debtor will be afraid, thinking I have two witnesses, and will admit the [genuine] debt.'"

ואפילו אמר לו: בא ועמוד עם עד אחד שיש לי ולא תעיד, רק שיפחד בעל חובי ויסבור שיש לי שני עדים ויודה לי, לא ישמע לו (טור). 

(Rabbi Moshe Isserles, Shulchan Aruch Choshen Mishpat 28:1)

Have a great day,
Mordechai

Jurisdiction and Insubordination

Hi,

"One who issues a legal ruling in the geographic area where his rabbinic mentor lives is liable for death."

(Talmud, Eruvin 63a)

Note: This "death" is not a death penalty. Rather, it is a description of Divine wrath [מיתה בידי שמים]. This provides a lesson regarding the process of transmitting Jewish tradition - that it is not a free-for-all, but rather there is a specific line of educated transmission.

Have a great day,
Mordechai

Go for compromise

Hi,

"Judges are required to do all in their power to keep litigants from accepting justice according to the Torah's law." [Judges are supposed to encourage litigants to opt for compromise, instead.]

(Shulchan Aruch, Choshen Mishpat 12:20)

Have a great day,
Mordechai

Live near a doctor

Hi,

"A city must possess ten things before a Torah scholar may live there: A court that punishes, a tzedakah collection that is collected by two and distributed by three, a synagogue, a bathhouse, a bathroom, a doctor, a phlebotomist, a scribe, and a schoolteacher.

"They cited Rabbi Akiva as saying that it must also contain fruit, for these illuminate the eyes."

(Talmud, Sanhedrin 17b)

Have a great day,
Mordechai

Of Truth, Justice and Peace

Hi,

"Sometimes a judge will judge according to that which he knows to be true, even without witnesses or warnings; this type of justice is available to a king or a major court, to judge and punish according to legal procedure or extrajudicially, based on 'emet [truth]'. Sometimes he judges according to the legal structure of the Torah, and this is uniquely termed 'mishpat [justice]'. Sometimes he arranges compromise between litigants, according to the case and the needs of the time; this is termed 'shalom [peace]'."

(Abarbanel to Zecharyah 8 (pg 223))

Have a great day,
Mordechai

The remarkable nature of DNA

Hi,

"It is Gd’s greatness that He created DNA such that one will not resemble another. It is like a fingerprint or a dental photograph, or even a person's photograph, which the authorities have written is reliable as evidence."

(R' Zalman Nechemiah Goldberg (2002), Kol Tzvi Vol. IV page 27)

Have a great day,
Mordechai

The seriousness of the Ten Days of Repentance

Hi,

"Once, during the Ten Days of Repentance, they inquired in the synagogue regarding an object that had been lost. They invoked a cherem [decree excommunicating anyone who knew the object's whereabouts and did not tell]. Mahari Segal was outraged at the person who did this, saying that it is not appropriate to investigate with a cherem during that time period, when people's lives are in jeopardy."

(Maharil, Hilchot Aseret Yemei Teshuvah 5)

Have a great day,
Mordechai

When a judge must explain himself

Hi,


Background: Normally, judges on a Jewish court are not required to present the logic behind their decisions. However, in a particular case (Bava Metzia 69a-b), Rav Pappa explained his decision. Tosafot explains:

"Rav Pappa was required to explain his verdict in this case, specifically, under the principle of 'You shall be innocent from Gd and Israel,' because the litigant had reason to suspect him."

(Tosafot to Bava Metzia 69b כי האי גוונא)

Have a great day,
Mordechai