Published online by Cambridge University Press: 25 September 2015
Unlike modern Western law, which is generally assumed to be the product of human deliberation about the common good, at least in democratic countries, Jewish law is a normative system in which adjudication is subject to religious commandments. The judge bears responsibility not only to the litigants standing before him but also to God, an allegiance which most modern Western judges do not, at least explicitly, recognize.
Because of the systems' assumptions that law is made by humans and thus can be understood by human judges given the appropriate information, modern Western legal systems infer that judges are under obligation to render a decision on any legal question brought before them, even in doubtful cases. Secular-civil law views the resolution of a dispute as preferable to its non-resolution, even if the judge has reservations about his decision. The judge who is hesitant to decide a case is considered to have failed to properly discharge his judicial role, the very essence of which is the regulation of human conduct in one form or other. The obligation of the judge to render a decision on every legal question both implies and requires that a judge exercise creative discretion in at least some cases where the law or its intended application are not clear to ensure the rendering of a clear and unequivocal decision on any legal question brought before him. As a consequence of this unequivocal demand that the judge decide, most judges must make peace with the possibility that their rulings may later be discovered or determined to have been mistaken.
1. For a comparison between modern law and Roman law, see Rabello, A.M., Non Liquet: From Modern Law to Roman Law, 9 Isr. L. Rev. 63 (1974)Google Scholar.
4. In Judge Pollock's opinion (in a lecture on Judicial Caution and Valor, 45 L. Q. Rev. 293, 296–97 (1929)Google Scholar, a judge's readiness to risk a mistaken judgment is necessary to promote the creative development of the law.
6. For a general discussion, see Shifman, Pinhas, The Doubt in Halakhah and in Law, 1 Shenaton Ha-Mishpat Ha-Ivri 328 (1974) (Hebrew)Google Scholar. The role played by this factor has been discussed extensively in the context of a preference for compromise. See Haputa, A., The Borders of Law and Compromise, 17 Noam 39, 42–43 (1974) (Hebrew)Google Scholar; Neria, M.Z., The Law of Compromise, in Jubilee Volume for Y.D. Soloveitchick 358, 359 (Jerusalem 1984) (Hebrew)Google Scholar; Lifshitz, Berachyahu, Compromise, in Mishpetei Eretz-Jurist, Jurisdiction & Jurisprudence 137 (Mishpetei Erez Institute for Halacha & Law 2002) (Hebrew)Google Scholar. Regarding the role of the fear of decision in relation to the laws of fines, see Radzyner, Amihai, The Foundations of the Laws of Fines in Talmudic Law 278–81 (2001) (unpublished Ph.D. dissertation, Bar Ilan University) (on file with author) (Hebrew)Google Scholar. Regarding the fear of decision among early Ashkenazi sages, see Dinari, Y.A., The Sages of Ashkenaz Toward the End of the Middle Ages 34 (Jerusalem 1984) (Hebrew)Google Scholar.
7. Fear of deciding is not unique to the Halakhah, and it is characteristic of other religious laws as well. See Shifman, supra note 5, at 30. Regarding the Islamic and Canon Law systems, see Shifman's Survey. Id. at 31.
8. Ben-Menahem, Hanina, Judicial Deviation in Talmudic Law: Governed by Men, Not by Rules 55–98 (Taylor & Francis 1991)Google Scholar. See also Ben-Menahem, Hanina, The Attitudes of the Jerusalem and Babylonian Talmuds toward Judicial Deviation from the Law, 8 Shenaton Ha-Mishpatha-Ivri 113 (1981) (Hebrew)Google Scholar.
10. Id. at 86.
13. Id. at 95-98.
14. Id. at 96.
16. Id. at 98.
17. See Elon, Menachem, Jewish Law-History, Sources, Principles 6–8 (Jewish Publ'g Soc'y 1994)Google Scholar.
18. See infra text accompanying note 27; Elon, supra note 17, at 6.
19. Most scholars have inferred from the sources that the arbitration court was particularly popular in the Land of Israel, being under the influence of Roman Law, and that it “gradually established its prominence in Jewish adjudication until finally it became the sole adjudicative institution that was recognized by the Romans, pursuant to the Caesar's order in year 398 of the Common era,” whereas, by contrast, “time would pass until it would be understood and also absorbed in Babylonia.” Warhaftig, Zerach, Studies in Jewish Law 25–26 (1985) (Hebrew)Google Scholar. See also Sinai, Yuval, Arbitration As an Ideal Judicial Procedure, 18 Jewish L. Ass'n Stud. 283–84 (2008)Google Scholar.
20. See Elon, supra note 17, at 7.
21. Jerusalem Talmud (JT), Sanhedrin 1.1 (author's translation).
22. Acceptance by the litigants is especially important if the judge makes a mistake. See 20 Encyclopedia Talmudit 517-20 (1991) (Yad HaRav Herzog).
23. This was apparently the understanding of the Tur, Hoshen Mishpat, 12, who cited the act of R. Jose in the context of the laws of compromise. See also the comments of Rav Hapota, supra note 6, at 42, who explained that even if he errs and adjudicates according to his own understanding, he wants the litigation to accept his judgment. Thus though his intention was a compromise, he did not want it to be truly in accordance with Torah Law because even the slightest mistake would be a perversion of the law. See also Lifshitz, supra note 6.
24. See Tosefta, Sanhedrin. 1.3: “R. Yehoshua b. Karcha said: It is a mitzvah to divide [compromise],” and the Tannaitic dispute, id.
25. Alei Tamar commentary on the Jerusalem Talmud, ad loc. Rabbi Halafta noted elsewhere that only “the One who knows all thoughts will exact punishment from those who make false claims.” See P'nei Moshe on the Jerusalem Talmud (which differs from the commentary of Korban Ha'edah. ad loc).
26. Rav Haputa, supra note 6. See also in comments of Rav Neria, supra note 6.
27. According to the Leiden manuscript, the name is recorded as: “R. Shimon b. Shetah.” But the correct reading here is “In the days of Shimeon b. Yochai.” This is also the wording in the parallel passage of the Jerusalem Talmud 7:2/24b.
28. Possibly, the abolition of judicial autonomy in the Land of Israel also affected R. Jose, who refused to adjudicate according to din Torah. This tragic event preoccupied him extensively. See BT Shabbat 15a.
29. BT, Bava Mez 'ia 30b had difficulty explaining this dictum because on the face of it, there can be no flaw in din Torah. As a result, it was given a different interpretation (that their fault was they had failed to rule “beyond the requirements of the law” (lifnim mi'shurat ha-din). But in our view the dictum can be explained literally, without the addition of elements that are not mentioned.
30. Mishnah, Sanhedrin 3.6.
32. These dicta are in the BT Sanhedrin 7 a-b.
33. See Shifman, supra note 5, at 21. Note that the judge's responsibility extends to the general state of the world. See the BT Shabbat 139a.
34. BT Sanhedrin 7 a-b.
37. See Sifrei Deut. 9 (Finkelstein ed., p. 17); Deut.Rabbah (Lieberman, ed., Deut. 15, pp. 13–14Google Scholar), and others.
38. BT Sanhedrin 7b.
39. See e.g. the comments of the Amoraim cited in the BT Sanhedrin 7b.
41. Menachem Meiri, BT Sanhedrin 7b.
42. A stick was used to beat those liable to rabbinically prescribed lashes; a strap to apply Biblically prescribed lashes; and a sandal was used for the ritual of chalitzah.
43. He lived approximately 290-320 CE.
44. He was a student-colleague of R. Huna.
45. The Babylonian perspective, which praised the judge's responsibility and duty to render true justice, is reflected in the case recorded in BT Shabbat 10a.
46. Turim, Hoshen Mishpat 1.
47. BT Sanhedrin 58b.
48. See the extensive comments of Bet Yosef, Hoshen Mishpat 2.
49. BT Sanhedrin 23a.
This statement emphasizes the immense power of the judge who renders true justice, actively wielding his power to maintain the world. It is possible that the requirement for the judge to render true justice is related, at least conceptually, to the law concerning fraudulent claims. Baalei HaTosafot stated that “in a fraudulent claim the witnesses must be examined thoroughly until the truth emerges and then they can render true justice.” Tosafot in BT Megillah 15b, s.v. zeh hadan. Cf., Tosafot in BT Shabbat, id., s.v. din Emet; BT Bava Bathra 8b, s.v. din. This is similar to R. Papa's Pappa's perspective of the fraudulent claim, discussed infra, at text accompanying note 71.
50. Tosefta, Sanhedrin l.9.
51. BT Sanhedrin 6b.
52. BT Baba Bathra 130b.
53. Rav Papa lived approximately 350-75 CE.
54. BT Baba Bathra 130b.
56. A different meaning is ascribed to this term in a passage in BT Nidda 20b. The sages refer to the act of physically viewing menstrual blood brought before the Rabbi after it dries. In this case, he cannot say that had it been wet, it would have been impure. But all he has is the evidence of his eyes, and as it now appears to be pure, he should decree it to be pure. This meaning is also far removed from that of the Tosefta in Sanhedrin.
57. See infra text accompanying note 83.
58. The commentary of Keli Yakar on Deut 17:11. Similar comments were made by many others.
59. Cf., Perishah, in Turim. Hoshen Mishpat 2
and he explained … any judge confronted by a fraudulent claim should not say: “I will decide it,” and the guilt will hang on the witnesses, but rather he should investigate and enquire etc., and this is a judgment of truth, and when he is convinced of the truth following his investigation and enquiry, then he can judge truly, and not pervert justice, but rule on the basis of his investigation and enquiries.
For other commentaries, see id. Beth Yosef, Bach, and Derishah, in Turim. Hoshen Mishpat 2; and see Elon, M., Jewish Law 141, 222–23 (Jerusalem 1988) (Hebrew)Google Scholar.
60. I have dealt elsewhere at length with the Talmudic sources of din merumeh. The main conclusions of my study are summarized in Sinai, Yuval, Practice and Procedure, in 16 Encyclopaedia Judaica 434, 438–42 (2d ed., MacMillan Reference 2007)Google Scholar. On this subject, see also Sinai, Yuval, Judicial Authority in Fraudulent-Claim Cases (din merume), 17 Jewish L. Ann. 209 (2007)Google Scholar. For the detailed study, see Sinai, Yuval, The Judge and the Judicial Process in Jewish Law ch. 10 (Hebrew Univ. Jerusalem Press 2010) (Hebrew)Google Scholar.
61. The sources included in the baraitot are teachings outside the six orders of the Mishnah.
62. Exod 23:7.
63. BT Shevu'ot 30b.
64. Otherwise the baraita would be stating the obvious: if the fraud is provable, why should the judge disregard the evidence?
65. See Shochetman, Eliav, Civil Procedure in Jewish Law 320–21 (Jerusalem 1988 (Hebrew)Google Scholar.
66. As explained by Rashi, BT Shevu'ot 30b: “is fraudulent—that [the judge] infers from the words of the witnesses that their testimony is not the truth.”
67. 7 Encyclopedia Talmudit 290 (1991) (Yad HaRav Herzog)Google Scholar. Cf., Shochetman, supra note 64, at 331: “When is a claim considered fraudulent, that is, it involves a suspicion of fraud? This cannot be accurately defined, and much is of course dependent on the judge's feeling … At any rate, there are cases in which it is clear from the circumstances that fraud is suspected.” Shochetman lists a few examples of din merumeh described by halakhic authorities and derived from the deliberations of Modern Israeli rabbinical courts. In one case, for example, a witness testified without the presence of the litigant; but when he repeated his testimony before the litigant he changed his story and repudiated his first testimony. In another case, the judge found a contradiction between the witnesses' testimonies. For further examples, see Otzar ha-Posekim, Index of Responsa (Hoshen Mishpat) #15, 199.
68. This interpretation is consistent with the policy of inaction that the baraita seems to imply, but it may not be the only possible interpretation.
69. JT Sanhedrin 4:1.
71. BT Sanhedrin 32a.
72. In the aforementioned study, I discussed the difficulties inherent in R. Papa's interpretation and the question of the relationship between that interpretation and sources from the Land of Israel (the baraita in the BT Shew 'Ot, and the topic in the JT Sanhedrin).
73. BT Baba Mezia 39b. As emphasized by Ben-Menahem, Judicial Deviation in Talmudic Law, supra note 8, at 36: “This is a classic example containing all the main characteristics of a case report, such as the names of the litigants, the term ata lekameh denoting appearance before a court, the direct speech form reporting the ruling as it was delivered, and the reasoning of the court.”
74. A man who is violent (alim) is one who uses his strength—whether it be physical or the power of wealth or political connections—in order to obtain things or to insist upon his rights. A person who is alim is not necessarily someone who acts unlawfully, but because of his power, people do not want to quarrel with him, and he causes them to waive their rights or to act unlawfully.
75. BT Baba Mezia 39b.
76. For example, when one litigant's oath cannot be trusted, the court “overturns” the oath and permits the other litigants to give sworn testimony, although this is not the customary procedure.
77. Ben-Menahem, Judicial Deviation in Talmudic Law, supra note 8, at 15.
78. For an extensive survey, see Rakover, Nahum, The Rule of Law in the Jewish Sources 115–36 & 194 (Jerusalem 1989) (Hebrew)Google Scholar.
79. See Responsa Rashba 2.148.
80. BT Baba Bathra 177a.
81. See Responsa, Rashba, 2.1210; Responsa Rivash, #392 (end); Responsa Tashbetz, 2. 224, 3.168.
83. BT Kettuboth 85a. We noted above that Rava enjoined his students to avoid relying on his rulings after his death as precedents for other cases because “the judge only has what his eyes see.”
85. Some of the geonim explain that Rava's wife claimed to know that the woman habitually swore falsely and in vain. Others explain that she knew that the woman regularly took God's name in vain. See Ozar Hageonim, BT Kettuboth 85a.
86. This is the normal procedure according to Rashi, who understands that the woman was obligated to take an oath required by Torah Law to exempt herself from payment. Rava shifted the oath to the plaintiff, allowing him to swear and collect the sum that he was claiming.
87. The geonim Rav Sherira and Rav Hai explain that when Rava said that he was certain about his wife's telling the truth, he did not merely mean that he has never known her to lie. Rather, he meant that he knew that she often suffered great pain and financial loss in order to avoid saying anything that could in any way be understood as being false. See Ozar Hageonim, BT Kettuboth 85a.
88. BT Kettuboth 85a.
90. His wife was not eligible to testify because she was a woman and a relative of the judge.
91. BT Kettuboth 85a.
92. Although he also displayed elements of the “fear of deciding” in his unwillingness to decide between conflicting opinions, whenever possible his approach was to reconcile the two opinions. See e.g. BT Berachot 59b, id. 60b; BT Shabbat 20a; BT Megillah 21 b; BT Hullin 46a.
93. Supra text accompanying note 55.
94. See Shifman, supra note 5, at 21.
96. See BT Bava Mez'ia 83b, the comments of R. Joshua b. Korcha. The Talmud tells about R. Elazar, son of R. Shimon, who set about arresting thieves. His behavior was criticized by R. Joshua b. Korcha, who sent this message to R. Elazar: “How long will you hand over the people of our God to their execution.” R. Elazar sent back the message: “I am ridding the vineyard of its thorns,” i.e., ridding the Jewish people of evildoers. R. Yehoshua b. Korcha sent back the message: “The owner of the vineyard will weed out his thorns himself,” i.e., God can deal with the wicked without your assistance. Conceivably, R. Joshua b. Korcha's preference for compromise over strict law (see Tosefta, Sanhedrin 1.3) is based on the presumption that the owner of the vineyard (The Holy One) will himself destroy the thorns.