APPEAL


The Problem of the Appeal in Jewish Law

Most modern legal systems comprise a number of judicial forums, organized hierarchically. A litigant dissatisfied with a decision in a lower forum thus has the right to appeal that decision in a higher judicial instance, in the hope that the decision will be altered in his favor. This right of appeal stems from the presumption that the lower forum may conceivably have erred in its ruling, and the aspiration for true justice requires that the litigant be given an additional opportunity to have his claims heard.

On the other hand, in Jewish law the existence of an appellate tribunal is by no means self-evident. Admittedly, according to Jewish law a bet din that has erred is duty bound to reexamine its decision and correct it (Sh. Ar. ḤM 25.1–2), and the litigant is entitled to return to the bet din after receiving its decision and to attempt to convince it that a mistake was made (Sh. Ar. ḤM 20.1). However, this is clearly not a satisfactory solution. In numerous cases the bet din is not convinced that its decision was mistaken. In such cases the litigant will ascribe its position, rightly or wrongly, to the stubbornness of the dayyanim who were unwilling to amend their ruling.

It has been claimed that the Sanhedrin itself was a quasi instance of appeal. However, it is highly doubtful whether this claim is substantiated by talmudic sources. An examination of classical halakhic literature indicates that it was indeed possible to submit a ruling for the review of a second bet din, but the bet din concerned was not officially constituted for the purpose of adjudicating appeals; rather, it was a regular bet din whose dayyanin were reputed to be of greater expertise than those of the first bet din. This law has its source in the Talmud (Sanhedrin 31b), where such a forum was known as the Bet Va'ad ("Place of Assembly") or the Bet Din ha-Gadol ("High Court"), and it was codified in the Shulḥan Arukh (ḤM 14.1). However, there are posekim who ruled that this law does not empower the second bet din to reverse or change the original ruling, but merely to express its opinion on its correctness. The power to reverse a ruling resides exclusively with the original bet din (for sources, see E. Shochetman, Seder ha-Din, 446). Moreover, some of the posekim stated that the institution defined as bet din gadol does not exist in our times (see Rema, ad loc). According to this view, there is no possibility of review by another court, even if not under the rubric of an appeal.

Instances of Appellate Review in the Past

It would therefore appear that the only means of establishing a permanent institution charged with appellate review of the rulings of other rabbinical courts (batei din) is by way of a takkanah (see entry on *Takkanah). Indeed, when the Rabbinical Court of Appeals in Jerusalem was constituted, a controversy ensued regarding the need and /or justification for such an institution (to be discussed below). In this context, R. Simḥa Assaf attempted to prove that appellate tribunals had operated in the past in a number of different times and places and that, "Not only did the Torah scholars of those times not see any prohibition in the matter, but they actually affirmed the regulations pertaining to the procedures for filing the appeal" (Assaf, Battei Din, 74–75). However, some of these proofs have been challenged (see Katz, Masoret u-Mashber, (Jerusalem, 1964) p. 160, n. 23. As stated, the accepted view in halakhic literature of recent generations is that there is no room for a forum of appeal, and the precedents adduced by R. Assaf did not persuade many of the opponents of such an institution.

Appellate Tribunals in the 20th Century

The establishment of appellate tribunals during the 20th century came about as the result of extrinsic circumstances, such as competition with external judicial institutions, particularly those of foreign governments. In Morocco, a rabbinical appellate court was established in 1918 as a result of the French government's attempt to regulate the functioning of the Jewish rabbinical courts (see M. Amar et al, Ha-Mishpat ha-Ivri be-Kehillot Morocco (Jerusalem, 1986), 208, 452). However, the most prominent and influential appellate tribunal with respect to Jewish Law is the Rabbinical Court of Appeals of the Chief Rabbinate, established in Jerusalem in 1921. The establishment of such a tribunal was accompanied by stormy controversy among a number of rabbis in Israel and abroad, the main claim of its opponents being that such an institution was an innovation which contradicted traditional halakhah, and as such should be opposed.

Undoubtedly, the Rabbinical Court of Appeals would not have been established had the British rulers not demanded its establishment as a precondition for conferral of jurisdiction to the rabbinical courts in matters of personal status. There were in fact some rabbis who contended that the rule against establishing such an institution was so severe that it justified the waiver of jurisdiction altogether. On the other hand, the founder of the Chief Rabbinate, Rav Kook, chose to accede to the requirement. In his inaugural speech for the Chief Rabbinate he stated that the new tribunal could be established by way of a special enactment of the Torah authorities. Over the years a number of additional justifications were given for the authority of the Rabbinical High Court to hear appeals (see the remarks of Rav Avraham Shapira, 10 PDR, 180; Rav Avraham Sherman, "Mekor ha-Samkhut shel Bet ha-Din ha-Gadol u-Misgeret Samkhuto," in: 3 Shurat ha-Din (1995), 211–220).

Nevertheless, to this day there are dayyanim who refuse, for halakhic reasons, to endorse the existence of the Rabbinical Court of Appeals, and by extension see no need to comply with its rulings, so long as they remain convinced that there was no error made in their original ruling. This manner of conduct led in turn to a number of petitions to the High Court of Justice against the "rebellious" rabbinical courts that refused to comply with rulings of the Rabbinical Court of Appeals. The High Court of Justice ruled that, under Israeli law, the Rabbinical court system is a hierarchy in which the regional rabbinical courts are subordinate to the rulings of the Rabbinical Court of Appeals addressed to it (for a survey of these rulings, see Elon, Jewish Law, 4:1809–1818).

The establishment of a new appellate tribunal necessitated the creation of procedures regarding the manner of filing an appeal and the procedures for its hearing. To date, there have been three versions of the Rabbinical Courts Procedural Regulations (from the years 1953, 1960, 1993). These regulations and related rulings are discussed at length in Sidrei ha-Din (Shochetman, 450–470). It should be emphasized that the establishment of an appellate tribunal produced another innovation in the world of Jewish Law – namely the obligation for the dayyan to present the reasons for his judgment in writing, since it is clear that appellate review by another bet din is impossible without examining the reasons given by the former instance for its judgment (this practice is already found in the "Place of Assembly" discussed above). A system that confers the litigant a right of appeal against a judgment must also obligate its judges to record the reasons for their judgments. Nevertheless, here too there were dayanim who refrained from writing reasoned judgments

BIBLIOGRAPHY:

M. Elon, ha-Mishpat ha-Ivri (1988), 667–669, 1521–1528; idem, Jewish Law (1994), 824–826, 1809–1818; S. Assaf, Battei Din ve-Sidreihem aḥarei Ḥatimat ha-Talmud (1924), 74–85; J.D. Bleich, "The Appeal Process in the Jewish Legal System," in: Tradition, 28:1 (1993), 94–112; A. Morgenstern, Ha-Rabbanut ha-Rashit le-Ereẓ YisraelYissudah ve-Irgunah (1973), 75–76; A. Radzyner, "Rav Ouziel, Rabbanut Tel-Aviv Yaffo, u-Bet Din ha-Gadol le-IrurimSippur be-Arba Ma'arkhot," in: Bar-Ilan Studies of Law, 21 (2004), 129–243; A. Shochetman, "Ḥovat ha-Hanmaka ba-Mishpat ha-Ivri," in: Shenaton ha-Mishpat ha-Ivri, 6–7 (1979–1980), 319–397; idem, Sidrei ha-Din (1988); idem, "Bet Din ha-Gadol le-IrurimMa'amado ve-Samkhuyotav," in: Koveẓ ha-Ẓiyyonut ha-Datit, 4 (2002), 534–48; Z. Warhaftig, "Ha-Takdim ba-Mishpat ha-Ivri," in: Shenaton ha-Mishpat ha-Ivri, 6–7 (1979–1980), 105–32.

[Amichai Radzyner 2nd ed.]


Source: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.