Lesson # 361 • Expanding the jurisdiction of Non-ordained Judges 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 manner, but they also had to cope with the additional problems arising from their limited jurisdiction. Their response was to expand the doctrine of extrajudicial authority. In fact extrajudicial remedies existed even before the lapse of ordination. Indeed, commentators 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 Torah 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. extrajudicial remedies required by the situation and the times. Thus in B'reishit (38:24), Jacob’s son Judah sentences his daughter-in-law Tamar, the widow of his deceased son, 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, a court was convened consisting 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 on the court; there was a lack of admissible evidence since the requisite warnings were certainly 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 Chachamim 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 similar incident of a “concubine in Giv'a” in the Shoftim 19. An elderly man residing in Giv'a, 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 the 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. This incident precipitated a civil war, the other tribes deciding to punish (and indeed decimating) the tribe of Benjamin 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 upon the tribe was an extrajudicial remedy to eradicate such conduct from the nation. While these illustrative incidents do demonstrate a desire to attribute exigency jurisdiction to even the earliest Biblical periods, the actual Rabbinic source for exigency jurisdiction is developed in a series of cases in the Talmud. The Talmudic source for extrajudicial authority is based on a Baraita in which R. Eliezer b. Yaakov states that he heard form his teachers that a court may mete out lashes or capital punishment even in cases where the law does not prescribe such severe punishments, the purpose not being 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 on a horse on the Sabbath. He was brought before the court and stoned to death. It also once happened that a man had relations with his wife in a semi-public place; he was brought before the court and was flogged. In both cases the punishment imposed was not the prescribed penalty. The times, however, required it. The man who rode upon the horse violated only a Rabbinic prohibition, and the death penalty is not prescribed for such a violation. The purpose of this prohibition is to prevent the rider from tearing a twig from a tree, such an act constituting a Sabbath violation of Torah law. Thus this Rabbinic prohibition was enacted merely to erect a safeguard for a Torah law. Similarly, in the husband-wife sexual conduct cases, although there is no express Torah prohibition against their specific conduct, there was concern about public morality. The court in both cases acted extrajudicially to combat attitudes of assimilation and immorality that prevailed during the Hellenistic period. The Baraita thus teaches that when the times require it, a court may exceed its authority and may mete out punishments more sever than those prescribed by law or, when there is no specific violation and penalty, may mete out such punishment as it considers necessary. This authority exists only so long as the emergency exists and the authority terminates when the emergency terminates. The subject matter of this lesson is more fully discussed in volume 1 chapter 2 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 Vayigash Homepage]
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