Contempt of Court
CONTEMPT OF COURT
According to the Talmud, cursing a judge is a scriptural prohibition. The verse "You shall not revile God" (Ex. 22:27) is interpreted as referring to human judges (Mekh. ibid.; Sanh. 66a; Maim. Yad, Sanhedrin 26:1) as is a preceding verse "… the case of both parties shall come before God: he whom God declares guilty shall pay double to the other" (ibid., 22:8). In both these verses the word Elohim is used and was taken to mean "judges." Cursing any person is an offense punishable with *flogging (see *Slander), cursing a judge, by virtue of the extra prohibition, is punished by a double flogging (Maim. (ibid., 26:2). As in every offense punishable with flogging, so in contempt of court the offender must have been warned beforehand; however, insulting a judge or the court may be punished with anathema (see *Ḥerem) or with admonitory lashes (makkat mardut), even though spontaneous and not punishable by law (Maim. ibid., 26:5). The court may, however, at its discretion, condone such an unpre-meditated insult and abstain from taking action on it, whereas a premeditated curse must be punished according to law and no apology can be accepted (Maim. ibid. 26:6).
It appears that in talmudic times the administrative, and not the judicial, officers of the court were the main target of contempt of court – demonstrated both in words and violence – and detailed rules were worked out to facilitate the perilous tasks of court messengers assigned to serve summonses and to execute judgments (bk 112b–113a; Maim. ibid., 25:5–11; Ḥm 11). The standard punishment for contempt of court messengers is anathema (niddui), after three prior warnings (ibid.); but admonitory lashes were also administered not only for insulting process-servers (Kid. 12b, 70b), but especially for failure to pay judgment debts (Ket. 86a–b). The source for the authority to proclaim anathema was taken to be Deborah's curse on those who did not come to the help of the Lord (Judg. 5:23). One scholar, invoking the wide authority given to Ezra by the Persian king for the punishment of offenders (Ezra 7:26), went so far as to authorize the infliction of imprisonment, shackling, and confiscation of goods (mk 16a), but in practice no such severe measures appear ever to have been adopted. No witnesses were required to prove such contempt: the complaint of the court official was accepted as conclusive – and expressly excluded from the applicability of the rules against slander (ibid., and Maim., and Ḥmibid.).
In post-talmudic times, obedience to the courts had to be enforced by more rigorous means: both admonitory lashes (cf., e.g., Resp. Rosh 8:2 and 11:4) and imprisonment (cf., e.g., Rema and Ḥm 97:15; Resp. Ribash 484) were widely used against persons who willfully persisted in disobeying the court. However, such extreme sanctions were resorted to only where previous public admonitions (cf., e.g., Resp. Maharam Minz 38, 39, 101), the exclusion from religious and civic honors, the disqualification from suing and testifying, and similar measures (including the anathema) had been of no avail (S. Assaf, Battei Din… (1924), 118 and passim). It has been maintained that all these sanctions were not punitive in nature but solely designed to execute the judgment of the court or make the adjudged debtor pay his debt (Elon) – a modern distinction which in most cases is rather academic. The talmudic formula, "he shall be beaten until his soul departs" (Ket. 86b et al.), has an unmistakably punitive undertone: compelling the debtor to pay coincides with punishing him for his contempt.
M. Bloch, Civilprozess-Ordnung nach mosaischrabbinischem Rechte (1882), 24–27, nos. 35–42; S. Assaf, Ha-On-shin Aḥarei Ḥatimat ha-Talmud (1922), passim; Elon, in: Sefer Yovel le-Finḥas Rosen (1962), 171–201; idem, Ḥerut ha-Perat be-Darkhei Geviyyat Ḥov ba-Mishpat ha-Ivri (1964), 136, 256; et, 3 (1951), 172; 8 (1957), 656–9, no. 6; 12 (1967), 119–28.
[Haim Hermann Cohn]