Shabbat Parashat Shoftim 5783

Parashat Hashavua: How Do We Get a “Righteous Judgment”?

Our parasha opens: “Judges and officers shall you place in all of your gateways, which Hashem has given you by your tribes, and they shall judge the nation a righteous judgment (mishpat tzedek)” (Devarim 16:18). According to Rashi, the whole pasuk is a commandment to the people – you must appoint judges who will be careful to render proper rulings. The Ibn Ezra understands the end of the pasuk as addressed to the appointed dayanim. The Ran (Derush 11) says that mishpat tzedek delineates the dayanim’s jurisdiction – normal justice. This is as opposed to punishment beyond the letter of the law, known as migdar milta (to cordon off dangerous matters), which are the prerogative of the executive branch, not the judicial.

As we like to do on Parashat Shoftim, we will look at something related to the operation of batei din – this time, understanding mishpat tzedek. To begin, we note that there are major differences between the rules of justice in the criminal and financial realms. A major rule in criminal Halacha is that one cannot incriminate himself (Yevamot 25b). The Rambam (Sanhedrin 18:6) tries to explain the rule: we are concerned a distressed person could use the courts to commit suicide. The Rambam concludes, though, that it is a divine decree, whose exact reason we cannot expect to understand.

In the financial realm, we find the opposite legal phenomenon: “A litigant’s admission is like 100 witnesses” (Kiddushin 65b). Actually, it is better than 100 witnesses: if 100 say that one is exempt and he admits he is obligated, he must pay. Paradoxically, one can even admit by denying. If Reuven claims that Shimon owes him from a loan and Shimon denies borrowing, and witnesses say that Shimon borrowed but returned the money, we say that denying having borrowed implies admission of not returning, and Shimon must pay (Bava Batra 6a).

How the admission of a party becomes binding is the subject of a machloket. The Mahari ibn Lev (dayan in Salonika in the 16^th century) is based on the ability of a person to “give a present.” We view his admission as a new obligation he accepts upon himself (in case the admission is not true). The K’tzot Hachoshen (34:4) cites him and disagrees, arguing that the Torah treats an admission as equivalent to the credibility of witnesses (some commentators try to combine the two apparently polar approaches).

Going back to the criminal realm, we point out that, as opposed to in Israeli law, we do not allow self-incrimination. We want to avoid relying on admission of guilt that could be the product of pressure. (Those systems that accept self-incrimination employ a reenactment of the crime, which generally cannot be accurate if the person did not commit the crime.)

What is the halacha regarding monetary admission that was extracted under pressure or through the litigant’s confusion or mistake? The answer is that beit din has to make sure that such an admission is not be relied upon. This is an application of the idea of mishpat tzedek.

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