Wikia

Religion Wiki

Imperative of Legal System

Talk0
34,031pages on
this wiki
LegalSystemsOfTheWorldMap

World distribution of major legal traditions

The Imperative of Legal System for Noahides includes the requirement to set up courts of Justice, and to refrain from any action that would lead to an unjust court decision. Just what are the implications of the Noahide imperative on Justice (Dinim) is the subject of dispute among major authors. On the one hand, authorities like Maimonides says: "They are obligated to set up judges and magistrates in every major city to judge according to the above six laws, to warn the nation [regarding their observance]"[1] which seems to imply that the courts need only uphold the first six laws. Other authorities like Nachmanides disagree, and envision an entire legal system. Still other authorities give the national courts complete freedom to legislate anything as long as it doesn't contradict the seven laws, see Rabbi Yaakov Anatoli below.

The consensus of halacha today is not like Maimonides, but that the non-Jews are free to set up their own system of laws as long as they don't disagree with the seven basic laws. The consensus of halacha today is that the existing national court systems are at least in part Noahide courts; that failing to uphold all seven noahide laws does not invalidate the national court as a Noahide court; that Noahides can fulfill their requirement of the Imperative of Legal System through these courts. The major disagreement among poskim today is if there is any value to the judgments of these national courts beyond their utilitarian value.

Noahide Law is a legal system that encompasses, and is the root of all proper religion and society. Noahide Law does not recognize a distinction between religion and state in terms of law, but contains them both. Most national courts have broken, to various degrees, with any sense of divine sanction for Law, and any attempt to approximate of Divine Law. This is slowly being replaced with a utilitarian, popular law, where legality is defined by majority vote of the population.

Legal System in Jewish Law (for Noahides)Edit

Most rabbinic authorities consider the Seven Noahide Laws a parallel system of general categories of commandments, each containing many components and details.

  • Some rabbinic opinion regards the determination of the details of the Noahide Law as something to be left to Jewish rabbis. This, in addition to the teaching of the Jewish law that punishment for violating one of the seven Noahide Laws includes a theoretical death penalty (Talmud, tractate Sanhedrin 57a), is a factor in modern opposition to the notion of a Noahide legal system. Jewish scholars respond by noting that Jews today no longer carry out the death penalty, even within the Jewish community. Jewish law, in contemporary practice, sees the death penalty as an indicator of the seriousness of an offense; violators are not actually put to death.
  • Other rabbinic opinion holds that penalties are a detail of the Noahide Laws and that Noahides themselves must determine the details of their own laws for themselves. According to this school of thought - see N. Rakover, Law and the Noahides (1998); M. Dallen, The Rainbow Covenant (2003)- the Noahide Laws offer mankind a set of absolute values and a framework for righteousness and justice, while the detailed laws that are currently on the books of the world's states and nations are presumptively valid.

Rabbi Yaakov Anatoli (1194-1256)Edit

When the Noahites were enjoined concerning Justice, they were put under obligation to create legal arrangements .... It is incumbent on the judges to draw up rules of equity that shall be appropriate for that particular country, as exemplified by the manner in which this matter is handled currently by the nations, severally. Likewise, it is incumbent upon merchants and upon the members of the trades to establish regulations for themselves... and whatever emerges as the law in this manner is law, as much as that which is written in the Bible. Furthermore, anyone violating this law violates Scripture, because Scripture commands the individual to accept the decisions of the contemporary jurists. The dictum, "The law of the land is the Law," relates to this concept.[2]

NahmanidesEdit

Nahmanides begins his statement of view by quoting a comment by Maimonides concerning the destruction of the city of Shechern by Simon and Levi in retaliation for the rape of their sister at the hands of the city's favorite son, in the 34th chapter of Genesis:

The Master [Maimonides] explains in his volume on judges [Code, "Laws for Kings" 9:14], that since Noahites are charged with upholding justice - meaning that they must appoint judges who are to rule on their [remaining] six laws in each and every town - and, furthermore, since a Noahite who violates any one of his laws is to be executed by the sword, therefore all citizens of Shechern were fit to die, because Shechern [the son] stole and they all saw and knew it but they did not bring him to justice.
I do not think this explanation is correct. For if so, then their father, Jacob, should have been under obligation to assume a leading role in the executions; and if he was afraid why did he wax angry at his sons to the extent that long after he cursed their fury, he punished them, and he scattered them. Had they not done a good thing, having had faith in the Lord and He granted them success?
Anyway, to my mind, this justice which is enumerated among the Seven Laws of Noah is not limited to the establishment of courts. Rather, it charges the Noahites with laws on stealing, overcharging, withholding salaries, the liability of watchmen, rape, seduction, damages, bodily injury, loans, business transactions, and the like, similar to the laws with which the Israelites are charged. Thus, they place themselves under threat of execution by stealing, or cheating, or raping, or seducing another's daughter, or burning down another's silo, or injuring him, and the like. It is this same law that also obligates them to appoint judges in each town, like the Israelites. However, if they neglect to do this they are not to be executed, because this derives from a positive imperative, and the rule of "Their prohibition [when violated, constitutes grounds for] their execution," applies only for the negative imperatives...[3]

Rabbi Moses Isserles (circa 1500)Edit

Noahide justice does not leave it for each judge or government to develop original principles of equity; rather, a set of such principles are part and parcel of Noahism, under Justice. This idea is further developed, and extended, by Moses Isserles (circa 1500) who reads this very issue into a talmudic argument:

...Rabbi Johanan, [in Sanhedrin 56b,] maintains that Noahites are compelled, under the requirements of justice, merely to uphold the national customs, and to judge between man and man fairly. But Noahites are not compelled to be in consonance with Israel's law, bequeathed by the hands of Moses at Sinai, because Noahic law is purely a law of social accord ... the statutes of Israel are one thing and the statutes of Noah are another.
However, Rabbi Isaac has a different approach. He maintains [ibid.] that Noahic Justice involves the very law which Jews were bequeathed at Sinai ... and it seems to me that the opinion of Rabbi Isaac prevails, because...[4]

Rabbi Aaron LictensteinEdit

After discussing the Seven Laws as Categories, Rabbi Aaron Lichtenstein attempts define which of the 613 laws, based on Maimonides' Book of Divine Commandments, would fall under the Noahide Imperative of Legal System and therefore apply to Noahides, he writes:[5]

Just what are the implications of the Noahide imperative on Justice (Dinim) is the subject of dispute among major authors. All agree however that the following two aspects are implied: (a) that courts shall be established and (b) that any act which contributes to an unjust court decision shall be prohibited. That these two aspects are involved derives from the Talmudic remark to the effect that justice has reference to both (a) required acts of commission and (b) prohibited acts.[6]

The following imperatives from among the Mosaic 613 are implicit in these two aspects of the Noahic law on justice:

1. "...to appoint judges and officers in each and every community." Positive 176.[7]
2. "...to treat the litigants equally before the law." Positive 177.
3. "...to inquire diligently into the testimony of a witness." Positive 179.
4. "...against the wanton miscarriage of justice by the court." Negative 273.
5. "...against the judge accepting a bribe or gift from a litigant." Negative 274.
6. "...against the judge showing marks of honor to but one litigant." Negative 275.
7. "...against the judge acting in fear of a litigant's threats." Negative 276.

Some leniency is extended to the Noahide judge in this connection according to Nahmanides, Pirush al HaTorah (Commentary on the Pentateuch), on Genesis 34:13, who quotes the Jerusalemite Talmud as saying: "Under Israelite law, you may not decline to serve as a judge as long as you are safe from repercussions, but you may decline when you are not safe from repercussions. However, under Noahic law you may decline in any event." Nonetheless, Negative 276 is listed here as having Noahide import because the talmudic quote seems to refer only to the initial refusal to hear a case due to fear of threats, whereas Negative 276 is also addressed at a judge who is already presiding, and who is tempted to render an unjust decision in face of personal danger. The latter surely constitutes a miscarriage of justice. Thus, it seems probable that when Nahmanicles, in reference to Negative 276, writes, - 'Fear no man (in judgment]' is an added feature of Mosaic [not Noahide] law" (ibid.) he means to give a Noahite more latitude in refusing to hand down a decision, but probably he does not mean to sanction an unjust decision.

Possibly, this extra latitude for the Noahite judge finds expression in a situation such as described in the following halakha: "When two litigants - a mild one and a vicious one - approach you with their dispute you may say to them 'I refuse to judge your case,' as long as you have not as yet heard their arguments or, even having heard their arguments, as long as you do not know who is the more likely to win, lest the vicious litigant lose and try to kill you. But once you have heard their arguments and know who is the more likely to win, you may not say 'I refuse to judge your case,' because of the dictum, 'Fear no man'…" (Imperative 415, Sefer HaHinnuch). Nahmanides may mean to sanction the withdrawal of a Noahite judge even after he knows which litigant is likely to emerge victorious. See Joseph Babad, Minhat Hinnuch. New York: Saphrograph, 1950, Part 111, page 76 (Imperative 415): "I think Noahites, too, are implicated in this 'Do not fear' according to Nahmanides…"

Also see Rashi, Sanhedrin 56b last line: "The fear of Me shall be upon you,'implies but not the fear of men, as in Deuteronomy 5,'Fear no man, for judgment is of the Lord,' that is, justice [of the Seven Laws]."

8. "...against the judge, out of compassion, favoring a poor litigant." Negative 277.
9. "...against the judge discriminating against the litigant because he is a sinner." Negative 278.
10. "...against the judge, out of softness, putting aside the penalty of a mauler or killer." Negative 279.
11. "...against the judge discriminating against a stranger or an orphan." Negative 280.

The idea here is to require equal treatment for those who are weak or meek for lack of relatives and friends. However, "stranger" in the Israelite statute, may refer strictly to "proselyte," in which case only "orphan" would have significance for the Noahide law here.

12. "...against the judge hearing one litigant in the absence of the other." Negative 281.
13. "...against appointing a judge who lacks knowledge of the Law." Negative 284.

Cf. Joseph Babad, Minhat Hinnuch. New York: Saphrograph, 1950, Part III, page 76 (Imperative 414): "Perhaps the Noahites too are included in this prohibition, and must appoint only a man who is erudite in Torah with regard to the laws that pertain to the Noahites." Also see remark of Aaron HaLevi, there, who considers Negative 284 a natural component of the pursuit of justice when he writes: ". . . an untutored judge will acquit the guilty and condemn the innocent. The rationale behind this command should be clear to all."

14. "...against the court killing an innocent man." Negative 289.
15. "...against incrimination by circumstantial evidence." Negative 290.
16. "...against punishing for a crime committed under duress." Negative 294.

Cf. Maimonides, Code, "Laws on Kings" 10:2, "A Noahite who is forced - because his life is in danger - to transgress any of his laws is permitted to transgress." At this point it should be noted that the threats in Negative 276 (against a judge acting in fear of a litigant's threats,) are not such threats that constitute a clear and present danger to the life of the judge, or he would probably be permitted to misjudge in order to save his own life.

17. "...that the court is to administer the death penalty by the sword [i.e., decapitation]." Positive 226.
See Capital Punishment in Noahide law
18. "...against anyone taking the law into his own hands to kill the perpetrator of a capital crime." Negative 292.

Naftali Zvi Judah Berlin, Haarnek Shaela (Commentary on Sheiltoth of Ahai Gaon). Jerusalem: Mosad Harav Kook, 1961, volume 1, page 16 (section 2:3). The discussion there centers on how justice may have application for the Noahide lay citizen - for in the main justice seems directed at the presiding jurists. N.Z.J. Berlin concludes that each Noahite "is compelled to desist from enforcement of the remaining six laws except via the court. That is, a witness to a murder may not execute the murderer, but must wait for the trial…" However, another writer disagrees: Babad, in Minhat Hinnuch, Part 111, page 72 (Imperative 409) writes: "The Noahites are not restricted in this way [Negative 2921 but may judge singly and at once." Babad repeats this remark on page 73, ibid.

19. "...to testify in court." Positive 178.

Thus, another example of how each citizen is expected to participate in the quest for justice is when he is called as a material witness. That Noahites are so implicated can be derived from Sanhedrin 57b, as follows: "A Noahite can be condemned on the testimony of a man, but not on a woman's ... Rav Hamnuna raised the following question here, 'You say that a woman is not obligated to pursue Justice? Notice that because a woman is ineligible to testify, Rav Hamnuna concluded that she is under no obligation with regard to Justice. Apparently, when a Noahite testifies in court he is fulfilling one of his obligations under justice.

20. "...against testifying falsely." Negative 285.

If, as in Positive 178 above, a Noahite is under obligation to enlighten the court with his testimony, one may safely conclude that the Noahite has not met this obligation when his testimony leaves the truth unsaid. Cf. Philip Biberfeld, Das Noachidische Urrecht. Frankfurt, 1937, page 64.

Thus, twenty from among the Mosaic 613 have application for the Noahite under Justice. According to Maimonides – and most writers probably would side with him - Justice purports nothing more than the spirit of these twenty items. However, Nahmanides (Ramban) objects. He views justice as signifying much more.

Nahmanides ascribes to justice a compilation of statutes which directs the judge in making the appropriate decision in every case of "stealing ... rape ... bodily injury ... business transactions, and the like." In other words, the Noahic category of justice alludes to an actual code of law.

Most of the statutes to which Nahmanides refers are designated Positive 236 through Positive 246. Would Nahmanides, then, have us add Positive 236 - Positive 246 (and similar statutes) to the twenty listed above? No, for the following reason: When Nahmanides writes "similar to the laws with which the Israelite are charged," he does not mean that the Noahide laws here are the same as the corresponding Israelite laws. He cannot mean this because the talmudic sources specifically differentiate between Noahic and Mosaic law in the very cases Nahmanides enumerates.[8] What Nahmanides must mean is that just as the Israelite code has a definite ruling for each civil dispute, "similarly" the Noahide tradition has a definite – but not necessarily an identical - ruling. That is to say, Noahide justice does not leave it for each judge or government to develop original principles of equity; rather, a set of such principles are part and parcel of Noahism, under Justice. This idea is further developed, and extended, by Moses Isserles (circa 1500) who reads this very issue into a talmudic argument.

Here again caution should be exercised not to misread Isserles to mean that all Noahic and Sinaitic laws are identical, and Isserles himself goes on to make mention of some aspects wherein the two systems differ. Still Isserles, more so than is apparent from the words of Nahmanides, sees the two systems as having a great deal in common. For according to Isserles, the civil laws of the two systems differ only where the Talmudic sources explicitly note the dissimilarity, "but otherwise one should not presume to exclude the Noahite from Mosaic principles."[9]

That Justice should be thought of as referring to a thorough going system containing points of law, as Nahmanides and Isserles see it, is denied by at least one early author. Jacob Anatoli (1194-1256) expresses the view, in his Hamelamed, that the Noahide tradition does not feature a comprehensive code of standard regulations under Justice. Nonetheless, Anatoli could agree to the inclusion of the twenty imperatives which are listed above as features of Noahide Justice. For these twenty are but manifestations of those two aspects by which the talmudic sources define Justice, (a) that courts shall be established and (b) that any act which contributes to an unjust decision be prohibited.

Chaim Clorfene and Yakov RogalskyEdit

According to Chaim Clorfene and Yakov Rogalsky in the "Path of the Righteous Gentile"[10] the Children of Noah are commanded to establish courts of law that will carry out justice and maintain human righteousness and morality in accord with the Seven Universal Laws.[11] A court system that perverts justice by handing down rulings in conflict with the Seven Universal Laws is an instrument for driving God's blessings out of the world. Anyone who fails to establish a court system, that is, who lives in a community or city in which there are no courts, and who does nothing to correct the situation, is punishable by death. One who establishes or maintains courts of law that operate contrary to the Seven Universal Laws is similarly liable.

In the Book of Genesis (34:25), we learn that two of Jacob's sons, Simeon and Levi, slew every male in the city of Shechem. The prince of the community, Shechem, son of Hamor, had raped their sister, Dinah, and the city failed to execute justice by bringing him to a court of law. The city was therefore guilty of transgressing this seventh of the Seven Universal Laws, and every citizen was liable for punishment.

2. The commandment to establish courts of law, though it might appear to be a positive commandment calling for affirmative action, is considered a prohibition. In effect, the commandment to establish courts of law is a prohibition against failing to establish courts of law, because failure to establish appropriate courts inhibits the performance of justice through­out the nations.[12]

3. The only punishment meted out by the Noahide courts of law in criminal cases is the death penalty.[13]

4. One accused of a transgression of the Seven Universal Laws and brought to trial in a Noahide court may be convicted only if he is found to be mentally competent.[14]

5. Every individual must accept a legal decision he has received. It is forbidden for an individual to render a judgment himself (vigilante justice) without going to a court of law.[15]

6. In civil matters, that is, cases between individual parties, later authorities question whether the Noahide is commanded to follow the same principles as Jewish law and Jewish courts, or whether he is to follow rulings established by his own Noahide courts and laws.

Although the Noahide courts are responsibile for only the Seven Universal Laws, not the 613 laws of the Torah, there is an opinion that each decision of the Noahide courts must follow its counterpart in Jewish Law. The accepted opinion, however, is that Noahide judges and courts of law are to render legal decisions according to their own laws and principles of law.

7. Arbitration and mediation or any other means of finding an amicable settlement or compromise, thereby avoiding a court trial, is desirable, and, more than that, it is a commandment to seek compromise.

8. Circumstantial evidence is admissible in the Noahide courts of law.

9. The Children of Noah are responsible for knowledge of the Seven Universal Laws, and therefore one does not have to be warned that he is committing a transgression in order to be accused in a court of law.[16]

10. It is forbidden for a court to have compassion on a murderer, saying that since one person has already been killed, what purpose could there be in killing another? And the court may not delay the execution because of compassion.[17]

11. Similarly, in financial litigation, the court may not have mercy on a poor person, taking the attitude that a rich plaintiff has an obligation to support the poor, therefore finding for the poor defendant so that he will be supported with an honorable livelihood.

12. It is similarly forbidden to pay prejudicial respect to a great person. If two litigants appear in court, one a great wise man and the other a simple person, the judge may not ask about the welfare of the great one nor express pleasure at being in his presence in any way, nor give him honor in any way. Otherwise, the arguments of the simple person would be stifled. He would think, "What's the use anyway?" The judge must not favor either party until judgment is finished. And the sages warn that a judge must not think that since the litigant is so great a person, it is unseemly to embarrass him or see him in his embarrassment.

13. If two litigants appear in court, and one is a righteous person while the other is a wicked person, the judge should not presume that the wicked person will not tell the truth, nor presume that he will not change his ways, and therefore the judgment should go against him.[18]

14. One should not judge unrighteously, acquitting the guilty and condemning the innocent. And a judge who delays the judgment, lengthening the time of the testimony or cross-examination, in order to cause either of the litigants to suffer, falls under the ruling of judging unrighteously.[19]

15. One who judges haughtily, without fearing his awesome responsibility and without due deliberation, and then comes to a decision quickly before he has taken the time to carefully consider the case, is considered stupid, wicked, and coarsely egotistical.[20]

16. The courts should not establish a standard judgment by which numerous cases may be judged according to a precedent system, but should consider each case individually on its own unique merits.[21] (Note: Precedent in legal cases may be followed as guidelines, however.)

17. A case concerning a large sum of money and a case concerning a small amount of money should be given equal and individual consideration.[22]

18. It is a positive commandment to deliver a righteous judgment, treating the two claimants equally in every respect. The judge may not permit one to explain his case at great length while telling the other to keep his words brief. Nor should the judge be pleasant and smile at one while being short and gruff to the other.[23]

19. A judge is forbidden to take a bribe. Bribery will certainly corrupt any judgment. A judge who takes a bribe is obligated to return the bribe if the giver demands it.[24]

20. It is also forbidden to offer a bribe to a judge.[25] The category of bribery is not limited to money, but includes any type of gift or favor.[26]

21. Any judge who sits in judgment and attempts to magnify his importance, even in order to increase the wages of his bailiff or the court clerk, is in the category of one who leans after the wrong things. Once a judge was entering a boat to cross a river. A man who had a case in litigation before the judge was on the boat and stretched out his hand to help the judge aboard. The judge told him, "Behold, I am disqualified to judge your case."

Note: The goal of justice is to function as impartially and righteously as possible, to the ultimate degree. The following section delineates some of the details of the standards of the Jewish Bet Din, the ecclesiastical court. The Noahide courts are not obligated to follow these rules, but must be acquainted with them as points of reference.

22. Two litigants appear before a judge. One is dressed very elegantly with expensive clothing and the other is wearing the clothes of a pauper. The judge should tell the elegantly dressed one, "You should clothe the other one until he is dressed as elegantly as you are, or you should clothe yourself to appear as he does, and then you can enter judgment with him."[27]

23. The litigants should both sit or stand; it is improper for one to stand and the other to sit. If the judge wishes to seat them both, he may do so. If they sit, they should sit side by side, neither one higher than the other, and they may so sit during the entire time that the judge is listening to the case. But when the judge's decision is being announced, then both litigants should be standing. The "decision" is the judge's announcement finding for the defendant and against the plaintiff or for the plaintiff and against the defendant. Witnesses for either side should always stand during testimony.[28]

24. If there are many cases before the judge, the case of an orphan should precede the case of a widow, and the case of a widow should precede the case of a Torah scholar, and the case of a scholar should precede the case of an unlearned man, and the case of a woman should precede the case of a man, for a woman's embarrassment is greater.[29]

25. It is forbidden for the judge to hear the plea of one of the litigants unless the other one is also present. To listen to even one word of the case itself is forbidden. And we warn the litigant that he should not allow his words to be heard before the other litigant arrives.[30]

26. The judge may not hear testimony through an interpreter or a translator, as the truth is reached only by hearing the words of the litigants themselves. He must understand the language of the litigants and hear their testimony and proofs. If the judge does not speak their language fluently, he may use an interpreter to reply to the litigants to inform them of the judgment and the reason he found for this one and against that one.[31]

27. The judge must hear the arguments of the litigants, then review the arguments in their presence to be sure that he understands them clearly. Then he righteously decides the case in his heart, and afterward he reaches the final decision.[32]

28. The judge should not defend the words of the litigant, but he should sit silently as each litigant says what he feels he must. And the judge should not instruct either of the litigants in his presentation of any argument.[33]

29. If the judge sees a favorable point in the case of either of the litigants and the litigant does not know how to bring forth the point, or gets angry and confused to the point of being unable to state his case clearly, the judge may come to his aid slightly and put him on the right track to state the beginning of his case. But the judge must be careful of how he does this so as to avoid instructing the litigant in how to present a meritorious case, for if the judge did this, he would be perverting justice.[34]

30. Prior to the judge's hearing the case, if he feels personally threatened by either of the litigants, he may refuse to sit in judgment. But if he has already heard their words and knows which way the judgment is leaning, it is not proper for the judge to refuse to pass judgment out of fear of one of the litigants.[35]

31. If there is more than one judge in a case, it is forbidden for any of them to say after the trial, "I judged in your merit, but my colleagues found against you and inasmuch as they were the majority, what could I do?”[36]

32. A judge is forbidden to sit in judgment with a colleague whom he knows to be a thief or a wicked person. He must not sit in judgment with another until he knows with whom he is sitting. And no one should sign a contract until he knows with whom he is signing.[37]

33. A judge is forbidden to judge someone he loves, even though it is less than a great abiding love. Nor can he judge one he hates, even though the person is not his enemy. Ideally, the litigants should be equal in the eyes and heart of the judge. If he recognizes neither them nor their deeds, he can render the most honest judgment possible.[38]

34. Men of learning who are contemptuous of each other should not judge a case together. The judgment is likely to be distorted, as the contempt would incline one to contradict the opinions of the other.[39]

35. A judge should imagine himself with a sword resting on his neck and the Pit of Hell open below him. And he should know Who is the Judge and in front of Whom he judges, and Who will seek retribution from him if he strays from the truth.[40]

36. If a judge feels deeply in his heart that one of the litigants is in the right, and there is no proof for it, or if the judge feels that there is deception and trickery afoot by one of the litigants or with one of the witnesses, and there is no proof for it, or if he feels he cannot rely on the words of the witnesses even if he is not able to disqualify them, or if another similar situation arises, then this judge must disqualify himself from the case and be replaced by one who can judge with a whole heart in the matter. But if the judge knows for sure that one of the witnesses is lying, he should not remove himself from the case, but judge it according to his understanding of the truth. And all these things are matters of the heart.[41]

37. If a judge errs in his decision in a financial matter, he should retract his decision, restore everything to its original status, and retry the case. If it is not possible to retract and restore, for instance, one of the litigants went to a foreign land and took the money awarded him, or the like, then the judge is held harmless from making restitution of the money. It is clear that he had no intention of causing damage.[42]

38. Every judge should possess the following seven attributes:

  • Wisdom
  • Humility
  • Fear of Heaven
  • Fear of sin
  • Contempt for money
  • Love of truth
  • Beloved by his fellow man
  • A good reputation[43]

39. When is one beloved by his fellow man? When he views things in a favorable light and is humble, and he speaks and conducts business in a pleasant manner. He should be meticulous in fulfilling the commandments of God, and he should have conquered his evil inclination to the point that he is without blemish. His name should serve as an outstanding model for the generation. He should be courageous in order to exact a righteous judgment against strong‑willed wrongdoers. Money should not be precious to him so that he will not chase after it, for it is taught that if one desires to be rich, poverty will come upon him. He should not need to be exhorted to strive after truth, but should pursue truth from his own desire for it. He must love truth and despise whatever opposes truth. And he must flee from all forms of transgression.

40. If a judge who possesses all these noble attributes cannot be found, then one should strive to find one who meets as many of these requirements as possible.

PART TWO: Laws concerning witnesses

1. A person may be convicted in a Noahide court by the testimony of a single witness, but only if the witness is known to be righteous.[44] If the character of the witness is not known, it takes two witnesses to be able to convict the accused. It is permissible for the witnesses as well as the judge to be relatives of the accused.[45]

2. A person may testify against himself in a court of law,[46] but since he is the accused, his character is definitely in question, and a second witness is necessary to be able to convict him.

3. The witnesses must be subjected to a thorough and systematic scrutiny to reveal any inconsistencies or other flaws in their testimony.[47]

4. One is commanded to give truthful testimony in a court of law even if he knows the testimony will damage a friend or exonerate an enemy. And, this refers to civil litigation or criminal matters. In a criminal case, he is commanded to come forth and give testimony even if the court does not request him to do so.[48]

5. There are ten classifications that are disqualified as wit­nesses or as judges in a court of law:

  • Women
  • Slaves
  • Small children
  • Fools and the insane
  • The deaf and the mute
  • The blind, even if they recognize voices
  • Known transgressors
  • People who care not how they behave in public
  • Husbands of women involved in the trial
  • People who would benefit from a decision in the case[49]

6. A wicked person is disqualified as a witness. This means that the testimony of anyone who is known to transgress the Seven Universal Laws is inadmissible.[50]

7. The courts should not admit the testimony of anyone unless it is ascertained that this person is involved in keeping the Seven Universal Laws and does acts of kindness and conducts himself in a straight way and is honest and upright.[51]

8. The judge who admits testimony from a witness before it is ascertained whether the witness is qualified to testify is held responsible. This judge is considered as one who perverts justice.[52]

9. Whoever disgraces himself publicly is disqualified as a witness. These are people who walk and eat in a coarse, impolite fashion in public, or who go naked in public, or who are involved in any disgusting work or activity, or anyone who feels no self‑embarrassment. All these people are considered on the level of dogs, and one cannot trust them to be stringent against giving false testimony.[53]

10. Even if a multitude of wise, God‑fearing people tell someone that they saw such‑and‑such a person commit such­-and‑such a crime, and even though he believes it in his heart to be true, he is forbidden to testify in court unless he saw the incident with his own eyes. Anyone who testifies on the hearsay of others is considered a false witness, which is tantamount to conspiring against another, and this is a grave transgression.[54]

(Note: One who gives false testimony which convicts a person and causes him to be executed receives the death penalty.)

Rabbi Yoel Schwartz (Jerusalem Court for Bnei Noah)Edit

It is important to form courts of justice so that persons can be called upon to uphold the mitzvot, the religious laws and to be able to judge between people. Sages were divided as to whether the Noahides should be judged according to the Torah concerning financial matters or whether they should be judged according to common sense. It is worthwhile that such courts of justice should give sentences according to the same law for men and for women. The judges should be men since a woman should strive not to be involved in public matters. Every person should go to a court for justice and not try to mete out justice himself. Courts of justice are allowed to enforce regulations for the benefit of the society and to improve ethics and morality. It is the obligation of the Noahide to execute justice to the fullest degree and not to be merciful to criminals. People have the obligation to obey the law and see that the legislative and judicial and personnel and systems obey the law.[55]

Legal System in Noahide LawEdit

LegalSystemsOfTheWorldMap

World distribution of major legal traditions

The three major legal systems of the world today consist of civil law, common law and religious law. However, each country (see State (law)) often develops variations on each system or incorporates many other features into the system. Despite the usefulness of different classifications, every legal system has its own individual identity.


Civil lawEdit

Civil law is the most widespread system of law in the world. It is also known as European Continental law. The central source of law that is recognised as authoritative are codifications in a constitution or statute passed by government, to amend a code. Civil law systems mainly derive from the Roman Empire, and more particularly, the Corpus Juris Civilis issued by the Emperor Justinian ca. 529AD. This was an extensive reform of the law in the Eastern Empire, bringing it together into codified documents. Civil law today, in theory, is interpreted rather than developed or made by judges. Only legislative enactments (rather than judicial precedents) are considered legally binding. However, in reality courts do pay attention to previous decisions, especially from higher courts.

Scholars of comparative law and economists promoting the legal origins theory usually subdivide civil law into three distinct groups:

A comprehensive list of countries that base their legal system on a codified civil law follows:

Country Description
Albania The Civil Code of the Republic of Albania, 1991 really[1]
Angola Based on Portuguese civil law
Argentina The Spanish legal tradition had a great influence on the Civil Code of Argentina, basically a work of the Argentinean jurist Dalmacio Ve'lez Sa'rsfield, who dedicated five years of his life on this task. The Civil Code came into effect on January 1, 1871. Beyond the influence of the Spanish legal tradition, the Argentinian Civil Code was also inspired by the Draft of the Brazilian Civil Code, the Draft of the Spanish Civil Code of 1851, the Napoleonic code and the Chilean Civil Code. The sources of this Civil Code also include various theoretical legal works, mainly of the great French jurists of the 19th century. It was the first Civil Law that consciously adopted as its cornerstone the distinction between i. rights from obligations and ii. real property rights, thus distancing itself from the French model.

The Argentinian Civil Code was also in effect in Paraguay, as per a Paraguayan law of 1880, until the new Civil Code went in force in 1987.

During the second half of the 20th century, the German legal theory became increasingly influential in Argentina.

Andorra Courts apply the customary laws of Andorra, supplemented with Roman law and customary Catalan law.[56]
Armenia
Aruba Based on Dutch civil law
Austria The Allgemeines bu"rgerliches Gesetzbuch (ABGB) of 1811
Azerbaijan
Belarus
Belgium Influenced by the Napoleonic Code
Benin
Bolivia Influenced by the Napoleonic Code
Herzegovina}} Bosnia and Herzegovina
Brazil Derived from the Portuguese civil law
Bulgaria
Burkina Faso
Burundi
Chad
People's Republic of China based on civil law system; derived from Soviet and continental civil code legal principles.
Republic of the Congo
Democratic Republic of the Congo
Cote d'Ivoire
Cambodia
Cape Verde Based on Portuguese civil law
Central African Republic
Chile The Spanish legal tradition exercised an especially great influence on the civil code of Chile. On its turn, the Chilean civil code influenced to a large degree the drafting of the civil codes of other Latin-American states. For instance, the codes of Ecuador (1861) and Colombia (1873) constituted faithful reproductions of the Chilean code, but for very few exceptions. The compiler of the Civil Code of Chile, Andre's Bello, worked for its completion for almost 30 years, using elements, of the Spanish law on the one hand, and of other Western laws, especially of the French one, on the other. Indeed, it is noted that he consulted and used all of the codes that had been issued till then, starting from the era of Justinian.

The Civil Code came into effect on January 1, 1857. Its technique is regarded as perfect; it is distinguished for the clarity, logic and cohesiveness of its provisions. As mentioned by Arminjon, Nolde, and Wolff ('Traite de droit compare, Paris, 1950-1952) Andre's Bello may be regarded as one of the great legislators of mankind. The influence of the Napoleonic code is great; it is observed however that e.g. in many provisions of property law, the solutions of the French code civil were put aside in favor of pure Roman law.

Colombia Civil code introduced in 1873. Nearly faithful reproduction of the Chilean civil code
Costa Rica Influenced by the Napoleonic Code
CroatiaKazneni zakon RH- Great influence of Austro- Hungarian law system
Cuba Influenced by Spanish and American law with large elements of Communist legal theory.
Czech Republic
Denmark Scandinavian-German civil law
Dominican Republic
Ecuador Civil code introduced in 1861. Nearly faithful reproduction of the Chilean civil code
El Salvador
Estonia
Finland
France Based on the Napoleonic code (code civil of 1804)
Equatorial Guinea
Ethiopia
Gabon
Guinea
Guinea-Bissau
Georgia
Germany The Bürgerliches Gesetzbuch of 1900
Greece The Greek civil code of 1946, highly influenced by the German civil code of 1900 (Bürgerliches Gesetzbuch); the Greek civil code replaced the Byzantine-Roman civil law in effect in Greece since its independence (Νομική Διάταξη της Ανατολικής Χέρσου Ελλάδος, Legal Provision of Eastern Mainland Greece, November 1821: 'Οι Κοινωνικοί Νόμοι των Αειμνήστων Χριστιανών Αυτοκρατόρων της Ελλάδος μόνοι ισχύουσι κατά το παρόν εις την Ανατολικήν Χέρσον Ελλάδα', 'The Social [i.e. Civil] Laws of the Dear Departed Christian Emperors of Greece [referring to the Byzantine Emperors] alone are in effect at present in Eastern Mainland Greece')
Guatemala
Haiti Influenced by the Napoleonic Code
Honduras
Hungary
Iceland Based on Germanic traditional laws and influenced by Medieval Norwegian and Danish laws.
Italy Based on codified Roman law, with elements of the Napoleonic civil code; civil code of 1942 replaced the original one of 1865
Japan Modeled after European (primarily German) civil law system. Japanese civil code of 1895.
Latvia Largely influenced by Germany, medium influences from Russian and Soviet law.
Lebanon Modeled after French civil law
Lithuania Modeled after Dutch civil law
Luxembourg Influenced by the Napoleonic Code
Macau
(China)
Based on the Portuguese strand of the continental tradition, itself much influenced by Germany; also influenced by the law of the PRC
Mexico "The origins of Mexico's legal system are both ancient and classical, based on the Greek, Roman and French legal systems, and the Mexican system shares more in common with other legal systems throughout the world (especially those in Latin America and most of continental Europe)..." From: http://www.mexonline.com/lawreview.htm Jaime B. Berger Stender Attorney at Law author, Tijuana, B.C., Mexico
Mongolia
Netherlands Influenced by the Napoleonic Code
Norway Scandinavian-German civil law
Panama
Paraguay The Paraguayan Civil Code in force since 1987 is largely influenced by the Napoleonic Code and the Argentinian Code
Peru
Poland The Polish Civil Code in force since 1965
Portugal Influenced by the Napoleonic Code and later by the German Civil Law
Republic of China (Taiwan)
Romania Based on the Napoleonic Code
Russia
Slovakia
Spain Influenced by the Napoleonic Code
Sweden Scandinavian-German civil law. Like all Scandinavian legal systems, it is distinguished by its traditional character and for the fact that it did not adopt elements of Roman law. It is indeed worth mentioning that it assimilated very few elements of foreign laws whatsoever. It is also interesting that the Napoleonic Code had no influence in codification of law in Scandinavia. The historical basis of the law of Sweden, just as for all Nordic countries, is the Old German law. Codification of the law started in Sweden during the 18th century, preceding the codifications of most other European countries. However, neither Sweden, nor any other Nordic state created a civil code of the kind of the Code Civil or the BGB.
Switzerland The Zivilgesetzbuch of 1908 and 1912 (obligations; fifth book)
Turkey Modeled after the Swiss civil law (Zivilgesetzbuch) of 1907; this has been a conscious choice of Kemal Atatu"rk, the founder of the modern Turkish state, in order to abolish the Islamic law (Sharia), aiming at westernizing the country
Slovakia
Uruguay
Vatican City
Vietnam Communist legal theory and French civil law

Common lawEdit

File:King John of England signs the Magna Carta - Illustration from Cassell's History of England - Century Edition - published circa 1902.jpg

Common law and equity are systems of law whose sources are the decisions in cases by judges. Alongside, every system will have a legislature that passes new laws and statutes, however these do not amend a collected and codified body of law. Common law comes from England and was inherited by Commonwealth countries, and almost every former colony of the British Empire (Malta and Scotland being exceptions). The doctrine of stare decisis or precedent by courts is the major innovation and difference to codified civil law systems.

Common law is currently in practice in Ireland, United Kingdom (excluding Scotland), Australia, India, South Africa, Canada (excluding Quebec), and the United States (excluding Louisiana) and many more places. In addition to these countries, several others have adapted the common law system into a mixed system. For example, Pakistan, India and Nigeria operate largely on a common law system, but incorporate religious law.

In the European Union the Court of Justice takes an approach mixing civil law (based on the treaties) with an attachment to the importance of case law. One of the most fundamental documents to shape common law is the Magna Carta[57] which placed limits on the power of the English Kings. It served as a kind of medieval bill of rights for the aristocracy and the judiciary who developed the law.

Country Description
Antigua and Barbuda based on English common law
Australia based on English common law
Bahamas based on English common law
Barbados based on English common law
Belize based on English common law
Bhutan
Canada based on English common law, except in Quebec, where civil law system based on French law prevails
Dominica based on English common law
England and Wales
(UK)
primarily common law, with early Roman and some modern continental influences
Fiji based on English common law
Ghana
Myanmar based on English common law
Grenada based on English common law
Hong Kong
(China)
principally based on English common law
Republic of Ireland based on Irish law prior to 1920, which was itself based on English common law
Jamaica based on English common law
Kiribati based on English common law
Marshall Islands based on U.S. Law
Nauru based on English common law
New Zealand based on English common law
Northern Ireland
(UK)
based on Irish law prior to 1920, which was itself based on English common law
Palau based on U.S. Law
Saint Kitts and Nevis based on English common law
Saint Vincent and the Grenadines based on English common law
Tonga based on English common law
Trinidad and Tobago based on English common law
Tuvalu based on English common law
Uganda based on English common law
United States Federal court system based on English common law; each state has its own unique legal system, of which all but one (Flag of Louisiana Louisiana's, which is based on the Napoleonic Code) is based on English common law

Religious lawEdit

Religious law refers to the notion of the word of God being a legal source. The implication of religion for law is a static and unalterable quality, precluding amendment through legislative acts of government or development through judicial precedent. The main kinds of religious law are Halakha in Judaism, Sharia in Islam, and Canon law in some Christian groups. In some cases these are intended purely as individual moral guidance, whereas in other cases they are intended and may be used as the basis for a country's legal system. The Halakha is followed by orthodox and conservative Jews in both ecclesiastical and civil relations. No country is fully governed by Halakha, but two Jewish people may decide, because of personal belief, to have a dispute heard by a Jewish court, and be bound by its rulings. Sharia Law governs a number of Islamic countries, including Saudi Arabia and Iran, though most countries use Sharia Law only as a supplement to national law. It can relate to all aspects of civil law, including property rights, contracts or public law. Canon law is not religious law, properly speaking, because it is not found in revelation. Instead, it is seen as human law inspired by the word of God and applying the demands of that revelation to the actual sitation of the church. Canon law regulates the internal ordering of the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion. Canon law is amended and adapted by the legislative authority of the church, such as councils of bishops, single bishops for their respective sees, the Pope for the entire Catholic Church, and the Enlish Parliament for the Church of England.

Pluralistic systemsEdit

Civil law and common lawEdit

Country Description
Botswana South African law (a mixed system) transferred uno acto through a proclamation of reception
Cameroon
Cyprus Based on English common law (Cyprus was a British colony 1878-1960), with admixtures of French and Greek civil and public law, Italian civil law, Indian contract law, Greek Orthodox canon law, Muslim religious law, and Ottoman civil law.
Guyana
Israel Originally (1948) based on English common law; in the process, influenced by German civil law—for instance, between 1962 and 1981, the Knesset issued twenty (20) wide-ranging laws, which were clearly influenced by European continental law, and were in the form of codes
Lesotho South African law (a mixed system) transferred uno acto through a proclamation of reception
Flag of Louisiana Louisiana
(U.S.)
Based on the French Napoleonic Code; the modern legal system of the state of Louisiana has its origin in the Louisiana Purchase (i.e. the sale of Louisiana—not coterminous with the present eponymous state—by Napoleon to the United States of America in 1803), while federal laws (based on common law) are in effect in Louisiana as well.
Malta Initially based on Roman Law and eventually progressed to the Code de Rohan, Code Napoleon with influences from Italian Civil Law. English common law however is also a source of Maltese Law, most notably in Public Law
Mauritius
Namibia South African law (a mixed system) transferred uno acto through a proclamation of reception
Philippines Based on Spanish law; influenced by U.S. common law after 1898 (victory of the U.S. over Spain in the Spanish-American war of 1898 and cession of Philippines to the U.S.)
Puerto Rico
(U.S.)
Based on Spanish law; influenced by U.S. common law after 1898 (victory of the U.S. over Spain in the Spanish-American war of 1898 and cession of Puerto Rico to the U.S.)
Quebec
(Canada)
After the defeat of the French in the battle at the Plains of Abraham, the British allowed them to keep their language (French), their religion (Roman Catholicism), and their legal system (civil law). However, as Quebec is part of the Canadian Confederation, English-based laws applied at the federal level are in effect in Quebec also.
Saint Lucia
Scotland
(UK)
based on Roman and continental law, with common law elements dating back to the High Middle Ages
Seychelles
South Africa An amalgam of English common law and Roman-Dutch civil law
Sri Lanka An amalgam of English common law, Roman-Dutch civil law and Customary Law
Swaziland South African law (a mixed system) transferred uno acto through a proclamation of reception
Thailand|-
Vanuatu
Zimbabwe South African law (a mixed system) transferred uno acto through a proclamation of reception

Civil law and religious lawEdit

Country Description
Algeria
Comoros
Djibouti
Egypt Based on Islamic law and French civil law system
Eritrea
Indonesia
Morocco Based on Islamic law and French and Spanish civil law system

Common law and religious lawEdit

Country Description
Bahrain
Bangladesh
Brunei
Gambia
India based on English common law, separate personal law codes apply to Muslims, Christians, and Hindus
Oman
Pakistan based on English Common Law, some Islamic Law applications in inheritance. Tribal Law in FATA
Qatar
Singapore based on English common law

BibliographyEdit

  • Moustaira Elina N., Comparative Law: University Courses (in Greek), Ant. N. Sakkoulas Publishers, Athens, 2004, ISBN 960-15-1267-5
  • Moustaira Elina N., Milestones in the Course of Comparative Law: Thesis and Antithesis (in Greek), Ant. N. Sakkoulas Publishers, Athens, 2003, ISBN 960-15-1097-4

See alsoEdit

External linksEdit


ReferencesEdit

  1. Mishneh Torah, Laws of Kings 9:14
  2. Quoted by Reuben Margolioth, Margolioth Hayarn. Jerusalem: Mosad Harav Kook, 1958, volume 11, page 20. (Sanhedrin 56b, section 9.)
  3. Nahmanides, Pirush al HaTorah (Commentary on the Pentateuch). Edited and annotated by Charles B. Chavel. Jerusalem: Mosad Harav Kook, 1959, volume 1, page 191.
  4. Moses Isserles, Sheilot U'Teshuvot Rarno, Sudylkow; Isaac Madpis, printer, 1835, page 7, Responsum 10.
  5. Lichtenstein, Aaron. "The Seven Laws of Noah". New York: The Rabbi Jacob Joseph School Press and Z. Berman Books, 2d ed. 1986
  6. Sanhedrin 59a: "Qum v'ase v'shev v'al t'ase." - See Rashi's marginal comment, ad locum.
  7. Tosefta, Avoda Zara, chapter 9: "Just as Israelites must establish a court in each city and town, so the Noahites must establish a court in each city and town. "
  8. For example, for the seduction of a virgin biblical law exacts a punitive fine of fifty shekalim (Exodus 22:15), but according to Sanhedrin 56b there are no punitive fines (dine qenasot) in Noahic legislation. Another example: on the question of whether the conclusion of a business transaction comes at the time of payment (kesef) or at the time of delivery (meshikha), the Talmud designates one for Jews and the other one ;or non-Jews even before it is clear which applies to whom (Bechorot 13s). Also, see Note 56 above, for an example of how Nahmanides himself differentiates between Noahide and biblical procedure.
  9. Moses Isserles, Sheilot U'Teshuvot Rarno, Sudylkow; Isaac Madpis, printer, 1835, page 7, Responsum 10.
  10. Clorfene, Chaim and Yaakov Rogalsky The Path of the Righteous Gentile: An Introduction to the Seven Laws of the Children of Noah. New York: Phillip Feldheim, 1987
  11. Mishneh Torah, Laws of Kings, chapter 9, law 14
  12. Babylonian Talmud, Sanhedrin 59a, Rashi
  13. Babylonian Talmud, Sanhedrin 56b, Rashi
  14. Mishneh Torah, Laws of Kings, chapter 10, law 2
  15. Encyclopedia Talmudica, volume 3, page 355
  16. Mishneh Torah, Laws of Kings, chapter 9, law 14
  17. Mishneh Torah, Laws of Sanhedrin, chapter 20, law 4
  18. Ibid., chapter 20, law 5
  19. Ibid., chapter 20, law 6
  20. Ibid., chapter 20, law 7
  21. Ibid., chapter 20, law 8
  22. Ibid., chapter 20, law 10
  23. Ibid., chapter 21, law 1
  24. Ibid., chapter 23, law 1
  25. Ibid., chapter 23, law 2
  26. Ibid., chapter 23, law 3
  27. Ibid., chapter 21, law 2
  28. Ibid., chapter 21, law 3
  29. Ibid., chapter 21, law 6
  30. Ibid., chapter 21, law 7
  31. Ibid., chapter 21, law 8
  32. Ibid., chapter 21, law 9
  33. Ibid., chapter 21, law 10
  34. Ibid., chapter 21, law 11
  35. Ibid., chapter 22, law 1
  36. Ibid., chapter 22, law 7
  37. Ibid., chapter 22, law 10
  38. Ibid., chapter 23, law 6
  39. Ibid., chapter 23, law 7
  40. Ibid., chapter 23, law 8
  41. Ibid., chapter 24, law I
  42. Ibid., chapter 6, law 1
  43. Ibid., chapter 2, law 7
  44. Mishneh Torah, Laws of Witnesses, chapter 11, law 2
  45. Mishneh Torah, Laws of Kings, chapter 9, law 14
  46. Sefer HaHinnukh, Commandment 26
  47. Mishneh Torah, Laws of Witnesses, chapter 1, law 4
  48. Ibid., chapter 1, law 1
  49. Ibid., chapter 9, law 1
  50. Ibid., chapter 10, laws 1 and 2
  51. Ibid., chapter 11, law 2
  52. Ibid., chapter 11, law 4
  53. Ibid., chapter 11, law 5
  54. Ibid., chapter 17, law 1
  55. Noahide Commandments by Rabbi Yoel Schwartz, Translated by Yitzhak A. Oked Sechter, Reviewed and corrected by Yechiel Sitzman in consultation with Rabbi Yoel Schwartz
  56. http://www.state.gov/r/pa/ei/bgn/3164.htm
  57. "Magna Carta". http://www.fordham.edu/halsall/source/magnacarta.html. Retrieved 2006-11-10. 
Wikinoah
This page uses content from the English Wiki Noah. The original article was at Imperative of Legal System. The list of authors can be seen in the page history. As with the Religion-wiki, the text of Wiki Noah is available under the GNU Free Documentation License.

Around Wikia's network

Random Wiki