וְנִגְּשׁ֣וּ הַכֹּהֲנִים֮ בְּנֵ֣י לֵוִי֒ כִּ֣י בָ֗ם בָּחַ֞ר יְהוָ֤ה אֱלֹהֶ֙יךָ֙ לְשָׁ֣רְת֔וֹ וּלְבָרֵ֖ךְ בְּשֵׁ֣ם יְהוָ֑ה וְעַל־פִּיהֶ֥ם יִהְיֶ֖ה כָּל־רִ֥יב וְכָל־נָֽגַע׃
И придут священники, сыны Левиины—для них Господь, Бог твой, избран, чтобы служить Ему и благословлять во имя Господа; и в соответствии с их словом будет каждый спор и каждый удар.
Shulchan Arukh, Choshen Mishpat
[A Judge who genealogically is] a bastard7Heb. ממזר. On the meaning of this term, v. Mishna Yeb. IV, 13 and E.H. § 4, 13. and even if the three of them [who comprise the Court] are bastards, they are eligible to act as Judges8San. 36b: Mishna: ‘All are fit to try civil suits.’ Gemara: ‘What does all include? — It is meant to include a bastard. Have we not already learnt this before (Nid. 49b), Whoever is fit to try capital cases is also fit to try civil suits. However, there are some who are fit to try civil suits but not capital cases … One was intended to include a proselyte, the other a bastard.’ , supra n. 1. Just as a proselyte may try a fellow-proselyte even if he has to compel the latter to appear before him for trial (v. supra n. 6), so too, in the case of a bastard-Judge. This is derived from Mishna San. 32a: ‘All are fit to try civil suits, but not all are fit to try capital cases,’ which means that as in the case of capital charges, compulsion may be used, so too, in the case of civil suits, the bastard-Judge may use compulsion — Be’er Eliyahu. Caro’s ruling that even if the entire Beth Din is comprised of bastard-Judges they are considered fit to judge, is derived from the expression (San. ibid.) ‘all (הכל) are eligible,’ which is meant to include not only if one of the Judges was a bastard, but even if an entire Court of three consists of bastard-Judges, they are eligible to act as Judges. Thus also Yad, Sanhedrin II, 9. , also Kid. 76b, where it is stated that Judges may be appointed of genealogically ineligible persons save in Jerusalem where only Judges of pure descent were appointed. for everyone.9e., even for legitimate Israelites. Not as in the case of a proselyte who may judge only a fellow-proselyte if the former’s mother was not an Israelitish woman. The bastard-Judge may try even Israelites. This is deduced from Kid. ibid. according to the interpretation of San. 36b. Tosaf. s.v. חדא. For contrary to the proselyte whose mother was not an Israelitish woman and consequently may only judge a fellow-proselyte, the bastard is of Jewish ancestry. Thus also if each one of them was blind in one of his eyes, he is eligible [to act as Judge].10Thus Yad ibid.; N; Ba‘al ha-Maor; R. Sherira Gaon a.o. This refers even to the ‘commencement of a trial.’ Alfasi and Asheri state the reason as follows: Since all other people may conclude the trial by night and the eyesight of one blind in one eye is better by day, consequently, the latter may judge even at the commencement of the trial (M.E.), even ‘in the first instance.’ For if this applies only to the conclusion of the trial, how can there be a conclusion without a commencement of the trial — Lebush and Tummim. Here too, it refers to both one Judge or three Judges blind in one eye — A.H. , supra nn. 6 and 8. The present ruling is derived from San. 34b; Nid. 49b-50a: ‘Our Mishna (that a decision may be given at night) disagrees with R. Meir. For it has been taught, R. Meir would say, What is the meaning of the verse, According to their word shall every controversy and every leprosy be (Deut. XXI, 5) ? What connection is there between controversies and leprosies? Controversies are compared to leprosies: just as leprosies must be examined by day, since it is written, And in the day when raw flesh appeareth in him (Lev. XIII, 14) so must controversies be tried by day; and as leprosies are not to be examined by the blind (even in one eye, v. Neg. II, 3), for it is written, Wherever the priest looketh (ibid. v. 12), so controversies also may not be tried by a blind man (even in one eye only — Yad Ramah) … A blind man who lived in the neighbourhood of R. Joḥanan used to try civil suits and R. Joḥanan raised no objection against it. But how could he (R. Joḥanan) act so (to permit him to judge) ? Did not R. Joḥanan actually say, The Halakah agrees with an anonymous Mishna, and we have learnt (the following anonymous Mishna) : Whoever is fit to judge is eligible to testify. However, one may be fit to testify but not eligible to judge, and R. Joḥanan said that this includes one who is blind in one eye (consequently, R. Joḥanan should have objected to the blind man who acted as Judge) ? — R. Joḥanan found another anonymous Mishna (according to which a blind man may judge): Civil suits must be tried by day and may be concluded by night (San. 32a. Hence, according to this Mishna ‘controversies’ were not assimilated to ‘leprosies.’ Consequently, they were not compared with respect to the unfitness of a blind man either, since there are many whose eyesight is as dim by night as a blind man during the day and yet, it states that they may conclude the trial by night). Why is this anonymous Mishna (San.) preferable to the other (Nid.) ? — If you wish I might say, An anonymous Mishna which expresses the view of the majority is preferable (in Nid. the individual opinion of R. Meir is given; in San. that of the majority of the Rabbis), and if you wish I might reply that it (San.) was taught in the tractate dealing with legal procedure (whereas in Nid. it is cited only incidentally).’ However, one who is blind in both his eyes is ineligible [to act as Judge].11Thus Yad ibid. For only in the case of one blind in one eye is it permissible, whence it follows that one blind in both eyes is unfit to judge, since everyone agrees that it is forbidden to try cases at night (v. supra § 5, 2) and for one blind in both eyes the day too, is like night for him — M.E. ‘Ir Shushan deduces the prohibition against one blind in both eyes from the comparison made between ‘controversies’ and ‘leprosies’ (v. text supra n. 10). This is rejected by M.E., for in San. and Nid. ibid. it was explained that this represents an individual opinion (R. Meir). Furthermore, on this principle, even one blind in one eye would be ineligible. W.G. writes contra M.E. that the eligibility of one blind in one eye is not on account of the comparison with ‘night’ during which a trial may be concluded, for then one blind in both eyes should be fit to judge, but it is rather derived from the general rule in the first part of the Mishna (Nid. ibid.), viz., ‘Whosoever is fit to judge is fit to testify,’ and since one blind in both eyes is ineligible to offer testimony, he is likewise unfit to judge. According to M.E. (who follows Alfasi and Asheri), a Judge whose eyesight was unimpaired at the commencement of the trial and before the trial was concluded became blind, would be eligible to judge at the conclusion of the trial (v. supra); whereas, according to ‘Ir Shushan who compares ‘controversies’ to ‘leprosies,’ he would be ineligible — P.Tesh. An actual case is reported in Keneseth Ezekiel where the litigants were tried by three Judges and after the pleas were heard and the testimony was offered, one of the Judges accidentally became blind in both eyes, whereupon one of the litigants objected to the participation of the blind Judge in the conclusion of the trial. Keneseth Ezekiel after stating the views of the Codifiers, viz., a) Maim. — one blind in both eyes is ineligible to judge even at the conclusion of the trial; b) Tosaf., SeMaG and Mord. — eligible even for the commencement of the trial, c) Alfasi — ineligible for the commencement of the trial, eligible for the conclusion, — ruled in accordance with the last opinion (Alfasi). Hence, the Judge in the above case who became blind in both eyes before the conclusion of the trial, is eligible to judge together with the other two judges and give a decision. BaḤ also states that ex post facto (בדיעבד) the decision of one blind in both eyes is valid. Moreover, the above case may be considered as ex post facto, since the pleas and testimony were already heard before the accident happened. In addition it may be said that since three Judges were present, then even if the decision of the now blind Judge is not valid, yet, on the basis of BeHaG and Tosaf. who accept Samuel’s dictum, ‘If two Judges tried a case, their decision holds good’ (San. 2b. Cf. supra § 3, 2), the recalcitrant litigant may be compelled to accept their decision. However, according to Tummim, Nethiboth a.o., even if the Judge became blind at the conclusion of the trial, he is ineligible — P.Tesh. One whose eyesight is very dim but is not blind may act as Judge. According to the majority of the Codifiers who rule that one blind in both eyes is unfit to judge, support for this may also be found in the following passage in Ket. 94b: ‘(R. Joḥanan) said (to R. Shesheth who was totally blind), I am a Judge and the master is no Judge,’ i.e., R. Shesheth had no right to render a decision in a certain case mentioned ibid. Cf. Rashi ibid. — P.Tesh.