Said the Holy One, blessed be He: "Know you that I sit with you and if you wrest judgment [it is] Me that you wrest."
MIDRASH SHOHAR TOV, PSALM 82
A person had a lawsuit. He came to the judge and was exonerated. The person who was exonerated departed and said, "There is no one in the world who compares to that judge." After a time he had [another] lawsuit. He came to [the judge] and was found liable. He departed and said, "There is no judge who is a greater fool than he! They said to him, "Was [the judge] splendid yesterday and today a fool?" Therefore Scripture admonishes, "Do not curse the court" (Exodus 22:27).
SHEMOT RABBAH 31:8
Establishment of a judiciary is rooted in the biblical command "Judges and court officers shall you appoint to yourself in all your gates" (Deuteronomy 16:18). The Jewish judicial system reflected the prescriptions of Jewish law and was comprised of tribunals composed of three judges that heard cases involving monetary disputes, courts consisting of twenty-three judges that were charged with judging persons accused of infractions punishable by death or stripes and a Great Sanhedrin comprised of seventy-one members that sat within the Temple precincts. Although the Great Sanhedrin enjoyed original jurisdiction with regard to certain particular matters, its most critical function was to resolve questions of law that were in doubt or the subject of dispute. Questions of that nature could be certified and brought before the Great Sanhedrin during the course of proceedings before a lower court or could be made the subject of a hearing entirely independent from any proceeding before a court of original jurisdiction.
Other than an interlocutory appeal of such nature to the Great Sanhedrin there is no explicit provision for appeal to a higher court on the basis of allegation of judicial error with regard to either matters of fact or of law. Although no formal provision for an appeals process is recorded in the various codes of Jewish law, a duly constituted rabbinical court of appeals does exist in the present-day State of Israel. The impetus for the establishment of a Supreme Rabbinical Court of Appeals in the State of Israel can be traced to two sources, one historical and the other political.
With the rise of Zionism and promulgation of the Balfour Declaration the Ha-Mishpat ha-Ivri Society was established in Moscow. Its stated agenda was to develop a corpus of law based upon Jewish law sources for integration into the legal system of a future secular Jewish state. In 1909–10 a judicial body known as Mishpat ha-Shalom ha-Ivri was established in Jaffa. The celebrated writer S.Y. Agnon served as the first secretary of that body. Later, tribunals were established in other cities in Palestine as well. Those tribunals had no official standing under either the Ottoman or British governments but functioned as arbitration panels.1For an account of the mode of operation of those tribunals see C. Daikan, Toldot Mishpat ha-Shalom ha-Ivri (Tel Aviv, 5724). See also Mordecai ben Hillel ha-Kohen, “Le-Toldot Mishpat ha-Shalom ha-Ivri,” Mishpat ha-Ivri: She’elotav le-Halakhah u-le-Ma‘aseh (Tel Aviv, 5685). For a critique of the ideological principles upon which those tribunals were based see J. Yonowitz, introduction to Simchah Assaf, Ha-Onshim Aḥarei Ḥatimat ha-Talmud (Jerusalem, 5683), pp. 5–6 and Simchah Assaf, Batei Din ve-Sidreihem Aḥarei Ḥatimat ha-Talmud (Jerusalem, 5788), pp. 6–9. Those bodies were composed of persons who, in general, lacked legal or rabbinic training and did not consider themselves bound by any particular system of law. Judgments were rendered on the basis of generally conceived "principles of justice, equity, ethics and public good."2Cf., the language incorporated in the Foundations of Law Act adopted by the State of Israel in 1980. That act provides that, in the absence of legislation or precedent, legal issues must be resolved “in light of the principles of freedom, justice, equity and peace of the heritage of Israel.” The influence of the framework governing the Mishpat ha-Shalom ha-Ivri seems readily apparent and, mutatis mutandis, is subject to the same critique. Nevertheless, beginning in 1918, regulations were promulgated with regard to matters of procedure, evidence and the like. Lay arbitration is certainly not unprecedented in Jewish law.3See Rema, Ḥoshen Mishpat 8:1, and Louis Finkelstein, Jewish Self-Government in the Middle Ages (New York, 1924), pp. 356–359. However, the judicial system instituted by the Mishpat ha-Shalom ha-Ivri was innovative in its institution of a formal appellate forum.
There can be little doubt that, despite the limited scope and underutilization of the judicial system established by the Mishpat ha-Shalom ha-Ivri, the very establishment of a court of appeals within a system purporting to align itself with principles of Jewish law served to create or to reinforce a desire for an appellate system and to generate an aura of ideological acceptance. However, the proximate cause of the institution of a rabbinical court of appeals was governmental pressure in conjunction with the establishment of the Chief Rabbinate under the aegis of the Mandatory authority. On 15 Shevat 5681, in his opening address at the very first meeting of the committee appointed to convene a representative assembly for the purpose of electing a Chief Rabbinate, Mr. Norman Bentwich, Secretary of Justice in the Mandatory government and chairman of the meeting, emphasized that "one of the most important matters" to be addressed by the electoral body was the establishment of a rabbinical court of appeals.4See Ha-Tor, vol. 1, no. 18 (3 Adar 1, 5681), p. 14. At the time, the Mandatory authority was considering granting Batei Din autonomous jurisdiction with regard to matters of personal status upon the establishment of a Chief Rabbinate. Mr. Bentwich made it very clear that the British government "strongly insists upon the need for creation of an institution for appeals as a condition for enhancement of the jurisdiction of Jewish Batei Din."5Loc. cit.
That proposal met with immediate opposition. At a subsequent meeting held on 17 Shevat a document prepared by the "Office of the Rabbinate of Jaffa" was presented. The final paragraph of that document states, "There is no place for an appellate Bet Din according to the laws of the Torah.…"6Ibid., p. 15.
The meeting of the assembly charged with naming electors to designate the members of the proposed Chief Rabbinical Council met in Jerusalem on 14–16 Shevat 5721. The opening address was delivered by the British High Commissioner, Sir Herbert Samuel. In his charge, he exhorted the assemblage to consider the proposal of the preliminary committee for the establishment of a rabbinic court of appeals. He explicitly stated, "It is proposed that from among the [Chief Rabbinate] Council of eight there be formed a supreme religious court to which it will be possible to bring an appeal from any Bet Din in Ereḥ Yisra'el. I support this proposal…."7Ha-Tor, vol. 1, no. 21–22 (24 Adar I, 5681), p. 3. That proposal was reiterated by Mr. Bentwich in declaring that the Chief Rabbinate Council "would also be the officially recognized Bet Din of Jerusalem" and "if the proposal finds favor in your eyes, [the Chief Rabbinate Council] will establish a Bet Din for appeals…."8Ibid., p. 4. Subsequently, a number of resolutions were presented for consideration by that assembly, including a resolution establishing a "Bet Din of appeals to be composed of six members of the Rabbinate Council under the chairmanship of one of its presidents,"9Ibid., p. 5. i.e., the Chief Rabbis would alternate as presidents of the court.10Ibid., p. 15. Although, at the assembly, both Sir Herbert Samuel and Norman Bentwich spoke of establishment of an appellate court as a "proposal," a certain Joseph Penigel, described as the secretary of the Office of the Rabbinate, asserted that the Mandatory authorities insisted upon establishment of such a body as "a necessary condition for enhancing the authority of the Batei Din and for granting legal effect to their decisions."11Ibid., p. 14. Apparently, that assembly did not formally act upon the resolution for the establishment of a rabbinic court of appeals.12Ibid., p. 24. See also R. Chaim Hirschensohn, Malki ba-Kodesh, I (St. Louis, 5679), 17, who states that “the nations will not agree under any circumstances” to recognize the authority of Batei Din in Palestine other than upon establishment of a court of appeals. Nevertheless, such a court was established by the Chief Rabbinate Council within a matter of months of its election.
The question of whether or not there exists a halakhic basis for a rabbinic court of appeals notwithstanding,13The modern-day discussions of a possible role for an appellate court focus upon establishment of such a body to hear appeals in matters of jurisprudence and family law. Indeed, insofar as statutory law is concerned, with the lapse in succession in the ordination of judges originating with Moses, Batei Din are no longer competent to impose penal sanctions. Nevertheless, during the medieval period, not only were such penalties imposed by Jewish courts, but frequently the right of judicial autonomy even in criminal matters was granted by the civil authorities. Simchah Assaf, Batei ha-Din ve-Sidreihem, p. 77, note 1, reports that in 1284 two Jews residing in Saragossa were convicted of murdering a relative and sentenced to excommunication and exile. Thereupon, the convicted criminals appealed the verdict to Pedro III of Aragon. The complainants argued that appeals were not recognized in Jewish law. Pedro, in turn, referred the matter to the head of the rabbinical court of Aragon for resolution of that issue and directed him to conduct a new hearing should he find that Jewish law provides for such a procedure. Assaf further reports that we do not have a record of the resolution of that case.
In actuality, while such information would be highly intriguing, resolution of the issue in that case would have little bearing upon the subject of this discussion. Authority for imposition of criminal sanctions in our day is the product of the extra-statutory ad hoc power of a Bet Din to preserve law and order. Accordingly, it would not be surprising to find that emergency measures are not subject to appeal, while decisions issued on the basis of the due process of ordinary judicial procedure are subject to appeal. On the other hand, it is possible, albeit unlikely, that local ordinances may have established a system of appeal limited to criminal matters precisely because the authority to impose such penalties is extra-statutory. it is clear, as a matter of historical fact, that such judicial bodies did exist both during the medieval period and in modern times as well.14See Assaf, Batei Din ve-Sidreihem, pp. 74–85; Louis Finkelstein, Jewish Self-Government in the Middle Ages, pp. 359–360; Fritz Baer, Die Juden in christlichen Spanien, I (Berlin, 1936), 286; and Abraham A. Neuman, The Jews of Spain (Philadelphia, 1944), p. 118 and cf. p. 145. Whether the right to appeal is grounded in statutory law or was established in some jurisdictions on the basis of local communal takkanot or in response to governmental edicts is an entirely different matter.
There is some support for the position that Scripture itself provides for a system of appeals. The sixteenth century Italian exegete, R. Ovadiah Sforno, in his commentary on the Bible, presents an analysis of Exodus 18:21 indicating that the purpose of designating "rulers of thousands, rulers of hundreds, rulers of fifties and rulers of tens" was to establish a multi-layered system of appeals. According to Sforno's analysis, the "rulers of tens" had original jurisdiction. Successive appeals could be taken to higher levels and, ultimately, if the litigant remained unsatisfied, to Moses himself. Although, in terms of biblical exegesis, Sforno's analysis is not at all far-fetched, even if accepted, it does not establish a right of appeal as a matter of Halakhah. The officials appointed by Moses with jurisdiction over ten, fifty, one hundred and one thousand persons did not occupy offices designed to be preserved in perpetuity. Apparently, the appointments, and the particular offices themselves, were designed only to ease Moses' burden and, accordingly, were limited to the period of wandering in the wilderness. Hence, granted that these officials served as appellate judges, the right to lodge appeals before them may have been temporary in nature and limited to the generation of the wilderness.
The earliest record of the existence of an appellate court appears to be that found among the enactments promulgated by a synod of Castilian communities convened in 1432. These enactments provided that any litigant had the right to appeal to the Rab de la Corte, i.e., the Chief Rabbi appointed by the King. The costs of the appeal were to be borne by the appellant if the latter did not prevail and he was required to take measures to assure that prompt payment of those expenses would be forthcoming. The appellant was also required to affirm that the appeal was based on belief in the justice of his cause rather than designed to serve as a means of evasion or procrastination.15Assaf, Batei Din ve-Sidreihem, p. 75.
At roughly the same time, at least some communities of Aragon appointed judges to hear appeals. R. Isaac ben Sheshet refers by name to certain appellate judges, known as "dayyanei ha-silukin" who sat in Calatayud,16Teshuvot Rivash, nos. 227 and 381. Hueska,17Ibid., nos. 393 and 494. and Saragossa.18Ibid., nos. 506 and 388. The appellate judge is mentioned by name in the former responsum and in the latter responsum the place of residence of that individual is given as Saragossa. See Assaf, Batei Din ve-Sidreihem, p. 76. Simchah Assaf, a prominent Jewish law historian, asserts that it is unlikely that such an institution should have arisen during the period of decline of Iberian Jewry.19Assaf, Batei Din ve-Sidreihem, p. 77. Consequently, he assumes that the written record reflects a practice of much older vintage.
Establishment of a formal system of appeals in Italy is found in an enactment promulgated by R. Moshe Zacutto in 1676 and accepted by an overwhelming majority of delegates to a synod of Italian Jewry. That ordinance provided that, unless the right to appeal was waived by the litigants at the time of submission of their dispute to the Bet Din, they were entitled to appeal to the "Ba'alei Yeshivah"20See Teshuvot Shemesh Ẓedakah, Ḥoshen Mishpat, nos. 9, 13, 14, 19 and 24. within eight days after issuance of a decision. The procedure does not seem to have provided for relitigation or presentation of additional allegations of fact or law by the litigants but provided that the "Ba'alei Yeshivah" summon the dayyanim who issued the ruling for an explanation of the grounds upon which it was based.21See Assaf, Batei Din ve-Sidreihem, pp. 78 and 133.
Procedures governing appeals in the communities of Moravia are recorded by R. Menachem Mendel Krochmal, author of Teshuvot Ẓemaḥ Ẓedek, in his Takkanot ha-Medinah, nos. 213–218. Appeals were permitted only in cases involving a value of ten "gold coins" or more and had to be lodged within forty-eight hours of issuance of the Bet Din's decision. If he did not prevail, the appellant was held liable for losses and expenses sustained as a result of the appeal.
In some Polish communities a person found liable by the Bet Din was permitted to demand that the Bet Din be enlarged and a new hearing be scheduled. This practice was decried by Ateret Ẓevi, Hoshen Mishpat, no. 87.22See ibid., pp. 84–85. Appellate procedures are also known to have existed in White Russia (Reisin). The protocols of the community of Petroviski of 1777 include a regulation promulgated with regard to appeals taken from decisions of the local Bet Din.23Assaf, ibid., p. 83, includes the appeals process of the Va‘ad ha-Medinah of Lithuania in his enumeration of courts of appeal. It must however be noted that the recorded protocols of the Va‘ad ha-Medinah refer solely to disputes regarding appointments to communal offices and fines imposed by the community. The reference is clearly to communal matters and involves matters of local ordinances and has no relationship to appeals regarding matters of ordinary financial litigation. Appeals were permitted only with regard to decisions involving a sum of twenty-five rubles or more and only "in accordance with the ordinances of the land." Assaf notes with regret that there are no cognate sources that provide information with regard to the ordinances governing such appeals or with regard to the identity and composition of the appeals court.24Loc. cit.
In more recent times, an appellate court was established in Bulgaria in 1900. With the establishment of the office of Chief Rabbi, provision was also made for the appointment of "two or more judges" who together with the Chief Rabbi would constitute a "Bet Din ha-Gadol" which would hear appeals of decisions issued by local Batei Din.25Ibid., p. 85 and p. 140. See also Teshuvot Ḥoshen ha-Efod, Ḥoshen Mishpat, no. 42. In a letter addressed to R. Chaim Hirschensohn,26Published in R. Chaim Hirschensohn, Malki ba-Kodesh, IV (St. Louis, 5679–5682), 13–15. See also Assaf, Batei Din ve-Sidreihem, p. 77. R. Ya'akov Meir, who served first as Hakham Bashi and later as the first Sephardic Chief Rabbi of Palestine, reported that "there always were appellate courts in all the cities of Turkey" and at the same time asserted in a somewhat contradictory manner that a displeased litigant presented his appeal in writing to the chief rabbi of the city who forwarded the appellant's petition together with the decision of the local Bet Din to Constantinople "and there there was a Bet Din ha-Gadol that investigated the decision and was empowered [either] to set aside the decision and issue another judgment or to confirm the judgment."27Malki ba-Kodesh, IV, 14. Rabbi Meir further reported that, when he served as Chief Rabbi of Salonika, he sought and received permission from the Bet Din in Constantinople to establish an appeals court in his own jurisdiction.28Loc. cit. Rabbi Meir further claimed that there also existed an appeals process in Jerusalem and in many other Oriental communities.29Loc. cit. Assaf relates that, when he expressed astonishment at the absence of any reference to such procedures in the responsa of Sephardic scholars, Rabbi Meir replied that instances of appeal were quite rare because of the distance and expense involved and that many people were unaware of the possibility of appeal.30Batei Din ve-Sidreihem, p. 78, note 1.
Although, as earlier indicated, appellate courts as such were unknown in talmudic times and the relevant talmudic discussions neither speak of a formal appeals process nor spell out conditions upon which appeals are allowed, the Gemara does present an elaborate discussion of provisions for setting aside judgments on grounds of judicial error. The Mishnah, Sanhedrin 32a, declares that a decision of a Bet Din can be set aside on grounds of judicial error and the Bet Din must then issue a new decision. The Gemara, Sanhedrin 33a, cites an apparently contradictory statement found in the Mishnah, Bekhorot 28b, declaring that an erroneous judgment must be allowed to stand but that the judge is liable for any financial loss suffered as a result of his error and yet a further statement indicating that a qualified judge is granted immunity while the judgment is not disturbed. In the ensuing discussion various Amora'im resolve the contradiction by distinguishing situations in which the decision is reversed from situations in which the judgment is allowed to stand while the members of the Bet Din are either held liable for judicial malpractice or granted judicial immunity.31For a survey of the applicable principles see Encyclopedia Talmudit, XX, 495–539. The normative halakhot are codified in Shulḥan Arukh, Ḥoshen Mishpat, chap. 25. According to Rashi's analysis of that discussion,32See also sources cited in Encyclopedia Talmudit, vol. XX, p. 502, note 78. Rav Nachman declares that a decision of a Bet Din can be set aside by a Bet Din "greater in wisdom and number." It is evident that, in offering alternative resolutions of the contradiction, some of Rav Nachman's colleagues did not accept the notion of an appeal to a court "greater in wisdom and number" and considered only the possibility of a rehearing by the court of original jurisdiction with the result that a new verdict might be obtained only when the first Bet Din became convinced of its error. According to the analysis of that discussion advanced by Yad Ramah and Me'iri, ad locum, as well as by other authorities who interpret Rav Nachman's statement in an entirely different manner, there are no grounds for assuming that even Rav Nachman permits an appeal to a Bet Din "greater in wisdom and number."33See also sources cited by Encyclopedia Talmudit, ibid., note 79. A related incident recorded in Ketubot 50b involving another statement by R. Nachman is also the subject of controversy in this regard; see Tosafot, Ketubot 50b and Shitah Mekubeẓet, Baba Kamma 12a, as well as sources cited in Encyclopedia Talmudit, ibid., notes 78 and 79. Moreover, numerous authorities, including Rif, Milḥamot ha-Shem and Me'iri in their respective commentaries ad locum, regard Rav Nachman's position as having been rejected in the ensuing discussions and his opinion is not cited by either Rambam or Shulḥan Arukh.34See Encyclopedia Talmudit, vol. XX, p. 513, note 213. Cf., R. Chaim Hirschensohn, Malki ba-Kodesh, II, 110, who writes, “… we do not need a clearer source for a supreme court of appeals than the words of Rav Nachman.” Opponents of the concept of a court of appeals presumably recognized that a rejected opinion cannot serve as a “clear source” for any halakhic principle.
The Gemara, in one of the proffered resolutions of the contradiction that serves as the basis of the entire discussion, distinguishes between error in "black letter law" (ta'ut be-devar mishnah) and error in "judgment" (ta'ut be-shikul ha-da'at) defined as a judgment based upon reliance upon a minority or rejected opinion.35For further elucidation of this dichotomy see Encyclopedia Talmudit, XX, 498–501. According to Rashi's analysis, both Rav Yosef, who presents an alternative resolution of the apparent contradiction between the Mishnah in Sanhedrin and the Mishnah in Bekhorot, and Rav Nachman recognize the ostensive cogency of a litigant's refusal to accept the judge's acknowledgment that a decision in his favor is based upon error on the plea that it is entirely possible that it is the reconsidered decision that is in error and that the original finding was entirely correct. It may well be argued that such a plea is cogent not only with regard to an alleged error of "judgment," but also with regard to putative errors of "black letter law." Rav Yosef maintains that only an "expert" judge can force a reconsidered view upon an unwilling litigant; Rav Nachman asserts that only the opinion of a more erudite authority should prevail.36For a discussion of various conflicting interpretations of the disagreement between Rav Yosef and Rav Nachman, or the absence thereof, see Encyclopedia Talmudit, XX, 506–509. Nevertheless, Tosafot indicates that the discussion is limited to errors of "judgment" but that all concede that errors of "black letter law" may be reversed. Tosafot, however, does not spell out criteria of competence to reverse an already announced decision nor does Tosafot state whether admission of error on the part of the judge who issued the decision is necessary.
As codified by Rambam, Hilkhot Sanhedrin 6:6–9, it is only a plaintiff who, if he has some credible evidence, may demand that the defendant appear for a hearing before the Great Sanhedrin; a defendant does not enjoy that prerogative. Nevertheless, Rambam, Hilkhot Sanhedrin 6:6, rules that either litigant is entitled to demand a written decision setting forth the findings of the local court. The clear implication is that either the plaintiff or the defendant will then be entitled to lodge an appeal with the Great Sanhedrin based upon the written record. Rambam makes no reference to any mechanism for appeal other than to the Great Sanhedrin. It would therefore appear that when there is no possibility of appeal to the Great Sanhedrin, e.g., in a historical epoch in which that judicial body does not exist, there is no basis for a demand for a written decision upon which an appeal may be based. Nevertheless, Rema, Hoshen Mishpat 14:4, rules explicitly that, even in our day, the litigants are entitled to such a document.37Rema adds that a litigant is entitled to such a document only if the court compels appearance, but not if the parties voluntarily accept the jurisdiction of the Bet Din. Voluntary acceptance of the jurisdiction of the Bet Din is thus tantamount to acceptance of its final authority and renunciation of the right of appeal. Teshuvot Noda bi-Yehudah, Mahadura Tinyana, Ḥoshen Mishpat, no. 1, rules that in any situation in which the litigants are summoned to appear before the Bet Din their appearance is not to be regarded as voluntary acceptance of the authority of the Bet Din. Cf., however, R. Joseph Saul Nathanson, Teshuvot Sho’el u-Meshiv, Mahadura Tinyana, II, no, 84 and Mahadura Revi‘a’ah, III, no. 101. Indeed, Rema indicates that such a document may be demanded only for an appearance before "a greater court."38Rema indicates that the litigant is entitled to a written statement only of the claim and the decision itself, but not of the reasoning upon which it is based. In a parallel provision based on an incident described by the Gemara, Baba Meẓi‘a 69a, Shulḥan Arukh, Ḥoshen Mishpat 14:4, rules that when a judge perceives that he is suspected of bias in favor of the prevailing party he should inform the losing party of the “reason” upon which the decision was based. In such a situation, and only in such a situation, does Shulḥan Arukh state that it is necessary to disclose the “reason.” Moreover, as explicitly noted by Rema, such situations require only an oral disclosure rather than a written decision. Cf., however, Teshuvot Ḥavot Ya’ir, hashmatot, cited in Pitḥei Teshuvah, Ḥoshen Mishpat 14:10.
For a detailed treatment of the obligation to issue a reasoned decision or the absence thereof see Eliav Shochetman, “Ḥovat ha-Hanmakah ba-Mishpat ha-Ivri,” Shenaton ha-Mishpat ha-Ivri, VI–VII (5739–5740), 319–397. See also R. Ovadiah Hedaya, Teshuvot Yaskil Avdi, II, Ḥoshen Mishpat, no. 2, sec. 8. It is thus evident that Rema recognized a right of appeal to "a greater court"39See R. Moses Feinstein, Iggerot Mosheh, Ḥoshen Mishpat, I, no. 76, who indicates that “in our day” there is no Bet Din that can be considered “a greater court.” although he provides no guidance with regard to how a determination of the relative scholarly ranking of different courts is to be made or with regard to who is empowered to make such a determination.40Arukh ha-Shulḥan, Ḥoshen Mishpat 14:8, states that, although such a document may be requested by a litigant for submission to another Bet Din, “it appears to me” that the judges must write that they grant permission for review of their decision and that in the absence of such permission no other court may review their decision. That view, however, does not seem to be shared by any other authority.
There are, however, a number of earlier sources that clearly indicate that Jewish law does not recognize a right of appeal. Teshuvot ha-Rosh, klal 85, no. 5, cited by Bet Yosef, Hoshen Mishpat, chapter 12, declares, "… subsequent to the decision of the judges that has already been rendered with regard to the orphan … the judgment that has been rendered with regard to the orphan stands. Why have you asked for another decision with regard to a case that has already been adjudicated? 'A Bet Din does not scrutinize [the actions] of another Bet Din' (Baba Batra 138b). Therefore … it is incorrect (lo yitakhen) to write another decision with regard to a case that has already been adjudicated by great and eminent men."41Cf., infra, note 46. Sema, Hoshen Mishpat 19:2, and Shakh, Hoshen Mishpat 19:3, cite Teshuvot ha-Rosh as establishing the principle that a decision of a Bet Din cannot be overturned by another Bet Din.
Rema's position is particularly problematic. As has been noted, in Hoshen Mishpat 14:4 Rema rules that a litigant is entitled to a written verdict while in his commentary on Tur Shulḥan Arukh, Darkei Mosheh, Hoshen Mishpat 25:6, he records the view of Teshuvot ha-Rosh indicating that a second Bet Din cannot retry a case in which a decision has already been issued by a previous Bet Din. The latter position is also espoused by Rema in Darkei Mosheh, Hoshen Mishpat 20:2, in the citation of a similar ruling in the name of another work authored by Rosh, Sefer Hazeh ha-Tenufah.42See Ḥazeh ha-Tenufah, no. 40. Ḥazeh ha-Tenufah has been published as an appendix to R. Chaim Joseph David Azulai’s Teshuvot Ḥayyim Sha’al, vol. II.
R. Ovadiah Hedaya, Teshuvot Yaskil Avdi, IV, Hoshen Mishpat, no. 2, distinguishes between a situation in which a Bet Din has issued a written decision that includes reasons and sources and a situation in which the reasons underlying a decision have not been committed to writing. When a record of the considerations leading to a decision is not available, declares Yaskil Avdi, the principle "a Bet Din does not scrutinize the actions of another Bet Din" is applied. However, when reasons and arguments are spelled out, the decision may be overturned. At first glance it appears paradoxical that the decisions of a Bet Din should be sacrosanct when issued autocratically with no attempt at justification but subject to reversal when a detailed explanation is provided. Nevertheless, Yaskil Avdi cogently reasons that when grounds for a verdict are spelled out and are found to be patently wrong it is obvious that the decision must be set aside, whereas when no reasons are given it is improper for a second Bet Din to reverse the decision because the second Bet Din cannot state definitively that error has been committed.43See also R. Ben-Zion Uziel, Mishpetei Uzi’el, Mahadura Tinyana, Ḥoshen Mishpat, no. 1, sec. 15. A similar position is advanced by Rabbi Y. ibn Zur, Mishpat u-Ẓedekah be-Ya‘akov, II (Alexandria, 5663), no. 48. Cf., Teshuvot Yaskil Avdi, III, Even ha-Ezer. no. 2, anaf 1, secs. 4–6.
It is, however, quite clear that the considerations upon which a decision is based are not routinely provided even in situations in which a written verdict is issued. R. Joseph Karo, Teshuvot Avkat Rokhel, no. 17, declares that explication of reasons and explanations is unnecessary.44See supra, note 38. See, however, Oraḥ Mishpat, Ḥoshen Mishpat 14:4, who cites a comment of Shelah, Parashat Mishpatim, reporting that the latter had received a tradition from his father to the effect that even if there is no indication that he is suspected of a miscarriage of justice, the dayyan should disclose the reasons upon which his judgment is predicated in order to assuage and calm the mind of the losing party. Similarly, Rema, Hoshen Mishpat 14:4, rules that the document must recite only the claims and the final ruling but need not indicate the Bet Din's reasoning and justification because, as explained by Sema, Hoshen Mishpat 14:26, if the decision is correct, any other court will reach the same decision since "there is [but] one Torah for all of us." Sema, Hoshen Mishpat 14:25, indicates that, if requested, the Bet Din must nevertheless make oral disclosure of its reasoning. However, if Yaskil Avdi is correct in his assumption that a judgment can be overturned only if the written decision incorporates reasons and explanations, it stands to reason that litigants should be entitled to a written decision containing such information as a matter of right. Rambam, Hilkhot Sanhedrin 6:6, states explicitly that litigants may demand a written verdict because they are entitled to say to the Bet Din, "Perhaps you have erred." Clearly, a demand for a written verdict is in contemplation of a reversal by another Bet Din and it is the right to such a reversal that justifies the demand. Consequently, a decision that cannot be used as the basis for an appeal is of no value to a litigant. Accordingly, if Yaskil Avdi is correct in his contention, the same consideration that compels issuance of a written decision should compel issuance of a reasoned decision.
R. Shimon ben Ẓemaḥ Duran, Tashbaz, III, no. 165, declares that a decision of a Bet Din can be reversed only if the original Bet Din acknowledges its error. Accordingly, if the members of the first Bet Din are not alive, the possibility of reversal does not exist.45See infra, note 49, as well as the accompanying text quoting Baba Batra 130b. The phrase “If I have a reason,” strongly suggests that the written judgment stated nothing more than the award and did not include the reasoning upon which it was based. Despite the finding of error by other competent authorities, Rava insisted that the decision cannot be nullified unless he concedes error and hence there can be no possibility of reversal after his demise. At the same time, the phrase “a judge has nothing other than what his eyes behold” suggests that, if the decision has as yet not been executed or if any further action by a Bet Din is contemplated, a Bet Din that finds the decision to be in error is not obliged to enforce the judgment. The thrust of Rava’s declaration is that, unless a Bet Din acknowledges and agrees that its decision may be vacated, other courts can take no action and hence must allow the situation to remain as presented without disturbing it in any way.
Rabbinic scholars who deny that Jewish law recognizes a right of appeal adduce the dictum recorded in Baba Batra 138b, "a Bet Din does not scrutinize the actions of another Bet Din," as the touchstone of their position.46See, however, the responsum of R. David ibn Zimra, published in Avkat Rokhel, no. 21, as well as in Teshuvot Mabit, II, as an addendum to no. 172, in which that authority asserts that this principle was operative only in days of yore but “now that [judges] are not so proficient in law, we therefore scrutinize the actions of a Bet Din.” This is also the opinion of R. Chaim Pelaggi, Teshuvot Semikhah le-Ḥayyim, no. 9. See also, idem, Teshuvot Ḥikekei Lev, II, no. 17. That view is rejected by Urim ve-Tumim, Urim I, 19:3. That principle is adduced by Rambam in two separate contexts.
In Hilkhot Edut 6:4 Rambam writes:
[If] a Bet Din has written "We were assembled as a tribunal and this instrument was authenticated before us" [the instrument] is authenticated even though [the Bet Din] has not made explicit in which of the five manners it has been authenticated for one does not say that a Bet Din may have erred. But it has been the practice of all Batei Din that we have observed and of whom we have heard to write the manner in which [the instrument] has been authenticated before them.
With regard to the particular matter of authentication of instruments, Rambam clearly rules that, as a matter of normative law, details need not be spelled out; explication would be purposeless because the action of the Bet Din in authenticating the instrument is not subject to review by any other body. Nevertheless, it has become an established practice to indicate the mode of authentication employed, presumably as a means of assuring confidence in the competence of the Bet Din and its fidelity to established rules of procedure.
In Hilkhot Edut 6:5, Rambam codifies the general rule:
A Bet Din never examines [the actions] of another Bet Din. Rather, it assumes them to be proficient and not susceptible to error. Witnesses, however, are examined.
Rambam's language is somewhat ambiguous. It is unclear whether Rambam is simply stating that a Bet Din is entitled to give full faith and credit to the actions of another Bet Din on the presumption that all Batei Din are competent but, should a Bet Din choose to conduct its own independent investigation, it is entitled to do so, or whether Rambam's statement constitutes a declaration that the second Bet Din must rely upon the determination of the first Bet Din and is precluded from conducting its own inquiry. Rephrased, the issue is whether there is no provision for an appeal for a rehearing before a second Bet Din as a matter of right but that an appeal for a rehearing may nevertheless be granted at the discretion of the second Bet Din or whether an appeal is entirely precluded. If the principle "a Bet Din does not scrutinize the actions of another Bet Din" does indeed serve to establish that such scrutiny is prohibited, the prohibition is presumably based upon a concern that the scrutiny itself, regardless of the outcome, would tarnish the prestige and standing of the first Bet Din (ziluta de-bei dina).
The principle "a Bet Din does not scrutinize the actions of another Bet Din" is formulated by the Gemara, Baba Batra 138b, in its analysis of a rule pertaining to the issuance of a certificate of ḥalizah and the like:
Rava said, "Haliḥah may not be performed unless the [Bet Din] knows [the widow and her brother-in-law]. Consequently, [the witnesses] may write a certificate of ḥalizah … even though they do not know [the parties].
That principle is enunciated in response to a query with regard to whether the prohibition against performing ḥalizah unless the parties are known and recognized by the Bet Din was instituted to protect against an "erring court," i.e., lest a second court permit the woman to remarry without determining that ḥalizah was indeed performed by the proper parties. In posing this question, the Gemara assumes that every Bet Din is obligated to conduct its own investigation into the identity of the parties and that the restriction placed upon the Bet Din performing the ḥalizah is a precautionary measure designed to protect against an "erring court" that does not properly discharge its duties by undertaking such an investigation. To this query the Gemara responds, "No, a Bet Din does not scrutinize the actions of another Bet Din."47In the accompanying discussion, the Gemara states that witnesses may commit a certain matter to writing because “we do not suspect that a Bet Din will err” in acting upon the writing without additional testimony. The Gemara permits witnesses to a deathbed statement to record that the patient asserted on his deathbed that a certain person owed him a debt. The purpose of committing the assertion to writing is to preserve the information so that the heirs may press a claim. The claim, however, is unsubstantiated since the witnesses have no substantive evidence that serves to support the allegation. Nevertheless, the Gemara states that they may record the declaration made in their presence since the Bet Din will not err with regard to its nature and assume that the document is evidence of the veracity of the claim. Clearly, that statement simply reflects a presumption of judicial competence and permits individuals to comport themselves in accordance with that general presumption but does not at all establish that specific allegations of error cannot be entertained.
Rashbam, commenting on the concluding statement of the Gemara, observes:
Therefore, they ordained that ḥalizah not be performed unless the identity of the parties is known for, if you say that ḥalizah may be performed even if the identity of the parties is not known, there would certainly be reason to be concerned lest a Bet Din act in error in permitting her remarriage without examination [i.e.], a second Bet Din might err in thinking that the first Bet Din properly identified the [parties] when they performed ḥalizah since a second Bet Din does not examine the actions of the first Bet Din.
Rashbam's comments serve only to establish that a Bet Din may extend full faith and credit to the actions of another Bet Din and hence it was necessary to promulgate an ordinance forbidding ḥalizah by unidentified parties. In effect, the Sages had to choose either to permit unidentified parties to perform ḥalizah and consequently to require subsequent substantiation of the relationship between the parties by a second Bet Din before permitting the widow to remarry or to prohibit ḥalizah without prior identification by the Bet Din before which ḥalizah is performed and thereby create a presumption of validity that might be relied upon by any subsequent Bet Din. In order to facilitate remarriage, the Sages ordained that the investigation be conducted by the first Bet Din. It is evident that in order to establish such a policy it was necessary to require an investigation by the Bet Din performing the ḥalizah but that it would not have been necessary to forbid a subsequent investigation by a Bet Din that felt prompted to confirm the validity of the prior ḥalizah.48R. Ovadiah Yosef, Yabi‘a Omer, II, Ḥoshen Mishpat, no. 2, sec. 8, understands the principle “a Bet Din does not scrutinize the actions of another Bet Din” as negating a requirement for such scrutiny but not as forbidding discretionary scrutiny. The earlier cited statement of Teshuvot ha-Rosh and Sema he understands as serving to prohibit a rehearing of arguments by a second Bet Din but not as precluding examination of the decision for possible error.
Nevertheless, as has been cited earlier, Sema, Hoshen Mishpat 19:2, declares that when a defendant has been exonerated, a second Bet Din is forbidden to hear the complaint of a plaintiff. The source of that position is the Mishnah, Rosh ha-Shanah 25a:
It occurred that two [witnesses] came and said, "We saw [the moon] in the morning in the east and in the evening in the west." R. Yoḥanan ben Nuri said, "They are false witnesses." When they came to Yavneh, Rabban Gamaliel accepted them. Also, two [witnesses] came and said, "We saw [the moon] in its proper time but on the following night it was not seen" and Rabban Gamaliel accepted them. R. Dosa ben Horkanos said, "They are false witnesses. How can people testify that a woman has given birth when the next day her abdomen is between her teeth?" R. Joshua said to him, "I accept your words." Rabban Gamaliel said to him, "I decree that you come to me with your staff and your money on the day on which Yom Kippur falls according to your reckoning." R. Akiva went and found [R. Joshua] in distress. [R. Akiva] said to him, "I can derive that everything Rabban Gamaliel has done is valid as it says, 'These are the appointed seasons of the Lord, holy convocations which you shall proclaim in their appointed seasons' (Leviticus 23:4), i.e., whether [they are proclaimed] at their proper times or other than at their proper time, I have no appointed seasons other than these." [R. Joshua] came to R. Dosa ben Horkanos. [R. Dosa ben Horkanos] said to him, "If we examine [the decisions of] the Bet Din of Rabban Gamaliel we must examine the decisions of every single Bet Din that has existed from the time of Moses until the present."
Both R. Akiva and R. Dosa ben Horkanos recognized the possibility of error on the part of Rabban Gamaliel. R. Akiva cited Scripture in support of the principle that, with regard to sanctification of the New Moon, even an erroneous decree of the Bet Din is endowed with validity. That principle, however, is limited to matters pertaining to the calendric system. R. Dosa ben Horkanos, on the other hand, justified Rabban Gamaliel's citation on the basis of a broad, universal principle establishing that the announced decision of a Bet Din is not subject to further scrutiny.
The problem, however, is why should an erroneous decision not be rescinded? Indeed, as evidenced by the Mishnah, Sanhedrin 32a, there does exist a contrary rule establishing that a decision based upon a patent error of law is to be set aside. The principle announced by R. Dosa ben Horkanos contradicts the rule established by the Mishnah, Sanhedrin 32a, unless each of these ostensibly conflicting principles is of limited application. If so, the question that must be resolved is when is a decision of a Bet Din final even though it is in error and when is it to be set aside?
Rabbenu Nissim, Avodah Zarah 7a, cites a statement of Ra'avad dealing, not with a matter requiring adjudication by a Bet Din, but with a non-adversarial matter involving a determination of religious law. Ra'avad declares that upon issuance of a negative ruling by a rabbinic decisor with regard to a foodstuff of questionable kashrut or the like "[the decisor]49Cf., however, Encyclopedia Talmudit, vol. VIII, p. 507, note 304. The author of that note infers from the comments of Teshuvot Radbaz, I, no. 362, and Teshuvot Rivash, no. 379, that they understood that it is the petitioner who, in accepting the decision of the rabbinic scholar, has rendered the item an object of prohibition. has rendered it an object of prohibition and it cannot subsequently be rendered permissible, and even if a second decisor declares it to be permitted it is not permitted."50For further citations of Ra’avad’s view see Encyclopedia Talmudit, vol. VIII, p. 507, note 301. Ra’avad’s position is in accordance with that of both Ramban and Rashba. Rabbenu Nissim, however, maintains that the talmudic rule is based upon considerations of “the dignity of the first [decisor]” and a fear lest “the Torah appear as two Torot.” Consequently, Rabbenu Nissim opines that the earlier decision may be rescinded with the acquiescence of the first authority. Ra'avad declares this to be the case even if the second decisor is acknowledged to be a more erudite scholar than the first. In effect, Ra'avad declares the ruling of a competent decisor to be res judicata and not subject to review.51For a discussion of whether this principle applies even in situations in which the first decisor has issued a permissive ruling see Teshuvot Radbaz, I, no. 362; Teshuvot Rivash, no. 379; and Sedei Ḥemed, Kelalim, Ma‘arekhet ha-Ḥet, sec. 77. However, Ra'avad's position is limited to situations involving a legitimate matter of doubt or requiring adjudication between conflicting opinions or precedents. Ra'avad concedes that the decision must be overruled when it is based upon a patent error of law.
Ra'avad's view reflects an extreme application of the principle enunciated by R. Dosa ben Horkanos. In his dictum, R. Dosa ben Horkanos establishes the principle that a decision in a matter requiring a Bet Din, once issued, acquires standing and validity even if it is in error, at least until such time as it is reversed. Accordingly, the principle "a Bet Din does not scrutinize the actions of another Bet Din" may be understood as meaning simply that the second Bet Din is lacking in standing and authority to initiate such review with the result that the first decision remains in effect and, even if erroneous, is, as a matter of law, entirely valid.
But why is a Bet Din not empowered to review the action of another Bet Din? R. Dosa ben Horkanos declares that, if such review were to be undertaken, consistency would require examination of the actions of every Bet Din going back to the time of Moses. The Mishnah does not say that such review is precluded or prohibited. The phraseology of the Mishnah indicates only that such review is unnecessary and superfluous. That principle, however, entails postulation of a logically antecedent principle to the effect that a decision, once issued, acquires validity at least until such time as it is set aside. Only when reviewed and overturned is the previous decision nullified retroactively.52This analysis will serve to reinforce the difficulty in explaining why a blessing is not pronounced by the Bet Din upon issuing a judgment. Despite the fact that the Gemara, Ketubot 106a, indicates that issuance of a judgment constitutes the fulfillment of the commandment “With justice shall you judge your fellow” (Deuteronomy 1:16), there is no source indicating that the members of the Bet Din must pronounce a blessing before announcing their decision. Teshuvot ha-Rashba, no. 18, states that the Sages did not ordain that a blessing be pronounced upon issuance of a decision by a Bet Din because of a fear that the litigants might not accept the decision. See also Bi’ur ha-Gra, Oraḥ Ḥayyim 8:1. Teshuvot Ḥatam Sofer, Oraḥ Ḥayyim, no. 54, maintains that the normative rule is that, contrary to the position of the Palestinian Talmud, a blessing may be pronounced only upon completion of the miẓvah and such completion, he maintains, does not occur until judgment is actually executed.
On the basis of the foregoing it might be argued that, if an erroneous decision is effective and valid, it should follow that issuance of the decision itself constitutes fulfillment of the commandment whether or not it is actually implemented by the litigants.
For an analysis of the difficulties inherent in this position as well as for an alternative thesis explaining why blessings were not ordained prior to performance of certain miẓvot see R. Baruch ha-Levi Epstein, Tosefet Berakhah, Deuteronomy 1:16.
The conditions for review become apparent from the previously cited discussion of the Gemara, Baba Batra 130b:
Rava said to R. Papa and to R. Huna the son of R. Joshua, "If a judgment of mine comes before you and you see a refutation, do not tear it up until you come before me. If I have a reason I will tell it to you; if not, I will reverse myself. After my death, do not tear it up but neither should you derive [any matter of law] from it. Do not tear it up since, had I been there, perhaps I would have told you the reason. Do not derive [any matter of law] from it because a judge has nothing other than what his eyes behold."53Rashbam, in his commentary to Baba Batra 131a, indicates that the reversible error contemplated by R. Papa was one of judgment rather than the result of ignorance of a point of law. This is evident from Rashbam’s use of the phrase “for also with regard to a matter dependent upon reasoning a judge knows only that which his heart shows him.” Nimukei Yosef, however, understands the error in question to be an error with regard to a clearly established point of law rather than an error in judgment, because, according to his opinion, a matter calling for the exercise of judgment not only cannot be reversed by another Bet Din but even the Bet Din that issued the decision is not empowered to rescind an already issued decision simply because it has changed its mind. In this, Nimukei Yosef, in effect, equates a decision predicated upon exercise of judgment with the rule applying to arbitration. A decision based upon arbitration rather than law, once issued, cannot be reversed or modified even by the original tribunal other than, of course, with the consent of both parties. It is for that reason that litigants cannot demand that the Bet Din reveal the considerations upon which an arbitration award is based. See Koveẓ ha-Poskim, I (New York, 5729), 295, s.v. Be-Matteh Shimon. Rashbam would apparently disagree with that point and maintain that, at least until judgment is executed, the original Bet Din retains jurisdiction and may reverse or amend its decision with regard to a matter of judgment no less so than with regard to a matter of law.
Clearly, this discussion envisions a review of an earlier announced decision. How did this situation differ from cases to which the general principle that a Bet Din does not review the decision of another Bet Din is applied? Undoubtedly, the answer is in the words "and you see a refutation," i.e., the general principle "a Bet Din does not scrutinize the actions of another Bet Din" serves to extend full faith and credit to the decisions of a qualified Bet Din on the basis of a presumption of competence and freedom from error. That principle is, in turn, but a derivative of the more general principle, "lo maḥazakinan rei'uta," i.e., matters are presumed to be in good order unless there is reason to suspect otherwise.54See, for example, Beiẓah 34a. That presumption is, however, rebuttable. Accordingly, when an irregularity is perceived, the decision becomes subject to review. Nevertheless, an erroneous decision, unless and until it is reversed, remains valid in the sense that a person who accepts funds on the basis of such a decision is, even in the eyes of Heaven, not guilty of theft or extortion.
Thus, the principle "a Bet Din does not scrutinize the actions of another Bet Din" must be qualified with the caveat "unless there is reason to suspect error or irregularity." Accordingly, a litigant cannot simply petition for a rehearing in the vague hope that he will prevail in a different forum. However, a litigant who advances a claim of identifiable judicial error is entitled to be heard even by a second Bet Din because he has identified a rei'uta, i.e., he has advanced a specific and cogent allegation of error, and thereby rebutted the presumption that the existing decision is error-free.
It is precisely this distinction that is formulated by Teshuvot Hatam Sofer, VI, no. 50. The matter brought to the attention of Hatam Sofer involved a ruling of a communal rabbi recorded in the protocols of the community. The ruling stated that the oath of a certain individual was not to be accepted because he had been found guilty of a grave transgression. Subsequently, the rabbi died and another rabbinic figure, apparently the religious authority of another city, sought to set aside the disqualification or to reinvestigate its basis. In a short responsum, Hatam Sofer cites the Mishnah in Rosh ha-Shanah as establishing that a decision of a rabbinic court constitutes res judicata and points to the apparent contradiction of that principle inherent in the discussion recorded in Baba Batra 130b. Hatam Sofer resolves the contradiction by noting that the narrative recorded in Baba Batra refers to a decision incorporating an ostensive error. When error is apparent "a judge can act only in accordance with what his eyes behold." However, in the case brought to the attention of Hatam Sofer there existed only a memorandum of the ruling of the rabbinic authority without any indication of either the factual allegations or the halakhic considerations upon which it was based. Hatam Sofer stresses that, were error to be discovered, the deceased rabbi's ruling might indeed be set aside but that, in the absence of a record of the testimony or the halakhic provisions relied upon, the decision must be accepted at face value and is not subject to challenge.
Hatam Sofer notes that this principle is further reflected in the Mishnah, Makkot 7a, that declares, "Wherever two [witnesses] arise and declare, 'We testify that so-and-so was found guilty in such-and-such a court and that X and Y were the witnesses,' the [condemned] is to be executed." It is evident, declares Hatam Sofer, that testimony establishing that sentence has been pronounced results without further ado in the carrying out of the sentence of the Bet Din and, in the absence of specific evidence to the contrary, there is no basis to withhold imposition of punishment because of fear of either substantive or procedural error.
Similarly, R. Zevi Hirsch Kalisher, M'oznayim le-Mishpat, Hoshen Mishpat 19:2, asserts that a second Bet Din may hear a previously adjudicated dispute, but only if the Bet Din has found an error of law in the written decision of the first Bet Din.
This analysis is entirely consistent with a further statement of Teshuvot ha-Rosh in his previously cited responsum (klal 85, no. 5) to the effect that a second Bet Din may examine any ambiguity present in an already issued decision of an earlier Bet Din and the matter need not necessarily be referred back to the Bet Din of original jurisdiction because clarification of ambiguity represents a novel and as yet undecided issue. But the review must focus upon clarification of the ambiguity rather than upon adjudication of the issue de nouveau. In effect, the new proceedings are designed solely to clarify the intent of the earlier Bet Din.
Noteworthy is the fact that Teshuvot ha-Rosh's citation of the dictum "a Bet Din does not scrutinize the actions of another Bet Din" occurs in the context of a discussion of a petition for a rehearing of the selfsame arguments presented to the Bet Din rather than in reference to an appeal on the basis of allegation of a particular error. This is apparent from Rosh's rhetorical query "Why have you asked for another decision with regard to a case that has already been adjudicated?" Thus, according to this analysis, Jewish law parallels other systems of law in providing for an appeal upon allegation of specific error but not simply for a rehearing of the original arguments and evidence before a different judicial body. It does, however, differ from other systems in permitting an appeal before any properly constituted tribunal rather than in formally providing for separate judicial bodies charged with the specific function of hearing appeals.
The distinction between a rehearing and an appeal is often obfuscated in discussions of the role of formal rabbinic courts of appeal that have appeared in recent times. The "appeals" permitted by the Mishpat ha-Shalom simply afforded a disgruntled litigant an opportunity for a rehearing. As earlier indicated, the quasi-judicial panels established by the Mishpat ha-Shalom did not apply a clearly defined corpus of law and hence their judgments are readily classified as arbitration awards. In Jewish law, as in other systems of law, arbitration decisions are generally not subject to appeal. Decisions of arbitrators cannot be appealed because they are inconsistent with provisions of law for the obvious reason that arbitrators are not bound to rule in accordance with the letter of the law. The procedures of the Mishpat ha-Shalom were innovative not only in establishing a formal appeals panel but in instituting a system of appeal with regard to decisions of arbitrators. Consistent with halakhic norms, the Chief Rabbinate, in instituting a Supreme Rabbinic Court of Appeals, provided for appeal only upon allegation of error and did not at all provide for a right of appeal when, in their original submission, the parties agree to pesharah or arbitration.
Recognition of a distinction between a rehearing and an appeal, despite occasional proclivity on the part of rabbinic writers for use of imprecise nomenclature, yields a clearer understanding of the comments of R. David Pakiano, Hoshen ha-Efod, Hoshen Mishpat, no. 42. Hoshen ha-Efod reports that, with the institution of the office of crown rabbi in Bulgaria in 1900, a number of communal ordinances were promulgated including a provision for the appointment of "two or three" judges who together with the crown rabbi would constitute a "Bet Din ha-Gadol." Thereupon, any litigant who was dissatisfied with the decision of a local Bet Din was permitted to relitigate before the "Bet Din ha-Gadol." This procedure, Hoshen ha-Efod informs us, "is called 'appeal' in common parlance." The issue addressed by Hoshen ha-Efod involved a defendant who lost a case before the local court and demanded a hearing before the "Bet Din ha-Gadol." The plaintiff who had prevailed before that tribunal argued that, since he had already appeared before a properly constituted court and his adversary had no new complaints or additional evidence, he should not be compelled to expend additional time and energy relitigating the case.
Hoshen ha-Efod responds that, in terms of the applicable rules of law, the demurring litigant is correct. Nevertheless, there are ample sources demonstrating that such matters may be varied on the basis of takkanah or communal legislation. Accordingly, since, in Bulgaria, communal ordinances made provision for such a procedure, the plaintiff may be compelled to relitigate his complaint. Hoshen ha-Efod adds that no objection can be made on the basis of inherent disrespect to members of the first tribunal, reasoning that, since all persons "know that this is a city ordinance there is no demeaning of the first Bet Din and from the beginning they entered with this awareness." Despite his use of the term "appeal" the procedure described by Hoshen ha-Efod is actually a rehearing. Accordingly, Hoshen ha-Efod should not be understood as asserting that appeals can be entertained only on the basis of takkanah. The issue of an appeal on the basis of allegation of judicial error is not at all addressed by that authority. His position with regard to the issue he does address, i.e., relitigation of the issues already resolved by an earlier court, is unexceptionable.
The authority of the Supreme Rabbinical Court of Appeals to sit as a court of appeals in accordance with the provisions of Jewish law was challenged in a number of proceedings before that body.55See also the comments of R. Israel Schepansky, Ha-Takkanot be-Yisra’el (Jerusalem, 5753), IV, 218, who writes concerning the establishment of a Bet Din for appeals that “it is difficult to find a source or reason for it in the works of the decisors.” Although a court of appeals was instituted immediately upon establishment of the Chief Rabbinate Council, apparently its powers and procedures were not formally set forth by the Chief Rabbinate Council until the publication of its Takkanot ha-Diyyun be-Batei ha-Din ha-Rabbaniyim in 5703.56The Takkanot ha-Diyyun, although not published until 5703, were apparently promulgated by the Chief Rabbinate Council on 2 Elul 5701 and became effective as of the beginning of 5702. See Shochetman, “Ḥovat ha-Hanmakah,” p. 369. In a matter brought before the Supreme Rabbinical Court in 5702, the appellee apparently argued that the Court's authority was derived from, and therefore circumscribed by, the Rabbinical Courts Act. Accordingly, it was argued, the appellate power of the Supreme Rabbinical Court must be regarded as limited to appeals in cases heard by the rabbinical district courts on the basis of the authority vested in such judicial bodies by the law of the civil government. However, it was argued, in actions in which the parties were not bound to the jurisdiction of that body by virtue of the provisions of civil law but had recourse to rabbinic courts of their own volition, no appeal can be allowed. The argument seems to have been that the appellate powers of the Supreme Rabbinical Court are entirely a matter of civil law, without basis in Halakhah, and hence do not extend, even as a matter of civil law, to matters over which the law does not grant judicial authority to the rabbinical courts.57Despite the fact that this argument was rejected in the decision of 5702, in a subsequent unpublished decision issued in 5716 the Supreme Rabbinical Court ruled that it had no authority to hear appeals in “non-adversarial” matters, i.e., in determining issues of Jewish religious law since such matters are not within the ambit of authority granted to the Bet Din by virtue of the civil law. The issue before the court involved the conversion of a minor child by its Jewish father in face of the announced opposition of its non-Jewish mother. The district court declared that it was not acting by virtue of the powers vested in a Bet Din to adjudicate disputes but was simply announcing a matter of religious law. The Supreme Rabbinical Court ruled that such matters are not subject to appeal. See Eliav Shochetman, Seder ha-Din (Civil Practice in Jewish Law) (Jerusalem, 5748), p. 450. The Court rejected this argument declaring:
We have already made known many times that the takkanah [establishing] a Bet Din for appeals has been accepted without any reservation. Such was the practice introduced by our predecessors and we are not permitted to change [the practice] since all who appear for adjudication appear on that basis. This argument was presented before the [civil] court in Haifa and rejected; therefore we are obliged to accept all appeals even as a point of [civil] law.58Unpublished decision, docket number 1/46/701, bearing the signatures of the members of the court including the Chief Rabbi, R. Isaac ha-Levi Herzog, cited by Shochetman, Seder ha-Din, p. 449.
The Supreme Rabbinical Court herein advances two separate grounds for its appellate jurisdiction: 1) powers derived from takkanah, i.e., rabbinic legislation promulgated by the Chief Rabbinical Council59In another unpublished decision, Rabbi Herzog describes the power of the Supreme Rabbinical Court of Appeals as grounded in communal legislation (takkanot ha-kahal). See Shochetman, Seder ha-Din, p. 450, note 32.—a body that in the early years of its existence did not hesitate to assert legislative power as the designated rabbinical authority of the yishuv;60For a list of takkanot promulgated by the Chief Rabbinate Council see Menahem Elon, Ha-Mishpat ha-Ivri (Jerusalem, 5738), I, 667–676. See also Yitzchak Kister, Torah she-be-‘al Peh, XII (5730), 49–57. and 2) voluntary acceptance of its appellate authority by the parties to the litigation. In formulating the latter argument, the Supreme Rabbinical Court presumably reasons that such acceptance is implied by the appearance of the parties since the right of appeal is commonly known to be acknowledged by the rabbinic courts. That argument is, however, subject to challenge, or at least would have been subject to challenge in the first such appeal brought before the Supreme Rabbinical Court, on the grounds that a right of appeal in matters not governed by the Rabbinical Courts Act had as yet not been established. The weakness inherent in any argument based upon voluntary acceptance of such procedures by the litigants is that, at the time of their original submission to the authority of the Bet Din, either party might disavow any such acceptance and thereby deny his adversary the right of appeal.
In a subsequent decision handed down in 5734 the Supreme Rabbinical Court formulated the argument somewhat differently:
In every decision there are two principles upon which the Bet Din for Appeals nullifies the decision of the district Bet Din: First, on the strength of the Takkanot ha-Diyyun and with that knowledge the parties litigate, [viz.,] that if there is an erroneous judgment the Bet Din of Appeals will examine the problem anew…. Secondly, since such was established by the Takkanot ha-Diyyun, it may be said that the [district] Bet Din ruled ab initio with that intention [i.e., that its judgment be given effect only if there is] no appeal to the Supreme Rabbinical Court.61Piskei Din shel Batei ha-Din ha-Rabbaniyim, X, 180.
In this decision, the two grounds set forth in the 5702 decision are folded into a single argument in which the legislative authority relied upon is the explicit provisions of the Takkanot ha-Diyyun of 5703 rather than the earlier amorphous legislative action implied by the ad hoc establishment of the appellate court in 1921.62In another unpublished decision dated 5708, the Supreme Rabbinic Court, of which Rabbi Herzog was still a member, refused to hear an appeal from a decision of the Edah ha-Ḥaredit on the grounds that the Takkanot ha-Diyyun of 5703 apply only to cases heard by the Batei Din established by the State, although it is by no means obvious that such was the case. See Shochetman, p. 449, note 31 . No reference is made in that decision to an earlier takkanah of the Chief Rabbinate Council although, arguably, that takkanah might also be regarded as limited in scope. The matter is of course further complicated by the fact that the Edah ha-Ḥaredit does not acknowledge the authority of the Chief Rabbinate. Implied acceptance of the authority of the appellate court, posited as an independent argument in 5702, is here incorporated in the first argument. The second argument advanced in the 5734 decision focuses upon the intent of the lower court rather than upon the intent of the litigants and, in effect, declares that, in light of the established right of appeal, all decisions of district Batei Din are conditional in nature.63The difficulty presented by the second argument lies in the source of the appellate court’s authority to issue a new verdict subsequent to hearing the appeal. If it is contended that the filing of an appeal has the effect, not simply of staying the decision of the trial court, but of rendering it entirely nugatory, it follows that the judgment of the appellate court does not serve to confirm or to rescind the judgment of the trial court but becomes the sole judicial decision in the case. The authority of the appellate court might then be regarded as predicated upon the original acceptance of the established judicial process on the part of the litigants in their original appearance, including the authority of the appellate court to issue its own decision. Alternatively, the appeals court might, in effect, constitute itself as a communally designated court of original jurisdiction that is empowered to compel litigants to submit to its jurisdiction. This explanation does not, however, serve to resolve the problem since a court of original jurisdiction is forbidden to issue a decision without hearing the parties and examining witnesses who must personally appear before them. Accordingly, it is more likely that, in formulating this argument, the Supreme Rabbinical Court intended to assert that, in cases of appeal, the original judgment of the district Batei Din is rendered conditional subject to confirmation by the appellate court. That contention, however, serves to provide a basis only for confirmation or reversal by the appellate court, but not for modification of a judgment or reversal in part and confirmation in part. Such judgments are properly to be regarded as decisions of the appellate court rather than as decisions of the trial court. Hence the cogency of this argument in establishing the authority of the Supreme Rabbinical Court to act in such a manner remains unclear. The Supreme Rabbinic Court is herein relying upon an unstated premise, viz., that a Bet Din is halakhically empowered to issue a binding, conditional judgment of this nature, i.e., to issue a judgment that becomes final only upon acceptance by both parties as evidenced by failure to lodge an appeal within the prescribed time.
In a short and succinct published decision handed down on 9 Tevet 5705, the Supreme Rabbinical Court rejected a motion to dismiss an appeal on the grounds that, absent an explicit agreement at the time of submission to the authority of the trial court, there exists no right of appeal in Jewish law and declared:
The Bet Din ha-Gadol finds that it does have the authority to judge this appeal since the matter of appeals has been accepted as a takkanah of the Sages,64For a discussion of the halakhic scope of the authority of the Chief Rabbinate see R. Saul Israeli, Shanah be-Shanah, 5724, pp. 175–186, and I. Englard, Ha-Praklit, XXII (5726), 68–79. See also Piskei Din Rabbaniyim, X, 14 and Shochetman, “Ḥovat ha-Ḥanmakah, p. 370, note 168. whose binding effect is like the law of our holy Torah and all who enter into litigation enter with the intention [to accept an appeal].65Osef Piskei Din, ed. Z. Warhaftig (Jerusalem, 5710), p. 71.
On the basis of the foregoing analysis, it may argued that the appellate power of the Supreme Rabbinical Court is firmly grounded in Halakhah. §135 of the Takkanot ha-Diyyun of 5753 provides that appeals may be heard upon allegations of: 1) halakhic error; 2) egregious error (ta'ut ha-nir'et la-'ayin) in judgment or in the establishment of facts; or 3) procedural defects having an effect on the results of the litigation.66Identical language appears in §122 of the Takkanot ha-Diyyun of 5720. The original Takkanot ha-Diyyun of 5703 is silent with regards to grounds for appeal. Procedural defects having a decisive effect upon the judgment of the Bet Din are indeed errors of Halakhah warranting reversal of the decision. Similarly, Teshuvot Rivash, no. 498 and Shakh, Hoshen Mishpat 25:9, rule that factual errors are to be equated with errors of law. Assuming that the phrase "error of judgment" (ta'ut be-shikul ha-da'at) is used in the sense of its talmudic meaning, i.e., in the sense of error of judgment in choosing between conflicting authority or precedent, that, too, may be tantamount to an error of law. Tashbaz, II, no. 272, rules that a ruling issued in reliance upon an opinion that is in conflict with the established judicial determination in a given locale is to be treated as an error with regard to a matter of law. That ruling, however, is disputed by Shakh, Hoshen Mishpat 25:10; Urim ve-Tumim, Urim 25:11; and Netivot ha-Mishpat, Hiddushim 25:11.
Thus, at least insofar as an appeal based upon an allegation of specific halakhic or factual error is concerned, the right of appeal would appear to be well-grounded in Halakhah and reliance upon takkanah or presumed acquiescence of the parties would be unnecessary. Takkanah, however, remains operative in another sense. When an error of law is alleged, the litigant is entitled to seek out any Bet Din of his choice in order to nullify the original decision. The Takkanot ha-Diyyun provide that appeals can be brought only before the Supreme Rabbinical Court. In effect, the establishment of a formal appeals court constitutes a takkanah depriving other courts of the right to hear the appeal.
It must also be noted that the earlier presented analysis does not reflect the position of all authorities. As cited earlier, Tashbaz, III, no. 165, maintains that the Bet Din having original jurisdiction must acknowledge its error in order to vacate the judgment. Tashbaz adduces the principle "a Bet Din does not scrutinize the actions of another Bet Din" in ruling that a decision of a Bet Din can be reversed on grounds of error only if the first Bet Din still exists and can be prevailed upon to concede its error. Similarly, Mahari Katz, cited in Shitah Mekubezet, Baba Kamma 12a, indicates that it was for this reason that, as recorded by the Gemara, Ketubot 50b, Rav Nachman admonished the judges of Nehardea to reverse themselves.67See also Ḥazon Ish, Sanhedrin 16:10. According to these authorities, reversal of a decision can be compelled only on the basis of takkanah. On the other hand, Rif and Ba'al ha-Ma'or, Sanhedrin 33a, Rosh, Sanhedrin 4:6 and Yad Ramah, Sanhedrin 33a, maintain that a scholar who is greater in wisdom and stature may overturn a judgment on grounds of judicial error with regard to a matter of law even if the judge who issued the original verdict does not acknowledge his error. Hazon Ish, Sanhedrin 16:17, understands the position of Tosafot, Ketubot 50b, to be that a person appointed by the Exilarch as a judge over the entire country or province and to whom other judges are subservient enjoys that power. In the State of Israel, such status is certainly enjoyed by the Supreme Rabbinical Court.