Siman 7

All of Israel are fit to be judges, but a convert [in ancient times] is disqualified from being a judge to judge an Israelite through coercion. This matter is a decree of the Torah, as it is said: "You shall surely set over you... from among your brothers," etc., and the tradition has come that any appointment that you set—meaning all types of appointments—shall only be from among your brothers. However, to judge his fellow convert, he is permitted. If his mother or his father was from Israel, he may judge even an Israelite. With the consent of the litigants, any convert is permitted to judge, and there is no distinction in this between three judges or one judge of the three. A mamzer is fit to judge in civil cases but not in capital cases, and in Jerusalem they would not allow him to judge even civil cases [Kiddushin 76b].

One who is blind in both his eyes is disqualified from serving as a judge, as it is written: "And by their word shall every dispute and every plague-mark be" (Deuteronomy 21:5). The Torah compared disputes to plague-marks: just as plague-marks cannot be judged by one who is blind, as it is written: "In all that appears to the eyes of the priest" (Leviticus 13:12), so too disputes cannot be judged by one who is blind. However, one who is blind in one of his eyes, even though he is disqualified for plague-marks as it is written "in all that appears," nevertheless he is fit to judge. For the sight of one eye is no worse than the sight of any person at night, and since the Torah permitted the conclusion of a trial at night, as was written in siman 5, therefore one who is blind in one of his eyes, for whom it is impossible to see otherwise, is fit even for the beginning of the trial and even ab initio. For if it were not so, that he is fit only for the conclusion of the trial, how would he come to the conclusion of the trial without its beginning? [Levush and Urim VeTummim]. And for this reason, one who is blind in both his eyes is disqualified even for the conclusion of the trial [Urim VeTummim], and even if he became blind at the conclusion of the trial, he is disqualified [Netivot HaMishpat]. And in this also there is no distinction between all the judges or one of the three. And if he is not actually blind, but only that his eyes are dimmed, he is fit even if his sight is weak [Birkei Yosef]. And in the Sanhedrin, even one who is blind in one of his eyes is disqualified.

Some say that it is only appropriate to judge from eighteen years of age and older, for then he is a man among men and has the strength to rescue the oppressed from the hand of his oppressor. And some say that a thirteen-year-old, even if he has not produced two hairs, is fit to judge, for regarding a judge "man" is not written, and it depends only on his sharpness and expertise in the laws. However, before thirteen years of age, when he has no status of adulthood at all, it is forbidden to judge. And regarding lands, he should not judge until he produces two hairs, for behold, his purchase is not a purchase at all regarding land, as I wrote in siman 235. And a permanent judge should not be appointed until he is twenty years old. And regarding judging alone, it is appropriate to be stringent until he is forty years old, unless there is no one greater than him in the city. And all these are merely stringencies, and according to Torah law it appears that when he has produced two hairs and is thirteen years old, he is permitted to be a judge; and before he has produced two hairs, his judgment is not a judgment at all, for the act of a minor is nothing, and not as the "some say."

A woman is disqualified from serving as a judge because she is disqualified from all appointments, as it is said, "You shall surely set over you," etc., "from among your brothers"—any appointments that you set, meaning all types of appointments, shall be only a man [the Rambam, chapter 1 of Laws of Kings], for it is written "from among your brothers" and not from among your sisters. And as for Deborah judging Israel, she did not judge but rather taught them that they should judge in such and such a manner; and furthermore, it was by the word of the Almighty [Tosafot Yevamot 45b]; and furthermore, all of Israel accepted her upon themselves to judge them.

Those who have drunk wine, even though they are disqualified from rendering a halachic ruling, nevertheless, regarding a legal judgment, some say they are fit. The reason is that since in a legal judgment there are two other judges, they will remind him to judge according to the halacha. According to this, when he judges alone, or when all of them have drunk wine, they are disqualified from judging [Urim VeTumim and Netivot HaMishpat]. And some disagree, holding that one who has drunk is disqualified from a legal judgment just as from a halachic ruling, and it is forbidden for him to sit in judgment when he has drunk [Bach and Shevut Yaakov based on a Midrash]. It is proper to be stringent, for it is a doubt regarding a Torah prohibition [Minchat Yaakov], and so it appears primary for the law.

A witness may not become a judge, and the reason is because it is written: "And the two men who have the dispute shall stand before Hashem." "The two men"—these are the witnesses; "who have the dispute"—these are the litigants; "before Hashem"—these are the judges. For one cannot say that "the two men" are the litigants, because if so, it is entirely redundant. Furthermore, is it only men who come to judgment and not women? And furthermore, is it only two who come to judgment and not more? Rather, it certainly refers to the two witnesses, and the verse explained that the witnesses must stand before the judges, and not that they themselves shall be judges. Furthermore, regarding testimony, we require "testimony that you are able to subject to hazamah," and when the judges are the witnesses, they will not accept hazamah upon themselves. And he is not disqualified unless he is a witness who testified; for example, one of the judges who testified before his colleagues regarding an act he saw can no longer be a judge. However, a judge who saw the matter and did not testify may become a judge regarding this act that he saw. Not only that, but even three judges who saw the act at a time when they are fit to judge, such as during the day, even if they intended at the time of their seeing for the purpose of testimony, they may judge regarding this, for the hearing that they hear from the mouths of witnesses should not be greater than their own seeing. And in this case, the Torah did not require witnesses at all. But if they saw the act at night, which is not a time for judgment, they cannot judge the next day based on the seeing of the night, for in this case it is not relevant to say "hearing should not be greater than seeing," since the time of seeing was not a time of hearing, as one does not receive testimony at night. Therefore, if they wish to judge the next day regarding this, other witnesses shall testify before them. And if they saw on Shabbat or Yom Tov, which according to the Torah is a time for judgment and only by rabbinic decree are they not permitted to judge, as I wrote at the beginning of siman 5, there is a dispute among the later authorities whether they are fit to judge the next day based on this seeing, and the opinion inclines toward fitness [Urim VeTumim and Netivot HaMishpat]. And a single expert is forbidden to judge based on his seeing, for a single individual is not testimony at all [Netivot HaMishpat]. And this rule that a witness may not become a judge applies specifically to Torah matters, but in rabbinic matters, such as the validation of documents and the like, even a witness who testifies may become a judge, for they were not stringent in this. And in capital cases, some say that even a witness who sees cannot become a judge, but according to the Rambam in chapter 5 of Hilkhot Edut, there is no distinction in this [as he rules like Rabbi Tarfon in Bava Kamma 90b].

All this is when the litigant did not invite the witness to testify, but if he invited him to testify and he saw the act, even though he did not testify at all in beit din, it is worse than seeing at night. For with seeing at night they may judge based on other witnesses as has been written, but when invited to testify, they may not judge even based on other witnesses, for since they were invited to testify, the status of witnesses is upon them, and a witness cannot become a judge. And there is one who says that being invited to testify is equal to seeing at night, and they may judge based on other witnesses. The general rule of this law is that by thought alone in seeing the act they are not disqualified from judgeship; and when they testified, they are disqualified from judging; and when they saw by day, they judge based on their seeing; and when they saw at night, they judge based on other testimony; and when invited to testify, there is a dispute as has been written. And in rabbinic matters, even a witness who testifies becomes a judge. And know that even though a witness who testifies does not become a judge in monetary laws, nevertheless the witness may argue in favor or against one of the litigants, but in capital laws it is forbidden for the witness to argue in favor or against [the Rambam there].

If a talmid chacham is summoned to a beit din before a dayan who is lesser than him in wisdom, the dayan cannot compel him to come and litigate before him. And how do they act? They gather all the chachamim in the city and judge among them, for since all the chachamim are gathered, there is no degradation when he litigates before them [Urim VeTummim], even if the talmid chacham is greater than all of them. And if the talmid chacham desires to come before the dayan, he has the permission to do so, for a chacham who waives his honor, his honor is waived. And if there is degradation for the talmid chacham to stand together with his opposing party, the dayanim send their scribes and receive the claims in writing, and they judge according to the claims in writing [Sma]. And see what I wrote in siman 124.

A judge should not initially judge someone who is his friend, even if he is not his best man and also not his friend who is like his own soul, for we fear that out of his love he will not see a liability for him. And likewise, he should not judge someone whom he hates, even if he is not an enemy to him and does not seek his harm, for even though the hatred is not so great, nevertheless, since he hates him, we fear that he will not see a merit for him. It is not because of a suspicion of wickedness that it is forbidden for him to judge a friend or an enemy, for certainly he would not intentionally pervert the judgment; rather, it was established by the sages that merit and liability emerge within a person without wicked intent, but rather that out of love the heart inclines toward his merit and out of hatred the heart inclines toward his liability. And if he judged them, his judgment is a valid judgment, and even initially neither of the litigants can disqualify him; rather, the sages, of blessed memory, said that as a matter of pious conduct the judge himself should refrain from this, but not from the core of the law, for this is only a mere concern since he is not a friend like his own soul nor an enemy who would seek his harm. And it is merely good advice for the judge, for it is necessary that the two litigants be equal in his eyes, and if he knows neither of them nor their actions, you have no truer righteous judgment than this. And his best man is so called during the days of his wedding canopy, which is all seven days of the feast.

But regarding a true friend, such as his groomsman or his companion who is like his own soul, or a true enemy, meaning one who is hostile to him and seeks his harm or who has not spoken with him for three days due to enmity, even after the fact his judgment is not a judgment unless the litigants accepted him upon themselves. And the litigant is not believed to say about the judge that he is a friend of his fellow litigant or that he is an enemy to him, and he requires clear proof for his words. Only the judge himself should refrain from this judgment when there is another judge in the city, since one of the litigants suspects him. And if the litigant qualifies the judge who is a friend and groomsman of his fellow litigant, the second one cannot object, and this is not similar to all other disqualifications, for this is not a total disqualification such that both of them would have the power to object.

But when this one chooses for himself one judge and that one chooses for himself one judge, each one can choose his friend, and through each one choosing for himself his friend, the judgment will emerge in its truth. And the third [judge] should properly be acceptable to both of them equally in his love for them, for behold, he will be the decider between the two of them; however, since the two take him as the third, there is no concern in this.

The teacher may be a judge for his student even ab initio, and the second party cannot disqualify him, for Heaven forbid one should say that because of his love for him in Torah his heart would incline toward him, unless the teacher knows within himself that because of his Torah he truly loves him, for then he should not sit in judgment over him.

A beit din that is disqualified due to love or hatred, even though they themselves cannot judge, nevertheless they have the ability to select judges who will judge them. However, those disqualified due to kinship cannot even select judges, for the Torah explicitly disqualified the disqualification of kinship, unless there is a custom regarding this, for one follows the custom [Netivot HaMishpat].

If the judge is a friend or an enemy to both litigants equally, he may judge them even ab initio, for since he is equal to both of them, his heart will not incline toward one more than the other. And even though there is one who is uncertain regarding this, nevertheless, this appears to be the primary ruling.

One who places another under a ban [in ancient times] because he treated his honor with contempt may judge him afterward, since he does not hate him other than this, and this he did according to the law. Nevertheless, during the days of his ban, it is proper to refrain from judging him, for it is unavoidable that during this time there will be some slight resentment in his heart against him, even if not by his will [Sma].

An incident occurred involving a certain great man from whom a person borrowed money, and he denied it to him and swore falsely; after some time, he came before him for judgment, and he did not wish to judge him because he feared that he would not see any merit for him [Chavat Yair], and these are words of reason:

Two talmidei chachamim who hate one another are forbidden to sit together in a beit din, because due to their hatred, the heart of each one will incline to contradict the words of his fellow, and the judgment will not emerge in its truth. Similarly, two men should not be appointed to a single appointment if they are distant from one another in their nature and their conduct [Chinuch]. A dayan should not judge his in-law ab initio, even when he is a permanent dayan, but post facto there is no disqualification in this. To sit together with his in-law in a beit din is permitted even ab initio [Netivot HaMishpat in siman 33].

All those who are disqualified from testifying due to kinship or due to transgression, even a rabbinic transgression, are also disqualified from judging. Furthermore, judgment is more stringent than testimony, for regarding testimony, rabbinic disqualifications require a public announcement, as written in siman 34, whereas regarding a judge, no announcement is required [Knesset HaGedolah]. The judges shall not be related to one another, nor to the witnesses, nor to the litigants, nor to the authorized agent of a litigant if the agent has a stake in the matter should his litigant prevail. If one litigant comes to the judge to adjudicate before him against a relative of the judge, the judge may adjudicate for them when the one who came is aware of their kinship, for since he came of his own accord, it is as if he accepted him [Shach]. But if the relative wishes to disqualify him, he has the right to do so.

Judges where one of them was found to be a relative or disqualified, the entire judgment is void, as with witnesses in siman 36 [the Gara"a], and they must return to plead before fit judges and they shall judge anew; and they are permitted to judge before these judges when the relative or the disqualified one withdraws from among them.

A judge who knows regarding his fellow that he is a wicked man or a robber is forbidden to join with him and sit with him together, even though he will judge a true judgment or they will perform a compromise, as it is said: "From a false matter keep your distance." And if the litigants accepted this wicked man upon themselves, even though they know of his wickedness, it must be considered whether it is permitted for the fit judge to sit with him together for judgment or for compromise [see in Shevut Yaakov].

A beit din must possess seven attributes: wisdom, humility, fear of Hashem, hatred of forbidden money—and even regarding their own money they should not be anxious over it nor pursue the gathering of wealth—love of truth, love of fellow creatures for them, and being people of good name. The punishment for one who appoints an unfit judge will be explained in siman 8. All these matters are explicit in the Torah. The Torah said regarding the appointment of judges: "wise and understanding men"—this is wisdom; "and known to your tribes"—these are those with whom people are comfortable, from the expression "and Naomi had a kinsman [moda]"; and regarding Yitro it is written: "men of valor"—and who is a "gibbor"? One who subdues his inclination. Included in "men of valor" is that they should have a courageous heart to rescue the oppressed from the hand of his oppressor, as it is written: "And Moshe stood up and saved them," and this is included in "good name." And just as Moshe our teacher was humble, so too every judge must be humble, as it is said: "And they shall bear with you"—among those similar to you. And it is written: "God-fearing men," according to its plain meaning; "men who hate gain," according to its plain meaning—and it follows that even regarding their own money they are not anxious; "men of truth," that they should pursue justice for the sake of the truth itself.

Any matter in which a judge has a side of benefit in the judgment, he cannot judge it, for he is one who has an interest in the matter, as it is close that his heart will incline him toward his benefit, unless he removes himself from his benefit. How so? The residents of a city whose sefer Torah was stolen—the judges of that city do not judge unless they have another sefer Torah in the beit knesset where the judge prays, for then he does not have an interest in the matter, and he does not need to remove himself from this beit knesset, even if prior to this they had two sifrei Torah. But if in this beit knesset they do not have another sefer Torah, even though there is another beit knesset in the city and they have a sefer Torah, it is of no avail unless the judge himself removes himself from this beit knesset and goes and prays in the other beit knesset. And likewise, when they judge concerning a beit knesset where the judge prays, he cannot be a judge in this unless there is another beit knesset in the city and he removes himself from this beit knesset in a manner that he always goes to the other beit knesset. But when he goes to this beit knesset, even though he is able to go to the other, it is called a benefit [Sma]. And it is also necessary that it be possible for the entire city to go to the other beit knesset, for if not, he has an interest, since they compel one another to build a beit knesset when it is impossible for all of them to enter one beit knesset, and they will need to build another beit knesset and the judge will need to give a portion [Urim VeTumim]. However, if it is in a manner that he will not need to give a portion, such as if he has his own place and no other can move him from his place as is our custom, he does not have an interest in the matter. And this also speaks of a manner where the seven city elders do not have the power to sell the beit knesset or the sefer Torah for the needs of the city, for if not, he always has an interest [ibid.]. And so in all matters, one must understand the matter of interest as will be explained in siman 37 regarding testimony. And one who says, "Give a maneh to the poor of my city," and there are disputes regarding this, the judges of that city do not judge because they benefit from the relief of their poor. And therefore, even though it is the judge's will to give the charity that he has given until now in a manner that he will not profit from this even if the poor win in this judgment, nevertheless it is a benefit to him in their relief and he is considered as having an interest in the matter. And likewise in tax affairs, the judges of that city do not judge because they or their relatives have some benefit from this. And if it is a private tax that is only practiced for a set time, some of the community can remove themselves—meaning that they give their assessment whether the judgment be thus or thus, in a manner that no benefit reaches them in this judgment—and they can judge in this. And if they made a regulation or there is a custom in the city that the city judges shall judge on all matters concerning the city, their judgments are a judgment. And so is the simple custom, and in our days we have not seen nor heard that in an affair concerning the city, the city judges should not judge. And since the custom is so, it is as if they accepted them upon themselves, and the judges in the city can judge on all matters of the city, as I wrote in siman 37 regarding testimony. However, if they see that according to the subject of the matter it is better that they judge by other judges, they should do so and the city judges should not judge.