Friday, January 05, 2007

the judicial and executive powers of bais din - the case of shuda d'dayni

Part of the role of a posek is shikul hada’as, as the literal translation implies, weighing evidence to render judgment. A comment to the previous posts claimed that when all evidence is equal a posek relies on a “less fluid form of “da’as Torah” that calls on the “shikul hada’as of a posek”. I assume the words shikul hada’as in that context are a misnomer and what is meant is some form of intuition that transcends the evidence. As I wrote before, I have no idea what exactly da’as Torah means, but at least with respect to the case of equal evidence there is a concrete gemara that we can look at instead of debating abstractions.

The gemara (Baba Basra 35) discusses a case of 2 shtaros with identical dates, e.g. there exists one document that says Reuvain gave his land to Shimon, and another document that says Reuvain gave his land to Levi, and both documents were issued on the same date so we cannot determine who has the prior claim. In such a case Rav said the land is split between both parties; Shmuel, however,says “shuda d’dayni”. What exactly this means is disputed by the Rishonim. Rashbam writes that the judge evaluating the case must use other criteria than the strict text of the documents to render judgment– e.g. did Reuvain make some prior promise or have some prior relationship with one of the claimants? Rabeinu Tam argues and holds that in this case, since the evidence does not point to either party having a better claim, the judge is given completely free reign to render a decision any way he pleases - the criteria of proof and evidence are not longer relevant, and the final decision can be made by tossing a coin as well as any other means.

How does this position of Rabeinu Tam fit with our concept of justice? Is a coin toss fair? In my brother-in-law’s sefer on Baba Basra he points to a Dvar Avraham (I 1:5) who suggests that Bais Din's authority stems from two distinct sources or roles: 1) the judicial role of arbitrators and interpretors of halacha 2) executive branch authority (memshala) of hefker beis din hefker, akin to eminent domain. The concept of shuda d’dayni according to Rabeinu Tam is not rooted in the concept of justice at all. It is a function of the executive branch authority invested in bais din that allows them to seize properly and redistribute assets as they see fit.

The gemara (Sanhedrin 5a) comments on the bracha given to Yehudah in this week’s parsha, “Lo yasur sheivet m’Yehudah” – this refers to the Exilarchs in Babylonia who lead the people by force of the rod, “U’mechokek m’bein raglav” – this refers to the Nesi’im of Eretz Yisrael, descendents of Hillel, who taught the people. The gemara writes that if license to judge is granted in Bavel it applies equally in Eretz Yisrael, but if license is granted in Eretz Yisrael, it does not apply to Bavel.

Tosfos and many other Rishonim note that we find elsewhere that the opinion of the chachamim in Eretz Yisrael was more esteemed that that of their colleagues in Bavel – why then does the license to judge in Eretz Yisrael not extend to Bavel? Rabeinu Tam answers that the superiority of the chachamim in Eretz Yisrael was with respect to deciding issur v’heter; however, with respect to hefker bais din, the chachamim in Bavel were able to exert greater authority in carrying out monetary judgment. Put in the framework of the Dvar Avraham, the chachamim of Eretz Yisrael functioned better in the judicial role of interpreters of law; the chachamim of Bavel, however, were better able to fulfill the executive branch power of the court, the role of memshala. The power of interpretation does not imply automatic proficiency in the role of memshala.

The Derashos HaRan (Derush 11) discusses at length the interplay between religious law, as arbitrated by Sanhedrin, and social/political law, which in the days of Tanach was under the jurisdiction of the King. Without a king both of these roles must be assumed by the court. The Ran quotes two pesukim which validate the authority of bais din: 1) lo tasur 2) acharei rabim l’hatos. The latter refers to the court’s ability to interpret law in accordance with majority opinion, and applies to all courts at all times. The former, lo tasur, also allows the court legislative authority to enact takanos and gezieros, and is limited to Bais Din haGadol.

In short, bais din wears many hats, some l’chatchila, some thrust upon them because of the absence of other governing authorities like a king. Some of the confusion in dealing with something like a boycott called by Rabbinic authorities in response to chilul Shabbos is figuring out what hat beis din is wearing – is this a halachic interpretation, an executive branch decision for the public good, or some attempt at new legislation – and what is the scope of authority the posek has in each of these distinct roles? My opinion is that those rendering decisions can do more to make themselves understood both in terms of clarifying what role they are assuming as well as explaining the reasoning behind their decisions.


  1. "but at least with respect to the case of equal evidence there is a concrete gemara that we can look at instead of debating abstractions."

    That's always the best way to do things.

    "My opinion is that those rendering decisions can do more to make themselves understood both in terms of clarifying what role they are assuming as well as explaining the reasoning behind their decisions. "

    I called for clarity as well(see my comments in your previous "boycotts and halacha" thread).

    These are my comments right now; I have to reread the shuda d’dayni part.

  2. BTW, I just read this by Rafi G.:

    "El Al crisis over!

    It seems final that the agreement between El Al and the organization authorized by Rav Elyashiv to negotiate has been signed.

    It is in the general media, but I have not yet been able to confirm it from the haredi media or other haredi sources. (UPDATE: IT IS CONFIRMED)

    One interesting point: part of the delay in signing the deal had been what happens if they violate the agreement and fly. The haredi organization was insisting on El Al refunding the cancellation fees to its haredi customers. El Al refused (I do not know why). The negotiated agreement compromises that in such a situation El Al will pay the money into a fund that will be used for subsidizing medications not included in the "health basket" subsidized by the government. The Gerrer Rebbe is supposedly the source of this interesting solution.

    More details after shabbos...

    Have a great shabbos everyone"

    I don't know if you've posted on "peshara", but see second link below. The "health basket" restitution clause acceptable to all is a good illustration of successeful arbitration.