Wyjścia 18:13 Halacha: Shulchan Arukh, Choshen Mishpat & Sefer HaChinukh

The time when Judges sit [in judgment] is from the morning until the end of the fifth hour.¹⁹Shab. 10a: ‘Until when do they sit in judgment? — R. Shesheth said until mealtime. R. Ḥama said, Which Biblical verse (teaches this) ? — For it is written, Woe to thee, O land, when thy king is a child, and thy princes eat in the morning! Happy art thou O land, when thy king is the son of nobles, and thy princes eat in due season, for strength and not for drunkenness! (Eccl. X, 16f) [i.e.,] in the strength of the Torah and not in the drinking of wine.’ (‘Princes’ are taken here as ‘Judges’ who first sit in judgment and then have their meal). Ibid.: ‘The sixth hour is the mealtime for scholars.’ , also O.Ḥ. § 157. Tur writes, ‘until mid-day’ and Maim. (Yad, Sanhedrin III, 1) states, ‘until the end of the sixth hour.’ Caro in B.Yos. states that this is incorrect, for the sixth hour is the mealtime for scholars and ‘after that it is like throwing a stone into a leather bottle’ (Gemara ibid.), i.e., it has no effect or is indigestible. Caro in the present ruling follows Alfasi and Asheri to San. It is quite likely that both Tur and Maim. in using the expression ‘until’ may mean ‘exclusive of’ (עד ולא עד בכלל) i.e., close to midday or close to the end of the sixth hour, so that the mealtime begins for the Judges before the sixth hour is over and is extended into the seventh hour. Eating something before the end of the sixth hour would be equivalent to partaking of something in the morning in which case it matters not if the main meal is postponed (v. Gemara ibid.) — M.E., BaḤ, ShaK. Cf. Kesef Mishneh to Yad ibid. According to Zohar, Mishpatim 122a, one must not sit in judgment after partaking of a meal. Derived from Execute justice in the morning (Jer. XX, 12) and Ye shall not eat with the blood (Lev. XIX, 26). Cf. however, M.K. 14b. Tur at the head of this chapter adds, that originally it was enacted by Ezra, the Scribe, that Courts hold their sessions on Mondays and Thursdays (B.K. 82a) for then people were present since they came to read the Torah. Today, however, all days are similar. Hence, this was not mentioned by Caro — M.E. From that time onward they are not obliged to sit.²⁰Derived from Shab. ibid. ‘R. Ammi and R. Assi were sitting and studying between the columns (of the study-house). From time to time they would knock at the side of the door and say: If there is anyone who has a lawsuit, let him enter and come in. R. Ḥisda and Rabbah, son of R. Huna were sitting in judgment all day and their hearts grew faint (Rashi: they were distressed at not being able to study. Or because they were famished), (whereupon) R. Ḥiyya b. Rab of Difta expounded to them, and the people stood about Moses from the morning unto the evening (Ex. XVIII, 13) ; Can it really enter your mind that Moses sat and judged the entire day? When was his learning done? But this teaches you, Every Judge who judges in complete truth even for one hour, the Bible text credits him as though he had become a partner to the Holy One, blessed be He, in the act of creation. Here it is written, and the people stood about Moses from the morning unto the evening, and elsewhere it is written, and there was morning and there was evening one day (Gen. I, 5).’ According to Rashi’s second interpretation they were not obliged to sit and judge throughout the entire day.

In righteousness shalt thou judge thy neighbour.'¹Lev. XIX, 15. What is considered righteousness of the Law? — It means to regard the two litigants as equals in every respect, [viz., that] one should not be permitted to speak as long as he needs and the other be told, 'Make your speech brief;'²Yad, Sanhedrin XXI, Derived from Sheb. 30a: ‘Our Rabbis taught: In righteousness shalt thou judge thy neighbour (intimates) that one of the litigants should not sit and the other stand; that one be not permitted to speak as long as he needs and the other be told, Make your speech brief.’ In Y. San. III, 9(21c); Y. Sheb. IV, 1(35b) this is derived from Deut. XIX, 17: Then the two men, between whom the controversy is etc.,’ since men means at least two, consequently, two is superfluous (in addition to the fact that there are suits involving more than two litigants), but it teaches that the litigants be treated as two equals. It would likewise be forbidden even if the Judge were to say only to one of the litigants, ‘Make your speech brief,’ and not give the other litigant instructions to speak at length. However, he may say to both, ‘Make your speech brief or long — BaḤ, M.E., ShaK, A.H. [that] one should not be favourable to one [litigant] and speak soft words to him, and severe to the other [litigant] and speak harsh words to him.³Yad ibid. Derived from Tosef(Z). Sanhedrin VI, 2; Y. Sheb. IV, 1(35b); Y. Yoma VI, 1(43b): ‘He (the Judge) should not be forbearing (מאריך פנים) towards one of the litigants, nor severe (Tosef. has מעיין ‘investigative;’ Y. has מעיז פנים ‘insolent’) towards the other, for it is written, In righteousness shalt thou judge thy neighbour.’ Cf. also Ket. 46a: ‘That text (Thou shalt not go up and down as a talebearer among thy people — Lev. XIX, 16) is a warning to the Court not to be lenient with one (litigant) and severe to the other.’ If one of them is wearing expensive garments and the other is wearing shabby garments, they [the Judges] should say to the one who is well dressed, 'Either dress him like you, or dress like him.'⁴Yad ,Sanhedrin XXI, 2. Derived from Sheb. 31a. , text supra § 14, n. 40. Nowadays we are not particular about this — RaShaL, M.E., ShaK a.o. Nor should one [litigant] sit and the other stand, but both should stand.⁵ supra n. 2. According to Tosef(Z). ibid.: ‘The Judge should not make one stand (מעמיד) and the other sit (מושיב),’ whence it follows that if one sits down and the other remains standing of their own accord, it would be permissible — BaḤ. This is however, rejected by Keneseth ha-Gedolah — P.Tesh. If, however, the Court of Law desires to permit them both to sit, they may do so.⁶Sheb. 30a: Tosef(Z). ibid. in accord with R. Judah: ‘Our Rabbis taught: And the two men shall stand (Deut. XIX, 17): it is a religious duty that the litigants stand. R. Judah stated: I heard that if they (the Judges) desire to permit them both to sit, they may do so.’ Although R. Judah represents an individual opinion and we would ordinarily rule in accordance with the Rabbis who represent the majority, nevertheless, since the second Baraitha (v. supra n. 2) and all the cases cited in Sheb. 30a,b harmonize with R. Judah’s view, the law rests with him. The litigants, however, are not permitted to sit down of their own accord, and if they did so, the Judge must ask them to rise, and subsequently, if they desire to permit them to sit, they may do so. According to this explanation it is understandable why King Jannai who was summoned to be present during the trial of his slave who killed a man (v. San. 19a) was told by Simeon b. Shetaḥ when the latter noticed that Jannai sat down after he arrived at Court, ‘Stand on your feet King Jannai and let the witnesses offer testimony against you’ (v. San. ibid., Tosaf. s.v. ינאי; Sheb. 30a, Tosaf. s.v. שאם who point out a difficulty which is removed by this explanation) — P.Tesh. Nor should one [litigant] sit on a higher level and the other on a lower level, but one next to the other.⁷Yad, Sanhedrin XXI, 3. Cf. Tanḥ(B). Shofetim VI to Deut. XVI, 19: Thou shalt not respect persons: ‘(This text) is a warning to the Nasi not to seat one who is worthy to be (only) on a lower level — on a higher level, and one who is worthy to be on a higher level — on a lower level.’ However, this text implies that it would be permissible to seat one on a higher level who is worthy of this honour and likewise one who only deserves to be seated on a lower level should not be seated higher than his position demands. Hence, this text contradicts our present ruling. Nevertheless, since we deal in our ruling with individuals who are considered equals, therefore our text does apply (v. ‘Eẓ Yosef in cur. edd. of Tanḥ.). Should, however, one litigant stand on a higher level and the other on a lower one, it does not matter — M.E. The underlying reason for regarding the litigants as equals is in order to avoid disheartening on the part of a litigant who is not treated as an equal and thereby forgets his pleas. When does this apply?⁸That if the Court desires to permit them both to sit, they may do so. — At the time of the discussion of the pleas,⁹Sheb. 30b: ‘R. Huna sated: The controversy of opinion is with respect to the time of the discussion (i.e., while the case is being debated), but at the time of the conclusion of the case (when the verdict is given) all agree that the Judges sit and the litigants stand, for it is written, And Moses sat to Judge the people; and the people stood (Ex. XVIII, 13).’ but at the time of the conclusion of the case, both litigants must stand in the first instance.¹⁰For in the case of witnesses it is only in the first instance that they must stand (v. infra n. 12), but if they gave their testimony while sitting, it is valid ex post facto. , Sheb. 30b: ‘Ulla stated: The controversy of opinion is with respect to the litigants, but with respect to witnesses all agree that they must stand, for it is written, And the two men shall stand … Another version (reads): The controversy of opinion is with respect to the time of discussion, but at the time of the conclusion of the case all agree that the Judges sit and the litigants stand, for witnesses are like the conclusion of the case (when they offer their testimony the case is completed), and it is written with respect to them: And the two men shall stand.’ Hence, the law that litigants must stand at the time of the conclusion of the case is derived from witnesses whose testimony is like the conclusion of the case, and therefore, the law should not be more stringent in the case of the litigants than in that of the witnesses. Consequently, as in the case of witnesses the law that testimony must be offered while standing is applicable in the first instance, but if the evidence was given while sitting it is considered valid ex post facto, so too, in the case of the litigants it is valid ex post facto if presented in a sitting position. What is considered the conclusion of the case? — [When the verdict is pronounced,] '[So-and-so, You are not guilty,' or 'So-and-so, you are guilty.'¹¹Mishna San. 29a. , infra § 19, 1 and cf. supra § 12, 2. [With respect to] the witnesses [the law is that] in the first instance they must always [testify] while standing.¹²Sheb. 30b in accord with ‘Ulla. , supra n. 10; Git. 71a (ref to Mishna ibid. 67b: ‘If one is struck dumb and they said to him, Shall we write a Get for your wife? and he nodded his head, they must test him three times. If for no he said no, and for yes he said yes, they write and deliver it’): ‘In the same manner as he (one who is struck dumb) is examined with reference to a Get, so too, is he tested regarding transactions, testimony and bequests’ (cited from Tosef(Z). VII(V), 1). Testimony is explained by R. Joḥanan in Y. Git. VII, 1(48d) to refer to ‘one who offers testimony while sitting.’ This according to W.G. refers to one who is sick, since one who is struck dumb must have become so as a result of sickness and yet, we see that his testimony is considered valid through the test of nodding the head. Hence, it follows that if one testified while sitting, his testimony is considered valid ex post facto (cf. Tosef. ibid. where חולה ומשותק is mentioned). , also Zeb. 16a and Tosaf. s.v. מיושב. Gloss: And standing by being supported is indeed regarded as standing with respect to this matter.¹³RIBaSh s. 266 — G. Meg. 21a (ref. to Mishna: ‘One who reads the Megillah may do so while standing or sitting’): ‘A Tanna stated: This (namely, that one may read the Megillah while standing or sitting) does not apply to the Torah (the reading of the Torah in public). Whence is this derived? — R. Abbahu said: Because the Scriptural verse states, But as for thee, stand thou here by me (Deut. V, 28) … One verse states, And I sat (ואשב) in the mount (Deut. IX, 9) and another verse states, And I stood (עמדתי) in the mount (ibid. X, 10) — Rab said: He (Moses) stood when he learnt and sat when he reviewed (his learning). R. Ḥanina said: He was neither standing nor sitting but stooping.’ Hence, we see that stooping is designated neither standing nor sitting and yet the verse (I stood) refers to it as standing. Consequently, standing while leaning against something (equivalent to stooping) is still called standing. Leaning would therefore, include both standing and sitting. It is designated standing where this would be the requirement of the law as in the present ruling, and sitting where the law requires it as infra § 28, 26 where standing (in the case of Judges) by being supported is not considered standing but rather sitting in accord with the First Tanna in Zeb. 19b. Cf. E.H. § 169, 45; Zeb. 19b, Tosaf. s.v. וליתיב; Yoma 25a and Tosaf. s.v. אין; Y. Meg. IV, 1(74d). Hence, if Judges who are required to sit, stood by means of some support, or if witnesses who are required to stand, did so only by means of support, we adopt a leniency in both cases and consider standing by means of support in the case of Judges as sitting and in the case of witnesses as standing. This however, would not be valid if in the same lawsuit that is being tried both the Judges and the witnesses stood by being supported — M.E. , however, infra § 28, [26].

And from the laws of the commandment is that which they, may their memory be blessed, said (Shevuot 30a) that it not be that one stand and one sit, but rather both of them stand. As in that they are in front of the court, it is fitting for them to stand as if they were in front of the Divine Presence; since the spirit of God dwells among the congregation of the judges of Israel, as it is stated (Psalms 82:1), “God stands in the congregation of God.” And nonetheless, they, may their memory be blessed, said (Shevuot 30b) that if they wanted to seat the litigants, the option is in their hand. And about what are these words speaking? At the time of give and take. But at the time of the final judgment, there is an obligation to stand, as it is stated (Exodus 18:13), “and the people stood over Moshe.” Except that all of the courts of Israel after the Talmud have become accustomed to seat them [in order to avoid] controversy. And even [regarding] the witnesses about whom it is written (Deuteronomy 19:17), “and the two men stand,” they have also become accustomed today to seat them (Mishneh Torah, The Sanhedrin and the Penalties within Their Jurisdiction 21:5). [This] and the rest of its details are elucidated in [various] places in Sanhedrin and Shevuot. (See Tur, Choshen Mishpat 17.)