Bar-Ilan University's Parashat Hashavua Study Center

Parashat Shoftim 5760/2000

Lectures on the weekly Torah reading by the faculty of Bar-Ilan University in Ramat Gan, Israel. A project of the Faculty of Jewish Studies, Paul and Helene Shulman Basic Jewish Studies Center, and the Office of the Campus Rabbi. Published on the Internet under the sponsorship of Bar-Ilan University's International Center for Jewish Identity.
Prepared for Internet Publication by the Center for IT & IS Staff at Bar-Ilan University.
Inquiries and comments to: Dr. Isaac Gottlieb, Department of Bible, gottlii@mail.biu.ac.il


Parashat Shofetim 5760/2 September 2000
Magistrates (and Not Only Police) in All Your Settlements

Dr. Pinehas Heyman
Department of Talmud and School of Education

One of the paramount characteristics of the Torah is its emphasis on law and justice. From the patriarch Abraham who asked, "Shall not the Judge of all the earth deal justly?" (Gen. 18:25), through the last of the prophets and the writings of the Sages, law and justice has been emphasized, nurtured and established in Scripture. In previous publications[1] we discussed the historical background and world of ideas underlying the Jewish national legal system as described in the Torah and the writings of the Sages. In this week's reading, Parashat Shofetim,[2] we find the actual commandment to appoint magistrates and establish a system of courts according to the laws of the Torah. Today we shall deal with “the numbers” of the Jewish legal system in order to suggest that the statistics alone can teach us about the central role played by law in the daily life of the people of Israel.

You shall appoint magistrates and officials for your tribes, in all the settlements that the Lord your G-d is giving you, and they shall govern the people with due justice. You shall not judge unfairly: You shall show no partiality; you shall not take bribes, for bribes blind the eyes of the discerning and upset the pleas of the just. Justice, justice shall you pursue, that you may thrive and occupy the land that the Lord your G-d is giving you. (Deut. 16:18-20)

The Torah commands there to be magistrates "in all the settlements." Indeed, as we read further we learn that there were local courts and higher courts in Jerusalem. However, the Torah does not give details on the levels of these courts or on how many judges there should be at any level, nor on the size of the population that a court at any specific level ought to serve. This commandment is spelled out by Maimonides, on the basis of sources from the Oral Law:

It is a positive commandment of the Torah to appoint magistrates and officials in every region and district, as it says: "You shall appoint magistrates and officials for your tribes, in all the settlements..." How many regular courts should there be in Israel, and how many judges should each have? First one must set up the Supreme Court in the Temple, called the Great Sanhedrin, with seventy-one judges... and another two courts of law with twenty-three judges, ... one at the entrance to the Temple court and one at the entrance to the Temple mount; and in every city in Israel with a population of one hundred and twenty or more, a minor court (Sanhedrin Ketanah) that sits in the city gate. For it is said, "And establish justice in the gate" (Amos 5:15). A city of fewer than one hundred and twenty persons shall have three judges appointed, for there can be no fewer than three judges on a bench so that there be a majority and a minority in the event of a difference of opinion between the judges sitting on a given case.[3]

From this description we see that at the top of the legal system were three higher courts having a total of one hundred and seventeen judges. Aside from this, every city with one hundred and twenty residents or more had a court with 23 magistrates authorized to handle any sort of case, including capital cases. In every village with fewer than one hundred and twenty residents three judges were appointed to handle cases involving fiscal matters. This clearly meant there were a vast number of judges throughout the land, dwarfing the number of people working in legal systems of advanced western countries today.

The table below compares the number of judges in Israel's legal system today, in the US, and the number of judges provided for in ancient Israel according to the laws of the Torah:


USA[4]
State of Israel[5]
Torah
Population
250,000,000
6,100,000[6]
3,000,000[7]
Levels of courts
Federal
Supreme
Great Sanhedrin (71 judges)

State
District & Labor
Minor Sanhedrin (23 judges)

Municipal
Magistrates
Magistrates Courts (3 judges)
Highest level
2200 (Sup.& Fed.)
13
71
Intermediate lev.
29,000 (50 states)
154
3,000[8]
Lowest level
46,800 (municipal)
279
30,000[9]
Total judges
78,000
451
33,071
Judges per thous.
.312
.0739
11.023

Even if we are off by 50% in our calculations of the number of judges according to the Torah, there still were almost one hundred times as many judges then as there are in Israel today, and twenty times as many as there are in the "civilized" western world today. Before we consider the moral and ethical consequences of these astounding figures, we must ask an innocent question: How was the budget obtained to support such a large legal system as the Torah required? Maimonides offers an explanation:

The rulings of any judge who takes wages to adjudicate a case are null and void, so that his services not be for hire. But if he is otherwise employed, and two parties come to him to adjudicate a case and he says to them, "Provide someone to work in my stead until I adjudicate your case," or "Pay me for my time lost," this is permitted, provided it be acknowledged that this is only compensation for time lost and nothing more, and that he take equally from each party. Such a practice is permitted.[10]

In principle judges did not receive remuneration. After the fact, if a judge were to request that the parties reimburse him for time lost, each paying equally, then his judgments would still be considered valid. Thus we see that the legal system of the Torah did not impose an additional budgetary burden on the average citizen or the local council; rather, judges supported themselves each by their own occupation, like the rest of the population. Their judicial work was performed as odd jobs, and only the parties who used their services paid (occasionally) for their services, each contributing equally to cover the cost of time lost from the judge's regular occupation.

Aside from the budgetary issue, there is much else to be learned from the Torah's legal system by a modern society interested in the value of “law and order”. Why, for example, are so many judges necessary? According to what we described above, in a small town one out of five people might have been a judge! As we know, the legal system of the Torah covered many areas, above and beyond secular civil law as practiced in the State of Israel and countries of the western world. It was a system that prided itself on imparting values and nurturing the close connection between Torah and law, and not merely in maintaining the "social contract" of orderly society in which one person does not infringe on the rights of another. Therefore a great number of judges were necessary in order to imbue the society with the basic values of the system. Law became part of the life of all the townspeople, who were called upon to participate in the legal process and thus to fulfill the commandment of the public community studying Torah.

Another achievement of this legal system was its openness; the court sat in the city gate, open to the eyes of all who came and went. There was no place for lawyers in the functioning of the courts; rather, the judges themselves did the investigations, cross-examinations, and summations of the positions of each side. Thus, everyone could be represented before the law irrespective of economic, class, and occupational considerations. In our day in Israel approximately twenty-two thousand lawyers perform these and other roles on a purely economic basis.

It was not incidental that the Great Sanhedrin of seventy-one accredited judges (the Supreme Court of those days) was situated in Jerusalem, in the Chamber of Hewn Stone at the Temple. The object was to enable the masses of pilgrims who came to the Temple to observe the work of their spiritual and judicial leaders. The Great Sanhedrin served both as a court and as Higher Academy of Torah, so that the message of "to learn and teach, to heed, to do and to fulfill" was formally conveyed on the national level. From high to low the system was supposed to project values of devotion, probity, faith in G-d, and the desire to establish justice and peace among human beings.

Having described the judicial system based on its statistics and system of operation, we will end off with a short historical view: When the Temple was destroyed the Sanhedrin was exiled from Jerusalem to Jabneh and from there began its peregrinations: from Jabneh to Usha, after the Bar Kokhba Rebellion in 135 B.C.E., from Usha to Shepharam, and from there to Bet Shearim and Zippori, in the Galilee. From Zippori during the time of the amoraim the Sanhedrin moved to Tiberias, and after a long period of waning power and authority, it officially ceased functioning in the fifth century, during the Byzantine era. Since then the Jewish legal system has been without a head institution and has relied on local courts of three judges who are not certified and who only deal with civil and family affairs, their authority dwindling even in these realms.

Thus in the modern era our acquaintance with Judaism is limited to Torah study on the theoretical level and to actual fulfillment in daily life of less than one third of the sixty-three tractates of the Mishnah. Contemporary Judaism, with its many and varied branches and with the successful Zionist movement and the glorious State of Israel, so dear to us, does not reflect even in miniature the highly developed and comprehensive body of institutions comprising Jewish civilization of two thousand years ago.

Restoring the legal system to its pride of place is described by Maimonides as an act which, while requiring the Land of Israel, is primarily a matter of ideological and legal developments:

Initially, when the Temple was built, the Great Court used to sit in the Chamber of Hewn Stone, which was in the Israelites' court; the place where they sat was secular (i.e. not holy), for none other than the kings of the House of David used to sit in the [Israelites'] court (in the part which was holy). When order was destroyed, they were exiled from place to place, moving to ten locations and ultimately to Tiberias. Since the time of the Sanhedrin there, a Great Court has not existed to this day; but received tradition has it that it will first return to Tiberias and from there will move to the Temple.[11]

Maimonides is cautious in suggesting a procedure for renewing the Sanhedrin:

In the Land of Israel there was but one person who conferred authority [to be a judge]; he would seat two people at his side, and confer authority on seventy [judges] at once, or one after the other; then he and the seventy would constitute a Great Court and would authorize the establishment of other courts. It seems to me that if all the Sages in the Land of Israel were to agree to appoint judges and to confer on them authority, then they would be authorized and would be able to adjudicate cases involving fines and would be able to confer authority on others. If so, why were the Sages woeful about authorization, so that adjudication of fines not be abolished from Israel? Because the people of Israel are dispersed, and can not possibly reach total consensus; but if there were one authorized by another who was authorized, one would not need to have all agree, rather he could handle adjudication of fines for everyone, for he would be authorized by a court. But this question needs to be resolved.[12]

There have been two unsuccessful attempts in recent centuries to restore the Sanhedrin to its former glory. In the sixteenth century Rabbi Jacob Be Rav tried to renew the original authorization of the Sanhedrin in Safed, and even authorized four rabbis in the hope that the matter would spread further from there. Staunch opposition by the rabbis of Jerusalem in that period (especially R. Levi ben Haviv) prevented his plans from succeeding.[13] The second attempt was made when the State of Israel was being established. Rabbi Y. L. Maimon wished to view the rising Zionist movement and the emergent Jewish state as a platform for renewing the Sanhedrin. Here, too, opposition on the part of considerable forces in the rabbinic community caused Rabbi Maimon's vision not to be realized.[14]

Clearly neither geographical considerations nor even rabbinical lack of consensus are the main issues preventing reestablishment of the Sanhedrin. One must consider whether Jewish society in Israel is ready for the Sanhedrin to be reestablished, a Sanhedrin which must cope with questions that are raised by our ever-changing reality. Nevertheless the very concern to raise the issue may signal the emergence of a Jewish-Zionist basis and foundation for renewing the tradition of having magistrates (shofetim), and not only policemen (shoterim), in all our settlements.



[1] See Parashat Mishpatim 2000, “Court and Temple”, Parashat Beha’alotekha 1999 in Hebrew, “On Establishing the Sanhedrin”.
[2] Cf. Sefer ha-Hinukh, ascribed to R. Aharon ha-Levy of Barcelona, Commandment 491, and Maimonides' Sefer ha-Mitzvot, H. Heller ed., Commandment 176, as well as what Maimonides wrote in Mishne Torah, cited below.
[3] Maimonides, Hilkhot Sanhedrin, 1. 1, 3, 7.
[4] Data courtesy of the library of the American Cultural Center, US Embassy. Statistics for 1996.
[5] Data courtesy of Hanhalat Batei ha-Mishpat, State of Israel.
[6] According to the Central Bureau of Statistics, State of Israel.
[7] Given the biblical census figure of approximately 600,000 Israelite males between the ages of twenty and fifty, it is reasonable to assume a total population of approximately three million.
[8] Assuming that there were at least forty-two levitical cities, plus one more major city for each tribe, plus approximately another 70 settlements throughout the country with a population of at least one hundred and twenty.
[9] If we assume that about one third of the population lived in small villages with fewer than one hundred and twenty inhabitants, then we have population of 1,000,000, divided by 100 for the number of courts, times three judges per local civil court.
[10] Maimonides, Hilkhot Sanhedrin, 23.5.
[11] Maimonides, Hilkhot Sanhedrin, 14.12.
[12] Maimonides, Hilkhot Sanhedrin, 4.11.
[13] Cf. Kontras ha-Semikha, Resp. Ralbah, Venice, 1565.
[14] Cf. Y. L. Maimon, Hiddush ha-Sanhedrin be-Medinatenu ha-Mehudeshet, 1951
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