The trouble with courts

Rabbinic courts must bear the fact that the public may slander them.

Rabbi Lazer Gurkow

Judaism לעתירה עשויות להיות השלכות מרחיקות לכת. בית דין רבני בירושלים
לעתירה עשויות להיות השלכות מרחיקות לכת. בית דין רבני בירושלים
Rabbi Lazer Gurkow

In Western culture, the position of judge carries with it a high degree of reverence. The familiar intonation of “all rise” indicates the unique position the judge holds relative to others in society. The dayan, the Jewish judge charged with a litany of tasks concerning the adjudication of Jewish law, as well is considered a person deserving of respect within the world of Judaism. Respecting the dayan, though, seems to be a challenge for many. 

If a person commits certain egregious sins, an additional “sentence” is carried out beyond capital punishment (Devarim 21:22):

“If a man commits a sin for which he is sentenced to death, and he is put to death, you shall [then] hang him on a pole.”

The Torah is indicating that there is an actual positive commandment to have the body of the executed publicly displayed. Such a notion certainly challenges the normative view of respecting the body of the deceased.

Immediately in the following verse, the Torah counters to some extent this commandment (ibid 23):

“But you shall not leave his body on the pole overnight. Rather, you shall bury him on that [same] day, for a hanging [human corpse] is a blasphemy of God, and you shall not defile your land, which the Lord, your God, is giving you as an inheritance.”

The Talmud explains that the amount of time the body is actually left unburied is extremely short, thus avoiding violating the prohibition of leaving the body out for an extended period of time.

There is a bit of tension between these two verses, as we see a clear positive dictate concerning the display of the body, followed by a prohibition to keep the body out for a protracted period of time. If indeed the individual who violated God’s commandment which resulted in capital punishment (and as the Talmud makes clear, referring to the most serious of all violations of Jewish law) abrogates the right to have his body buried, why have the prohibition of leaving the body out? And if leaving the body out is an act of desecration, why permit it at all?

The intuitive answer to why the body should be left out would appear to be some type of deterrent. The very fact that the Torah would mandate this harsh commandment, ignoring the critical precept of treating the body with a high degree of respect, would send a clear message to the Jewish people. 

Why the need then to keep the time of exposure brief?

Rashbam, in his commentary on this verse, offers an intriguing explanation. As noted above, the body would be hanged in a public display. People, seeing this treatment, would curse the judges. They would say that for a “minor” sin, such as collecting wood on Shabbat, a person receives such a treatment. This attitude stems from an overall tendency to slander judges. 

Where does he derive this sentiment from? The initial prohibition of slandering judges is mentioned in the portion of Mishpatim (Shemot 22:27):

“You shall not curse a judge, neither shall you curse a prince among your people”

Rashbam notes the verse is worded in the present tense. Why? To emphasize the idea that since kings and judges are involved in deciding both monetary and capital punishment cases, people normally denigrate them. The paradigm example, per Rashbam, is the commandment above, leaving out the body after the person has been killed.

The concept of a “regularity” in attacking Jewish judges, or dayanim, is a serious problem. The root of this problem can be found in the general mistrust a person has to being judged by his peers. To allow a fellow human such power can be very difficult to accept. At the same time, a person is capable of weighing that concern, and possible mistrust, against the greater good a judicial system supplies for society as a whole.

In matters between mankind, a method must exist to ensure a level of harmony. However, the idea of entrusting people with adjudicating Divine law is a much bigger pill for the average person to swallow. Who has the right to interpret and act upon Divine law? If a person commits an action “against” God, God should be the one to mete out punishment. The notion of a human being endowed with the power to translate God’s will in the form of punishment is something many people have a difficult time accepting.

Since we submit ourselves to God’s will, we recognize this is the form God chose for judgment of His law to be dealt with. Rashbam is pointing out that, nonetheless, there exists within many this underlying question of the validity of the dayanim. This is best expressed in the specific attack offered: a sentence carried out for a “small” sin. Where is the societal harm in carrying on Shabbat, or any other similar religious violation? For man to deal with such lofty matters seems difficult to accept for many Jews.

The act of leaving the body out is what sets off this slandering of the dayanim and the judicial system as a whole. Indeed, one can see some meting out of justice when applied to the carrying out of a sentence. People may be uncomfortable with dayanim passing a sentence of death onto another individual. Ultimately, the punishment is completed with the death of the sinner. Finality should ensue, and yet it is not over. To undermine the notion of respecting the body of the dead, to continue a punishment where the person is no longer to be found, seems like an overextension of the power afforded to dayanim. The idea of deterrence may resonate for a bit, but it is quickly replaced with a skepticism, the path to outright condemnation of the entire Jewish judicial system now in play. 

Rashbam is touching on a problem that has existed since the giving of the Torah and its commandments. The general unease a person has submitting to the authority of others, especially in the area of Divine law, is a force to be reckoned with. The passing of judgment by supposed peers is a projection of authority quite troubling to many people. And this concern is not limited to the system of justice. There is often serious skepticism directed towards spiritual leaders and teachers, who attempt to act as vehicles of God’s will. To submit to authority means, to some people, giving up too much of the self. While we should not turn off reason when submitting to these authorities, we must recognize the importance of their respective roles, and feel comfortable and secure in their participation in the process.