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Bet Din and Judges

BET DIN AND JUDGES (Heb. בֵּית דִּין; lit. "house of judgment"). Bet din (pl. battei din) is the term, in rabbinic sources, for a Jewish court of law. In modern times it usually refers to an ecclesiastical court dealing with religious matters such as divorce, and supervision of the dietary laws, and acting, with the consent of all concerned, as a court of arbitration. In Israel the term has come to mean the rabbinic court (as opposed to the secular court known as the bet mishpat) which has, by act of the Knesset, jurisdiction in matters of personal status in addition to its normal religious function. This article deals with the general meaning as found in rabbinic sources.

In Jewish Law

ORIGINS

The Bible records that Moses sat as a magistrate among the people (Ex. 18:13) and, either on the advice of Jethro, his father-in-law (Ex. 18:17–23), or on his own initiative (Deut. 1:9–14), he later delegated his judicial powers to appointed "chiefs of thousands, hundreds, fifties, and tens" (Ex. 18:21; Deut. 1:15) – reserving to himself jurisdiction in only the most difficult, major disputes (Ex. 18:22 and 26; Deut. 1:17). It is therefore probable that Israel was one of those civilizations in which the judicature preceded the law, and that some of the later, codified law may have originated in judicial precedents. The earliest reports of such legal decisions already indicate a high standard of judicial practice and qualifications. Judges had to be "able men, such as fear God, men of truth, hating unjust gain" (Ex. 18:21) and "wise men, and understanding and full of knowledge" (Deut. 1:13). They were charged to "hear the causes between your brethren and judge righteously between a man and his brother and the stranger," not be "partial in judgment," but to "hear the small and the great alike; fear no man, for judgment is God's" (Deut. 1:16–17). When the children of Israel settled in their land, the allocation of jurisdiction on a purely numerical basis ("thousands, hundreds, fifties, tens") was to be replaced by allocation on a local basis, i.e., that judges were to be appointed in every town within the various tribes (Deut. 16:18 and Sif. Deut. 144; Sanh. 16b). It is disputed whether this injunction to establish courts in every town applied only in the land of Israel or also in the Diaspora. Some hold that outside the land of Israel courts ought to be established in every district, but need not be established in every town (Mak. 7a); whereas others hold that the injunction applies only in Israel, viz. "in all the settlements that the Lord your God is giving you," but not "in foreign countries in which He has dispersed you" (Maim. Yad, Sanh. 1:2). However, later authorities regard as obligatory the establishment of a court in every community (cf., e.g., Arukh ha-Shulḥan ḤM 1:18). In towns with less than 120 inhabitants, there was only a court of three judges – three being the minimum number – so that where opinions were divided, a majority could prevail (Sanh. 3b; Yad. Sanh. 1:4). In towns with 120 inhabitants or more, the court should have 23 judges and be designated as a "Sanhedrin Ketannah" (Sanh. 1:6; Yad, Sanh. 1:10). Courts of 23 judges also sat in the Temple precincts in Jerusalem (Sanh. 11:2; Yad. Sanh. 1:3). The highest court was the "Sanhedrin Gedolah" of 71 judges which sat in the Temple (Lishkat ha-Gazit) in Jerusalem (Mid. 5:4; Sanh. 11:2; Yad, Sanh. 1:3 and 14:12), corresponding to the 70 elders and officers who took their place with Moses to "share the burden of the people" (Num. 11:16–17).

The jurisdiction of the various courts was as follows.

(1) Courts of three judges exercised jurisdiction in civil matters generally (Sanh. 1:1), including those which might involve the imposition of *fines (Sanh. 1:1; Sanh. 3a). They also had jurisdiction in matters of divorce (Git. 5b) and ḥaliẓah (Yev. 12:1). A court of three judges was required for the conversion of non-Jews (Yev. 46b); for the absolution from vows (Ned. 78a; TJ, Ḥag. 1:8, 76c and Ned. 10:10, 42b); for the circumvention of the law annulling debts in the Sabbatical year ("prosbul"; Shev. 10:4; Git. 32b); for the non-release of slaves after six years (Ex. 21:6; Mekh. Mishpatim 2; Yad, Avadim 3:9); for the enslavement of one who commits a theft and does not have the means to pay for the principal (Ex. 22:2; Yad, Sanhedrin 1:1; Genevah 3:11); and also for the taking of any evidence, even in noncontroversial cases (Yev. 87b; Resp. Ha-Meyuḥasot la-Ramban 113; Resp. Rashba vol. 1, no. 749). Compulsory orders in matters of ritual would also require the concurrence of three judges in order to be valid (Ket. 86a; Ḥul. 132b), as would the imposition of any sanction for disobedience (Mordekhai Git. 384).

(2) Courts of 23 judges exercised jurisdiction in criminal matters generally, including capital cases (Sanh. 1:4). They also exercised jurisdiction in quasi-criminal cases, in which the destruction of animals might be involved (e.g., Lev. 20:15–16; Ex. 21:28–29; Sanh. 1:4). Where a case was originally of a civil nature, such as slander, but might in due course give rise to criminal sanctions, such as slander of unchastity (Deut. 22:14), it was brought before a court of 23 (Sanh. 1:1); if the slander was found to be groundless, the matter would be referred to a court of three for civil judgment (Maim. Yad, Sanh. 5:3). According to one view, the imposition of the penalty of *flogging required a court of 23 (Sanh. 1:2), but the prevailing view is that a court of three is sufficient (Sanh. 1:2; Yad, Sanh. 5:4), as it is really a penalty that is not necessarily for criminal offenses (see *Contempt of Court), as well as being the accepted method of judicial admonition (makkot mardut).

(3) The court of 71 judges had practically unlimited judicial, legislative, and administrative powers but certain judicial and administrative functions were reserved to it alone. Thus, the high priest (Sanh. 1:5), the head of a tribe (Sanh. 16a), and presumably also the president of the Sanhedrin (nasi), could, if accused of a crime, only be tried by the court of 71. Certain crimes were also reserved to its jurisdiction, such as the uttering of false prophecy (Sanh. 1:5), rebellious teaching by an elder ("zaken mamre"; Sanh. 11:2; see *Majority Rule), and the subversion of a whole town or tribe (Sanh. 1:5); and certain death penalties had to be confirmed by it before being carried out (such as of the rebellious son, the enticer to idolatry, and false witnesses; Tosef., Sanh. 11:7). The *ordeal of a woman suspected of adultery took place in the Great Court at Jerusalem only (Sot. 1:4).

Among the administrative functions reserved to the Great Sanhedrin were the appointment of courts of 23 (Sanh. 1:5; Maim. Yad, Sanh. 5:1); the election of kings (Yad, loc. cit. and Melakhim 1:3) and of high priests (Yad, Kelei ha-Mikdash 4:15); the expansion of the limits of the city of Jerusalem and of the Temple precincts (Sanh. 1:5), and the partition of the country among the tribes (according to Ulla; Sanh. 16a); the declaration of war (Sanh. 1:5); the offering of a sacrifice for the sin of the whole community (Lev. 4:13–15; Sanh. 13b); and the appointment and control of priests serving in the Temple (Mid. 5:4; Tosef., Ḥag. 2:9). The legislative functions of the Great Sanhedrin cannot easily be enumerated. It has been authoritatively said that the Great Court of Jerusalem was the essential source of all Oral Law (Yad, Mamrim 1:1). The law as laid down (or as interpreted) by the Great Sanhedrin is binding on everybody, and any person contravening or repudiating it was liable to the death penalty (Deut. 17:12; Sif. Deut. 155; Yad, Mamrim 1:2), even where the law as laid down (or interpreted) by the court might appear misconceived: "even though they show you as right what in your eyes is left or as left what is right – you must obey them" (Sif. Deut. 155; but cf. Hor. 1:1 and TJ, Hor. 1:1, 45d; and see *Rabbinical Authority). As a corollary of their legislative powers, the Great Sanhedrin also exercised advisory functions: wherever in any court any question of law was in doubt, the final and binding opinion of the Great Court at Jerusalem would have to be taken (Sanh. 88b; Yad, Sanh. 1:4). For the question of appeals see *Practice and Procedure.

(4) Apart from the regular courts mentioned above, there sat in the Temple a special court of priests charged with the supervision of the Temple ritual and with civil matters concerning the priests (cf. Ket. 1:5). Mention is also made of a special court of levites, presumably with similar functions (cf. Tosef., Sanh. 4:7). Originally, the priests performed general judicial functions: they were the sole competent interpreters (or diviners) of God's judgment (Ex. 28:15, 30, 43; Num. 27:21; Deut. 33:8–10); later, they adjudicated matters together or alternately with the judges (Deut. 17:9; 19:17; 21:5), and it seems that the litigants had the choice of applying to the priest for the dictum of God or to the judges for judgment according to law; eventually, the judicial functions of the priests were reduced to their simply being allotted some seats in the Great Sanhedrin (Sif. Deut. 153).

(5) While no regular court could consist of less than three judges (Sanh. 3b), recognized experts in the law ("mumḥeh larabbim") were already in talmudical times admitted as single judges (Sanh.5a), albeit in civil cases only and not without express reservations and disapproval – there being no true single judge other than God alone (Avot 4:8; Yad, Sanh. 2:11). No litigant could be compelled to submit to the jurisdiction of a single judge (Sh. Ar., ḤM 3:2).

APPOINTMENT OF JUDGES

The appointment of judges presupposed the "semikhah" ("laying of hands") by the appointer upon the appointee, as Moses laid his hands upon Joshua (Num. 27:23) thereby making him leader and supreme judge in succession to himself. The tradition is that throughout the ages judges received their authority from their immediate predecessors who "laid their hands" upon them; so it came about that in law the president of the Great Sanhedrin would be the authority conferring judicial powers on graduating judges (Sanh. 5a), in a formal procedure before a court of three in which he participated or which he appointed (Yad, Sanh. 4:5). But judges were also appointed by kings (e.g., II Chron. 19:5–6), a power which appears to have eventually devolved on the *exilarch in Babylonia (Yad, Sanh. 4:13), but was superseded even there by the overriding authority of the heads of the academies (rashei yeshivot; cf. A. Harkavy (ed.), Zikhron… Kammah Ge'onim, 80f., no. 180). Courts need not be composed of authorized judges only: any duly authorized judge could form a court by co-opting to himself the necessary number of laymen (Yad, Sanh. 4:11).

The original practice of semikhah ceased about the middle of the fourth century and at the present time battei din exercise their judicial functions only as agents of, and by virtue of, an implied authority from the Ancients (Git. 88b; BK 84b; Yad, Sanh. 5:8). This "agency" does not extend to capital cases; even for cases involving fines nonauthorized judges would not be qualified (Sh. Ar., ḤM 1:1). It is only because of force of circumstances that the scope of jurisdiction was in practice never restricted, but extended to whatever causes local conditions required (cf. Netivot ha-Mishpat, Mishpat ha-Urim, ḤM 1:1; Nov. Ramban Yev. 46b).

One of the consequences of the cessation of the traditional authorization of judges was the adoption in many (mostly Western European) communities of a system of election of judges; in Spain, the judges were elected every year, along with all other officers of the community (cf. Resp. Ribash 207). The leading rabbinical authorities of the period were time and again consulted about election procedures (cf., e.g., Resp. Rashba vol. 3, nos. 417, 422–5; vol. 5, no. 284), so as to ensure that the best and most impartial candidates would be elected. It seems that, when elected, they could not refuse to serve, even though they had not put up their candidature (cf. Rema ḤM 25:3; see Judicial *Autonomy; *Mishpat Ivri).

In the State of Israel today, the procedure for appointing rabbinical judges is similar to that for appointing secular judges (Dayyanim Act, 5715 – 1955), but while the qualifications of secular judges are laid down in the law, those of rabbinical judges are in each individual case to be attested to by the chief rabbis on the strength of examinations.

No authorization (semikhah) and no appointment of a judge will be valid where the appointee did not possess the necessary qualifications (Maim. Yad, Sanh. 4:15); and the sin of appointing unqualified judges is said to be tantamount to erecting an *asherah beside the altar of the Lord (Sanh. 7b); and where the man was appointed because he was rich, it was like making gods of silver or gods of gold (ibid.), not only causing miscarriages of justice but idolatry (Maim. loc. cit., 3:8); and it is reported that judges appointed because of their money were treated with open contempt (TJ, Bik. 3:3, 65d). "The Sages have said that from the Great Court messengers were sent out all over the country of Israel, and they looked for judges who were wise and feared sin and were humble and clearsighted and of good appearance and good manners, and first they made them judges in their towns, and then they brought them to the gates of the Temple, and finally they would elevate them to the Great Court" (Maim. loc. cit., 2:8).

QUALIFICATIONS

The judicial qualifications have been enumerated by Maimonides as follows: judges must be wise and sensible, learned in the law and full of knowledge, and also acquainted to some extent with other subjects such as medicine, arithmetic, astronomy and astrology, and the ways of sorcerers and magicians and the absurdities of idolatry and suchlike matters (so as to know how to judge them); a judge must not be too old, nor may he be a eunuch or a childless man; and as he must be pure in mind, so must he be pure from bodily defects, but as well a man of stature and imposing appearance; and he should be conversant in many languages so as not to stand in need of interpreters. The seven fundamental qualities of a judge are wisdom, humility, fear of God, disdain of money, love of truth, love of people, and a good reputation. A judge must have a good eye, a humble soul, must be pleasant in company, and speak kindly to people; he must be very strict with himself and conquer lustful impulses; he must have a courageous heart to save the oppressed from the oppressor's hate, cruelty, and persecution, and eschew wrong and injustice (Yad, Sanh. 2:1–7). Playing cards for money or other games of chance and lending money on interest also disqualify a person from judicial functions (Sanh. 3:3). A judge who is a relative of one of the litigants, or has any other personal relationship toward him ("loves him or hates him"), must disqualify himself from sitting in judgment over him (Sanh. 3:4–5). A judge should not engage in manual work, so as not to expose himself to popular contempt (Kid. 70a).

PRINCIPLES OF JUDICIAL CONDUCT

A judge must show patience, indulgence, humility, and respect for persons when sitting in court (Yad, Sanh. 25:1; Sh. Ar., ḤM 7:2–5); he must always hear both parties to the case (Sanh. 7b; Shev. 31a; and Codes); he may not in any way discriminate between the parties (Lev. 19:15; Shev. 30a–31a; Yad, Sanh. 21:1–2; 20:5–7; Sh. Ar., ḤM 17:1 and commentaries ad. loc.); nor may he act under the possible pressures of any undue influence, including *bribery by money or by words (Deut. 16:19; Sanh. 3:5; Shab. 119a; Ket. 105b; and Codes); he must, on the one hand, proceed with deliberation and care, and reconsider again and again before finally pronouncing his verdict (Avot 1:1; Sanh. 35a; Sif. Deut. 16 and Codes), but may not, on the other hand, unduly delay justice (Yad, Sanh. 14:10 and 20:6); and he must so conduct himself that justice is not only done but is also manifestly seen to be done (Yoma 38a; Shek. 3:2) and readily understood by the litigants (ḤM 14:4). Before joining a court, a judge must satisfy himself that the judges sitting with him are properly qualified (Yad, Sanh. 2:14); and no judge should sit together with another judge whom he hates or despises (Sh. Ar., ḤM 7:8). Nor may a judge – especially in criminal cases – instead of considering and deciding the issue before him on his own, rely on the opinion of greater judges in the court and try thus to disburden himself of his judicial responsibility (Tosef., Sanh. 3:8; Yad, Sanh. 10:1).

BIBLIOGRAPHY:

D. Hoffmann, Der Oberste Gerichtshof in der Stadt des Heiligthums (1878); J. Jelsky, Die innere Einrichtung des Grossen Synedrions zu Jerusalem und ihre Fortsetzung im spaeteren palaestinensischen Lehrhause… (1894); A. Buechler, Das Synedrion in Jerusalem und das Grosse Beth-Din in der Quaderkammer des Jerusalemischen Tempels (1902); Schuerer, Gesch, 4 (19114), index, S.V. Gerichtswesen; Gulak, Yesodei, 4 (1922), index; S. Assaf, Battei ha-Din ve-Sidreihem Aḥarei Ḥatimat ha-Talmud (1924); idem, in: Ha-Mishpat ha-Ivri, 1 (1925/26), 105–20; A. Feldman, in: Juridical Review, 41 (1929); D.M. Shohet, The Jewish Court in the Middle Ages (1931); A.A. Neuman, The Jews in Spain, 2 (1942), index, S.V. Courts, Jewish; Ḥ. Albeck, in: Zion, 8 (1942/43), 85–93; I. Levitats, Jewish Community in Russia 1772–1844 (1943), 198–217; A. Weiss, in: Sefer ha-Yovel… Ginzburg (1946), 189–216; Albright, in: A. Marx Jubilee Volume (1950), 61–82; Gershoni, in: Ha-Torah ve-ha-Medinah, 2 (1950), 72–75; ET, 1 (19513), 117–9; 2 (1949), 253; 3 (1951), 150–74, 174–80, 181; 8 (1957), 510–2; S.B. Hoenig, The Great Sanhedrin (1953); H. Mantel, Studies in the History of the Sanhedrin (1961); Silberg, in: Molad, 23 (1965/66), 265–74; Baron, Social2, index, S.V. Courts, Jewish; Elon, Mafteaḥ, 12–16; J.S. Zuri, Mishpat ha-Talmud, 7 (1921), 1–12. ADD. BIBLIOGRAPHY: M. Elon, "Developments in the Rabbinic Judiciary of Israel," in: Dinei Israel, 5 (1974), lxxi; idem, Ha-Mishpat ha-Ivri (19883), 676–77; 1337–45, 1473–1536; idem Jewish Law (1994), 2:835–836, 4:1596–1606, 1752–1826); idem, Jewish Law (Mishpat Ivri): Cases and Materials, (Matthew Bender Casebook Series; 1999), 391–420 (See, e.g., M.Elon "These Statements Are Obiter Dicta… They Are Based on Error and It Is Appropriate Not To Follow Them": Critiques and Reflections on the Bavli and Lev cases); M: Mautner et al (ed.) Multiculturalism in the Democratic and Jewish State, the Ariel Rozen-Tzvi Memorial Book (1998), 361–407; M. Silberg, Ha-Ma'amad ha-Ishi be-Yisrael (1958); M. Silberg, P. Shifman, Ha-Ma'amad Ha'Ishi Be-YisraelMiluim ve-Hashlamot al pi ha-Pesika ha-Ḥadashah (1967); M. Shaveh, Ha-Din ha-Ishi Be-Yisrael (20014); P. Shifman, Dinei ha-Mishpaḥah be-Yisrael, vol. 1 (19952), esp. 11–135; A. Rosen Tzvi, Dinei ha-Mishpaḥah be-YisraelBein Kodesh le-Ḥol (1990), esp. 25–188; B.Z. Sharshavski, Dinei Mishpaḥah (19944); A. Shochetman, Seder ha-Din le-Or Mekorot ha-Mishpat ha-Ivri, Takkanot ha-Din u-Pesikat Batei ha-Din ha-Rabbaniyyim be-Yisrael (1988); S. Dihovsky, "Samkhut Batei ha-Din ha-Rabbaniyyim Bi-Re'i Pesikat Batei ha-Din," Dinei Yisrael, 10–11 (1981–83), 9; idem, "Batei Din Rabbaniyyim-Mamlakhtiyyim: Be'ayotehem ve-Hesegeihem," Dinei Israel, 13–14 (1986–88), 7; idem, "Ma'amado shel Beit Din Rabbani ha-Dan be-Dinei Mamonot ke-Borer," Shenaton ha-Mishpat ha-Ivri, 1617 (1990–1991), 527; Y. Cohen, "Shipput Rabbani ve-Shipput Ḥiloni," Dinei Israel, 7 (1976), 205 (see: M.Drori, "The Duty to Testify, in: Gilyon Parashat ha-Shavua, Parashat Vayikra (2001), www.daat.ac.il); idem, "Decision of the Rabbinical Court in Civil Matters and Their Ramifications for Israeli Law," in: Madai Yehadut, 39 (1999), 121–31); idem, "Who is Empowered to Interpret a Secular Law Directed at a Religious Court?" in: Tel Aviv Law Review, 3 (5734 – 1974), 941–46.