The Necessity of Justice in the Presence of the Shechinah by Ned Krasnopolsky ('19)

Editors’ Note: The following article is based on a Shiur given by Rabbi Daniel Fridman to his Y17C Gemara Shiur at TABC.

Introduction

The Gemara (Sanhedrin 7a) records, “R. Shmuel bar Nachmani said in the name of R. Yochanan: Any Dayan who judges in accordance with Emet (absolute truth) causes the Shechinah to rest among Yisrael, as (Tehillim 82:1) states ‘Elohim Nitzav Ba’Adat Eil BeKerev Elohim Yishpot’, ‘God stands in the divine assembly; among the divine beings He pronounces judgment.’ And any Dayan who does not judge in accordance with Emet causes the Shechinah to remove itself from Yisrael, as it is stated (Tehillim 12:6), ‘Mishod Aniyim MeAnkat Evyonim, Atah Akum Yomar Hashem’, ‘For the oppression of the poor, for the sighing of the needy, now will I arise, says the Lord.’” Clearly, the Almighty is concerned with the wellbeing of His people, and thus demands absolute truth in His subjects’ system of judgement. He will dwell only where true justice presides. The institution of Beit Din is carefully calibrated to reflect this requirement.

The Shechinah as a Source of Din

In Parashat Shofetim, the Torah records, “Shofetim VeShoterim Titein Lecha BeChol She’Arecha Asher Hashem Elokecha Notein Lecha LeShevatecha VeShaftu Et Ha’Am Mishpat Tzedek”, “Shofetim and Shoterim you shall appoint for yourself in all of your cities that Hashem, your God, is giving you for your tribes; who will judge the people righteous justice” (Devarim 16:18). This is the source, according to the Gemara (Sanhedrin 16b) for the appointment of judges and officers to a national court, tribal courts, and municipal courts. On the other hand, Rambam (Sefer HaMitzvot 176) writes that there exists a secondary source for the institution of a judiciary-- the Divine mandate given to Moshe to establish a Beit Din of seventy elders, as recorded in Devarim 11:16: “VaYomer Hashem El Moshe, Esfah Li Shiv’im Ish MeZiknei Yisrael”, “and God said to Moshe, gather for Me seventy men from the elders of Yisrael.” A parallel Rambam (Hilchot Sanhedrin 1:3) cites the same verse as the source for instituting a High Court.

Essentially, the Shechinah transferred itself onto the seventy elders, and Moshe Rabbeinu acted as the conduit. Their investiture gave them the power to adjudicate. This Beit Din was known as the Beit Din HaGadol, or Sanhedrin. Rambam notes (Hilchot Mamrim 1:1) that “the Beit Din HaGadol that resides in Yerushalayim represents the essence of the Oral Torah. Its members are the pillars of direction; law and order emanate from them to all of Yisrael… Anyone who believes in Moshe, our teacher, and in his Torah, must relate religious practices to them and lean upon them.” Thus, Rambam views the Sanhedrin’s connection to Moshe, and therefore the Shechinah, as an integral source of their judicial power. Since the Shechinah is a source of their judicial license, the ideals of the Shechinah must be reflected in their judgements, those being Emet (absolute truth), and its derivatives: Tzedek U’Mishpat-- justice and lawfulness.

In order to ensure that justice is fully carried out under the auspices of the Almighty, the judiciary’s connection to the Shechinah must be continuous. After all, “Ki HaMishpat Elokim Hu”, “for judgment is God’s” (Devarim 1:17). Therefore, Rambam notes that the Sanhedrin only has the ability to adjudicate capital cases when the Beit HaMikdash stands, and when the Beit Din resides within Yerushalayim. Without the Shechinah in Yerushalayim, the entire justice system operates on a diminished level. The Sanhedrin derives its power from the presence of the Shechinah in the “Makom Asher Hu Yivchar”, “the place that He has chosen.” On the other hand, as established by Sanhedrin 7a, the Shechinah demands the presence of truthfulness in judgement wherever it dwells.

The relationship is reciprocal in nature: a fully operational Sanhedrin requires the presence of the Shechinah, and the Shechinah requires the presence of a Sanhedrin that adjudicates with a sense of absolute truth. Their sense of truth is derived from, and maintained by the Shechinah. This mandate for truth actualizes itself in the Biblical prohibition established by Devarim 16:19: “Lo Tateh Mishpat, Lo Takir Panim, VeLo Tikach Shochad; Ki HaShochad Yi’aver Einei Chachamim Visaleif Divrei Tzadikim”, “Do not pervert justice; do not display favoritism; and do not accept bribery, for bribery blinds the eyes of the wise and distorts words that are just.”

The Exportation of the Shechinah through the Sanhedrin into Eretz Yisrael

The requirement of absolute justice is also realized through the obligation to institute courts throughout Eretz Yisrael. While Yerushalayim serves as the center of justice, as demonstrated by the presence of the Sanhedrin, the Shechinah demands an exportation of justice from the Beit HaMikdash into the surrounding land to ensure that justice is truthfully and ubiquitously administered throughout the nation of Israel. First of all, the Sanhedrin is tasked with forming the lower municipal and provincial courts (Rambam Hilchot Sanhedrin 5:1). Once a lower court is established by the Sanhedrin, the lower court is unable to create other courts. Only the Sanhedrin, the court closest to the Shechinah, is able to establish new courts. The Gemara (Sanhedrin 16b) elaborates that the system of investing courts with judicial power is modelled after Moshe’s investiture of the original Sanhedrin, during which he acted as both a conduit, and as a full Sanhedrin.

When a lower court is uncertain of its verdict, it must travel to Yerushalayim so the Sanhedrin can settle the case, and so the lower Beit Din can learn how to adjudicate similar cases. As noted by Rambam (Hilchot Mamrim 1:1), in a case of uncertainty, the lower Beit Din travels through a hierarchy of courts. First, it travels to the Beit Din on Har HaBayit. If the case remains unresolved, all of the litigants and judges travel to the next higher court, until they arrive at the Beit Din HaGadol within the Lishkat HaGazit in the Beit HaMikdash. This protects the integrity of all judgements made throughout Eretz Yisrael, as it ensures that all courts are continuously connected to the Beit Din HaGadol in Yerushalayim, and consequently, to the Shechinah itself.

Different Standards of Din Inside and Outside of Eretz Yisrael

As the Shechinah rests in Eretz Yisrael, it is expected that a higher standard of Din would be present throughout the land. This is in fact true, both in terms of ubiquity and judicial process. First of all, the Gemara (Makkot 7a) establishes that the Sanhedrin has jurisdiction inside and outside of Eretz Yisrael. However, it notes that in Eretz Yisrael, there is an obligation to establish Batei Din in every province and municipality, while outside of the land, “Atah Moshiv BeChol Pelech U’Pelech, Ve’I Atah Moshiv BeChol Ir Va’Ir”, “you establish courts in each and every district, but you do not establish courts in each and every city.” Rambam’s formulation of this Gemara is rather difficult; he writes that Beit Din Shel Pelech is not a requirement outside of Eretz Yisrael, and he makes no mention of municipal courts (Hilchot Sanhedrin 1:2). The Kesef Mishneh and Lechem Mishneh (ibid.) both argue that he must have left out the word “Ela”, thereby interpreting the Rambam as stating that the Beit Din Shel Pelech would be the only required Beit Din outside of Eretz Yisrael. Perhaps the most extreme interpretation of the Rambam is that of the Ramban (Devarim 16), who interprets the Rambam to mean that no formal Beit Din is to be instituted outside of Eretz Yisrael. Clearly, Eretz Yisrael has a higher standard of justice. This necessity for enhanced justice is a direct result of the presence of the Shechinah. Beit Din must be widespread to ensure that everyone has access to the Shechinah. Without courts that will adjudicate cases, the Shechinah will remove its presence from Yisrael. Lawlessness in the land is not a viable option. A lack of justice is a corruption of justice, a lack of absolute truth.

Additionally, the Halachah treats the Batei Din in Eretz Yisrael as having greater judicial merit. The Mishnah (Makkot 7a) records that “concerning one whose verdict was delivered and he was sentenced to death and he fled, and he then came before the same court that sentenced him, they do not overturn his verdict and retry him. Rather, the court administers the previous verdict.” The Mishnah then states, that in “any place where two witnesses will stand and say: We testify with regard to a man called so-and-so that his verdict was delivered and he was sentenced to death in the court of so-and-so, and so-and-so and so-and-so were his witnesses, that person shall be executed on the basis of that testimony.” The Gemara (ibid.) raises an internal contradiction within the Mishnah: in the first case, it is implied that the sentenced individual would be retried if he went to a different court, while the second case implies that the verdict would not be overturned in a different court if two witnesses testify to the first court’s verdict. The Gemara elaborates that the first statement involves a situation in which the defendant fled from Eretz Yisrael to outside Eretz Yisrael, while the second statement involves the reverse scenario. Whenever one flees from outside of Eretz Yisrael to Eretz Yisrael, their original verdict is overturned, “Mipnei Zechutah Shel Eretz Yisrael”, “because of the merit of Eretz Yisrael.” Rambam (Hilchot Sanhedrin 13:7) opines that Beit Din would not overturn the original verdict if the original Beit Din travelled to Eretz Yisrael, implying that the overturning factor is not necessarily a “Zechut” of the land, but rather a change in Beit Din. Ritva (Makkot 7a) explains that “Zechutah Shel Eretz Yisrael” refers to the Zechut HaTzalah present throughout Eretz Yisrael. Perhaps as a function of their judicial proximity to the Shechinah, the Ritva felt that Batei Din in Eretz Yisrael were able to adjudicate on a different level, and thus save the defendant from a verdict not in his favor.

Conclusion

The Gemara on Sanhedrin 7a establishes that in order for the Shechinah to dwell among Am Yisrael, there must be a presence of absolute truth in our judgements. The only way to “judge in accordance with Emet” is to judge in accordance with Halachah and within the broader and proper framework of Beit Din. Any deviation is considered to be a form of corruption, and consequently removes the Shechinah from our midst. The Sanhedrin in Yerushalayim must be continuously connected to HaKadosh Baruch Hu, and justice must be present throughout His land. The very land itself, as a consequence of the presence of God within it, mandates a higher level of justice, and thus provides its inhabitants with a type of judicial protection. Simply put, “Ki HaMishpat Le’Elokim Hu”, “for judgment is God’s”, and it is the Beit Din’s duty to ensure that it remains incorrupt.


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