With All Due Respect: Contempt of Court in Halacha

Adapted from the writings of Dayan Yitzhak Grossman

April 28, 2022

The Associated Press reports:

A New York judge found former President Donald Trump in contempt of court and set in motion $10,000 daily fines Monday for failing to adequately respond to a subpoena issued by the state’s attorney general as part of a civil investigation into his business dealings…

“Mr. Trump, I know you take your business seriously, and I take mine seriously,” [Judge Arthur] Engoron said…“I hereby hold you in civil contempt and fine you $10,000 a day” until the terms of the subpoena are met.[1]

Cornell Law School’s Wex Project outlines the concept of contempt of court:

Contempt of court…is the disobedience of an order of a court. It is also conduct tending to obstruct or interfere with the orderly administration of justice…

Contempt of court can also be classified as civil contempt or criminal contempt…For example, in Pennsylvania, if a court’s purpose for finding contempt is to coerce the contemnor to comply with a court’s order, then the charge will be one of civil contempt. However, if the court’s purpose is to punish the contemnor for disobedience, then the charge will be one of criminal contempt…

Punishments for contempt include imprisonment and fines. However, according to the Supreme Court, civil contempt penalties are conditional. [Those who are] punished for civil contempt can avoid the punishment by doing as the court ordered, and they are therefore described as “carrying the keys of their prison in their own pocket.” Punishments for criminal contempt, however, are generally unconditional and definite.[2]

Halacha has close parallels to these various aspects of contempt of court, which we explore in this article.

The Gemara takes for granted that someone in contempt of court is excommunicated, to the extent that its entire discussion is only about the due process that must be satisfied in order to reach a conclusion that a particular individual is indeed guilty of contempt:

Revina said: We deem an agent of the rabbis, who was sent to summon an individual to court, as credible as two witnesses if he says that the defendant refuses to come to court. And this matter applies only with regard to excommunication, but with regard to issuing a document of ostracism, since it causes the defendant a loss of money (as he must pay the sofer for drafting the document), the agent is not deemed credible…

The continuation of the discussion makes it clear that this punishment of excommunication is similar to the modern conditional penalties for civil contempt, where the offender can avoid the punishment by doing as the court ordered:

Rava said: With regard to one who had a document of ostracism written for him because he did not come to court, we do not tear up the document until he actually comes to court, and it is not enough for him to commit to appearing. Similarly, if the document of ostracism was written because he did not obey the ruling of the court, we do not tear it up until he actually obeys the ruling. (The Gemara comments:) This second statement is not so. Rather, once he has acquiesced and said “I will obey,” we immediately tear up the document.[3]

Maharik, however, considers it obvious that even one who obeys a court summons but still displays egregious disrespect for the judges by telling them that they should not think that he came in obedience to their order, for he does not care at all about their order, is excommunicated, “since there is no more disrespectful behavior than this.”[4] This seems more akin to an unconditional punishment for criminal contempt.

Elsewhere, the Gemara itself seems to establish a punishment of flogging for criminal contempt of court:

Rav would flog a man…for tormenting (alternatively, behaving irreverently toward) a messenger of the Sages, as this indicates a lack of regard for the Sages.[5]

(Rashi interprets tormenting to mean striking the messenger who summons him to court on behalf of the judges;[6] the Ran disagrees and explains that it includes even denigrating him in the presence of others and humiliating him.[7])

In this context, the flogging is apparently simply a punishment for bad behavior, rather than an attempt to compel compliance with the court’s summons. Some Rishonim, however, rule that a messenger of the court may use physical force against a recalcitrant litigant in the course of carrying out the court’s order, apparently with the goal of enforcing the order.[8]

As we have seen, the Gemara prescribes two forms of punishment for contempt of court: excommunication and flogging. Excommunication itself entails a specific set of punitive restrictions, as set forth in the Gemara and later halachic sources,[9] but as we have previously discussed,[10] the Geonim expanded these sanctions to a remarkable degree, to the extent of even expelling the children of the contemnor from school and his wife from the shul. As we noted, there is considerable debate among later authorities over these extended sanctions for contempt, but one of those who accepts the possibility of such extensions, the Aruch Hashulchan, justifies them as follows:

And the court has the authority to impose stringencies upon [one who has been excommunicated]: that his sons shall not be circumcised; that he should not be buried with honor if he dies; and to expel his children from school, and his wife from the synagogue, until he accepts upon himself the law, if they see that by this they will bend his head (i.e., secure his submission). But in the absence of such considerations, we do not punish children because of their parents, and a wife because of her husband, even small children.[11]

[1]Larry Neumeister. Judge finds Donald Trump in contempt in New York legal fight. AP News. https://apnews.com/article/donald-trump-held-in-contempt-in-ny-legal-fight-409f6571e9d74c76055c8e0a57249163.

[2]Legal Information Institute, Wex, Contempt of Court.

[3]Bava Kam a 112b-113a.

[4]Shu”t Maharik shoresh 189, codified by Rama in Shulchan Aruch C.M. siman 11 se’if 1.

[5]Kidushin 12b, Yevamos 52a.

[6]Rashi Kidushin ibid.

[7]Ran ibid., 6b in Rif pagination.

[8]Sefer Maysharim nesiv 31 cheilek 2 p. 92 col. 2 and Nimukei Yosef Bava Kama 27b, 12b in Rif pagination. The sources in notes 6-8 are all cited in Bais Yosef C.M. end of siman 8. Cf. Shulchan Aruch ibid. se’if 5.