PETER HAAS

best, and its decision has formal halakhic recognition. A good example of the legal status of arbitration comes from the Shulhan Arukh, in connection with what we might call plea bargaining; that is, an argument to reach a solution before a formal verdict is rendered. The relevant passage from Hoshen Mishpat reads as follows:

"It is a mitzvah to say to the litigants at the start of the trial, ‘Do you want a legal judgement or a compromise(p’sharah)?’ If they want a compromise, they come to a compromise between them. And just as one is warned not to bias the law, so is one warned not to bias the compromise toward the one side over the other. And any court that always forges compromises is to be praised. When is this the case? Before all the evidence has been presented. Even if the judge has heard their arguments and knows which way the law inclines, it is still a mitzvah to execute a compromise. But after the evidence has been presented and the judge has said,‘So-and-so you are acquitted and so-and-so you are liable,’ then they are not authorized to enter into a compromise between them."

This passage throws some light on the legal status of a compromise. For once the evidence is formally known, then the force of formal law takes over. The judge can no longer allow a settlement or compromise. Before the trial has run its course, however, the litigants can agree to end the proceedings and come to a private agreement. This agreement will be outside the law, as it were. That is, it might be quite different from what the applicable legal paradigm would require. Nonetheless, the court is encouraged to effect such a compromise. And further, while the creation of a compromise is a way of avoiding the strict application of the law, it nonetheless has the force of halakhah, as the Shulhan Arukh goes on to make clear. The point is that the judge as arbiter in this case is acting in a very different capacity than he does when he formally announces a verdict after a completed trial.

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