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Devarim-Tisha B’Av 5767-2007

“Zion Shall be Redeemed through Justice”

by Rabbi Ephraim Z. Buchwald

On Monday night, July 23 and all day Tuesday, July 24, 2007, the fast of Tisha B’Av, the 9th of Av, will be observed. The fast commemorates the destruction of the two temples in 586 BCE and 70 CE, and a host of sad events that occurred on the anniversary of that day. In Isaiah 1:27, the prophet cries out: “Tzion b’mishpat tee’pah’deh,” Zion shall be redeemed through justice! It is no coincidence, therefore, that the Torah portion read on the Shabbat that precedes Tisha B’Av (known as Shabbat Chazon), opens with an exhortation about honesty in judgment and speaks of the communal imperative to establish courts of law.

In Deuteronomy 1:16, Moses says to the people: “Vah’ah’tzah’veh et shof’tay’chem bah’ayt hah’hee lay’mohr: Shah’moah bayn ah’chay’chem, oosh’faht’tem tzeh’dek bayn eesh oo’vayn ah’cheev, oo’vayn gay’roh,” I instructed your judges, at that time, saying: Listen among your brethren and judge righteously between a man and his brother or his litigant. Moses clearly underscores the fact that establishing courts of law is a linchpin of successful society.

In Numbers 11:16, G-d tells Moses to establish a court of law by gathering seventy men from the elders of Israel and its officers, and to take them to the tent of meeting and have them stand there with him. G-d advises Moses that He will then descend and speak with him there and will take some of the spirit that is upon Moses and place it upon the elders. The elders shall then bear the burden of the people with Moses, so that Moses will not have to bear the burden of the people alone.

The Torah tells us that 72 representatives were chosen, 6 from each tribe. A lottery was then cast, and the 70 candidates who drew the lot that said “elder,” became elders. The other two went back to camp.

During the entire historical period that Israel dwelt as an autonomous people in the land of Israel, all the religious and legal activities centered around the Temple in Jerusalem. The High Court, known as the Sanhedrin Gedolah, actually met in a special chamber in the Temple, known as Lishkat Ha’gazit. In order to qualify to serve as a member of the Sanhedrin, candidates had to meet very strict qualifications. Candidates for the court underwent a rigorous background check of character and family. Judges needed to be not only great Torah scholars, but were also required to possess some secular knowledge of science as well.

Members of the Sanhedrin were required to have children [raising children was considered a way of ensuring that judges would be compassionate]. Therefore, a eunuch, or a very old person could not serve in the Sanhedrin. Some authorities maintain that judges needed to be wealthy so they would be less susceptible to bribery.

All members of the Sanhedrin were to be ordained. Ordination, known as smicha, first started with Moses placing his hands on the head of Joshua, ordaining him as a scholar and his successor. The chain of ordination continued unbroken until the end of the Talmudic period. Rabbis today are not ordained in the traditional manner. They are given a license to instruct, known as Heter Ho’rahah. It was also required that at least several of the members of the Sanhedrin be linguists with knowledge of the popular languages of the day.

The Sanhedrin Gedolah, the High Court of law, was composed of 71 judges (some say 70). The Nasi, Prince, served as the head of the court and of the Jewish people. On the Nasi’s right, sat the Av Bet Din, the “father” of the court. Together they conducted the affairs of the people.

In ancient Temple times, the members of the Sanhedrin sat in three semi-circular rows. This was done so that members could observe each other and allow the Nasi and the Av Bet Din to keep their eyes on them.

While the High Court was the ultimate authority, other legal institutions of the Jewish people supplemented the role of the High Court. Since the highest court was preoccupied with matters of importance to the whole nation, such as the appointment of kings and the establishment of courts of law in all sizeable cities, the Sanhedrin Ketanah, the minor court, of 23 judges, dealt with issues that had capital implications.

To address the people’s everyday needs, there were also lower courts, consisting of only three judges. Of course, all judges had to be well-versed in Jewish law and G-d fearing, but in the lower courts the other requirements for judges were not as stringent. Since only G-d is allowed to judge by Himself it was generally prohibited for one judge to constitute a court of one. However, if the judge had received special permission from his colleagues, a single member of the Sanhedrin would be allowed to sit as a court of one.

Some of the commentators question the need to establish lower courts in the small communities. After all, they argue, all the people of Israel went to Jerusalem three times a year. Issues could then be adjudicated in the Supreme Court. Ibn Ezra (1098-c.1164, Spanish Bible commentator), however, argues that a single court in Jerusalem would not be sufficient to serve the needs of the entire community of Israel, so each community of a minimum size had its own court. Nachmanides (Rabbi Moshe ben Nachman, 1194-1270, Spanish Torah commentator) responds to this question by saying pointedly that true justice needs to be adjudicated in a swift and efficient manner and cannot wait until the arrival of the holidays. Failure to do so arouses feelings of animosity among the litigants and makes it more difficult to resolve the issues.

The Ohr HaChaim HaKadosh (Chaim ben Moshe Ibn Attar, 1696-1743 famed Moroccan Talmudist and Kabbalist, author of a well-known commentary on the Torah) points out that having the judges selected by the people themselves or their representatives is a test of whether the society itself is strong and stable. Only a society that is willing to submit itself and humble itself before the judges’ authority and acknowledged wisdom will be able to conduct its business in a proper manner. The Italian commentator, Recanati (Menachem ben Benjamin, 1223-1290, Italian rabbi and Bible commentator), points out that judges are expected to not only decide issues of law, but to also serve as mediators and compromisers.

The American jurisprudence system that is based on “trial by peer” is quite different from the Torah’s legal system. The American legal system hopes to afford every litigant an opportunity to be judged by people who are similar to themselves, lay people from all walks of life.

The Jewish legal system does not have any equivalent to a jury system. It could be that the Torah feels that only experts have the skills necessary to determine which witnesses are telling the truth and which are lying. Only those with many years of experience of listening to testimony are sensitive enough to identify a thief or duplicitous witness. While having a rotating system of jurors may result in a lesser possibility of corruption, Judaism is of the opinion that professional judges who work their way up the system from the lower courts to the middle court to the highest courts, and who have proven themselves as being honorable, knowledgeable and compassionate, will prove themselves trustworthy of adjudicating life and death issues as well.

We are told by the prophet Isaiah to remember that only through justice will Zion be redeemed and the Temple rebuilt. In these grave days of mourning, it is incumbent upon each of us to work assiduously to promote justice and to ensure that our society’s systems are operating and functioning properly. Only in this way may we be certain that those who are truly guilty will be held accountable for their evil deeds and that the innocent will be absolved of all charges.

Have a meaningful fast. May we merit to see the rebuilding of the Temple, soon in our days.

May you be blessed.