In the days
of Moshe Rabbeinu, judges were known by the name, “elohim”…representatives of
G-d in this world. In fact pursuing
justice was seen as part and parcel of living on a daily basis within a G-dly
realm. Courts of law were not merely
civil institutions set up to deal with the multitude of societal problems that
arose, they were institutions that were based on the basic premise that “courts
of law function in accordance with G-d’s will and command.” (Sparks of Light, Rav Kook)
Our Jewish
legal system did not cease to be when Moses died. In the 2nd half of the 2nd
century, there arose Yehudah HaNasi. He
was the eminent judge of the Sanhedrin who left us the Mishneh, the compilation
of Rabbinic oral traditions organized by topics. In his day, he was compared to Moshe in terms
of his greatness. He possessed
intellectual, moral, ethical, spiritual, political, economic, and social
prowess. But like Moshe, he was
humble. In a sense he and Moshe had it
all. They possessed Torah leadership and
political clout. They were the
embodiment of “learning and high office combined in the same person.”
What were
the courts like during the time of Yehudah Ha Nasi? There was a range of courts. To rule on matters of money, there was a
court of three judges. To rule on issues
of monotheism and violence, cases that could potentially bring a judgment of
capital punishment, there was a court of twenty-three judges. To rule on war, matters of national and public
policy, a full court of seventy-one judges was required. The number seventy-one
was determined by the fact that Moses had gathered 70 elders of Israel to help
him judge the nation. As the critical
value of the case increased, a higher number of judges was involved in the
decision making . The system that was
developed was based on a view of the world as an ordered place. The Rabbis understood that both civil and
capital cases required inquiry and examination based on a statement in
Leviticus that said, “You shall have one justice.”
In Chapter 4
verse 1 of the Mishneh Sanhedrin we read, “Civil cases begin with arguments to
acquit or convict, whereas capital cases open with arguments only to acquit;
civil cases are decided by a majority of one both to acquit and convict, where
as capital cases are decided by a majority of one to acquit and a majority of
two to convict; civil cases can be retried whether the verdict was acquittal or
conviction, whereas capital cases can be retried only for the purpose of
acquittal but not for conviction; in civil cases all can argue for acquittal or
conviction, whereas in capital cases all can argue for acquittal but not for
conviction; in civil cases, a judge can reverse his rulings, whether for
acquittal or conviction, whereas in capital cases- one who convicts can
subsequently acquit, but one who acquits cannot reverse his ruling and convict;
civil cases can be tried during the day and conclude at night, whereas capital
cases need to be tried and concluded during the day; civil cases must conclude
on the same day whether for acquittal or conviction, where as capital cases
conclude on the same day for acquittal but on the following day for
conviction. Hence capital cases cannot
be held on Friday or the day before a Festival.”
The Rabbis
knew that incalculable harm could result from a wrong judgment. They felt that life was precious and that the
wicked needed to perish, but if there was to be a bias in the court, it had to
be on the side of the accused because of the belief that it was a primal sin to
execute an individual wrongly. In
capital cases it always took a majority of two to convict, there was open
voting, abstentions were not allowed, and there could be no acquittal by
default. If an individual was found to
be innocent that individual was released immediately. If the individual was not found to be
innocent, there was a delay in the verdict to the following day. At that point, the judges “would pair off,
eat minimally, drink no wine all day, and discuss the matter at night. Early in the morning of the following day
they would come to the court. The
acquitting judge would say, “I acquitted and I continue to find him innocent,” and the convicting judge would say, “I
convicted and I continue to find him guilty.”
One who argued for conviction could change his position and argue for
acquittal, but one who argued for acquittal could not change for
conviction. If a reason for acquittal
was found then the accused was released; but if not they took a vote. Twelve voting for acquittal and eleven for
conviction ended in an acquittal. Twelve
voting for conviction and eleven for acquittal required the court to add two
more judges to the assembly who had to hear the entire argument again. If eleven acquitted, eleven convicted and one
said he didn’t know, then two more judges were also added. This process continued up to a maximum of 71
judges. If 36 acquitted and 35
convicted, then the accused was acquitted.
But if 36 convicted and 35 acquitted, the judges argued with one another
until one of the convicting judges acquitted.
What does
this tell us about the attitude of the Sanhedrin? Life was precious and each individual had
worth. It was the responsibility of the
court to learn the truth, think of its relationship to G-d, and create a
society that that cared about justice.
It understood that if an individual was sentenced to death, it not only
killed that individual, but also the offspring of that individual. Hence the statement, “If anyone causes a
single life to be lost, it is ascribed to him as if he caused a whole world to
perish.” There was definitely a feeling
of tension among the judges who sat in a semicircle facing one another as they
offered their arguments. Even with the
belief that they had to carry out justice within this world, they also had an
understanding that one’s decision was still based on the testimony of others, for
they themselves had not witnessed the harm that had been reported. The tension
was palpable for all, the judges as well as the accused, as the Mishnah
attempted to create a society that was balanced and stable and law-abiding.
Shabbat
Shalom.
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