The parashah of Shoftim begins with some laws relating to the judicial process.
"You shall not pervert judgement, you shall not show favoritism and you shall not accept a bribe for the bribe will blind the eyes of the wise and distort just words."
You shall not accept a bribe: Rashi: Even in order to judge justly.
What would you ask here?
A Question: Bribes are usually given to influence the judge to decide in a dishonest way, to swing his verdict. If the person giving the bribe thought he was in the right and justice was on his side, he would have little need to bribe the judge. And if, in spite of this, he did give a bribe and the judge thought his case was just, why would this be considered "bribery"? And what is so wrong with it?
Why then does Rashi stipulate that the prohibition of bribery here refers even to the case where one "bribes" the judge to judge justly?
There are really two questions here:
1) What's bothering Rashi, that lead him to opt for an interpretation different than
2) Why is giving money - and accepting it - so that the judge will decide justly,
considered a sin?
WHAT IS BOTHERING RASHI?
Let us take each question separately.
An Answer to #1: The verse already says "Do not pervert judgement," which is the same as swinging a judgement in favor of the one who gave a bribe, if, in fact, he was not in the right. So, if we interpret "You shall not accept a bribe" to mean "don't take money in order to pervert the judgement" then we would have the same prohibition repeated twice in the same verse.
It is for this reason that Rashi interpreted these words in the unusual way he did.
RASHI'S INTERPRETIVE APPROACH
Actually, Rashi is quite consistent in this regard. He sees each phrase in this verse as a different commandment. Look at his comment on the words in this verse:
Do not show favoritism: Rashi: Not even during the deliberations. The is a warning to the judge that he should not be considerate with one and harsh with the other; making one stand and while the other sits, because when he (the defendant) sees that the judge defers to his fellow, his arguments are stifled (i.e. he is not at his best in defending himself) .
Obviously, the simple meaning of "showing favoritism," is to decide the case in favor of the disputant that you favor, even though justice is not on his side. Yet, Rashi does not accept this as p'shat. We see here, as we did above, that Rashi searches for an interpretation that is not identical to "distorting judgement," (its obvious meaning) in order to avoid having the verse repeat the same prohibition, but in different words.
This, by the way, is a basic principle in Torah interpretation. There are no unnecessary repetitions in the Torah. Therefore, when the Torah appears to repeat itself unnecessarily, the commentators, frequently on the basis of the teachings of the Talmudic Sages, search for additional meanings. (For a fuller discussion, see my Studying the Torah: A Guide to in-Depth Interpretation, published by Jason Aronson.)
The SECOND QUESTION: Accepting Money to Judge Fairly
Now let us return to our second question. What is wrong with accepting money to judge justly?
To accentuate the question, I would begin with the following apocryphal tale. A judge talked with two attorneys who were representing two feuding corporations. Turning to attorney A, he said "You have given me $50,000 to judge in your favor. But attorney B has given me $100,000 to judge in his favor. So, I think it only fair that you should give me an additional $50,000, so that I can judge this case on its merits and without bias!!"
This judge was accepting money to judge fairly. Can you fault him?
Hint: Think through logically what it means to decide to judge a case justly.
An Answer: Let us think this through. Who gave this bribe? If it was one of the disputants, then what sense does it make to say that he gave it so the judge would "judge justly"? We would reasonably assume that even if he didn't give any bribe, the judge would also have judged justly. But now that he received money from one side, his chances of being objective and judging without bias are close to zero.
Another possibility is that the judge received money from a third party in order to judge the case justly. As is done today, judges are paid by the government or by some Rabbinical organization. But if such is the case, what is wrong with receiving money in this way? Is this a bribe in any sense of the term?
The Talmud deals with this question explicitly in Tractate Kesubos (105a). Pay close attention their insightful analysis:
"Karna (a Babylonian Sage of the third century) used to take one istra from the innocent party and one istra from the guilty party. And then informed them of his decision. But [the Talmud asks] does it not say 'you shall not accept a bribe'? Perhaps you will answer that the verse applies only where he does not take from both parties since he might be biased towards the party he received from, but Karna took from both parties and he would thus not be biased. But is even this permitted? Have we not learned: What does the verse "You shall not accept a bribe" refer to? Does it mean one should not acquit the guilty nor condemn the innocent? But the Torah already says "You shall not distort judgement." So this verse must refer even to a case where he proclaims the innocent to be innocent and the guilty to be guilty (Note: this is the basis for our Rashi comment) therefore it says "You shall not accept a bribe." You may answer [the Talmud continues] that this only applies where the judge took the money as a bribe (before deciding the case) but Karna took the money as a fee (after deciding the case). But is even this permissible [to take money as a fee for serving as a judge]? Have we not learned that the legal decisions of one who takes a fee are null and void? [Answers the Talmud] This applies only when one takes a fee for pronouncing judgement; while Karna was only taking compensation for loss of work."
The upshot of this passage is a startling and profound condition of the Jewish judicial process. That is that a judge may not take payment even to perform faithfully the task of an honest judge. This means even if the payment comes from a third party or from both litigants. All he is entitled to is compensation for loss of work (income), that he could have earned had he not been occupied judging this case.
This is what Rashi means when says that the command "you shall not take a bribe" is intended even in cases where the judge is asked to judge fairly.
But what would you ask on this law?
A Deeper Understanding of the Torah's Law
An Answer: Why should a salary for a judge, if it comes from the government or from a disinterested third party, be considered a "bribe"? This certainly sounds strange.
Can you think of an explanation for this strict rule?
The Torah's Psychologically Profound Sensitivity to Justice
An Answer: This law shows us the profound psychological sensitivity of the Torah's judicial process. A judge is only human, after all. If a he receives a comfortable salary for his work, he will be cautious to do the "right" and the "politically correct" thing in his legal pronouncements. His advancement within the system is dependent on how his superiors evaluate his work and the leanings of his judgements. Is he politically "Right" or "Left"? Do his decisions square with the legal outlook of his superiors? In such a case, his salary would have hidden strings attached. This would turn his salary into a "bribe" because his legal decisions would not be free of bias.
This is truly an amazing insight. The Talmud is replete with stories of Jewish judges who refused to accept cases because one of the litigants had some innocent, even commonplace, dealing with the judge. (Talmud Kesubbos 105b) . We learn from this Rashi-comment that a judge's bias can come from many quarters, not just from one of the disputants; he can be influenced to judge unfairly in order to keep his job. How then can a Jewish judge support himself, if he is not to take a salary? The Talmudic passage above makes it clear that he is entitled to receive the same salary that he could have earned in the free market doing any other work that he is actually capable of doing. When the judge earns no more money than he could earn otherwise, we can understand that he will feel no threat to his income if he judges a case fairly, even if it goes against the grain of those who pay his salary. If he is fired as a judge because of his judgements, he can always take on a job in his alternative vocation, with no loss in salary. He can truly be objective in judgement.
Such standards are hard to find even in today's enlightened, human-rights sensitive, secular courts. Truth to tell, even our own Jewish courts today could learn much from the morally sensitive standards set by our Sages' laws, as well as by their own personal behavior.
An EVEN DEEPER UNDERSTANDING
This insight helps us understand a question that has puzzled the Rashi-commentators. Rashi's very next comment seems to contradict our comment here. Rashi's next comment is:
Because the bribe blinds: Rashi: Once he accepts a bribe from him, it is impossible that his ( i.e. the judge's) heart would not be inclined towards him to search for his merits (in this case).
The question asked is: If Rashi had previously said that our verse is speaking of a case when the judge is bribed to judge justly, then why should we fear that he would be inclined to search out the "briber's" merits. Has he not already stipulated that, in spite of the bribe, he will judge the case justly ?
In light of our comment above, we can understand the psychological subtlety that is involved here. Let us take this analysis step by step. The judge has agreed to accept a bribe with the clear proviso that he would never the less, judge the case justly. Our verse says "bribery blinds the eyes of the wise…" If the bribe was taken consciously and intentionally to decide in favor of the bribe giver, whether he is deserving or not, then there is no "blindness" here. The judge is doing this injustice with his eyes wide open. Therefore we have to interpret the verse as speaking of a case where the judge becomes "blind," that is, he does not see the truth and he is unaware that he is "blinded." Because, as we said, if he were aware of his distortion he wouldn't be considered to be "blind."
To answer our question: The judge may have "honestly" thought that he could maintain his objectivity and in spite of receiving a bribe, he could offer a fair and unbiased decision. But as Rashi here points out, once he accepts the bribe, he is already on the way to becoming blinded. This transformation is natural and inevitable. Once the bribe has been accepted, its' subjective influence on one's perception cannot be controlled. It's human nature.
What’s Bothering Rashi?” is produced by the “Institute for the Study of Rashi.”
The Devarim volume of "What's Bothering Rashi?" is now out and should be at your Jewish bookstore. Ask for it. This volume features Rashi and the Ba'alie Tosafos.