JUDGE.

By: Emil G. Hirsch, Julius H. Greenstone, Solomon Schechter

—Biblical Data:

The common Hebrew equivalent for "judge" is "shofeṭ," a term found also in the Phenician as "sufeṭ" (= "regulator"); the latter is a name given to those who had chief control in the Sidonian colonies, and to the Hebrew "shofeṭ" was originally attached a similar significance. But alongside of the original meaning, which the Hebrew retained (see Judges, Book of), the term assumed the significance of "judge." The later Hebrew word "dayyan" (Ezra vii. 25, Aramaic portion), which has come in Talmudic and post-Talmudic times to be the word used exclusively for "judge," is found in the Bible only in reference toGod (I Sam. xxiv. 16; Ps. lxviii. 6). The term "pelilim" (Ex. xxi. 22; comp. Deut. xxxii. 31), usually translated "judges," is a rare word; and a different reading has been suggested by Budde for the passage quoted (Stade's "Zeitschrift," xi. 101). The term "elohim" is also used in reference to judges (Ex. xxi. 6; xxii. 7, 8; comp. Ps. lxxxii. 1, 6); but some of the modern commentators translate this word here, as elsewhere, by "God" (Hastings, "Dict. Bible," s.v. "Judge, Judging," and note).

Institution.

Among the early Israelites, the elders of the tribes, and subsequently the elders of the locality, administered justice (see Elder). Acting upon the advice of Jethro, Moses selected "able men out of all Israel and made them heads over the people, rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens; and they judged the people at all seasons: the more important [A. V. "hard"] causes they brought unto Moses, but every small matter they judged themselves" (Ex. xviii. 25, 26; comp. Deut. i. 15). It is also recorded that Moses once appointed Aaron and Hur to act as chief judges in his absence (Ex. xxiv. 14). The judge was considered a sacred person; seeking a decision at law was called "inquiring of God" (Ex. xviii. 15). Moses is often represented as bringing a case to God before rendering a decision (Ex. xviii. 19; comp. Num. xv. 34, 35; xxvii. 5).

Development.

After the Israelites settled in Canaan the system introduced by Moses seems to have fallen into desuetude, because there was no union among the tribes. The military rulers of the people in the time of the Judges probably assumed control over the administration of justice. Samuel is recorded as having traveled from place to place judging Israel, while his headquarters were at Ramah (I Sam. vii. 15-17, xii. 3; comp. Judges v. 10), and his sons judged the people at Beer-sheba (I Sam. viii. 2).

With the establishment of the monarchy the king and his officers were naturally regarded as the supreme authority and the final court of appeals (II Sam. xii. 1-16, xv. 2, xvi. 5-9). Solomon was considered "to have the wisdom of God in him to do judgment" (I Kings iii. 28). Although David is recorded as having appointed 6,000 Levites as judges and officers (I Chron. xxiii. 4, xxvi. 29), the organization of courts of justice in accordance with the Deuteronomic code (Deut. xvi. 18, xvii. 8-13) was not effected until the time of Jehoshaphat. He established courts all over Palestine, and appointed two chief justices—a priest over ecclesiastical affairs, and a "nagid" (the ruler of the house of Judah) over temporal affairs (II Chron. xix. 4-11). In Jerusalem the royal judges soon superseded the elders (Jer. xxvi. 11); but in the smaller communities the elders still continued to exercise their wonted authority (Isa. iii. 14; II Kings xxiii. 1). On the return of the Jews from Babylon, Ezra was ordered by Artaxerxes to appoint judges "which may judge all the people that are beyond the river" (Ezra vii. 25, 26; x. 14).

The qualifications for judgeship are tersely described in Jethro's words, "able men, such as fear God, men of truth, hating covetousness" (Ex. xviii. 21). The judge must not be influenced by the position or wealth of the litigants (Ex. xxiii. 6; Deut. i. 17, xvi. 19), and must not accept bribes (see Bribery). It was the duty of the judges, in order to put away from themselves the guilt of innocent blood, to determine by measurement the town nearest the place where was found the body of a murdered man whose murderer was not known (Deut. xxi. 1-9). The judge had to be present at the infliction of the punishment of flagellation (Deut. xxv. 1-3). See Sanhedrin.

E. G. H. J. H. G.—In Rabbinical Literature:

While the term "dayyan" in Talmudic literature is identical with "sage," "student of the Law," "professor of the academy," or "rabbi of the community," perfect freedom was given to the litigants in a civil case to choose from among the people their own judges. Even one man could administer justice and enforce his decisions, if he was known as a scholar ("mumḥeh"), or if the litigants agreed to abide by his decision (Sanh. 5a). If one of the litigants chose one judge and the other chose another, these two judges might select a third, even against the will of either party; and the decision rendered by them was binding (ib. 23a). Each one of the judges, however, was careful not to accept the appointment unless he was satisfied that the other members of the court were worthy and respectable men (Sheb. 30b). The Rabbis recommended that all cases should be brought before a regularly constituted court of three; and the larger the court the better (Sanh. 8a; Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 3, 3, 4).

Qualifications.

The qualifications of the judge were many and various. The members of the three classes of courts—the Great Sanhedrin, the Lesser Sanhedrin, and the Court of Three (Josephus, in "Ant." iv. 8, mentions a Court of Seven)—which, according to Talmudic tradition, existed in Palestine during the second commonwealth (see Bet Din; Sanhedrin), had to be duly ordained and authorized by the nasi of the Sanhedrin or by three of its members (Sanh. 13b; Maimonides, "Yad," Sanh. iv.; see Authority; Ordination). Only ordained judges could decide cases involving fines or corporal punishment (Sanh. 14a; "Yad," l.c. 12).

The members of the Sanhedrin had to be familiar not only with Jewish law and tradition, but also with many languages and sciences (Sanh. 17a). Priests and Levites were preferred to laymen (Sifre, Deut. xvii. 9); and only such Israelites could serve as members of the Sanhedrin as were of pure Jewish descent (Sanh. 32a; see Yiḥus). A very old man, a eunuch, or one who had no children could not be a member of the Sanhedrin (ib. 36b). Besides possessing the necessary mental and spiritual qualifications, a member of the Sanhedrin had to be physically well built, of imposing figure, and without a blemish on his body (ib. 17a). While members of the Court of Three were not required to possess all these qualifications, they had to be distinguished for the following seven qualities: wisdom, humility, fear of God, hatred of money, love of truth, amiability, and a good reputation ("Yad," l.c. ii. 7, where these qualities are derived from Biblical passages).

Persons related to one another were disqualified from acting together as judges or as witnesses; judges were required to be amicably disposed toward one another (Sanh. 29a), and there could not be among them one who was a particular friend or enemy of one of the litigants (Ket. 105b). One who witnessed a crime or a transaction could not act as judge in the matter (Mak. 12a). All those disqualified from testifying in Jewish courts (see Evidence) were prohibited also from acting as judges (Nid. 49a). A woman or a proselyte was disqualified for judgeship (Yeb. 102a; B. Ḳ. 15a; Tosef., s.v. "Asher"). There is no age limit given in the Talmud. While the opinion expressed is that no one under forty should give decisions ('Ab. Zarah 19b), the later rabbis allowed a person of eighteen years to assume the title of judge (comp. Shab. 56b), while others were of the opinion that one of thirteen years of age might administer justice (Ḥoshen Mishpaṭ, 7, 3; comp. Yoreh De'ah, 242, 13, 14).

Equality Before the Law.

Equality before the law should be the principle guiding all the actions of the Jewish judge (Lev. xxiv. 22; Deut. i. 17). A case involving a "peruṭah" (the smallest Palestinian coin) should be regarded by him with the same gravity as one involving thousands (Sanh. 8a). Both parties should be accorded equal respect by the court, and no preference should be shown even to the learned man (Sheb. 30a; "Yad," l.c. xxi. 1; Ḥoshen Mishpaṭ, 17, 1). The judge must not listen to the arguments of one of the litigants in the absence of the other, nor must he assist either of them in his arguments, but must listen quietly to the presentation of the case by both parties and then render his decision (ib. 30b, 31a; "Yad," l.c. 10; Ḥoshen Mishpaṭ, 17, 8). He should attend to the cases in the order in which they are presented, although he may attend to an orphan's case before that of a widow, to a widow's before a learned man's, to a scholar's before that of an ignoramus, and to a woman's before a man's (Sanh. 8a; "Yad," l.c. 6; Ḥoshen Mishpaṭ, 15, 1, 2).

There was no interpreter between the judge and the parties concerned in the case, except when the judge understood a language, but could not speak it fluently (Mak. 6b). The judge was enjoined to arbitrate between the contending parties; and the first question put to them was, "Do you wish law or arbitration?" but he could not compel them to arbitrate except when orphans were involved or when the case could not be established on a legal basis. If the decision was once rendered in accordance with law, the same court could not again arbitrate, even if both parties wished it (Sanh. 6b; "Yad," l.c. xxii. 4, and "Kesef Mishneh," ad loc.; Ḥoshen Mishpaṭ, 12, 2-5).

Forty years before the destruction of the Second Temple, the Talmud relates, the Sanhedrin removed from the Temple premises to a place called "trade-hall" ("ḥanut"), and since then the Jewish courts have had no jurisdiction in cases involving capital punishment ('Ab. Zarah 8b; Sanh. 41a). The authority of the judge was still further curtailed after the wars of Bar Kokba, when the ordination of judges was prohibited (Sanh. 14a). As only ordained judges could decide penal cases, after that period judges could, theoretically, attend only to strictly civil cases; but they were given the power to decide also such penal cases as involved actual injury to others—that is, those of common occurrence and the settlement of which was an urgent matter (Giṭ. 88b; Ḥoshen Mishpaṭ, 1, 1; see Jurisdiction). Still when there was need of prompt and decisive action, the local courts frequently extended the bounds of their authority, and inflicted corporal punishment, confiscated property, and even asked assistance of non-Jewish governments to force obedience to their mandates (Sanh. 46a et al.).

While throughout the Diaspora various governments granted to the Jewish rabbis judicial authority, sometimes even in criminal cases, the tendency of the later rabbis was to submit to the law of the land in all cases; and only such matters as did not affect the community and from which the government derived no special benefit were decided in Jewish courts (Ḥoshen Mishpaṭ, 369, 6-11; see Conflict of Laws).

Judge in Error.

A judge who made a mistake in his decision of a law that is clearly stated in the Mishnah or in the Talmud or in any of the accepted codes had to try the case again if possible, but if not—as when one of the litigants could no longer be reached—he was not required to pay any loss resulting from his decision. If the mistake was in a matter disputed by the authorities, but which was generally decided in accordance with one opinion and the judge decided in accordance with the opposite opinion ("shiḳḳul ha-da'at"), if he was a learned man ("mumḥeh") and the litigants had agreed to abide by his decision, or if he had been appointed a judge by the recognized authorities, he had to give them a new trial; and if this was impossible, he was not required to pay. But if he was not a learned man, although the litigants had agreed to abide by his decision, or if he was a learned man but had no permission to judge and the litigants had not agreed to abide by his decisions, he had to give them a new trial; and if this was not possible, he had to pay the damages caused by his decision (Sanh. 32a, 33a; "Yad," l.c. vi. 1; Ḥoshen Mishpaṭ, 25, 1-3, Isserles' gloss, and "Pitḥe Teshubah," ad loc.). See Accusatory and Inquisitorial Procedure; Criminal Procedure; Execution; Fees; Sanhedrin.

S. S. J. H. G.