From Parsha to Halakha: Shoftim – What’s considered a bribe?
The Torah has a unique way of weaving law with narrative, halakhic demands with values, and Torah from Sinai with the words of the prophets. The Oral Torah continues this tradition and weaves legal discussions with aggadta (stories and more). At times the connection between the two is difficult to unravel: Is the aggadta connected to the law – an illustration or application? Or is it distinct – surpassing or even contradicting it?
Parshat Shoftim explicitly commands:
“You shall appoint judges and officials in all your gates that the Eternal, your God, gives you for your tribes, and they shall judge the people with righteous justice. Do not pervert justice, do not show favoritism, and do not take a bribe, for bribes blind the eyes of the wise and distort the words of the righteous.”[1]
A similar demand is made in Parshat Mishpatim.[2] Both sources prohibit taking bribes and perverting justice, and demand righteous judgments and distance from lies.
The plain meaning of the text indicates that the problem with accepting bribes is connected to the perversion of justice.[3] Yet in both sources the prohibition against perverting justice comes before the prohibition against bribery, perhaps indicating two distinct prohibitions. Not only is consciously perverting justice prohibited, it’s also prohibited to accept a bribe that could blind the judge and cause them to unwittingly pervert justice.
Since bribery is generally surreptitious and done in secret, it is included on the list of the most egregious of hidden crimes whose perpetrators are cursed in the covenant ceremony on Mount Grizzim and Mount Eival: “Cursed is one who takes a bribe to spill innocent blood, and the entire nation said ‘Amen.’”[4] And when Yitro lists the qualifications of a judge he says they should be, “God-fearing, people of truth who reject ill-gotten gain.”[5] He connects the rejection of unjust gain with the ability to be a trustworthy person of truth.[6] Especially since the Torah tells us to stay away from falsehood.
As a result there are several accounts of Amoraim (Talmudic rabbis) who recused themselves if someone did them a favor, even if no money changed hands, because they were concerned for unconscious bias.[7] Later halakhic authorities debated whether these stories were illustrations of the law, as Rambam maintained, or portrayed judges who went beyond the letter of the law, as Tosafot explain.[8]
These authorities debate if a judge must recuse himself if they somehow materially benefit from the matter or claimants? And is the law different if money changed hands due to a prior debt or something similar?[9] Is a judge permitted to decide for himself whether he can be objective in the matter at hand?[10] The narratives that surround these laws can be interpreted in a number of ways, and it’s not always clear if the pious behavior they describe is a minimum requirement or beyond the letter of the law.
The Tanakh also brings an account of bribery, and the relationship between the narrative and law is once again up for debate. The Book of Shmuel relates that his sons were judges: “And his sons did not follow in his path, and they swayed to ill-gotten gains and took bribes and swayed justice.”[11] In the plain sense it seems that one thing leads to another – they turn away from their father’s path, turn towards monetary benefit, which leads them to actually take bribes from claimants and pervert justice.
Yet Chazal debate what the bribes entailed and whether they actually went as far as to take money. In one explanation, Rabbi Shmuel bar Nachmani quotes Rabbi Yonatan, and explains that they did not follow Shmuel’s path teaches us they did not do as he did and make a circuit through Beit El, Gilgal, and Mitzpeh to judge Israel. Rather, “they sat in their cities to increase the payments to their clerks and scribes.”[12]
While Shmuel traveled from city to city, his sons dwelled in Be’er Sheva. Their clerks would travel and summon people to the court, and the claimants would be responsible for paying their wages. This financial benefit is understood to be an ill-gotten gain. This interpretation can be seen as an apologetic alleviation of their sin – they didn’t actually take bribes, or even directly demand money, but, instead of working hard to serve the people, like their father, they rested on their laurels and created a bureaucracy that cost money.
Later halakhic authorities debate the issue. Rambam rules that such behavior is a form of prohibited financial gain: “Every judge who sits and raises their esteem in order to increase the wages of their clerks and scribes is considered someone who turns to ill-gotten gains; and this is what Shmuel’s sons did…”[13]
According to Rambam, the aggadta about Shmuel’s sons is an expansion of the law. It doesn’t minimize their sin, it expands the type of ill-gotten gains a judge must avoid. It’s not enough to reject bribes and refrain from perverting justice; a judge may not take advantage of their station to receive any type of material benefit. The Tanakh juxtaposes between those who are attracted to ill-gotten gains and the prohibition against taking bribes because both can use the position for financial gain.
Rambam’s position seems to relate to another prohibition against a judge accepting money for rendering judgment.[14] This, in turn, is connected to a rabbinic prohibition against taking money to teach Torah; Moshe taught Torah for free, so should future generations of Torah scholars.[15] Consequently, some explain that if Shmuel’s sons had decided against traveling court because they did not have the means or didn’t want the hassle, it would have been justified and permissible, but this wasn’t the problem. Rather, they stayed in Be’er Sheva so they could use their position to financially benefit their relatives, and this was their sin.[16]
Others explain that Chazal’s aggadic explanations for the sin of Shmuel’s sons do not present halakhic standard practice, but rather teach morality and values. Meiri explains that Shmuel’s sons were judged harshly because they did not continue to act in the pious manner their father did.[17] Others explain that there are multiple, contradictory interpretations of their sin and not every one sets a halakhic precedent, or that the story imparts a general moral standard of behavior beyond the actual halakhic requirements.[18]
Beyond the clear legal demands, the narratives and maxims in the Written and Oral Torah set a high standard of conduct for judges, particularly regarding any type of benefit from their position. Some Rishonim codified these aspects into halakha and ruled they are required of all judges, whereas others left some wiggle room between basic halakhic requirements as explicitly stated by the Torah, and a higher level of piety that is desired, but not necessarily required.
[1] Devarim 16:18-20
[2] Shemot 23:6-8
[3] See Meiri Ketubot 105b
[4] Devarim 27:25
[5] Shemot 18:21
[6] Sefer HaChinukh Mitzvah 83. On the other hand, Chazon Ish, Emunah u’Bitakhon 3:30 states that the prohibition against taking bribes is a law without reason, and judges should not be suspected of perverting justice.
[7] TB Ketubot 105a-106a; Sanhedrin 7b-8a. The prohibition against taking bribes to judge truthfully is discussed in Mishneh Torah Hilkhot Sanhedrin 23:3; Shulchan Arukh CM 9.
[8] Hilkhot Sanhedrin 23:3 (and Kesef Mishnah), as opposed to Tosafot Ketubot 105b s.v. “lo l’man.”
[9] Tosafot Sanhedrin 8a s.v. “psalina lakh”; Bakh on Choshen Mishpat 9; Mishpat HaChoshen 9:1 debate the Shulchan Arukh’s opinion.
[10] Tur and Rema bring Teshuvat HaGeonim, CM 9:2.
[11] Shmuel I 8:1-3.
[12] TB Shabbat 56a
[13] Hilkhot Sanhedrin 23:3. Continues to discuss monetary and verbal bribery. See also Shulchan Arukh CM 9:2; Sefer HaChinukh 83.
[14] TB Ketubot 105a; Hilkhot Sanhedrin 23:5; Choshen Mishpat 9:5.
[15] TB Nedarim 37a and parallels; Mishneh Torah Hilkhot Talmud Torah 1:7; Shulchan Arukh YD Rama 6. See connection in Derisha CM 9.
[16] Taz explains that judges must make the rounds, others say it is no longer customary. See Petach Einayim Shabbat 56a who explains that Shmuel’s sons sinned because they were able to but did not for financial reasons.
[17] Meiri Beit HaBechira on Shabbat 56a; Rabbi Elyashiv on Shabbat 56a MaHadura Kama; Chishukei Chemed Eiruvin 59a.
[18] Drisha and Bakh on Shulchan Arukh CM 10.
