Lesson # 339 (part iki) •A Beth Din of One Judge In the last lesson we discussed that according to Talmudic law, a recognized expert does not require authorization to judge cases and may in those societies where halacha holds sway, compel the litigants to appear before him to adjudicate their dispute. Nowadays, in most situations, the litigants select the Beth Din that they want to adjudicate their controversy. In our Israel Center Beth Din we adjudicate cases where both parties sign a stipulation consenting to our Beth Din judging the case. We do not take any cases to be decided until the parties with their lawyers, (in most instances we strongly urge that the parties be represented by counsel) sign a stipulation authorizing us to judge the case and make a decision that the parties agree to adhere to. Thus nowadays, in most situations both litigants select their Beth Din and agree to be bound by its decision. I will now set forth the holdings of a few of our greatest post-Talmudic scholars regarding these laws when the parties did not voluntarily confer the power on the Beth Din to adjudicate their dispute. We will be discussing concepts that do not exist today, the position of the Exilarch, the Reish Galuta (the political leader of the Jews). However, this may be the only time some of our readers will hear this term which was once a significant part of the Jewish history in the Iraq area. Rambam states that if one is a recognized expert or has received authorization from the Beth Din, then he may render a valid decision by himself, even though he does not constitute a court. In another place he states that any competent judge who is authorized by the Exilarch is authorized to judge anywhere in the world, and the parties are compelled to accept the jurisdiction of this type of judge. If a person is not qualified, either because he lacks knowledge, or because he is unworthy but nevertheless is authorized by the Exilarch or by the court, then his authorization is a nullity until he becomes competent, since such an appointment can only be the result of an error or of a violation of the halacha. Rambam, in this latter statement, seems to say that if one is not at least an expert, then his authorization is to no avail. This holding apparently conflicts with his other statement that authorization may confer jurisdiction on one who is not an expert.R. Abraham diBoton (1560-1616) in his Lechem Mishna commentary on Rambam, attempts to reconcile Rambam’s statements by making the authority of the judge and his receipt of authorization depend upon the willingness of the litigants to accept the judge. This explanation leaves many unanswered questions. Other commentators,in attempts to reconcile Rambam’s statements, combine various grades of judges into one level, so that there are fewer grades of judges. According to Rabbi Yonatan Eibeschutz (1690-1764) the first grade is the recognized expert who may judge without authorization; the second grade is the expert who requires authorization; and the third grade embraces the learned person and the layman who may not judge even with authorization. From the foregoing it is clear that there may be instance where an individual may judge cases by himself. However, a Mishna in Tractate Avot (4:3) states in the name of R. Yishmael “Judge not alone, for none may judge alone save One.” As explained by Bartinura, this Mishna contains a strong admonition to adopt the pious trait of not judging alone, since only the Lord judges alone. Tif'eret Yisrael adds that this applies even to an expert appointed by the community. Tosafot Yom Tov comments that the intent of this teaching is also to further the requirement that judges should discuss the matter fully and attempt to penetrate deeply the questions involved in a case. Lacking the provocative probing of fellow jurists, an individual judge may be unable to delve so deeply into the matter. In this respect it is interesting to quote from the Jerusalem Talmud (T. Sanhedrin 1:1) which relates the statement of R. Yehuda b. Pazi that “even the Holy One, blessed be He, does not judge by Himself, as it is written ‘and all the hosts of heaven stand by Him, to His right and to His left’ These incline toward the scale of merit and those incline toward the scale of guilt. Although He does not judge alone, He seals the decree alone.” On the basis of the Mishna in Avot, there seems to be a clearly accepted admonition against an individual judging a case by himself. Yet in the Talmud it was taught that certain great scholars judged cases by themselves. Tosafot answers that the Mishna merely provides the judge with sound advice, that he should not judge by himself lest he make a mistake in rendering a decision. Rambam in his code states that one who is a recognized expert my judge a case by himself. Although he may do so, the Sages have decreed that he should have others sit with him in judgment. R. Moses of Coucy (1200-1260) in his Sefer Mitzvot Gadol (states that according to Torah law one may judge by himself, as it is written “in righteousness shalt thou judge thy people” (Vayikra 19:15) However, the Mishna in Avot that one should not judge by himself is a wise counsel of the Sages. Moreover, Sefer Mitzvot Gadol says the principle applies even to a recognized expert. Rabbi Yosef Karo in Shulhan Aruch (Hoshen haMishpat 1:3) states that although a person who is a recognized expert may judge by himself, the Sages commanded that others should sit with him. R. Mordechai Jaffe (1536-1612) in his Levush says the principle applies even to a recognized expert, for although the Sages taught that one may judge alone, they nevertheless gave wise advice to the judge that he should not accustom himself from doing so. This view is also the view of the classical commentaries and codes such as R. Yoel Sirkis (1570-1641), R.Shabtai Cohen (1622-1663), R. David b. Samuel haLevi (1586-1667), and R. Yechiel Michel HaLevi Epstein (1829-1908) in his Aruch HaShulhan. We may conclude that in those situations where one judge may decide a case by himself, it is preferable, if possible to have others join the judge in judging the case. The subject matter of this lesson is more fully discussed in volume I chapter 1 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 Pinchas Homepage]
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