Lesson # 336 (part one) • Emergency Jurisdiction of the Beth Din In many of these lessons we have discussed in detail the ordinary jurisdiction (powers to act) of the Beth Din. The broad general jurisdiction depended upon the judges being ordained. Accordingly, with the lapse of ordination around 350C.E. Jewish communities both in the Land of Israel and in the Diaspora were faced with problems resulting from a severely limited judiciary. Originally the jurisdiction of non-ordained judges was limited to certain types of commercial matters and related matters. Although circumscribed, the jurisdiction of the non-ordained judges was sufficient to enable the smooth flow of commerce and business to continue. But those courts were not authorized to act in cases involving criminal type conduct or transgressions of religious laws and practices. Situations therefore arose where anti-social or irreligious conduct threatened the fabric and quality of communal life, or even the safety of the community in its relationship with the rulings of non-Jewish authorities. Yet, under traditional halachic principles, the ordinary jurisdiction of the Jewish courts, and the legal authority of elected communal representatives did not extend to penalizing such conduct or to enacting appropriate remedies. Moreover, even during the period of ordination, there occasionally were extraordinary circumstances that defied traditional legal solutions and which compelled the courts to assume extralegal jurisdiction over parties and remedies. Not only were the Jewish courts of non-ordained judges similarly restricted from dealing with such matters in a traditional way, but they had to cope with the additional problems arising from limited jurisdiction. Their response was to expand the doctrine of extra judicial authority. These lessons deal with the development and expansion of such extra judicial powers which permitted the development, adaption and implementation in autonomous Jewish communities around the world. Exigency situations and extra judicial remedies existed even before the lapse of ordination. Indeed, commentaries have used this fact to explain numerous instances in the Bible where extralegal sanctions were employed. According to tradition, the patriarchs and their children observed all aspects of Jewish Law even prior to the giving of the Law to Moses on Sinai. Accordingly, incidents in which their judgments appeared to deviate from accepted Judaic practice have been explained as an exercise of exigency jurisdiction, i.e., as extra judicial remedies required by the situation and the times. Thus in B'reishit, Jacob’s son Judah sentences his daughter-in-law Tamar, the widow of his deceased sons to death by burning when her pregnancy is discovered. Since at the time she was neither married nor betrothed, she was not guilty of any capital offense. As described in the Yalkut Shimoni (B'reishit 38:98) a court as convened consisted of Judah, his father, Jacob, and his grandfather Isaac. This court in condemning her to death was not validly constituted for many reasons. The death penalty requires a court of 23 judges; it is invalid to have relatives sit on the court; there was a lack of admissible evidence since requisite warnings were not given to her. And what is most important, she did nothing for which the death penalty could be given. She had committed no capital crime. Siftei Chachmim comments that the trial was held and the punishment decided upon in order to instill fear in the hearts of all to prevent the community from becoming wanton. Baalei haTosafot similarly concludes that the generation was generally dissolute and the punishment, although not warranted, was meted out as a social deterrent. Additionally, Baalei haTosafot indicates that Joshua was similarly motivated when he sentenced Achan to death for transgressing the CHEIREM, the prohibition against taking any booty from Jericho. Since the matter was determined by the casting of lots to identify the guilty person, there was no competent testimony that Achan had taken the booty. Achan’s subsequent confession would have been excluded in a traditional trial. Ramban, in commenting on the story of Lot offering his daughters to the Sodomites in order to save his guests, compares it to the incident of a “concubine in Gibeah” in the Book of Judges (chapter 19). An elderly man residing in Gibeah, in the tribe of Benjamin, extended hospitality to a visitor and his concubine. When the citizens of the town demanded that the old man surrender his visitor to them so that they could commit unnatural acts upon him, the visitor thrust his concubine into their midst. The inhabitants of the city ravished her, and she was found dead on the old man’s doorstep the next morning, The incident precipitated a civil war, the other tribes deciding to punish (and indeed decimating) the Benjaminites for their conduct. Yet there was no direct evidence as to the cause of her death. It may, for example, have been caused by her overnight exposure to the cold. As explained by Ramban, the punishment inflicted on the tribe was an extra judicial remedy to eradicate such conduct from the nation. While these illustrative incidents so demonstrate a desire to attribute exigency jurisdiction to even the earliest Biblical period, the actual Rabbinic source for exigency jurisdiction is developed in a series of cases in the Talmud. The Talmudic source for extra judicial authority is based on a Baraita in which the Tanna Eliezer b. Jacob states that he heard from his teachers that a court may mete out lashes or capital punishment even in cases where the law does not prescribe such severe punishment, the purpose being not to undermine the law but to preserve the law by building a fence around it. The Baraita goes on to relate that it once happened during the period of Greek rule in Israel that a man rode a horse on Shabbat; he was brought before the court and stoned to death. It was once happened that a man had relations with his wife in a semipublic place, he was brought before the court and was flogged. In both cases the penalty imposed was not the prescribed penalty. The times, however, required it. The man who rode his horse on the Sabbath violated only a Rabbinic prohibition, and the death penalty is not prescribed for such a violation. The purpose of this Rabbinic prohibition is to prevent a rider from tearing a twig from a tree, such an act constituting a Sabbath violation of Torah law. Thus, the Rabbinic prohibition was enacted merely to erect a safeguard of a Torah law. Similarly, in the husband-wife sexual conduct case, although there is no express Torah prohibition against their specific conduct, there was concern about norms of public morality. The court in both cases acted extra-judicially to combat attitudes of assimilation and immorality that prevailed during the Hellenistic period. (to be cont.) 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 Sh'lach Homepage]
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