Lesson #26: Who is Eligible to Judge and Who is Not (part 1)

This lesson and the next lesson focus on those persons who are ineligible to judge, those who are eligible to judge the case before them, and those who may not judge the case. Thus a judge may be eligible to judge one case, but because of the facts of the case or because of the parties involved, he may not be eligible to judge another case or to participate as a judge of the Beth Din.

The proselyte as a judge

Assume that a non Jewish person underwent a proper conversion and became a proselyte. (See Rambam Laws of Forbidden Intercourse, chapters 13 and 14; Shulhan Aruch Yoreh De'ah chapter 268) A Jewish litigant can voluntarily submit to the jurisdiction of a Beth Din that contains proselytes or even one judge who is a proselyte.

However, the proselyte cannot be a member of a Beth Din that wishes to exercise jurisdiction by compulsion over the parties to the litigation. If the proselyte's mother or father was Jewish then he may judge a Jew even under compulsion.

A proselyte may judge another proselyte, even if neither his mother nor father was Jewish.

The mamzer as a judge

Rambam, in chapter 15 of Laws of Forbidden Intercourse, states: "Who is considered a mamzer as designated in the Torah? The offspring by any of the forbidden unions, except by a menstruant, whose child is considered impaired, but not a mamzer. If a man has intercourse with a woman of any of the forbidden unions, whether by force or by consent, whether willfully or by error, the child born of that union is regarded as a mamzer, and both male and female are eternally forbidden to marry into Israel."

A Beth Din containing one, two or three mamzerim is a valid Beth Din and may judge monetary cases. (See Mishna Sanhedrin 32a; Rambam Laws of Sanhedrin 11:11; Shulhan Aruch Hoshen haMishpat 7:2) But a mamzer may not sit on a Lesser Sanhedrin that metes out the death penalty. (Sanhedrin 36b) The Talmud relates that in Jerusalem, mamzerim were not permitted to judge even monetary matters. (Kiddushin 76b)

The blind person as a judge

A person who is blind in one eye may judge monetary cases in the first instance. A person who is totally blind may not be a judge. But if he did act as a judge, his participation is valid. (See Sanhedrin 34b; Rambam, Laws of Sanhedrin chapter 2, law 9; Shulhan Aruch Hoshen haMishpat 7:2)

The parties may accept a person who is totally blind to judge their case. Even those authorities that hold that a totally blind person may not judge would hold that the blind person might assist in explaining the law to the judges.

The laws regarding the blind person as a judge depends upon different verses in the Torah. There is also a very practical reason why a person who is totally blind should not be a judge. He cannot see the demeanor of the people who testify nor can he see the evidence.

A person who uses eyeglasses to help him see is considered as eligible as a person with good vision.

The minimum age of a judge

There are those who hold that a man is eligible to judge if he has attained the age of 13. It seems to me that those who believe that a man should not be eligible to judge until he has attained he age of 18 hold the preferred view. (See Tur Hoshen haMishpat chapter 7) There is authority that a person should not be appointed as a permanent judge of a community until he has attained the age of 20, and if he is to be the sole judge of the community he should be at least 40 years of age.

All of the foregoing assumes that the person is well versed in the law.

Women a judges

Several weeks ago on Shabbat Shira the Haftorah commenced with the verse "Deborah was a prophetess, a fiery woman, she was the judge of Israel at that time." (Judges 4:4) Contrast this statement in the Bible with the law as stated by Rabbi Yosef Karo (1488-1575) in Shulhan Aruch Hoshen haMishpat 7:4 "Isha Pesulah Ladun" These three Hebrew words are translated as, Women [are] ineligible [to] judge.

These apparently contradictory legal concepts had been raised earlier by the Tosafists (11th and 12th centuries). It is beyond the scope of a short lesson to explain the various opinions and shades of these laws.

Rav Adin Steinsaltz and I conduct a semi-annual forum held on Chol Hamoed Pesach and Succoth. The first topic I discussed on September 28, 1988 was the role of the woman in the Beth Din system. This included her role as a judge. My lecture was published and now can be read as an appendix to A Restatement of Rabbinic Civil Law, Volume I.

An intoxicated person as a judge

One who has had an intoxicating drink may not be a judge in a capital case. There is a statement in the Talmud (Eruvin 65a) that if one has reached the stage of drunkenness of Lot he should be exempt from all responsibilities. A description of Lot's drunkenness is found in Genesis 18:30-36.

Rambam, in the opening passages of the first chapter of the Book of Temple Service, states, "Just as a Priest was forbidden to enter the sanctuary when drunk, so is every person, whether a priest or lay Israelite, forbidden to render a decision when drunk. Furthermore, one who is drunk may teach the law, including legal passages and textual interpretations, provided that he does not render actual decisions. But if he is appointed as a scholar to make decisions, he may not teach in such condition, for his teaching is tantamount to an actual decision."

In monetary matters, one who is drunk may not be a judge. But if he has had some liquor and still knows how to judge, he may join with other judges to form a Beth Din. The better practice would be for him not to judge a case by himself.

A witness in the case as a judge in that case

A witness who has testified in a case may not also be a judge in that case. If he has not testified in the case he may act as a judge in the case, even if he witnessed the event with the view of being a witness to testify in the case. One might logically ask how, a judge who relies on his own opinion of what he saw, can receive testimony from other witnesses with an open mind? The caliber and integrity of the judges who serve on the Beth Din is such that it is unlikely that they would be close-minded and not allow the testimony of the witnesses to convince the that their first impression may have been mistaken.

If all three judges of the Beth Din saw the event in the daytime, they may decide the case on the basis of their own observations and need not have any additional testimony or evidence or witnesses presented to the Beth Din.

The subject matter of this lesson is more fully discussed in Vol. 1, Chapter 7, of A Restatement of Rabbinic Civil Law by E. Quint and on sale at Pomeranz's Book Store. Volumes ordered from Pomeranz can be inscribed by the author.