Bring on the bribes / Parshat Shoftim

From the grab bag of news stories during the past week:

A former federal agent at Midway International Airport was sentenced to nearly four years in prison for taking thousands of dollars in bribes to allow foreign workers to stay in the United States illegally.

An attorney arrested earlier this month after accepting $50,000 in cash as part of a payment made in exchange for the lawyer's promise to tamper with a federal grand jury investigation was indicted this afternoon by another federal grand jury.

A judge sentenced the former mayor of the small Arizona border town of Nogales on Monday to 3.5 years in prison for bribery and seven years of probation for fraud… The former mayor was arrested last September at his office in the town of 25,000, about 60 miles south of Tucson, after a five-month FBI investigation. He was accused of accepting bribes to award city contracts without the normal bidding process and to protect contracts already in place.

Accepting a bribe is not only illegal, it undermines the very legal system by doing an end run around it: those who are entrusted with carrying out the law impartially are, themselves, in collusion with those trying to abrogate it. Bribery compromises justice for everyone.

Parshat Shofetim (which means “judges”) opens with a direct attack on judges who accept bribes:

You shall appoint magistrates and officials for your tribes, in all your settlements that the Lord your God is giving you, and they shall govern the people with due justice. You shall not judge unfairly: you shall show no partiality; you shall not take bribes, for bribes blind the eyes of the discerning and upset the plea of the just. (Deuteronomy 16:18, 19)

Torah then summarizes concern with arguably the most famous verse in all Torah: Tzedek tzedek tirdof / Justice, justice, shall you pursue (Deuteronomy 16:20). Why is the word tzedek / justice repeated? Perhaps to remind us that it’s bad enough if individual members of society commit bribery, but if judges accept payola, the entire system of justice is corrupted from the foundation up.

Our Sages discuss this matter of accepting bribes in the Talmud (b. Ketubot 105b).
The discussion opens with a marvelous verse from Proverbs 29:4 -- A king sustains the land through justice, but a fraudulent man [or: one who loves gifts] tears it down. The Sages then their take concern about judicial corruption further, ramping up what a judge is required to do twice.

The first ramping up concerns the emotional state of the judge. R. Dimi cites the verse above in the name of R. Nachman b. Kohen. We might have expected the verse from Proverbs to say, "A judge sustains the land through justice." Why is a king mentioned? R. Dimi brings the teaching of R. Nachman b. Kohen: a judge should be like a king who is not in need of anything (and hence bribes are meaningless to him and do not tempt him) rather than like a priest, who depends upon the people’s tithes to sustain himself and his family, and is therefore far more susceptible to bribes.

The judge’s emotions are obviously a major factor, so the Rabbis continue in that vein:

Raba said: What is the reason for the prohibition against accepting a gift? Because as soon as a man receives a gift from another, he becomes so well disposed toward him that he becomes like the man himself, and no one sees himself in the wrong… R. Papa said: A man should not act as judge either for one whom he loves or for one whom he hates; for no man can see the guilt of one whom he loves or the merit of one whom he hates.

R. Papa alerts us to the fact that our partiality is compromised by our own emotions: when we love or hate someone, when we consider someone a friend or an enemy, we cannot render impartial judgments. No surprise there. The judge must supervise and control his emotions -- about himself -- in order to immunize himself against taking bribes. This is hard enough, but the Rabbis are not finished.

An anonymous statement attributed to the Sages introduces the second ramping up:

Our Rabbis taught: You shall take no bribes -- there was no need to speak of a gift of money [i.e. that is obvious, therefore Torah must be teaching something different] but rather: Even a bribe of words is forbidden.

Judges must guard against verbal bribes because this could undermine his ability to be impartial. What is a verbal bribe? The Gemara provides several examples. The first is recounted by Ameimar and might strike us as trivial.

Once while Ameimar was engaged in judging a case, a feather flew down and settled on his head. A man approached and removed it. “What is your business here,” [Ameimar] asked him. “I have a lawsuit,” he replied. [Ameimar] replied, “I am disqualified from acting as your judge.”

Mar Ukba recounts an even more seemingly trivial case: someone spat on the ground in front of Mar Ukba and a man approached to cover the spittle. Mar Ukba recused himself. More examples are brought, each one involving not the suggestion of a bribe, but rather the appearance of the suggestion of a bribe. For example: R. Yishmael b. R Yose’s tenant farmer brought him a basket of fruit each Friday, but once dropped it off on Thursday. When R. Yishmael inquired about the change, the man said he had a case before R. Yishmael and thought: by the way, I’ll bring fruit to my master. The fruit was not a gift; it was something the tenant farmer brought each week. But in bringing it early, he got R. Yishmael’s attention and suggested that perhaps the judge might consider the early delivery while judging his case. Needless to say, R. Yishmael b. R. Yose recused himself.

The Rabbis tell us to work on our emotions about ourselves, but also guard against our feelings toward other people.

The Rabbis bring these seemingly trivial examples to emphasize the importance of Torah’s requirement to have impartial courts and judges in order to deliver genuine tzedek. They are building geder la-Torah, a fence around the Torah, to protect it from infringement.

The concept of building a fence around the Torah is well known. Here is one mention of the principle in the Talmud:

It has been taught: R. Eliezer b. Yaakov said: I have heard that the bet din (court) may [when it deems it necessary] impose flagellation and pronounce [capital] sentences even where not [required] by the Torah; yet not with the intention of disregarding the Torah, but rather in order to put a fence around it. (Sanhedrin 46a)

Here’s an example of a “fence law.” Torah forbids work on shabbat, but the Sages forbid handling an work implement on shabbat, since doing so could lead one to unthinkingly the tool it in the usual manner.

In the case of bribery, the Rabbis exhort judges to go beyond refusing bribes. They should condition themselves emotionally to feel they neither need nor want the bribe, and they should recuse themselves from a case if there is a verbal suggestion of a bribe, however small and insignificant it may seem.

In the public realm, the message is obvious: public officials of all sorts should avoid even the appearance of wrong doing in order to stay away from genuine bribes and destructive corruption. You hardly need me to cite examples for you of those who did not (although I did at the beginning of this drash). Sadly, there are all too many.

What’s the message for us? The exhortation and examples provided by the Rabbis remind us that we must do work up front -- to cultivate a mindset of concerning our own needs and desires, to control our feelings toward others, and avoid even seemingly trivial events that give the appearance of accepting a bribe -- in order to be able to turn down real and enticing bribes and stay far from corruption. As we wind our way through Elul and approach Rosh Hashanah, we try to be more reflective and introspective in an effort to improve ourselves. That is the hard work and wonderful opportunity the High Holy Days offer us. Each of us has something to work on. In what areas would you benefit by proactively train yourself to think and behave differently? Elul is a wonderful time to begin.

© Rabbi Amy Scheinerman