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Mishpatim 5777-2017

“Majority Rule “

This week’s parasha, parashat Mishpatim, is one of the most content-rich parashiot in the entire Torah. Mishpatim, which literally means “laws” or “rules,” serves as the basis of the Jewish judicial system.

Parashat Mishpatim ranks fourth among the Torah portions, containing 53 commandments of the 613 commandments in the Torah–30 negative and 23 positive.

Many fascinating ancient rules are found in parashat Mishpatim that underscore how advanced the ancient judicial system of Israel was and its relevance to contemporary times. Those who wish to gain an appreciation of the scope of these insightful rules are encouraged to visit the archive and review the weekly messages on parashat Mishpatim from previous years.

Among the most fascinating and insightful laws are those that apply specifically to capital crimes.

Many scholars claim that the concept of “majority rule” emanates from the legal practices of ancient Greece and Rome. Students of classical history know that the practice of majority rule in Greece consisted of citizen-gatherings in the ancient Agora together with their slaves and sheep, and that those who made the loudest noise prevailed by voice vote. This is hardly democracy-in-action or “majority rule” as we understand it today.

The Torah, however, articulated a principle of “majority rule” many hundreds of years before the Greeks and Romans. The Torah in Exodus 23:2 clearly states, לֹא תִהְיֶה אַחֲרֵי רַבִּים לְרָעֹת, וְלֹא תַעֲנֶה עַל רִב, לִנְטֹת אַחֲרֵי רַבִּים לְהַטֹּת , Do not be a follower of the majority for evil, and do not respond to a grievance by yielding to the majority to pervert the law. (The literal meaning of the second part of the verse is “follow the majority.”)

As we have often noted, the most important value in Judaism is the sanctity of human life. Therefore, the rabbis often perform all sorts of legal somersaults in order to preserve life.

In ancient Israel, capital crimes had to be adjudicated before tribunals of either 23 or 71 judges, and as expressed in the Torah verses, majority ruled. Thus, in a court consisting of 23 judges, if 12 judges voted to exonerate the defendant and 11 to convict, the defendant was exonerated. Similarly, in the large court of 71 judges, if 36 judges voted not guilty, and 35 voted guilty, the majority ruled and the defendant was found not guilty. In order to exonerate a defendant, all that was needed was a simple majority of one.

However, as Rashi, explains the verse as interpreted in the Talmud, one must not follow the majority to do evil. Consequently, Jewish law demands that a majority of 2 is required in order to convict, while a majority of only one is required to exonerate. Obviously, with an odd number of judges, a majority of 3 is needed. So, if 12 judges voted guilty and 11 voted innocent, or, in the large court, 36 voted guilty and 35 voted not guilty, the defendant could not be found guilty. A majority of 2 is required, or in reality, a majority of 3. The vote necessary to convict would have to be 13 to 10, or 37 to 34.

Another fascinating rule, apparently based on the above-mentioned verses that is found in the Talmud Sanhedrin 17a, is that if the entire court unanimously finds the defendant guilty, 23 to 0 or 71 to 0, the defendant cannot be found guilty. The lack of a single dissenting vote is seen as an indication that the judges did not take their juridical responsibility seriously. Rabbi Akiva said that had he been alive during the time that courts adjudicated capital cases, no one would ever have been convicted because he would have found a legal way for the defendants to be exonerated.

Another fascinating rule is that if a student sitting in court following the trial procedures, suggested a way to exonerate a defendant, that student was immediately elevated to become a member of the court, in order to possibly save the defendant’s life.

In court, the younger judges always expressed their opinions first, so that they would not be intimidated by the older judges, and be able to express their opinions freely.

There is no double jeopardy in Judaism. Therefore, if a defendant was pronounced guiltless and new evidence is presented indicating the defendant guilty, that new evidence is inadmissible, because the trial, once concluded, cannot be reopened. However, if a defendant was found guilty, new evidence to exonerate can always be introduced.

Rules of evidence in capital cases are extremely rigorous and complex. In order to convict a person of a capital crime, two “kosher” witnesses must warn the would-be perpetrator that the crime that he is about to commit is punishable by death, and specifically indicate what form the death penalty might take. Witnesses to capital crimes in Judaism need to be male, people of positive reputation, unrelated to the victim, defendant or the other witnesses and fully observant. Women are excluded from testimony in capital cases because the execution of those found guilty was generally performed by the witnesses, and the rabbis wished to spare women the trauma of having to execute a criminal. Thus, 50% of eligible witnesses were automatically eliminated, underscoring how greatly Judaism values life. Even if 100 witnesses testify to a crime, but among them were a father and son, all 100 witnesses are disqualified, because of the two relatives among them.

Not only must witnesses warn the perpetrator, and specify what the death penalty will be, the would-be perpetrator needs to immediately acknowledge the warning and the punishment. However, circumstantial evidence is not admissible. So for example, even though the witnesses saw the alleged perpetrator holding a knife over the heart of the victim, but because of a momentary distraction the witnesses did not actually see when the knife was plunged into the breast of the victim, but only saw the bloody weapon afterwards, the perpetrator could not be convicted, since the evidence is circumstantial.

The place of execution had to be at least a day’s journey from the courts, so that there would be time for new witnesses to arrive who may testify for exoneration.

According to some, a convicted capital offender could not be put to death, unless he willingly agreed to be executed. Some rabbis see the death penalty not as a punishment, but as a catharsis, a cleansing of the killer’s soul, allowing the convicted murderer to achieve a place in the World to Come.

These rules, which are all based on majority rule, shed profound meaning upon the value of the sanctity of life, which is at the core of every mitzvah and the basis of our Jewish faith.

May you be blessed.

Please Note: This Shabbat is Shabbat Parashat Shekalim. On this Shabbat, an additional Torah portion, known as Parashat Shekalim, is read. It is the first portion of four additional thematic Torah portions that are read on the Shabbatot that surround the holiday of Purim.

This week’s supplementary Torah reading is found in Exodus 30:11-16 and speaks of the requirement for all the men of Israel, aged 20 and above, to bring a half-shekel in order to be counted as a member of the People of Israel. In later years, these shekels were donated to the Temple in anticipation of the festival of Passover, when funding for the daily sacrifice had to be renewed.