1. "Before Them" - Not Before Unordained Judges
2. Where There Is Nobody Who Knows How to Render Judgment
3. Defining "Kabalat Dayanim"
4. Understanding Netivot’s Approach
"Before Them" - Not Before Unordained Judges
On the biblical verse, "These are the laws that you must set before [the Israelites]," the Gemara states, "‘Before them’ - but not before the nations; ‘before them’ - but not before unordained judges." In the course of time, the Sages passed legislation which made it permissible to render judgment in common civil cases even today when true rabbinic ordination is no longer practiced. This allowance, though, is permitted only where the acting judges are familiar with the laws and are qualified to serve in such a capacity.
With regard to this law Rabbi Jacob ben Asher, author of the "Tur," writes: "Three judges are together considered a legitimate court, even though they have not been ordained. According to Rama (Rabbi Meir HaLevi Abulafiya), this is only true if they have studied law, and it appears to me that what he means is that all three of the judges must be versed in law. Yet, my father and master, Rosh zt"l, has written...that [even] if [only] one of the three has studied law, this is sufficient, but if not even one of the three has studied law, they are unacceptable as a court." After this, the Tur writes that even the "Resh Galuta" (Exilarch) cannot render fit for judicature somebody who has not learned law, and the Shulchan Arukh is of the same opinion.
Where There Is Nobody Who Knows How to Render Judgment
The "Rema" states: "In cities that are deficient of Torah scholars learned enough to act as judges, or, alternatively, where none of the Jews therein have more than a very basic knowledge of Torah, and there is a need for judges to render judgment in cases of disagreements so that the Jews do not end up going to gentile courts, the best and most intelligent among them must be appointed to fill this role, even though they are not really fit to be judges. And, because these individuals have been accepted by the community, they cannot be disqualified by somebody else." The Rema continues, "In addition, any community can accept upon itself consensually a court, despite the fact that it is not acceptable from a Torah standpoint."
A plain understanding of the words of the Rema tells us that the possibility of a community’s accepting invalid judges exists only where there are no legitimate candidates to be found to fill this position. If, however, this is not the case, such "judges" are unacceptable, as the Shulchan Arukh itself clearly states.
Yet, the expression, "In addition, any community can take upon itself..." can be interpreted to mean that it is permissible to appoint invalid judges even where there are available, qualified judges. The possibility of interpreting the Rema in this manner, though, is ruled out by the "Netivot" who, in the name of the "Tumim," states that such an allowance is permitted only in places where Jews are not proficient in Torah.
While, though, it is easy enough to understand the inadmissibility of appointing invalid individuals to act as judges, why should a community not be allowed to choose who it wants - qualified or unqualified? After all, the Mishna itself tells us that litigants who are at odds with one another are permitted to choose invalid judges to rule over their case: "The sages hold that if a litigant says, ‘My father is acceptable to me as a judge,’ ‘Your father is acceptable to me as a judge,’ or, ‘Three cowherds are acceptable to me as judges,’ he subsequently cannot abjure."
Defining "Kabalat Dayanim"
In order to gain a proper understanding of our matter, let us attempt to pinpoint the definitive nature of judge acceptance by consensus, what is known as "Kabalat Dayanim" in Hebrew. Is it a monetary agreement between the sides or does it in fact transform its subjects into judges?"
Shaar HaMishpat" doubts if consensual acceptance of invalid judges is affective in pecuniary penalty laws ("Dinei Kenasot"). The source of his doubt lies in the fact that when it comes to fines there is a rule that if an individual confesses to having broken the law, he is exempted. This is because the Torah states, "The person whom the courts declare guilty must then make a double restitution," and the sages expound, "The words, ‘whom the courts declare guilty’ are intended to rule out one who declares himself guilty." When an individual accepts invalid judges upon himself, and they obligate him to pay a fine, does this qualify as "whom the courts declare guilty"?
The Gemara relates that it once happened that the sages of Tiberius sent a request to the sage Mar Ukbah asking that he render judgment on a certain matter. Rav Ashi explains that the question sent to Mar Ukbah involved pecuniary penalty laws and that the sages of Babylon were not allowed to advance rulings in such laws. The reason that the sages of Tiberius insisted on sending their inquiry to Mar Ukbah, says Rav Ashi, was in order to accord him honor. Shaar HaMishpat asks why the sages of Tiberius did not simply advise the litigants to accept Mar Ukbah as presiding judge over their case? Basing himself on the fact that this step was not resorted to, Shaar HaMishpat proves that such consensual acceptance is invalid. He explains the reason for this: Because the sages did not legislate any allowance for ruling in fine laws, the prohibition against resorting to unordained judges becomes a factor. The reason for this, according to Ramban and Ran, is the defamation of experts that is involved. Shaar HaMishpat continues, explaining that early Rabbinic authorities were at odds on this matter: According to Ran their is no possibility whatsoever to set up a court of unordained judges, while Ramban, in his Torah commentary, holds that such an arrangement is at any rate permissible.
Shaar HaMishpat explains that Mahari Birav and Maharlbach also disagreed on this question in the famous question of the reinstatement of the practice of ordination. Following the expulsion of the Jews from Spain the violation of numerous prohibitions became widespread, and, as a result, it was suggested that the long defunct practice of rabbinic ordination be reinstated (this was possible according to an unprecedented position taken by Rambam). Such a step would allow Jews to receive lashes, and, hence, be exempted of the punishment of "Karet" (excision; a divine punishment for serious transgressions. The Talmud teaches that lashes free a person from the punishment of Karet.). This step was in fact carried out by Mahari Birav who ordained a number of rabbis and even sent a letter of ordination to Maharlbach. In the course of the deliberation Mahari Birav commented that it seemed to him that even without the reinstatement of ordination it should be permissible to administer lashes in order to free a person from Karet if the guilty party accepts upon himself the authority of a given court. In response, Maharlbach ruled out the idea of renewing ordination for various reasons and added that without proper ordination it is impossible to administer lashes in order to exempt an individual of Karet, for only a legitimate court can sentence him to lashes. What, though, did Mahari Birav base his position upon? It would appear that he held that the very acceptance of judges by the litigant transforms them into a valid court.
The author of "Knesset HaGedolah" raises the following question: How was it possible for Shemayah and Avtalyon to act as members of the Sanhedrin? They, after all, were converts (the Rambam attests to this in his Hakdamah LePerush HaMishnayot, and this appears to be evidenced from the Talmud as well), and converts are not permitted to render judgment in capital offences. Knesset HaGedolah offers the explanation that due to their great stature, the community accepted them upon itself. "HaTumim" understands from Knesset HaGedolah that leaders of the community are permitted to accept judges despite the fact that the entire community is not given the opportunity to gather and formally voice its opinion (It was the members of the Sanhedrin themselves who appointed new members to its body). Yet HaTumim expresses surprise at this position. Though, he reasons, regarding monetary laws, a person, if he so chooses, may renounce ownership of his possessions, when it comes to capital punishment, nobody reserves the right to say "Execute me." Obviously, one cannot accept as judge a relative or invalid judge and then allow them to sentence him to death. As a result, HaTumim explains that the rule of a king differs, for he reserves the right to impose the death penalty if he feels that it is in the best interest of the kingdom. Hence, he may also appoint an important person to rule in capital cases. An alternative explanation is that Shemayah and Avtalyon simply did not act as judges in capital cases, and they were restricted to the task of clarifying Torah laws. In sum, we find that Knesset HaGedolah and HaTumim disagreed as to whether consensual acceptance is effective in capital law cases.
How are we to explain the position of "Knesset HaGedolah" who says that consensual acceptance is effective in capital offenses? We must posit that according to the Torah, such judges are invalid only when they pass judgment by force. If, though, there is consensus regarding their right to judge, the Torah grants them legitimacy - on the condition that they are indeed educated in the teachings of the Torah, and know how to a pass a Torah ruling.
We find, then, that the rabbis were divided over the question of whether consensual acceptance is effective as an agreement, and hence only valid in monetary cases, or if it actually has the effect of transforming the nominees into proper judges.
Shakh cites a discrepancy over the question of how it is possible for an invalid candidate to be consensually accepted as a judge: According to "Nimukei Yosef," even though the act of consensual acceptance gives the appearance of being a "kinyan devarim" (a mode of acquisition; a formal procedure to render an agreement legally binding.), it is effective. On the other hand, "Raavan" writes that if such a procedure is carried out with the intention of making certain individuals judges and preventing the litigants from being able to go back on the agreement, then this is indeed a "kinyan devarim" and it is not effective, and the litigants are obligated to accept upon themselves to do whatever the judges tell them to do.
It may very well be that this discrepancy goes back to the question of defining consensual acceptance: If it is viewed as a monetary agreement, clearly each litigant is bound to accept and carry out the ruling of the judges; if, on the other hand, such an acceptance transforms them into actual judges, a "kinyan" is enough to have them considered judges.
Understanding Netivot’s Approach
Having gained an awareness of the fact that there exist two approaches to the question of defining consensual acceptance of judges, we may return to the Netivot who holds that where there are valid judges it forbidden to appoint invalid judges. It would appear that he is of the opinion that consensual acceptance is only effective in private agreements between individuals, for, such an agreement does not transform invalid candidates into judges. Acceptance on the part of the public, though, clearly transforms such people into judges, for they act as judges in the city on a regular basis. On the other hand, if we say that an individual has the power to transform somebody who is invalid into a judge, it would seem that no distinction should be made between individual and community.
Torah observant judges who serve in Israeli courts today claim that their rulings are binding because of the agreement of the public and that just as the public has the right to accept invalid witnesses and judges, they may also agree to accept other rules. The problem with their claim is that what we are dealing with here is the supplanting of Torah law, and not just additions to it. Clearly it is unthinkable to accept a decision not to rule in accordance to Torah law on principle just because it has the backing of the public.
Some of the Biblical verses in the above article were taken from Rabbi Aryeh Kaplan’s "The Living Torah"