Courts Aren’t To Keep Society Running

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by R. Gidon Rothstein

Drasha 11, part 1

Most of us think the purpose of courts is to adjudicate citizens’ disputes and punish evildoers. Devarim 16:18 tells us to appoint people who will judge משפט צדק, righteous judgment. Ran points out that the next verse prohibits perverting justice, so “righteous judgment” must mean something else. For Rashi, it’s selecting judges capable of doing their job (they can judge well, not just are committed to doing it).

Prior essays in this series

Ran claims that משפט צדק refers to ultimate justice, where every court verdict is the most just, taking all possible human care to avoid wrong verdicts. This ultimate justice is the role of the court system. One flaw in that regime is that society can’t function with judges so cautious, because taking care to never convict anyone wrongfully brings with it the necessary corollary of letting many wrongdoers go free. To make up for that, the Torah established another track, practical justice, which Ran believes was assigned to the king, whom we’ll discuss next time.

Part of what led him to this conclusion is that halachic court procedure doesn’t seem likely to produce effective enforcement, deterrence, or retribution. For example, witnesses have to verify that they warned the perpetrator, who articulated awareness of the warning, then committed the sin within a short time span (Sanhedrin 40b). That ensures no accused is punished without cause, but many criminals would be freed for lack of evidence.

Courts as a Source of the Divine Spirit

Courts, for Ran, serve a different purpose; like sacrifices, they bring God’s Presence to the world. That is why the Great Sanhedrin sat next to the Temple, why Sanhedrin 7a says that any judge who is דן דין לאמתתו, renders a most truthful verdict, brings the Divine spirit and why Shabbat 10a says it is as if that judge became a partner with Hashem in creation. That suggests that those who patronize courts for their disputes might not see the financial result they would have expected, but will get a greater religious one.

One challenge to Ran’s reasoning is that R. Eliezer b. Ya’akov, Sanhedrin 46a, held that courts may administer extrajudicial punishments, which seems aimed at the kind of workable outcomes and viable social order Ran had said was the job of the king. He suggests the courts can do this only if the king authorizes it (in which case, they’d be agents of the king, not Torah courts); when there is no king to fulfill that function; or only in the name of fostering greater observance of mitzvot, not sustain the workings of society.

That explains the Torah’s warning about bribes rendering a judge blind. Rashi said it was to remind us that even if the money is given explicitly for the judge to find the truth, whatever that may be, human nature will convince that judge of the greater strength of the claims of the litigant who paid him.

Ran adds another problem, that the losing party will assume the bribe corrupted the verdict, even if it didn’t. In ideal courts, according to Ran, even losers walk away convinced they have been given משפט צדק, righteous justice.

The Majoritys View, Right or Wrong

Once having established the need for courts, the Torah obligates us to follow their rulings even when they seem incorrect. For example, Rabban Gamliel summoned R. Yehoshua to appear before him on the day he, R. Yehoshua, had calculated to be Yom Kippur, to make the point that R. Yehoshua had to heed the decisions of R. Gamliel and the majority (Rosh HaShanah 25a).

Majority rule is such a necessary principle that it overrides a divine voice or a prophet telling us they are wrong, as in the famous story of R. Eliezer b. Hurkanos arguing with all the Sages about the ritual purity of a certain kind of oven (Bava Metziah 59a). R. Eliezer’s last resort was to summon a divine voice, also rejected, since Torah is not in heaven (Devarim 30:12). In Temurah 16a we are told that when the Jews forgot 300 halachot after Moshe passed away, Yehoshua could not recover them prophetically—post-Sinai, law can only be discovered through learning and debate.

Ran is bothered by that, because to achieve the goals of mitzvot (he notes that we all assume mitzvot have goals), we have to perform the mitzvah correctly. If the courts get a mitzvah wrong, when we follow their ruling, we will not see the desired result (or, worse, we’ll see negative results from our failure to perform the mitzvah as originally commanded).

His first answer is that life involves many instances of following the generally productive path, despite its occasionally leading to a negative. Courts’ overall contribution to leading us closer to God outweighs the cost of those errors that arise.

Then he adds a metaphysical version, that the spiritual advantage we gain from obedience to the Sanhedrin outweighs whatever negatives arise from their mistakes guiding us incorrectly. In the first answer, the overall picture is better because we listen to the Sanhedrin; in this answer, even this outcome is better, since obedience trumps being right.

The Sanhedrin as an Other-Worldly Part of Human Society

Ran’s recognition that the laws of courts are impractical led him to a view fully in line with what we’ve seen in other drashot—that life is filled with the physical and metaphysical, the natural and the supernatural, and each needs its appropriate place. In this instance, Jewish courts offer a superhuman form of justice, manifesting the divine spirit among the Jewish people.

Which is nice, but doesn’t make the trains run on time. For that, we had a king, in many but not all ways like other kings. As we’ll see next time.

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