Shabbat Parashat Shelach| 5766
Mishpat ve halacha Be Israel - Part XIV - Court Procedures - I - Harav Sinai Levi
We continue the series on the workings of our newly formed beit din. We now move on to the procedures upon which the beit din operates.
We start with the paragraph dealing with a dayan’s decision to disqualify himself from sitting in a case of a family member. Our procedures read: “The decision of a dayan to disqualify himself or resign from a case requires the approval of one of the Heads of the Court. Such a decision by a dayan, when involving disqualification based on the laws of not judging relatives, does not require such approval.”
What is the basis of these provisions? The mishna (Niddah 49b) states: “Whoever is fit to judge, is fit to testify, but there is one who is fit to testify but not to judge.” The parameters of those who are unfit to testifyare spelled out in the third perek of Sanhedrin and include sinners and the litigants’ relatives. There is a dispute among Tannaim regarding those who have a loving (ohev)or hateful (soneh)relationship with a litigant. R. Yehuda disqualifies them, whereas Rabbanan say, “we do not suspect Jews on that [to lie because of their friend or enemy]” (ibid. 27b).
The gemara (ibid. 29a) says that Rabbanan agree that friends and enemies are unfit to serve as dayanim. Rashi explains that regarding a dayan, there is a fear that the enemy will not be able to see the merits of his enemy’s side. In other words, a witness only has to relay facts, and we need not fear that he will alter them because of his feelings. Judgment, which requires fine thought process, is more easily affected by one’s feelings.
Who is an ohev and who is a soneh? The mishna says that an ohev is a shushbin (similar to what we call, “a best man.” A soneh is one with whom the dayan did not speak for three days out of animosity. Thus, the mishna’s parameters of ohev and soneh are quite limited. However, the gemara (Ketubot 105b) says: “Rav Pappa said: a person should not judge one whom he likes or one whom he dislikes, for he will be unable to see their detriment and their virtue, respectively” [Ed. note- R. Pappa’s words are hard to translate precisely and definitively]. Rishonim explain that R. Pappa came to expand the mishna’s parameters to people with weaker emotional feelings.
Tosafot (ad loc.) says that R. Pappa was expressing a personal stringency, and the Rosh rules according to the mishna. The Rambam disqualifies more freely, but the Beit Yosef (CM 7) says that this is only the preferable procedure, but a milder friend or enemy is not outright unfit. The Rambam mentions a higher level: “if [the dayan] does not know either of them or his actions, this is the most just judgment.”
Since these matters depend on appraising the situation, we left the final decision to the Heads of the Court. Regarding relatives, where there are set rules, the dayan’sdecision to disqualify himself does not need to be reviewed.
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