Bahar - (Judges)

Torah Portion: Shoftim (Judges)

Torah Reading: Deuteronomy 16:18-21:9

Prophetic Reading: Isaiah 51:12-52:12

“A Proper Judicial System”

In this week’s Torah portion we encounter the familiar verse, “Righteousness, righteousness you shall pursue…” (Deuteronomy 16:20) We read elsewhere that we are to execute justice (Zechariah 7:9). We are commanded in the opening verse of the parasha to establish judges and officers in every city.  Therefore it is most obvious that the Torah instructs man to create and maintain a judicial system. It is not acceptable for those who commit a wrongdoing to escape a just punishment. Hence in a biblically based community there will be trials conducted to determine guilt. This is clearly revealed by the verse,

“One witness shall not stand against a man for any iniquity or for any sin, with every sin which a man shall commit according to two witnesses or according to three witnesses a matter shall stand.”  Deuteronomy 19:15

When one studies Jewish Law in regard to due process he will find it harder to gain a conviction in rabbinical court than in a civil court. Why is this? First of all the Torah says that, unlike in many criminal and civil cases in the United States and other countries, a sole witness is not enough. In other words, one lone witness in a matter is actually no witness at all because one witness may not testify on a matter. For every issue connected to the case there must be two or three witnesses.

It seems odd that the Torah says two or three, why not just say at least two and leave it at that? The answer is because two is not enough if there is three or five or a hundred. What the Torah is saying is that not only must there be at least two witnesses, but all
who come forward as witness in a given issue must testify in regard to this issue as a way of testing the testimony. If three witnesses relate the issue one way and two others relate it in a different way then all testimony related to this issue is rendered null and
void. Hence there is no evidence which may be considered by the judge or jury. Today in most non-rabbinical courts the jury or judge can accept as evidence the witnesses they believe are most credible and reject the testimony that they deem to be less reliable.

Another important factor is who can be a witness and provide testimony. In most courts anyone can be a witness. Today it is common for convicted criminals to testify against one another and deals to be offered to guilty individuals which reduce their punishment
if they testify against someone else. In a rabbinical court such agreements are not allowed. Witnesses must be “kosher” witnesses.

What is a “kosher witness”? A “kosher witness” is someone who has a known reputation as a believer in the God of Israel and who applies the word of God to his life. For example, a man who does not keep the Shabbat could never provide testimony in a rabbinical court.

It is obvious that it becomes much harder to find witnesses and thereby convict people of a crime. This is known and accepted because of the strong desire not to convict people of a crime for which they did not commit. In other words, it is better to err on the side of failing to convict a guilty individual based on insufficient evidence, rather than pollute the judicial system with a large number of witnesses that come from a criminal background themselves.

We also read in the parasha, a witness who offers false testimony will not just be punished as someone who committed perjury, but will be punished with the maximum punishment for the crime for which the defendant is being accused (see Deuteronomy 19:16-20).
One can tell a great deal about a country’s spiritual condition by its judicial system.