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Encyclopedia Judaica:
Bribery


Jewish Ethics: Table of Contents | Business Ethics | Forgery


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BRIBERY, making a gift to a person in authority, especially a judge. The injunction not to take bribes is several times repeated in the Bible, twice with the reason given that "bribes blind the clear-sighted and upset the pleas of the just" (Ex. 23:8; Deut. 16:19). This was later interpreted to mean not only that a corrupt judge tends to identify the interests of the donor with his own and is thus blind to the rights of the other party (Ket. 105b, Shab. 119a), but also that such a judge would not grow old without becoming physically blind (Pe'ah 8:9). The warning is also sounded that the taking of bribes might lead to the shedding of innocent blood (Deut. 27:25). God is praised as being unreceptive to bribes (Deut. 10:17, et al.), and as human judges are generally exhorted to imitate divine qualities (Shab. 133b; Mekh, Shirah 3) so they are urged to be impartial, and not susceptible to bribes (II Chron. 19:7), and reminded that judicial services should be given free (Bek. 29a). There is no penalty and no non-penal sanction prescribed in the Bible for taking bribes. The donor of bribes is blamed as a tempter or accomplice of the taker (Maim. Yad, Sanhedrin 23:2; Sh. Ar., ḤM 9:1), transgressing the injunction "you shall not place a stumbling block before the blind" (Lev. 19:14). Bribery seems to have been rather widespread (cf. I Sam. 8:3), or else the prophets would hardly have denounced it so vehemently (Isa. 1:23; 5:23; 33:15; Ezek. 22:12; Amos 5:12; Micah 7:3), but it was in the nature of unethical misconduct rather than of a criminal offense.

Under talmudic law, where no penalty was prescribed in the Bible for the violation of a negative injunction, the transgressor was liable to be flogged (Mak. 16a; Tosef., Mak. 5:16; see Minḥat Bikkurim for reading). In the case of bribery this provision was largely academic, as the requisite witnesses would not normally be available – the act being always committed in secret (cf. Ibn Ezra to Deut. 27:14). The rule was therefore evolved that taking a bribe invalidates the judge's decision, and this was extended even to the taking of fees (Bek. 4:6). The invalidation of the proceeding was regarded as a quasi-penalty (kenas) imposed on the judge for taking bribes or fees (Tos. to Kid. 58b top; Sma, ḤM 9:5), and it may have counted toward the judge's liability to pay damages where a party had already acted on his judgment. The prohibition against a judge taking fees was mitigated by a renowned jurist, Karna, who allowed both parties to reimburse him in equal shares for the loss he had actually suffered by sitting in court instead of earning his wages as a winetaster (Ket. 105a). This precedent was not applied to a judge who took a fee for the loss of his time without proving actual loss of money: while his decisions remained unaffected he was called "ugly" (ibid.). Other talmudic jurists carried the rule against bribery to extremes by refusing to sit in judgment over any person who had shown them the slightest courtesy, such as helping them to alight from a boat (ibid.).

Originally, judges were remunerated from Temple revenues (ibid.), which furnished the legal basis for their remuneration, in later periods, from communal funds. As all members were required to contribute to the communal funds, so were litigants later – as today in the rabbinical courts in Israel – required to pay court fees, not to any particular judge but into a general fund out of which all court expenses were defrayed. There are, nevertheless, occasional instances of judges demanding exorbitant fees for their services (e.g., the incident reported by Obadiah of Bertinoro to Bek. 4:6).

Bribing non-Jewish rulers, officials, and judges was regarded as legitimate at all times. In view of their bias against Jews it is not difficult to understand such an attitude. Not only was it quite usual to bribe kings (I Kings 15:19; II Kings 16:8; Ber. 28b; et al.), but expenses involved in bribing judges and sheriffs were often expressly included in the expenses recoverable from debtors (cf. Gulak, Oẓar, 237, no. 249).

In the State of Israel the taker and the donor of bribes are equally punishable. Demanding a bribe is tantamount to taking it, and offering or promising one to giving it. Even the intermediary between the donor and the taker (or the intended taker) bears the same criminal responsibility. No extraneous evidence being normally available, the taker is a competent witness against the donor, and vice versa, and though they are accomplices their evidence need not be corroborated (Penal Law Amendment (Bribery) Law, 5712–1952).

[Haim Hermann Cohn]

In the Penal Law Amendment (Bribery) Law, 5712–1952, later incorporated in the Penal Law 5737 – 1977 (§290–297), an entire area of Israeli Criminal Law was constituted on the basis of the principles and sources of Jewish Law. The explanatory note to the draft proposal emphasized that "the proposal follows in the path of Jewish Law, which equates giving a bribe with partiality." The Law includes a number of distinctive elements based on Jewish Law: the imposition of criminal liability on both the giver and the recipient of the bribe, and the immateriality of whether the bribery caused an injustice or not: "Thou shall not take bribes."

"It is obviously forbidden when the intention is to pervert justice, but even if the intention is to acquit the innocent and convict the guilty it is still forbidden" – Maim., MT, Hilkhot Sanhedrin 23:1, in accordance with Sifrei Devarim §144)

On the other hand, Israeli law differs fundamentally from the position adopted in Jewish Law on two counts, also mentioned in the draft proposal. It does not obligate the recipient of a bribe to return it to the person who gave it, as opposed to the requirement to do so in Jewish Law (MT, Yad, ibid.). It also contains a provision allowing the court to confiscate the sum of the bribe, in the form of a fine. Interestingly, not a single MK challenged this departure from Jewish Law, in contrast to the staunch opposition to any deviation from Jewish Law expressed by MKs (from religious parties) in other cases. It may be that they agreed to this particular deviation because the provisions of Jewish Law requiring the return of the bribe to the briber contradict currently prevailing social and moral sentiments, a point made in the draft proposal. Another possible explanation is that the obligation of restitution is in fact a religious obligation, in the framework of the briber's repentance, between himself and his Creator (and not an act of monetary restitution in the usual sense).

In the decisions of the Israel Supreme Court, as well as in halakhic discourse, it was emphasized that in Jewish Law the offense involved in bribery is not restricted to the relations between the litigant and a person fulfilling a judicial role, as indicated in the biblical sources cited above, and as discussed and decided in practice in the Talmud and the halakhic literature mentioned above. It applies to any person discharging a public function who is in a position to adopt decisions that may either benefit or harm the briber. In this context the comments of Rabbi J.M. *Epstein , in his book Arukh ha-Shulḥan (ḤM 9.1), were cited: "And not only the judge is enjoined from receiving bribery, but all officials and persons involved in public matters, even though their decisions do not have the status of the law of the Torah, are forbidden to be biased in any matter as a result of friendship or hostility, and all the more so by the taking of bribery."

These remarks were cited by the court (Justice Elon) in State of Israel v. Darwish (Cr.A. 121/88), 45 (2) 663). The case concerned the State's appeal against the acquittal of Jerusalem Municipality employees who had accepted benefits from a tour company in return for their recommendation to all of the Municipality's employees to avail themselves of the tour company's services:

In concluding this matter I would add that the laws of bribery were discussed extensively in Jewish Law … The issues raised in our case can be illuminated and reinforced by the principles of Jewish Law on this issue, although this is not the forum for their explication. But it should be mentioned that while the principles governing the offense of the Jewish sources were set forth primarily with respect to people discharging judicial roles (see Deut. 16:18–19, 25; Micah 2:11, and other biblical sources, and even in Maimonides, Hil. Sanhedrin 23; Tur and Shulḥan Arukh (ḤM 9), where the rules of bribery appear in relation to judges), the prohibition was also applied to "all those engaged in public affairs," and was not restricted to judicial or quasi-judicial frameworks …[In this context, mention was generally made of the aforementioned comments of Arukh ha-ShulḥanME.] Those dealing in public affairs should "devote themselves conscientiously to the needs of the community" (Tanya Rabbati, Hilkhot Shabbat, 16. Sabbath Morning Service). This is especially applicable to those serving the needs of the public in Jerusalem, where the high-minded people were meticulous in their habits and their conduct (see Sanh. 23a and other sources). (ibid., 689–90).

Another kind of bribery dealt with in case law of the Israel Supreme Court and in halakhic literature over the last few years is election bribery (Cr.A. 71/83 Flatto Sharon v. State of Israel, 38 (2) PD 757). In this case the Court heard the appeal of a candidate for the Knesset who was convicted for having promised payment to those who would vote for him. In its ruling the Court (Justice D. Levin) ruled that certain halakhic authorities regarded election bribery as bribery for all intents and purposes, citing the responsum of Ḥatam Sofer:

This was the ruling and the view of our Sages regarding bribery in general, and similarly with respect to what we refer to as an election bribe. R. Moses Sofer (Ḥatam Sofer), a prominent Hungarian rabbi during the last part of the eighteenth century and the first part of the nineteenth century, ruled already in his day that, where there were competent witnesses who testified that, during the elections for community rabbi, some members of the electoral body received bribes, it would invalidate the appointment of the rabbi, and necessitate new elections. He further added that: "if there are witnesses that the rabbi himself offered a bribe, then he is absolutely disqualified from being a rabbi until he repents." As for the recipients of bribery, the view was expressed that they might be disqualified for any public office, but in any event were no longer permitted to participate in the new elections for the appointment of the communal rabbi, even if they had returned the bribe they received, had repented, and had undertaken by oath never to repeat such actions. The reason given was "for they already have an affinity for him and they will always remain biased …" (Resp. Ḥatam Sofer; pt. 5, ḤM 160; cf. Resp. Minḥat Eliezer, pt. 1:6) (p. 773 of judgment).

The Ḥatam Sofer's responsum, coupled with others, also served the Supreme Court in an additional ruling (LCA 83/94 Hisrallah v. Election Clerk, 49 (3) PD 793, Justice Goldberg), which ruled that election bribery constitutes grounds for their nullification.

In another judgment the Supreme Court emphasized that the prohibition on bribery in Jewish Law applies not only to money but also to a bribe by way of "words" (i.e., action): "If the recipient mistakenly thought that the prohibition on bribery only applied to a monetary bribe, the Sages corrected him; for the taint of bribery and its impropriety apply not only to a monetary gift, but also to any matter liable to produce the negative result, in accordance with the Sages' teaching, 'And thou shalt take no gift' – there was no need to speak of [the prohibition of] a gift of money, but even a bribe of words is also forbidden, for Scripture does not write, 'And thou shalt take no gain' [but rather 'thou shalt take no gift' – in other words, it is not necessarily pecuniary – ME]" (Cr.A. 355/88 Levi v. State of Israel, 43 (3) 221, 229 per Justice Levin).

[Menachem Elon (2nd ed.)]


BIBLIOGRAPHY:

ET, 1 (1951) 266; 3 (1951), 173ff. ADD. BIBLIOGRAPHY: M. Elon, ILR, 4 (1969), 99ff.; idem, Ha-Mishpat ha-Ivri (1988), 3:1376–77; idem, Jewish Law (1994), 4, 1640–42; A.Z. Sheinfeld, "Netinat Shoḥad le-Oved Ẓibbur," in Teḥumin, 5 (1984), 332; E. Shohetman, Ma'aseh ha-Ba ba-Averah (1981), 231.


Source: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.

 

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