Lesson # 337 (part two) • Emergency Jurisdiction of the Beth Din In the last lesson we quoted a Baraita from the Talmud as the source of the law of the exigency (emergency) jurisdiction of the Beth Din. The Baraita cited, teaches that when the times require it, a court may exceed its authority and may mete out punishments more severe than prescribed by law, or, when there is no specific violation and penalty, it may nevertheless mete out such punishment as it considers necessary. This authority exists only so long as an emergency exists, and the authority terminates when the emergency terminates. Alfasi in two places in his compendium of the halacha quotes only the Baraita in its entirety. In a third place, Alsfasi connects the teaching of the Baraita with another Talmudic case. In that case the Talmud (Baba Kama 96b) relates an incident involving a person who stole a yoke of oxen from his neighbor and after having used the oxen for plowing and sowing returned the oxen to the owner. When the case came before R. Nachman, he ordered the court officers to appraise the increment in the value of the field. R.Nachman was asked why this robber should have to pay part of the increased value of the field, since a thief is ordinarily required to pay only the value of the stolen object at the time of the theft and here the repayment of the full value of the stolen property was made when the thief returned the oxen intact. R. Nachman replied that the person who misappropriated the oxen was a notorious robber and must be penalized accordingly as a deterrence. Alfasi quotes this Talmudic passage and adds: “and it is apparent here that in such situations we may penalize, and even outside the Land of Israel seeing that R. Nachman was in Babylonia and he penalized. Alfasi living in the 11th century enlarged the principle of the Baraita to extend the court’s extra-judicial authority beyond the boundaries of Israel, thereby applying it to non-ordained judges. Without the principle extracted from the thief case, this would have not been apparent, since the incident in the Baraita related by R. Eliezer b. Jacob took place in the Land of Israel during the period of ordination. Rambam and all the subsequent codes elaborate on the authority of the non-ordained judges to mete out extra-judicial penalties to safe-guard the safety of the community. However, some other codes add that only the outstanding authorities of the generation may engage in such practice. There was in the 12th century added on to these laws that (1) such outstanding personality could exercise such functions if (2) he was specifically appointed for such task. Just (1) without (2) or (2) without (1) is not sufficient to give authority to the leader to mete out such decisions. In some communities there was a tradition that the community appointed “seven leaders” and they too were held to be able to exercise such authority. The leaders, before exercising such punishments which are extra-judicial, should determine that the times require it and although the individual to be punished would not have been punished in normal times. By the time of the writing of the Shulhan Aruch by R. Yosef Karo (1488-1575) the law was already included in all the codes as practiced by the Jews wherever they resided. The question that usually arose was which court is of such stature that it could so act. A few examples as the doctrine of exigency jurisdiction appears in Rabbinic responsa. Shevut Yaakov (1670-1733) discusses a question of extra judicial remedies in a responsum. The question concerned a problem in one of the communities in which a nefarious practice had emerged. Almost every bridegroom, soon after the marriage was consummated lodged a complaint against his bride charging her with being unchaste. The accusations were investigated and found to be groundless, it being ascertained that the accusation was raised as a method of embarrassing and extorting money from the bride’s father. In order to put an end to this shameful practice the elder of the community wished to assume extra judicial jurisdiction and to punish the last complaining bridegroom by flogging or a monetary punishment. Shevut Yaakov was asked to decide whether the elder could assume such jurisdiction, there was no specific authority for a judge to decide such a case. Also the punishment involved either flogging or money, but not the death penalty. In his reply, Shevut Yaakov held that there was ample authority for the elder to assume extra judicial authority. There seems to be a wide consensus that such authority may be exercised if there is no death penalty involved. As to applying the extra judicial authority to the case at hand, Shevut Yaakov cautions that the elder should proceed with due deliberation since the bridegroom is not guilty of violating any specific law. Many centuries earlier, Rabbeinu Asher (the RO"SH 1250-1327) decided several cases involving extra- judicial jurisdiction of the courts. In one of the cases, the RO"SH discussed the law relating to courtyard boundaries regarding carrying objects from one premise to another on Shabbat. Apparently one of the members of the community dissented from the holding and the RO"SH instructed the community to excommunicate him. And if this did not dissuade the dissenter, then the civil authorities of the city were to be asked to fine him one thousand coins. And if this still did not dissuade the dissenter, the community could judge him to be a rebellious elder and put him to death. From this decision it is apparent that the RO"SH would extend the extra judicial jurisdiction of the non-ordained courts to include meting out the death penalty. Yet the RO"SH seems to favor a contrary position in a second case which occurred in Cordova, Spain. One of the members of the community was imprisoned by the Arab rulers until he made a monetary settlement with them on their claim. When members of the community came to console him, he allegedly responded by committing blasphemy, cursing the name of the Lord. This case was widely followed by all the Jewish and also non-Jewish communities in Spain and the matter was sent to R. Asher for decision as to what should be done. There were those in Spain who held that he should be put to death for the blasphemy. When the RO"SH, who had moved from Germany to Spain was asked for a decision in the case, he first stated that he was surprised to hear the Beth Din in Spain meted out the death penalty. How could they judge capital punishment without a Sanhedrin that had lapsed centuries earlier. He heard that this was done with the authority of the king. Moreover, by being judged by their fellow Jew, many were saved from the death penalty since under Arabic law there were many more cases with a death penalty. The RO"SH adds that in spite of all this, he is reluctant to consent to the death penalty. Nevertheless he understand their point of view to impose the death penalty in order to eliminate the evil in their midst. However, from a reading of many decisions by R. Asher, it appears that he does not favor extending extra judicial remedies to include the death penalty. (IY"H next lesson will continue with more cases along the same lines.) The subject matter of this lesson is more fully discussed in volume I chapter 2 A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il [The Parshat Chukat Homepage]
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