Courts and their Punishments

N. Judges – Shofetim

“In the fourteenth book I will include commandments that are the responsibility of the courts, such as the death penalty and the acceptance of testimony and laws regarding the king and his wars. And I have called this book the Book of Judges”.

79. Courts and their Punishments – Sanhedrin veha-Oneshin ha-Mesurin Lahem

We are commanded to appoint judges and court officials in every part of the land of Israel, as it says “You shall set up judges and officers in all your gates”.¹ The court at the Temple, which is called the Sanhedrin, has 71 members. This court is responsible for crowning the king; declaring war; enlarging the Temple or the city of Jerusalem; judging tribes or cities who were incited to idolatry, false prophets, and rebellious elders; judging capital cases involving the high priest; appointing lower courts; and dealing with persons found murdered and wives suspected of adultery. Capital cases are tried by courts having 23 members; they can be tried only when the Temple and Sanhedrin exist. No court can have less than three members; however, an individual may also act as a judge if he is a known expert or has the permission of a court.^a

It is forbidden to appoint judges who are not experts in the Torah, as it says “You shall not show preference in judgment”,² and it says “And they shall stand there with you”³ — they must be like you (i.e., like Moses). A judge must be wise, humble, G-d-fearing, a despiser of wealth, a lover of truth, loved by the people, and of good repute, as it says “Men who are wise and understanding and known to your tribes”,⁴ and it says “Men of valor, G-d-fearing, men of truth, haters of profit”.⁵ For all cases except purely monetary matters not involving fines at least one of the judges must be ordained.^b

If the judges disagree we are commanded to follow the opinion of the majority, as it says “To bend after the many”⁶; and for the death penalty there must be a majority of at least two, as it says “You shall not be after the many to do evil”.⁶ In capital cases a judge must form his own opinion and is forbidden to follow the opinions of others; and once he has argued for acquittal he is forbidden to argue for conviction, as it says “You shall not answer on a dispute to bend”.⁶ A court that has sentenced someone to death is forbidden to eat for the rest of the day, as it says “You shall not eat on the blood”.^7,c

The courts administer four death penalties: stoning, burning, beheading, and strangling. The first three are explicitly specified in the Torah for various sins, and the punishment for murder too is beheading. It is a tradition received from Moses that whenever the Torah does not specify the manner of execution strangling is meant. The courts are commanded to administer these penalties to those who deserve them; and there is a special prohibition against not executing a convicted sorcerer, as it says “You shall not let a sorceress live”.⁸ We are commanded to hang a male idolator or blasphemer after he is executed, but it is forbidden to leave him hanging overnight, as it says “And if there is in a man a sin for which he is sentenced to death you shall hang him on a tree; his carcass shall not stay overnight on the tree… for the cursing of G-d [he] is hung”,⁹ and it says “[And a person that acts highhandedly…] blasphemes Ha-Shem”.¹⁰ We are commanded to bury executed persons on the day of their execution, as it says “For you shall bury him on that day”.^9,d

The courts are also commanded to administer corporal punishment to those who deserve it, as it says “[And if the wicked one deserves beating] the judge shall throw him down and beat him in his presence”.¹¹ He receives 39 lashes (or fewer, if he is weak) and it is forbidden to add more, as it says “According to his wickedness in number; 40 he shall strike him, he shall not continue”.¹¹ Such punishment is given to anyone who violates a negative commandment that does not carry the death penalty unless the violation does not involve an act (except for swearing falsely, blaspheming, and substituting in sacrifices) or has been rectified by a subsequent act; and there is no punishment for violating a commandment in which several things are forbidden in a single negation.^e

The courts can punish only on the basis of the explicit testimony of witnesses; they cannot punish on the basis of a confession and they are forbidden to punish on circumstantial evidence, as it says “You shall not kill a clean and righteous person”.¹² They are forbidden to punish someone who was forced to commit a sin, as it says “You shall do nothing to the girl (who was raped)”.¹³ On the other hand, they are forbidden to have mercy on one who deserves punishment, as it says “Your eye shall not be merciful”.¹⁴ The courts can administer punishments not specified by the Torah when they deem it necessary to do so.^f

We are commanded to judge justly, as it says “You shall judge your friend with justice”.¹⁵ It is forbidden to commit an injustice, and there are special prohibitions if the person is a proselyte or an orphan, as it says “You shall not do wickedness in judgment”,¹⁵ and it says “You shall not bend the judgment of a stranger, an orphan”.¹⁶ When two parties are involved they must be treated equally; it is forbidden to listen to one of them in the absence of the other, as it says “You shall not carry a false rumor”.¹⁷ It is forbidden to give special consideration to a poor man or a great man or to discriminate against a wicked man, as it says “You shall not lift up the face of a poor man or honor the face of a great man”,¹⁵ and it says “You shall not honor a poor man in his quarrel”,¹⁸ and it says “You shall not bend the judgment of your poor man in his quarrel”.¹⁹ A judge is forbidden to refrain from giving a verdict because he is afraid of retaliation, as it says “You shall not fear any man…”.² It is forbidden to take a bribe even to give a just verdict, as it says “You shall not take a bribe”,²⁰ and it says “Cursed be he who takes a bribe”.²¹ A judge is forbidden to give his verdict on the basis of evidence that he knows to be false, as it says “You shall keep far away from a false statement”.^22,g

It is forbidden to curse any Israelite, and there are special prohibitions against cursing a judge or the king, as it says “You shall not curse a deaf person”,²³ and it says “You shall not curse judges and a prince of your nation you shall not curse”.^24,h