The Religious Dimension of Jewish Civil Law

  • Rav Yair Kahn
Translated by David Silverberg
A. "God (Elokim) stands in the divine assembly; among elohim He pronounces judgment" (Tehillim 82:1)
            The Torah refers to Bet-Din with the term, "elohim."  The selection of this term, which generally refers to the Almighty Himself, bears particular significance with respect to the underlying principles of Jewish civil law.  In proclaiming, "for judgment is God's" (Devarim 1:16), Moshe establishes that a Bet-Din draws its authority from the Almighty[1].  In addition, this proclamation denies the ability of a human being to judge his fellow[2].  In this article, I would like to analyze an additional meaning of this description, which relates not only to judges, but also to litigants.  This topic by nature has broad application and sheds light on the basic principles of the Jewish legal system; there is thus room for a thorough discussion analyzing the matter more comprehensively.  In this framework, however, we will focus on one specific sugya in the Talmud, beginning with a point which appears, at first glance, as merely a linguistic detail.
B. "How can both this one and that one come to take a shvuat shav?"
            In the beginning of Masekhet Bava Metzia (2b), the Gemara examines the relationship between the view of Ben-Nanas and the ruling in the mishna, that the two litigants in question take oaths and split evenly the disputed sum.  A similar situation arises in the case of "chenvani al pinkaso," described in the mishna in Shevuot 45a: "What is the case? He said to him, (the storekeeper) … 'Give my employee a sela of money'; he says, 'I gave,' and they say, 'We did not receive.'"  There Ben-Nasas rules that Bet-Din cannot compel the two litigants to take oaths, for "how can both this one and that one come to take a shevu'at shav"?  We should note that although the mishna employs the term "shevu'at shav" ("unnecessary oath"), it seems to refer to a "shevu'at sheker" ("false oath").  A "shevu'at shav" is an oath that serves no purpose, such as one who contradicts the obvious and swears that a given stone is a tree, or even if he swears truthfully that it is a stone, (see Rambam, Hilkhot Shevu'ot 1:4-7).  By contrast, a litigant who tries to cheat and swears falsely violates not the prohibition against uttering a "shevu'at shav," but rather that involving a "shevu'at sheker." (See Chiddushei Ha-Ritva to Shevuot 47b and in our sugya, and Shita Mekubetzet's citation from Mahari Abuhav.)
            Before proceeding, let us examine the relationship between the claims of the two litigants in the case of "chenvani al pinkaso."  The Gemara (3a) asks why the employer must pay twice; given that one of the litigants is undoubtedly lying, we should prefer in such a case to "let the money rest until Eliyahu comes" (meaning, confiscate the money until the issue is resolved).  The Gemara responds as follows:
"There, the reason is that the storekeeper says to the employer, 'I performed the task you assigned to me; what do I have to do with your employee?  Even though he swears to me, I do not trust his oath.  You trusted him when you did not tell me to give him specifically in the presence of witnesses.'  And the employee, too, tells the employer, 'I did my work for you; what do I have to do with the storekeeper?  Even though he swears to me, I do not trust him.'  Therefore, they both take an oath and take [the money] from the employer."
We may infer from this explanation that we relate to each litigant independently.  This perspective indeed emerges from the comments of the Ramban in his Milchamot Hashem in Shevuot (33a in the Rif).  The Ramban draws a distinction between the storekeeper and the employee with regard to this halakha.  The storekeeper must pay his employee "mei-ikar ha-din" – according to the strict halakha, since it is clear that he had owed him payment and the dispute involves only the question as to whether the payment was rendered.  Regarding the storekeeper, however, it is uncertain whether or not the employer ever even incurred a debt towards him.  Therefore, "according to Torah law the law is that he [the storekeeper] leaves in anguish [meaning, he does not receive the money he claims], for this is the law of one who says, 'You owe me money' and the other responds, 'I do not know,' regarding which we rule that he is exempt."  With this argument the Ramban rejects the view of the Ba'al Ha-ma'or, that the employer must pay even the storekeeper on the level of "ikar ha-din."  Indeed, the Ba'al Ha-ma'or's position requires explanation.
            A similar question can be asked on the the Rambam who writes the following concerning the case of "chenvani al pinkaso":
"This oath was instituted by the Sages, and involves taking hold of a sacred item [Sefer Torah], because they both come to take [the money they each claim from the employer].  Therefore, if the storekeeper dies, the creditor collects without an oath; similarly, if the employee or creditor dies, the storekeeper collects without an oath, for in these cases the customer does not lose at all, and makes only a single payment." (Hilkhot Malveh Ve-loveh 16:5)
The Rambam, too, indicates that according to the strict letter of the law, the storekeeper can collect the money he claims without an oath.  If strictly speaking the law stated that the storekeeper in such a case "leaves in anguish," as the Ramban writes, and collects his debt only by force of rabbinic enactment, we could not possibly accept the Rambam's ruling that if the employee dies, the storekeeper collects without an oath.
            As mentioned, the Ramban's view is predicated on a division between two distinct legal questions arising in this case: one between the employer and his employee, and the other between the employer and the storekeeper.  From the Ramban's viewpoint, the employer owes the storekeeper nothing since no debt has ever been confirmed.  On the other hand, we may explain the position of the Ba'al Ha-ma'or and Rambam by addressing these two laws as a single legal question.  Then the two issues become intertwined: the employer owes either the employee or the storekeeper, but certainly not both.  We therefore cannot address the storekeeper independently and grant him the status of the one who says, "I do not know if I ever owed you."[3]
            However, we already noted that the sugya on 3a indicates that we must, indeed, isolate the law concerning the storekeeper from that regarding the employee, in accordance with the Ramban's position.  We might suggest, however, that the Gemara there deals with the obligation of the employer.  With respect to his obligation, we cannot combine the employee and the storekeeper.  The employer has obligated himself towards each, irrespective of his obligation to the other.  We therefore cannot excuse him and leave the case unresolved, which punishes one claimant at the expense of the other.  Nevertheless, in approaching this case, Bet-Din cannot overlook the complexity of the situation and the interdependence between the two claims against the employer.  The court must therefore issue a single, consistent ruling that addresses the entire situation as one legal case.[4]
            According to this approach, which merges the two claims and perceives the Bet-Din's ruling as an integrated ruling, it is no longer difficult to understand why the Gemara refers to the oaths o the employee and storekeeper as "shevu'ot shav."  True, one oath will be a truthful oath, and one will undoubtedly be false.  However, combining the two oaths together creates an oath affirming an impossible situation, similar to an oath regarding a stone that it is actually wood.  Indeed, the Ritva writes:
"Rashi z"l explains – it employs the term 'shevu'at shav' because we hold that whoever takes an oath to the contrary of that which is well-known to people, this is a 'shevu'at shav'… The explanation to his explanation: when you combine both their oaths, we have here a 'shevu'at shav,' as implied by the formulation, 'Both this one and that one come to take a 'shevu'at shav'." (s.v. de'i ke-Ben Nanas)
            The question, however, remains, why did Ben-Nanas raise the problem of the complex "shevu'at shav," rather than the simple shevu'at sheker?  The answer would appear to be that despite the grave prohibition violated when uttering a shevu'at sheker, it is not excluded from the category of shevu'ot ha-dayanim – the oaths the Bet-Din will demand of a litigant.  Whenever a Bet-Din calls for an oath, there is the risk of a shevu'at sheker.  Therefore, in the case of "chenvani al pinkaso," the fact that a litigant will assuredly violate this prohibition would not prevent Chazal from administering the two oaths.  However, shevu'at shav is excluded entirely from the halakha of shevu'ot ha-dayanim.  And since we have here a combination of two claims, and the two of them give rise to a shevu'at shav, Ben-Nanas feels that we cannot possibly institute such an oath.  But this itself requires explanation: why is a shevu'at shav excluded entirely from the realm of shevu'at ha-dayanim?  It would appear that the answer to this question depends on the nature of shevu'at ha-dayanim in general.
C. "In His Name you shall swear"
            The Rambam writes:
"Just as taking a false or unnecessary oath violates a negative prohibition, so is there a positive commandment for one whom the Bet-Din has obligated to swear to take an oath with the Name, as it says, 'in His Name you shall swear.'  This constitutes a positive commandment, for taking an oath in His great, sacred Name is an expression of service [of God], and it is a demonstration of great honor and sanctification to swear in His Name." (Hilkhot Shevuot 11:1)
The Ramban (in his critique to the Rambam's Sefer Ha-mitzvot, asei 7) disputes this position of the Rambam and claims that the verse, "in His Name you shall swear" merely permits swearing in God's Name, rather than introducing a mitzva in this regard.
            This debate reflects two different outlooks with respect to shevu'at ha-dayanim.  According to the Ramban, we should, in principle, avoid taking oaths altogether, including the oaths ordered by the court.  The concept of shevu'at ha-dayanim establishes the permissibility of using oaths as a means of resolving legal dead ends.  When the two litigants contradict one another, and the Bet-Din has no means of deciding between the two accounts, it is permitted, and even justified, for them to order an oath: "An oath of God shall decide between the two of them."
            Of course, even the Rambam, who classifies shevu'at ha-dayanim as a mitzvat asei, agrees that shevu'at ha-dayanim has no place when another legal recourse is available.  He himself writes in Sefer Ha-mitzvot (mitzvat asei 7), "They explicitly say, 'The Torah said: swear in His Name, and the Torah said: do not swear.'  Meaning, just as the Torah forbids taking an unnecessary oath, and this constitutes a negative prohibition, so does a necessary oath constitute a mitzvat asei."  Nevertheless, in the Rambam's view, in situations necessitating the use of a shevu'at ha-dayanim, the act of taking an oath itself functions as a deep expression of avodat Hashem.
            According to the Rambam's position, we would explain the biblical reference to shvu'at ha-dayanim, "the owner of the house shall approach God" (Shemot 22:7) as an expression of avodat Hashem and the religious experience latent within the procedure of the shevu'at ha-dayanim.  The litigant who takes an oath in court is obliged to elevate himself spiritually and strengthen his religious awareness in anticipation of his oath.  In an instant, the courtroom transforms from a legal forum of arguments and evidence, lies and contention, into a sacred, sublime setting where the Name of God is sanctified as the two sides accept upon themselves the Kingship of Heaven.[5]
            In this vein we should understand the need for "nekitat cheifetz" – taking hold of a sacred object – while taking a shevu'at ha-dayanim.  The Gemara says in Masekhet Shevuot:
"How do we make him swear?  Rav Yehuda said in the name of Rav, we make him take the oath mentioned in the Torah, as it is written, 'And I will have you swear in the Name of Hashem the God of the heavens'… The difference between them is the need for him to hold a sacred item in his hand." (38b)
We may explain that the requirement to take the oath specifically while holding a Sefer Torah relates to the attempt to transform the courtroom setting into a religious environment.
            The question, however, remains, why does the Gemara refer to an oath taken while holding a Sefer Torah with the term, "shevu'a ha-amura ba-Torah" – "the oath mentioned in the Torah"?  According to our approach, we can explain that in order to extend beyond a private religious experience and transform it into a religious event bearing a more general character obligating every litigant as part of Kelal Yisrael, the setting of the oath must be rooted in the divine encounter in which the entire nation was privileged to take part.  This would then explain why the requirement of "nekitat cheifetz" is fulfilled specifically through a Sefer Torah, and cannot be performed with other Scriptural texts.  And although be-di'avad we accept an oath taken while holding tefillin, tefillin also has the status of Torah she-bi'khtav (written Torah), even though it lacks the unique sanctity of a Sefer Torah[6], as the Rambam writes: "He does not repeat his oath, for he held Torah in his hand, and they are like a Sefer" (Hilkhot Shevuot 11:1).  According to our analysis, we are to look upon the litigant taking the oath with Sefer Torah in hand as someone connecting himself to Ma'amad Har Sinai, which comprises part of the eternal heritage of Kenesset Yisrael[7] – "The day you stood before the Lord your God at Chorev" (Devarim 4:10).
            This approach leads us to a novel insight into of a sugya in Masekhet Shevuot (47a) concerning a case where both the claimant and defendant are under suspect of perjury and therefore cannot take an oath.  The mishna determines that in such a case, "chazra shevu'a li-mekoma" – "the oath returns to its place."  According to one interpretation cited in the Gemara, this means that "the oath returns to Sinai," and the defendant is exempt from both an oath and payment.  The Gemara's formulation requires explanation: what does an oath in Bet-Din have to do with Mount Sinai?  Rashi resorts to a far-fetched interpretation in explaining this Gemara.  In light of what we have seen, however, that the entire concept of shevu'at ha-dayanim is rooted in Sinai, quite clearly in a situation where both are under suspect and the oath is canceled, the oath returns, literally, to Sinai.[8]
            What remains for us to explain is the meaning of the verse, "Please place your hand under my thigh, and I will have you swear" (Bereishit 24:2-3), which Chazal interpret as a reference to "nekitat cheifetz."  According to Rashi, in his commentary to the Torah, one can swear while holding any mitzva object.  However, in light of our approach, we may offer a different suggestion.  For Eliezer, "this very day" ("etzem ha-yom ha-zeh" – Bereishit 17:23)) on which all the males in Avraham's home were circumcised, was a religious event and a moment of spiritual elevation.  The day of the berit mila connected Avraham's home with the Almighty.  Consequently, when Avraham orders his servant to take an oath, he demands that he place his hand in the place of the circumcision, so as to connect with that event and that uplifting experience. (Similarly see Bereishit 47:29).
D. "For the people come to me to seek out God"
            This combination between law and religion is indeed highlighted in the unique situation of shevu'at ha-dayanim, but can be found in more routine circumstances as well.[9]  It surfaces already at the earliest stage of Jewish law, in Moshe's response to his father-in-law: "For the people come to me to seek out God.  When they have a dispute, it comes before me, and I decide between one person and another, and I make known the laws and teachings of God" (Shemot 18:15-16).  The people came before Moshe Rabbenu for judgment in order to seek God, and not merely to settle disputes.  There is, at first glance, room to wonder whether or not this connection was broken by Yitro's recommendation, which separated the legal realm from the religious realm.  To see whether or not this is indeed the case, let us look at Parashat Shoftim: "If a case is too baffling for you to decide… you shall arise and go up to the place that the Lord your God will choose… You shall carry out the verdict that is announced to you from that place that the Lord chose" (Devarim 17:8-10).  This section appears within the unit in which the central topic is "the place that the Lord will choose" as a place of communion with the Almighty after Benei Yisrael's entry into Eretz Yisrael.  In this context, the settling of disputes in the place that God will choose testifies to the ongoing merger between the legal and religious realms, at least with respect to the Sanhedrin Ha-gedola in its chamber in the Temple (the Lishkat Ha-gazit).
            Later in Parashat Shoftim, this connection finds expression regarding standard legal cases, as well: "The two parties to the dispute shall stand before the Lord, before the kohanim or magistrates in authority at the time" (Devarim 19:17).  The Talmud Yerushalmi expounds on this verse as follows:
"When people would ask for a judicial hearing before Rabbi Akiva, he would say to them: Know before whom you stand – before the One who spoke and the world came into being, as it says, 'The two parties to the dispute shall stand before the Lord' – and not before Akiva the son of Yosef." (Sanhedrin 1:1) (See also Talmud Bavli Sanhedrin 19a)
            Accordingly, this point applies in every legal case: litigants who come before the judges for a hearing are always considered standing before the Shekhina.  The mitzva for litigants to stand (Shevuot 30a) should be understood within this context.
            It is not only the litigants, who turn to the Bet-Din for guidance and direction, who must stand.  According to the Gemara in Shevuot (30a), the verse "The two parties… shall stand" refers to the witnesses.  In fact, "Ula said: the debate concerns only the litigants; but the witnesses – all views require standing, as it is written, 'The two parties… shall stand'" (30b).  It would appear that even the witnesses who come to testify come and stand before the Almighty.  In light of this, we perhaps arrive at a new understanding as to why a wicked person is disqualified from rendering testimony.  According to Rava, who disqualifies from testimony only a "rasha de-chamas" – a sinner in money-related matters (Sanhedrin 27a), we can explain very simply that we do not accept his testimony because we cannot trust him, given his willingness to lie in exchange for money.  However, the accepted opinion, of Abayei, disqualifies any wicked person, even someone whom we have no reason to suspect of dishonesty.  According to what we have seen, the answer becomes clear: an apostate who eats forbidden food specifically to anger the Almighty is not worthy of standing before Him.  Moreover, one might claim that the entire halakhic concept of the witnesses' trustworthiness is rooted in the religious realm.  Naturally, any wicked person lacks this status and may therefore not qualify.
            On this basis, we can understand why a shevu'at shav is entirely excluded from the realm of shevu'at ha-dayanim.  As opposed to a shevu'at sheker, the prohibition against uttering a shevu'at shav has nothing to do with truth and falsehood.  We noted that the Rambam rules (Hilkhot Shevuot 1:5, based on the Yerushalmi, Shevuot 3:8) that even swearing that a stone is a stone violates the prohibition against taking a shevu'at shav.  The foundation of this prohibition involves the scorn and mockery expressed by such an oath.  Therefore, a shevu'at shav undermines the basic principle underlying shevu'at ha-dayanim, which is rooted in the religious atmosphere generated in the Bet-Din at the time of the swearing.  The entire setting of "The owner of the house shall approach God" would appear as a farce if a shevu'at shav occurs.  Therefore, it was specifically the eventuality of a shvu'at shav that the Ben Nanas couldn't tolerate and he exclaimed: "How can both this one and that one come to take a shevu'at shav?!"
[1] See Abarbanel's explanation.
[2] Based on this, HaGaon HaRav Yosef Dov Soloveitchik zt"l, explained the passage, "Whoever appoints for Israel an unqualified judge is considered as having erected a [forbidden] monument."  See Targum Yerushalmi to Devarim 16:21, and Rambam, Hilkhot Sanhedrin 3:8.
[3] See "Reshimot Shiurim" – summaries of shiurim by Rav Soloveitchik, to Shevuot 47b, citing Rav Chayim of Brisk.
[4] In the famous case of "shenei shevilin," (Taharot 5:5) too, despite the interdependence between the two halakhic queries, Bet-Din can decide for each questioner separately, independently of the other.  When, however, the two ask at the same time, Bet-Din's ruling must address the situation as a whole.
[5] From this perspective, there is room to compare shevu'at ha-dayanim with the oath taken by the sota.
[6] See "Shiurim Le-zekher Aba Mari z"l," vol. 1, p.244, 251
[7] Regarding the congregational Torah reading, as well, Rav Soloveitchik claimed that it constitutes a reenactment of Matan Torah at Sinai.  See Shiurim Le-zekher Aba Mari z"l, vol. 2, p.210.  We should add that according to many Rishonim, Torah reading requires formal "kedushat Sefer Torah."
[8] See commentary of the Ri Migash.
[9] Even if the religious dimension exists in a standard case, we must still distinguish between different levels.  We should note in this context the difference between the verse, "the case of both parties shall come before God" (Shemot 22:8), which relates to regular cases, and "the owner of the house shall approach (lit. near) God" (22:7), which discusses shevu'at ha-dayanim.
[This shiur originally appeared in Hebrew, in Alon Shevut 152.]
Sources for the next shiur #12 Mammon:
1.  Gemara 2b "Leima matnitin de-lo ke-Sumkhus ... sheli hu" (3a) Tosafot s.v. Heikha.
2.  Bava Kama 35a mishna, gemara till "bari u-bari", 46a mishna, gemara till "alav ha-ra'aya".
3.  Bava Metzia 100a mishna, gemara till "lo amar," Tosafot s.v. Ha mani.
4.  Tosafot Bava Metzia 97b s.v. Leima, Tosafot Bava Kama 36b s.v. Zot.
1.  How could the gemara contemplate that, according to Chakhamim, the ruling in the case of our mishna should be "ha-motzi me-chaveiro alav ha-ra'aya?"
2.  What is the logic of limiting Sumkhus to cases of shema ve-shema?
3.  What would Sumkhus rule where one claimed ownership of an object in the sole possession of another?  Why?