Being a judge is not easy. They are often faced with tough decisions that affect the lives of the litigants who appear before them. It should be expected, then, that those who become judges must be sufficiently qualified. But what sort of qualifications should be required?
This week’s parsha, Devarim, mentions some of the qualities required for being a dayan––a Jewish judge. One of the primary criteria is that the individual be a chacham, a wise man.(1) It is not clear, however, whether this “wisdom” refers to actual legal knowledge or simply the ability to make wise determinations. In this post, we will take a look at whether judges in the American and Jewish judicial systems must have a formal legal education or some other background in the law.
First, let’s take an example from the American judicial system. New Mexico county magistrates have jurisdiction over civil claims of up to $10,000 and criminal misdemeanors.(2) That gives them significant authority over the property of litigants and the liberty of criminal defendants. So what are the requirements to become a county magistrate in New Mexico?
“No person is eligible for election or appointment to the office of magistrate unless he has graduated from high school or has attained the equivalent of a high school education . . . .”(3)
That’s it. Not admission to the bar, a J.D., or even a college degree. Only graduation from high school. Similarly, in more than 50 of the 75 municipal courts in the state of Indiana, judges are not required to be attorneys.(4)
Shouldn’t a judge be required to have at least some legal background? Perhaps one of the reasons for these simple qualifications is the fact that court dockets are overcrowded and more judges are needed to keep the court system running smoothly. Attorneys are not always willing to become judges because of the low salaries afforded to members of the judiciary. Also, states may not be able to afford to raise judicial salaries to attract more attorneys.(5)
This problem is by no means a new one. Talmudic and post-Talmudic sages have grappled with this issue for centuries. The Gemara in Sanhedrin concludes that although some matters must be adjudicated by a beis din comprised of “mumchin” (experts who have received semicha)(6), common cases, such as loan disputes, may be heard by a beis din of three “hedyotos” (commoners).(7) One of the reasons for this leniency is so that lenders will not discouraged from lending money due to the difficulty in finding qualified judges to hear the case.(8) Another consideration is the likelihood that the local courts will be busy with other cases.(9)
There is, however, a debate regarding the level of legal knowledge that a beis din of three hedyotos must possess in order to be qualified to render a decision.(10) Rabbeinu Meir HaLevi (רמ”ה) maintains that each of the three hedyotos must be learned. In contrast, the Rosh holds that only one of the three must be learned, the other two need not be.(11) The Rema rules in accordance with the opinion of the Rosh.(12)
As for the extent of legal knowledge that the learned member of one of these battei din must possess, it seems that the standard is not that high. Many authorities say that all that is required is a general knowledge of the principles underlying monetary halacha, gained from overhearing sages or reading books.(13) Others, though, rule that the learned member must have actual knowledge of the applicable laws acquired from formal instruction.(14)
(1) Devarim [Deuteronomy] 1:13. For other qualifications, see Rambam, Mishne Torah, Hilchos Sanhedrin, ch. 2, § 7.
(3) New Mexico Code 35-2-1. However, in a county with a population of over 200,000, a magistrate must be admitted to the state bar.
(5) Smith, supra note 4.
(6) Semicha in this context refers to the chain of ordination stretching back to Moshe Rabbeinu. See Rambam, Mishne Torah, Hilchos Sanhedrin, ch. 4.
(7) Sanhedrin 2b-3a.
(8) Sanhedrin 3a.
(9) Yad Ramah, Sanhedrin 3a.
(10) This debate is grounded on the disagreement between Rava and Rav Acha brei D’Rav Ikka concerning whether the Torah requires 3 mumchin or only 1. See Sanhedrin 3a; Bach, Choshen Mishpat § 3.
(11) See Tur, Choshen Mishpat § 3.
(12) Rema, Choshen Mishpat, §3(1).
(13) Rashi, Sanhedrin 3a, s.v. De’Gamir; Rosh, Sanhedrin § 1; Bach, Choshen Mishpat § 3; Sefer Meiras Einayim (סמ”ע), Choshen Mishpat § 3(2).
(14) Maharam Padua, Responsa § 43; Sifsei Kohen (ש”ך), Choshen Mishpat § 3(2).