Midrash su Deuteronomio 1:17

(Deut. 16:18:) “[You shall appoint] judges and law officers.” This text is related (to Ps. 147:19), “He declares His words to Jacob, His statutes and His ordinances to Israel.” “His words” are the words of Torah; “His statutes” are the expositions (midrsahot); “and His ordinances” are the judgments [to Israel]. The Holy One, blessed be He, gave the Torah and the judgments to no one but to Israel alone. And where is it shown? You learn that when Israel and a star-worshiping gentile have a dispute with each other, it is forbidden for Israel to say to the gentile, “Go with me to your courts,”¹Arka’ot; cf. Gk.: archai (“authorities”) or [archeia (“town offices”). because he would be transgressing a prohibition, since it is stated (in Ps. 147:20), “He has not done so for any nation (goy); and, as for His ordinances, they have not known them.” But were not the peoples of the world commanded concerning litigations, since that is one of the seven commandments of the Children of Noah? So what is the significance of (ibid.), “and, as for His ordinances, they have not known them?” These are the fine points of the law (din). As so have we taught (in Sanh. 5:2), “There was once a case that Ben Zakkay cross-examined [witnesses] about fig stems.”²The gemara (Sanh. 41a) explains that a capital offense was involved. Now the Children of Noah are put to death on the evidence of a single witness, with a single judge, and without a warning. [Whereas that is] something which does not exist in Israel, since there are three judges in property cases, and there are twenty-three judges in capital cases.³Sanh. 4:1. Moreover, it is written (in Deut. 19:15), “A single witness shall not be valid against a person….” So there must be an investigation and an inquiry. How do they examine the witnesses? They bring them in and solemnly forewarn them. Then they would examine them again with seven inquiries:⁴Sanh. 5:1. 1. In what week?⁵I.e., week of years, Sabbatical year of the Jubilee cycle. 2. In what year? 3. In what month? 4. On what [day] of the month? 5. In what hour? 6. In what place? 7. Did you forewarn him?⁶This last query is one of various supplemental questions listed in Sanh. 5:1. This is as we say in Tractate Sanhedrin. And so you find among the leaders⁷Parnas. Cf. Gk.: pronoi (“prudent ones”, “those who take forethought”). of Israel that they were praised only for their judging.⁸I.e., in various summary statements about Israel’s leaders, e.g., Judges 4:4; 10:2, 3; 12:7, 8, 9, 11, 13, 14; 15:20; 16:31; I Sam. 4:18; 7:6, 15–17; 8:1, 5–6, 20; I Kings 3:9, it is the fact that they judged Israel that is specifically mentioned. This fact may not always be obvious in modern translations, because they do not always render Shpt as “judge” but by other English verbs, such as “govern” or “rule.” It is written concerning Samuel (in I Sam. 7:6), “And he went on a circuit year by year to Bethel, [Gilgal, and Mizpah; and he judged Israel in all those places].” And David also was praised only for his judging, as stated (in I Chron. 18:14 // II Sam. 8:15), “And David reigned over all of Israel and he administered judgment and righteousness to all his people.” And in the case of Jehoshaphat also, when he was installed in the kingship, he did not occupy himself with the business of kingship nor with honor but with the business of judging.⁹Note that Jehoshaphat’s name means, “The LORD has judged.” It is so stated (in II Chron. 17:1), “Then [his son] Jehoshaphat reigned [in his stead,] and he strengthened himself over Israel.” What is the meaning of “and he strengthened himself (rt.: hzq)?” That he strengthened himself, when he appointed judges. It also says (in II Chron. 17:6), “His heart was exalted in the ways of the Lord, and in addition he removed the high places and asherim from Judah.” Was there a haughty spirit within him, in that it says, “his heart was exalted?” It is simply that he had appointed judges over them who knew how to walk in the ways of the Lord, as stated (in Gen. 18:19), “and to keep the way of the Lord, to do what is just and right.” (II Chron. 19:6:) “Then he said unto the judges,” (in Deut. 1:17), “As justice belongs to God.” Now if Moses our master, who was not commanded concerning judges,—rather Jethro told him (in Exod. 18:21), “And you shall seek out [able men] from among all the people…,” — [if he] convened a Sanhedrin;¹⁰Gk.: synedrion. how much more [important is a Sanhedrin] in our case, when it has been commanded here in the Torah (in Deut. 16:18), “You shall appoint judges and law officers for yourselves.” Where is it shown that Moses convened a Sanhedrin? Where it is stated (in Exod. 18:25), “So Moses chose able men from all Israel [and appointed them as heads over the people].” And Jerusalem also was praised only because of the justice system, as stated (in Ezek. 16:14), “And your name shall be spread among the gentiles because of your beauty, [as you were crowned with adornment (rt.: hdr)].” And what adornment (rt.: hdr) is that? This is the justice system, since it is stated (in Exod. 23:3), “Nor shall you favor (rt.: hdr) someone poor in his lawsuit.” And Jerusalem was destroyed only over perversion of justice, since it is stated (in Ezek. 22:5), “you with a besmirched name; you who are full of commotion,” the name for justice that you had at first is besmirched. It is also written (in Is. 1:21), “she (i.e., Jerusalem) was full of justice, there righteousness dwelt; but now murderers.” Because “she was full of justice, there righteousness dwelt.” For this reason, Jeremiah said to them (in Lam. 4:12-13), “The kings of the earth did not believe, [… that foe or enemy would come through the gates of Jerusalem]. It was for the sins of her prophets and the iniquities of her priests [who shed the blood of the righteous in her midst].” At that time the Holy One, blessed be He, swore that He Himself would exact retribution from the judges, as stated (in Is. 1:24), “Therefore thus says the Lord, the Lord of hosts, the Most Mighty of Israel, [‘Ah, I will exact vengeance from my foes]….’” Now “therefore” can only be a term [related to] an oath, since it is stated (in I Sam. 3:14), “And I therefore swear to the house of Eli.” Moreover, mighty can only be a term for the av bet din (head of the court), since it is stated (in I Sam. 21:8), “the most mighty of the shepherds [that belong to Saul].” [This is] to teach you that the Holy One, blessed be He, became an av bet din in order to exact vengeance from them. And where is it shown that the text is speaking about judges? See what is written after it (in Is. 1:26), “And I will restore your judges as in the beginning.” Therefore David has said (in Ps. 147:19), “He declares His words to Jacob, [His statutes and His ordinances to Israel].”

(Fol. 6b) R. Eliezer, the son of R. Jose the Galilean, says: "A court is forbidden to attempt an arbitration, and the [judge] that makes settlements commits a crime; and he who praises the mediators despises the law, as it is said (Ps. 10, 3) The robber blesseth himself when he hath despised the Lord, but let the law cut through the mountain (justice under all circumstances), as it is said (Deut. 1, 17) The judgment belongs to God." And so said Moses our master: "Let the law cut through the mountain." But Aaron [his brother] loved peace, ran after it, and used to make peace between a man and his associate, as it is said (Mal. 2, 6) The law of truth was in his mouth, and falsehood was not found on his lips, in peace equity he walked with Me, and many did he turn away from iniquity. R. Eliezer says: "If one had stolen a saah of wheat and had ground, kneaded and baked it, and separated the heave (Challa) of it, how can he recite a benediction over it? For not only is it not a benediction, but it is rather a blasphemy! Concerning this, the passage reads (Ps. 10, 3) The robber blesses … . despises the Lord." R. Maier says: "The passage, the robber, etc., refers only to Juda, for it is said (Gen. 37, 26) And Judah said unto his brothers, 'What profit (betza) will it be if we slay our brother?' And whoever praises Juda [for his advice] despises the Lord; and concerning him is said: He who blesses Botzea despises the Lord." But R. Joshua b. Karcha said: "On the contrary arbitration is a meritorious act, as it is said (Zech. 8, 16) With truth and the judgment of peace, judge ye in your gates. How is this to be understood? Usually, where there is judgment, there is no peace; and where there is peace, there is no judgment. It must then refer to arbitration, which brings peace. The same must be explained about David, concerning whom it is said (II Sam. 8, 16) And David did what was just and charitable unto all his people. How can these five terms be reconciled? For a thing that is just is not charitable, and if charitable then it is not just. We must therefore say that it refers to arbitration, which contains both." The first Tanna, however, [who said above that arbitration is prohibited], explains the passage thus: He, (David), judged in accordance with the strict law — he acquitted him who was right and held him responsible who was guilty, according to the Law; but when he saw that the loser was poor and could not pay, he used to pay from his own pocket. Hence he did justice to one and charity to the other. Rabbi, however, pointed out the following difficulty, it is written. Unto all his people, and according to the above explanation, it ought to be to the poor. Therefore, said Rabbi: "Although he did not pay from his pocket, it was nevertheless counted as justice and charity; justice to the one, for having returned his money; and charity to the other, for delivering the theft out of his hand." (Fol. 7) All the Tannaim mentioned above differ with R. Tanchum b. Chanilai, who said: "The above-cited verse (Ps. 10) was quoted in reference to the golden calf, of which it is said (Ex. 32, 5) And when Aaron saw this. What did he see? R. Benjamin b. Jepheth said in the name of R. Elazar: 'He saw Chur, who was lying killed before him.' And he thought: 'if I do not listen to them, they will do likewise unto me, and will bring about such a condition as is said (Lam. 2, 20) Shall there be slain in the sanctuary of the Lord the priest and the prophet; for which there shall never be a remedy. It is better for them that I should make the golden calf, and for that probably there will be a remedy by repenting.'" [Hence the above passage].

(Ib. b) R. Simon b. Menasia says: "If two come with a case before you, prior to the hearing of their claims, and even thereafter, but before you are aware which way the judgment will incline, you may say to them: 'Go and arbitrate between yourselves.' But after you have heard their case and are aware which way the judgment inclines, you must not [advise them to] go out and arbitrate, as it is said (Prov. 27, 14). As one letteth loose [a stream] of water, so is the beginning of strife; therefore, before it be enkindled, leave off the contest; i.e., before it be enkindled, you may [advise them to] leave off, but after the contest had been enkindled you must not [advise them to] leave off." Resh Lakish said: "If two persons came with a case before you, one being mighty [who can harm you] and the other lenient, before you heard their case, or even thereafter, but before you are aware which way the judgment inclines, you may say to them, 'I am not obligated to judge you,' because of fear that if the mighty loses he will pursue you. But after you had heard their cases, and are aware which way the judgment inclines, then you must not say, 'I am not obligated to judge you,' because it is said (Deut. 1, 17) Ye shall not be afraid of any man."