Lesson # 356 • Ordination of Judges The chain of ordination began when Moshe Rabeinu ordained Joshua, as described in the Torah “And he laid his hands upon him, and gave him a charge” (Bamidbar 27:23). Moshe also ordained the other members of his court. After Joshua’s ordination, the procedure did not involve placing one’s hands upon the person to be ordained. Instead the ordainers conferred the title “Rabbi” upon him and declared that he is ordained and is permitted to judge all types of cases, including those involving penalties. Ordination can be conferred only in the Land of Israel. There must be at least three men present when a person is ordained, at least one of whom has himself been ordained. Ordainers may confer ordination upon many people at one time. The practice of ordination lapsed in the middle of the 4th century c.e. The (current use of the term ordination merely describes the process of empowering modern-day rabbis to adjudicate ritual questions and is not in any way connected with the jurisdiction and authority which was empowered under the original ordination.) Although ordination could be conferred only in the Land of Israel. Once received, the judges could travel abroad and still retain their authority to judge case outside the Land of Israel. There is a difference of opinion in the Talmud whether according to Torah law, judges who preside over commercial cases have to be ordained. One opinion holds that the general requirement of ordained judges applies to commercial cases as well. The other opinion is that the Torah does not require ordained judges in commercial matters. Both views, however, are in agreement that by Rabbinic enactment, three laymen (that is unordained judges) may judge commercial lawsuits. There was thus a relaxation of the ordination requirement in commercial cases. A problem, however, emerged with regard to other types of cases. Since the practice of ordination was permitted only in the Land of Israel, and it was rare for ordained judges to hold court on a regular basis outside of the Land of Israel, the ability to dispense justice in the autonomous Jewish communities of the diaspora was frustrated. Moreover, even in the Land of Israel, the very existence of a court system was threatened by two events. The first was the banishment of the Great Sanhedrin and the Lesser Sanhedrin in the first century, so that all that remained of the court system was the Beit Din. However, as previously noted, the jurisdictional basis of the Beit Din generally required ordained judges. Accordingly, the second event, the lapsing of ordination in the fourth century, put into jeopardy the very existence of the Beit Din and necessitated a restructuring of its jurisdiction. In response to this critical need, a body of law began to evolve which extended the jurisdiction of the nonordained judge of the Beit Din. There thus developed a variety of cases which could be decided by non-ordained judges. According to Rashi, this development arose from two independent occurrences. The first was the liberalization of the law by Rabbinic enactment so as not to require ordained judges in commercial matters. The reason for the liberalization was to “avoid closing the door to commerce”. In distant parts of Israel and certainly in communities outside of Israel where ordination could not take place, ordained judges would seldom appear. If potential creditors felt they would have to wait for ordained judges to come to their community to adjudicate their claims, they would be reluctant to engage in credit transactions. If they knew, however, that there were tribunals available for a rapid disposition of their claims, they would be more inclined to extend credit. Accordingly, authority was given to courts composed of non-ordained judges to judge such cases. Other types of cases, however, still required ordained judges. Thus there remained a wide variety of situations such as robbery and assault cases which might be without remedy. A second occurrence therefore took place. By Rabbinic enactment non-ordained judges were given jurisdiction over other types of cases. Specifically the types of cases covered by this subsequent enactment were those which both occurred frequently and involved a loss of money. According to Tosafot, however, there was only one enactment which removed the requirement of ordained judges in the type of cases which both occurred frequently and involved a loss of money. The liberalization so as not to close the door to commerce and the enactment to permit non-ordained judges to hear these types of cases were one and the same. Both during the period of ordination and after ordination lapsed, the rationale for authorizing non-ordained judges to preside over cases formerly limited to ordained judges was that the non-ordained judges acted as the agents of the ordained judges. In T. Gittin (88b) an incident is related where Abaye, one of the authorities of the Talmud, met R. Yosef, who was coercing a man to divorce his wife who wanted a divorce. They were living in Babylonia, and R. Yosef was not ordained. When Abaye asked R.Yosef how he could compel this divorce since only ordained judges could employ coercion to effectuate a divorce, R.Yosef answered that the non-ordained judges were acting as the agents of the ordained judges. The question arose that the non-ordained judges could do the bidding of the ordained judges while there were still ordained judges. But once ordination lapsed how could the non-ordained judges do the bidding of ordained judges. Tosafot answers that when the Talmud speaks of doing the bidding of the ordained judges, it refers to the ordained judges of old. From the foregoing it is apparent that the non-ordained judges act as agents of deputies of the ordained judges of old in order to carry out the mandate pursuant to Rabbinic enactment which authorizes them to act in such cases. In the next lesson we shall IYH begin to discuss the jurisdiction of the courts of non-ordained judges, which is the situation today. The subject matter of this lesson is more fully discussed in volume 1 chapter 1 of Jewish Jurisprudence by Emanuel Quint & Neil Hecht. Copies of both volumes can be purchased at local Judaica bookstores. Questions to quint@inter.net.il [The Parshat To-l'dot Homepage]
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