In establishing a judicial system, the question arises of how to pay the judges who are the heart and soul of the judicial process. Also discussed in this lesson is the related problem of some judges finding their own method of compensation, by accepting bribes or gifts. The latter problem stems from the fact that some litigants believe there is no justice in the judicial system and the only way to obtain justice is to bribe a judge. Only when the judiciary is above reproach will the litigants have confidence that justice will prevail. The entire code of law is a nullity unless the substantive rights of the litigants can be honestly enforced.

Payment to the judge

Where a Beth Din system is functioning, the ideal procedure is for the community to pay the judges from a fund budgeted for this purpose at the commencement of the fiscal year. The salaries of the judges and other Beth Din functionaries should be determined by the city council. If necessary, a special tax should be levied by the community, with all its members contributing equal amounts. If necessary, the community may levy fees on the litigants. In some communities the organization that sponsors the Beth Din instructs the litigants to pay the appointed judge. The better practice is to have the litigants pay the organization or city that sponsors the Beth Din and have them pay the judges. The rabbis serving on the Beth Din of the Council of Young Israel Rabbis in Israel do not get any payments or fees or any type of remuneration.

The litigants may not pay a judge. If the litigants pay him, his judgment is void. Furthermore, all his prior judgments are suspect, unless it can be shown that he did not receive payment for those lawsuits.

In extraordinary circumstances, if both litigants ask a judge to decide their case and if he takes time off from his paid occupation to do so, both litigants may equally pay to the judge the money he lost by not pursuing his actual occupation.

In the situation of each litigant selecting a judge and the two judges then selecting a third judge, the better practice would be for each litigant to pay an equal amount to Beth Din and then Beth Din will divide the fees as Beth Din sees fit.

Prohibition against bribes

All the codes state that it is "Exceedingly, exceedingly prohibited for a judge to accept a bribe." The doubling of the term "exceedingly" appears only in two other places, that of exacting usury from a borrower and that of engaging in licentious conduct. In all these instances, greed or lust may be so overwhelming; hence the double exhortation against such behavior.

The prohibition against taking a bribe appears in the verse: "Do not take a bribe, for the bribe will blind those who see and corrupt words that are just" (Exodus 23:8).

The verse prohibits the taking of a bribe even if the judge would have decided the case according to legal principles and in favor of the party who should rightfully win the case. The prohibition of finding in favor of the wrong party is already stated in the verse "You shall not pervert judgment." (Deuteronomy 16:19.)

A judge may not take a bribe even to decide a case truthfully. The judge may not take equal bribes from both parties. The judge may not accept a gift from either side after the trial.

Just as it is prohibited for a judge to take a bribe, it is prohibited from a litigant to give a bribe to a judge. Whoever gives a judge a bribe contravenes the negative commandment "Nor put a stumbling block before the blind" (Leviticus 19:14.)

The prohibition against giving and receiving a bribe does not apply only to money or things that have monetary value; it applies equally to a bribe of words.

A loan to a judge may constitute a bribe. The prohibition from borrowing from a litigant would seem from the codes to apply only to a situation in which the judge is borrowing from the litigant as an isolated event, and the judge has nothing to lend to the litigant, should the latter want to borrow from him. Although there seem to be exceptions in the codes and the commentaries, the better practice would seem to be for a judge to recuse (excuse) himself from a case if he knows the litigant well enough to borrow from him.

When I lecture on the subject I give the following example which is essentially an example given in the Talmud (Kethuboth 105b). A trial has been going on for a few days. On the last day of the trial is the judge's birthday. His mother-in-law gave him a necktie for his birthday and he wore it to Beth Din. During a recess in the proceedings one of the litigants told the judge "Judge, you are wearing a nice tie." At that moment the judge should excuse himself and declare a mistrial, for he must be thinking to himself, how did that litigant notice this? He must be very perceptive. He must know the facts better than the other litigant. (Of course the judge must recognize when a compliment is intended and not just a ruse to obtain a new trial.)

The prohibition also applies to bribing a non-Jewish judge of the secular courts. The reason for this is that the Gentiles are commanded to set up a judicial system. This is one of the seven Noahide laws that the Torah requires all Gentiles to observe.

[The other six commandments given to all Gentiles are those against (1) idolatry, (2) blasphemy, (3) adultery, (4) murder, (5) robbery, (6) eating a limb torn from a live animal.]

A gift given to a judge prior to the commencement of the litigation may constitute a bribe. Although codes and commentaries make exceptions, it seems that the better practice would be for a judge to recuse (excuse) himself when he recently received a gift from the litigant, even if it can be shown that the gift was not made in contemplation of the lawsuit.