JUDAICA - Wisdom In Torah

et din and judges
1:5; Maim. Yad, Sanh. 5:1); the election of kings (Yad, loc. cit.
and Melakhim 1:3) and of high priests (Yad, Kelei ha-Mikdash
4:15); the expansion of the limits of the city of Jerusalem and
of the Temple precincts (Sanh. 1:5), and the partition of the
country among the tribes (according to Ulla; Sanh. 16a); the
declaration of war (Sanh. 1:5); the offering of a sacrifice for
the sin of the whole community (Lev. 4:13–15; Sanh. 13b); and
the appointment and control of priests serving in the Temple
(Mid. 5:4; Tosef., Ḥag. 2:9). The legislative functions of the
Great Sanhedrin cannot easily be enumerated. It has been authoritatively
said that the Great Court of Jerusalem was the
essential source of all Oral Law (Yad, Mamrim 1:1). The law as
laid down (or as interpreted) by the Great Sanhedrin is binding
on everybody, and any person contravening or repudiating
it was liable to the death penalty (Deut. 17:12; Sif. Deut.
155; Yad, Mamrim 1:2), even where the law as laid down (or
interpreted) by the court might appear misconceived: “even
though they show you as right what in your eyes is left or as
left what is right – you must obey them” (Sif. Deut. 155; but cf.
Hor. 1:1 and TJ, Hor. 1:1, 45d; and see *Rabbinical Authority).
As a corollary of their legislative powers, the Great Sanhedrin
also exercised advisory functions: wherever in any court any
question of law was in doubt, the final and binding opinion of
the Great Court at Jerusalem would have to be taken (Sanh.
88b; Yad, Sanh. 1:4). For the question of appeals see *Practice
and Procedure.
(4) Apart from the regular courts mentioned above, there
sat in the Temple a special court of priests charged with the supervision
of the Temple ritual and with civil matters concerning
the priests (cf. Ket. 1:5). Mention is also made of a special
court of levites, presumably with similar functions (cf. Tosef.,
Sanh. 4:7). Originally, the priests performed general judicial
functions: they were the sole competent interpreters (or diviners)
of God’s judgment (Ex. 28:15, 30, 43; Num. 27:21; Deut.
33:8–10); later, they adjudicated matters together or alternately
with the judges (Deut. 17:9; 19:17; 21:5), and it seems that the
litigants had the choice of applying to the priest for the dictum
of God or to the judges for judgment according to law;
eventually, the judicial functions of the priests were reduced
to their simply being allotted some seats in the Great Sanhedrin
(Sif. Deut. 153).
(5) While no regular court could consist of less than three
judges (Sanh. 3b), recognized experts in the law (“mumḥeh larabbim”)
were already in talmudical times admitted as single
judges (Sanh.5a), albeit in civil cases only and not without
express reservations and disapproval – there being no true
single judge other than God alone (Avot 4:8; Yad, Sanh. 2:11).
No litigant could be compelled to submit to the jurisdiction
of a single judge (Sh. Ar., ḤM 3:2).
APPOINTMENT OF JUDGES. The appointment of judges
presupposed the “semikhah” (“laying of hands”) by the appointer
upon the appointee, as Moses laid his hands upon
Joshua (Num. 27:23) thereby making him leader and supreme
judge in succession to himself. The tradition is that through-
out the ages judges received their authority from their immediate
predecessors who “laid their hands” upon them; so
it came about that in law the president of the Great Sanhedrin
would be the authority conferring judicial powers on
graduating judges (Sanh. 5a), in a formal procedure before a
court of three in which he participated or which he appointed
(Yad, Sanh. 4:5). But judges were also appointed by kings (e.g.,
II Chron. 19:5–6), a power which appears to have eventually
devolved on the *exilarch in Babylonia (Yad, Sanh. 4:13), but
was superseded even there by the overriding authority of the
heads of the academies (rashei yeshivot; cf. A. Harkavy (ed.),
Zikhron… Kammah Ge’onim, 80f., no. 180). Courts need not
be composed of authorized judges only: any duly authorized
judge could form a court by co-opting to himself the necessary
number of laymen (Yad, Sanh. 4:11).
The original practice of semikhah ceased about the middle
of the fourth century and at the present time battei din
exercise their judicial functions only as agents of, and by virtue
of, an implied authority from the Ancients (Git. 88b; BK
84b; Yad, Sanh. 5:8). This “agency” does not extend to capital
cases; even for cases involving fines nonauthorized judges
would not be qualified (Sh. Ar., ḤM 1:1). It is only because of
force of circumstances that the scope of jurisdiction was in
practice never restricted, but extended to whatever causes local
conditions required (cf. Netivot ha-Mishpat, Mishpat ha-
Urim, ḤM 1:1; Nov. Ramban Yev. 46b).
One of the consequences of the cessation of the traditional
authorization of judges was the adoption in many
(mostly Western European) communities of a system of election
of judges; in Spain, the judges were elected every year,
along with all other officers of the community (cf. Resp. Ribash
207). The leading rabbinical authorities of the period were
time and again consulted about election procedures (cf., e.g.,
Resp. Rashba vol. 3, nos. 417, 422–5; vol. 5, no. 284), so as to
ensure that the best and most impartial candidates would be
elected. It seems that, when elected, they could not refuse to
serve, even though they had not put up their candidature (cf.
Rema ḤM 25:3; see Judicial *Autonomy; *Mishpat Ivri).
In the State of Israel today, the procedure for appointing
rabbinical judges is similar to that for appointing secular
judges (Dayyanim Act, 5715 – 1955), but while the qualifications
of secular judges are laid down in the law, those of rabbinical
judges are in each individual case to be attested to by
the chief rabbis on the strength of examinations.
No authorization (semikhah) and no appointment of a
judge will be valid where the appointee did not possess the
necessary qualifications (Maim. Yad, Sanh. 4:15); and the sin
of appointing unqualified judges is said to be tantamount
to erecting an *asherah beside the altar of the Lord (Sanh.
7b); and where the man was appointed because he was rich,
it was like making gods of silver or gods of gold (ibid.), not
only causing miscarriages of justice but idolatry (Maim. loc.
cit., 3:8); and it is reported that judges appointed because of
their money were treated with open contempt (TJ, Bik. 3:3,
65d). “The Sages have said that from the Great Court mes-
514 ENCYCLOPAEDIA JUDAICA, Second Edition, Volume 3