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Appeals in the Jewish Courts of Palestine in the Third Century, CE.

M A T T H E W B. S C H W A R T Z
University of Windsor, Ontario


The Jewish administration of Palestine in the period after the Bar Kochba War functioned as a government within the Roman imperial government of the province. Rabbinic courts had their halacha by which they supervised not only rituals but many matters of business and social relationships. However, their power and freedom of action were always ultimately subject to the approval and constraint of the Roman officials. The operation of the Jewish inner government of Palestine was closely tied to the ability and influence of the ruling nasi, to "his relationship with the rabbis of his day, with the Roman bureaucracy, to which he was, in a sense, an adjunct, and with local municipal officials. The judicial structure was not rooted in any strict constitutional formulation. It was an agglomeration of courts, some temporary and some fairly permanent, each an outgrowth of a different nucleus of authority in the society. Some courts were appointed by the nasi, others were arms of local government or were bodies formed by a set group of people, perhaps litigants, to handle a specific case. Despite the existence of considerable primary source material and the careful researches of many scholars, the nature and workings of the Jewish judicial system of antiquity remain undetermined on various points. We shall focus in this essay on the fact that the Jewish court system of Eretz Israel in the Talmudic Era lacked an established procedure for appealing cases. It should be noted that an important part of the talmudic information on this subject is from the time of R. Johanan, the middle of the third century. However, much of this material applies also to generations before and after him. 187




There are a number of reasons why neither a formal method of appeals nor a fully integrated and gradated court system ever developed. In regard to appeals, first and quite important is the fact that the halacha never required a method of appeals, and, in fact, militated against it. The development of an appeals system was probably hindered too by the belief that learned and honest judges could be relied upon to give good judg ments. A formal method of appeals would be a complicating and disrup tive superfluity. A judicial decision should ordinarily be final. The lack of a judicial hierarchy is seemingly a result of the earlier history of Judaea. Jewish leadership had operated under great duress during the continual disruptions of the Second Temple Era. Pressures were both external and internal: the Seleucid oppressions and the civil war of Alexander Jannaeus' reign, which the Sanhdrin probably did much to foment. Herod persecuted the Sanhdrin, and the Romans diminished its powers. The procurators generally made the lot of the Jews burdensome. Still, the nature of Josephus* mission to Galilee at the outbreak of the Jewish Revolt would seem to indicate that the Sanhdrin of Jerusalem held great prestige and influence over local affairs both political and judicial with or without a constitutionally arranged system. The destruction of Jerusalem in 70 CE. meant the interruption of the existing central Jewish authority housed in the Sanhdrin. The Temple too was gone. The political power of the priesthood was ended. Jewish governing power was fragmented and greatly reduced. After 70 CE. both the Romans and the centrifugal tendencies of many rabbinic leaders militated against the reconstitution of a central power. In spite of this, the patriarchate developed. By R. Judah Hanasi's time the nasi's prestige, if not his constitutional power, was strong, after years of persistent building by three very able leaders, R. Gamaliel, his son, R. Simeon, and R. Judah. R. Judah also won the favor of some of the Roman emperors, probably the early Severans. The rabbis were no less adamant in defense of their individualism, but many, like R. Ishmael b.R. Jose and R. Jose b.R. Judah, supported the nasi. R. Judah took a greater hand in local affairs than had his predecessors. However, he apparently made no serious effort to closely organize a court system. Inertia and local opposition were still strong and, in any case, sweeping administrative reforms might have looked suspicious to the Romans. R. Judah was probably far more interested in developing a highly competent cadre of judges whose leadership stemmed from their learning and moral excellence of character. This would do more than a formalized system to insure the continuity of Judaism amidst the vicissitudes




of life in the Roman Empire.1 It is probably safe to say that the establishment of a formal method of appeals was never seriously considered by the rabbinic leaders of the talmudic period. The lack of appeals is striking in view of the fact that the Roman law of that day contained very detailed regulations for appeals and that these laws were closely applied in Rome's administration of Egypt, as is evident from both papyri and the Roman law codes. 2 This may be symptomatic of two further points. First, that the Romans were generally less interested and careful about the Jews of Palestine, who did not constitute an especially significant economic or political force in the empire. Second, that in contrast to Egyptian society which had been rigidly controlled by its rulers since the early pharaohs, Palestinian Jewish society of the Roman Era was marked by a certain informality and individualism that showed clearly in its politics, in the daily mood of its synagogues, and in its thinking.

Let us view generally the relationship between the high court and local courts. Unlike many nations of today, the Jewish government of Eretz Israel under the Roman Empire did not contain the concept of a division of powers among legislative, executive and judicial branches. Checks and balances were between rival political, religious, or social groups, rather than between separate governmental institutions. The Sanhdrin, before 70 CE., acted primarily as a political body, ngerousia, whose members came from many elements of Jewish society. After 70 CE., this body was replaced by a high rabbinic court, with diminished political power. 3 The new high court functioned as the main legislature of the Jewish nation, both interpreting the traditional law and enacting new decrees. The court was also a college of Law for younger scholars, who were constantly present there and who were encouraged to join the debates on the cases,
( 1 ) R. Judah's bequests to his successors calling for an easier standard or ordination and for reconciliation with people like R. Hanina would seem to bear this out. Tacan 4:2, 68a, Koh. R. 7:7 and parallels. (2) See Raphael Taubenschlag, The Law of Graeco-Roman Egypt in the Light of the Papyri, Warsaw, 1955, pp. 519 f. and pp. 551 f. Midrash Tanhuma, Buber, p. 19, contains a third century rabbi's view of the Roman provincial appeals system. Also A. Schalit, Roman Ad ministration in Palestine, Jerusalem, 1937, p. 99. (3) See Y. Efron, "The Sanhdrin and the Gerousia in the Period of the Second Temple," 4th WCfS, 1965,89-73. s S a f r a i a n d M Stern, The fewish People in the First Century, Tel Aviv, 1970, gives a good general picture of the Sanhdrin, pp. 379 f.




even when they disagreed with their teachers. The courthouse was simul taneously a house of learning, whose sages met to study even when there 5 were no cases on the docket, Sabbaths and holidays as well. Judicial power was exercised not only by centrally organized estab 6 lished courts, but by individual sages, by informally constructed local panels or courts, and by local municipal administrations.7 None of these were part of an official national judicial system and they were rarely formally subject to any higher authority. The workings of the court system altered in consonance with the changes in the political and social environment and in personalities over the years, rather than due to any major constitutional legal changes. The Talmud describes the selection ofjudges for the high court in the 8 pre-70 period: R. Jose: . . . If anyone is wise, humble, refined, sin-fearing, edu cated, and on good terms with people, they may make him a judge in his city. Once he is a judge in his city, they may raise him up to sit on the court of the Temple Mount, and from there to the court of the Chel and from there to the court of the Chamber of the Hewn Stone (where the Sanhdrin of seventy-one sat). . . . Also: 9 A sage shall not sit in the Chamber of the Hewn Stone unless he has been made a judge in his city. Once he is made a judge in his city, he is elevated to the Temple Mount, from there he is elevated to the Chel and from there he is elevated to the Chamber of the Hewn Stone.
(4) M Sanh, 4:4, 5:4. Sanh. 1:1, 18b. Sanh. 6b, 33b. Shev. 30a. (5) Hag. 2:4. Sanh. 7:1. Sanh. 1:19c. (6) An aggadic text, Ket. 105a, states that in Jerusalem before 70 CE. "there were 394 courts and a corresponding number of synagogues, houses of study and houses of scribes. There were many judges . .." (The parallel texts, Ket 13:1, 35c and others, omit the mention of courts. However, the implication is the same.) The text is of the third century and possibly a bit nostalgic about pre-70 Jerusalem. However, it is reasonable to derive that scholars, already in that period, rendered judicial decisions in their houses of study. By the third century, with the loss of Jerusalem, and the spreading of the scholars to many Palestinian towns, the practice had become common all over the Jewish setdement. It was probably more limited to Jerusalem before 70, because of the predominance ofJerusalem as the center of learning. Cf. below on "local courts.". (7) These latter often paid little heed to rabbinic law. See A. Bchler, Political and Social Leaders of Sepphoris in the Second and Third Centuries, p. 21. (8) Hag. 2:9. Sanh. 1:91c, Sanh. 88b. R.Jose often recounts information about the period of the Second Temple and is credited by the Talmud with the authorship of the Seder Olam. (9) Shek. end.




Another passage adds that three rows of scholars sat before the high court and that vacancies on the court were filled from these rows. 10 The process of the promotion of judges described here is idealized and nostalgic and is not presented either as a law to be strictly followed or as a precisely accurate historical account. These passages purport to be dealing with the pre-70 era. However, it is reasonable to apply them to the amoraic era as well. Some local courts then, even in the amoraic period, cooperated with the central court. Other sources indicate too that the townspeople had great power over the selection of judges for their own district, although the high court influenced the appointments from a distance.11 The internal power structure of Eretz Israel should not be viewed as a regular pyramid descending from the patriarchs or Sanhdrin but as a composite consisting of many nuclei, deriving power from a variety of local and national sources or circumstances. In periods when the central court was stronger, its control over the personnel and the operations of local courts was certainly greater. This was probably sometimes the case during the era of the Second Temple and also under the stronger patriarchs afterwards. A famous passage of Sanhdrin 1:2, 19a describes the assumption of an increased role by the patriarch, after the mid-second century, in the ordination of the rabbinical disciples and their possible appointment to judgeships: R. Ba said: Formerly each sage would ordain his own disciples. R. Johanan b. Zakkai ordained R. Elicezer and R. Joshua b. Hanania. R. Joshua b. Hanania ordained R. Akiba. . . They went and allotted an honor to this house (of the patriarch). They declared: For the court to ordain without the consent of the patriarch is valid. For the patriarch to ordain without the court is valid. However, they decreed that neither the court nor the patriarch should ordain without the consent of the other. 12 The transference of the power of ordination from the individual rabbis to the central control probably arose from the attempt initiated by R. Gamaliel of Yavneh and his son R. Simeon to strengthen the unity of the Jewish people in the face of the calamities of 70 and 135 CE. The struggle
(10) M Sanh. 4:4 and parallels. (11) Cf. M Sanh. 1:5. Sifre on Deut. 1:13 f. Local appointments often were accompanied by a good deal of political bickering and hurt feelings. See R. Simeon's comment. Josephus' descriptions of the Sanhdrin are also quite idealized and seem to be based on his interpretations of Scripture as well as on existing realities. Cf. Ant. 4:8:14. Bellum 2:18:6, 2:20:5, and 4:5:4. Vita 12. (12) Yoma 78a. See G. Allon, Toledot Hayehudim Beeretz Yisrael II, for general discussion of the political situation after 135C.E.




against individualists like R. Eli ezer and R. Meir was also a part of this trend. The patriarchs would often send officials out to the communities, or 13 remove them. However, it is unlikely that such measures could have been easily carried out if the local administration was opposed. The Talmud recounts a third century incident in which R. Hanina did not even try to prevent a community of Trachonitis from making an halachically incorrect change in their Torah reading ceremony.14 Even under the stronger patriarchs, any influence over local affairs must have been to a large degree a matter of respect or religious prestige. For although several of the patriarchs maintained bodyguards of Goths, seemingly only a few exercised any tangible police power over the local communities.15 The Talmud accepted the principle that The barai ta teaches: "The staff will not depart from Judah" (Gen 49:10): These are the exilarchs in Babylonia that rule Israel with the rod. "From between his feet": These are the children of Hillel that teach the Torah in public.16 The Babylonian leaders exercised considerable police power by the grace of the Parthian rulers. The patriarchs of Eretz Israel were much more limited, particularly in times such as those after 70 and 135 CE., and they had less effective control over local affairs. An ordination obtained from the patriarch was recognized for use only in Israel. The scholars of Eretz Israel, however, were considered superior to the Babylonians in their knowledge of ritual purity and they could at times decide questions ofthat nature even in Babylonia.17 Ideally a judge or scholar should have been ready to perform the duties of his office whenever called upon.18 However, despite the dignity of the courts and despite the honor given to the scholar-judges, a judgeship was rarely a full time and never, at least technically, a salaried position.19 As is
(13) SifreonDeut. i.Gen.R.8i:2.PHor. 1:7-8,76cd.Yeb. 12:7, i3a.PRH. 1:6,57b. Sanh. 5a. Josephus, Vita 7 and 12. (14) Meg. 4:5, 75b. Instances are also recorded of appointments made by scholars without direct orders from the nasi. ( 15) Origen in his Letter to Africanas refers to the police power of the administrations of some of the patriarchs. Cf. Gen. R 80:1 and parallels. (16) Gen. R 96. Sanh. 5a. Hor. 11b. (17) Sifre on Deut. 16:18. Hag. 1:8. Sanh. 5a. Hor. 11b. See however, the difficult geonic text cited in C. Taubes Otzar Hageonim on Sanhdrin p. 29 f. (18) Mekh. de R. Yishmael on Yitro 18:22. (19) M Bekh. 4:6 and parallels. Sanh. 1:1, 18a. Sanh. 1:1 and Ket. 105 a allow the judge to receive compensation for the time taken away from his own affairs. The point is




well known, most of the tannaim and amoraim made their living from labor or business. While the Temple was still standing, some were hired to teach the methods and laws of the Temple services to the young priests, or examine first-born offerings or for other tasks.20 The judicial system of Eretz Israel never became as structured or as formally interlocked as the court systems of the Romans or of many modern countries. Relationships between courts of the various cities were largely dependent upon the personalities involved and the local circumstances and not on constitutional regulations.

The dispensation ofjustice at the local level was accomplished through a rather conglomerate and informal system. Besides the local courts which operated with some regularity, as perhaps on market days21 or even daily, many types of ad hoc courts functioned, sometimes presided over by unlearned people. Some panels could include even women or non-Jews. 22 Two litigants could, by mutual agreement, set up their own court to hear their case, and these courts were officially recognized by the law.23 The Gemara discusses what should be done when such a court would render an erroneous judgment. 24 These courts probably restricted themselves to cases involving suits and lesser crimes. Matters involving national or religious welfare, such as the declaration of the New Moon, were left to the central court. Of course matters of government and taxation were supervised by the Romans. The right to inflict capital punishment had been taken from the Sanhdrin by the Romans some time before 70 C.E. The power was never officially restored to the Jewish courts, although it may have been used inconspicuously by R. Judah Hanasi or other strong patriarchs. However, the death penalty was not employed by the ad hoc courts. And, in fact, Jewish Law would forbid such a usage. 25
debated by R.Joshua and R. E}icezer, Mekh de R. Yishmael, Yitro. In Jerusalem before 70, the niTT* ' n received a salary from Temple funds. See M Ket 13:1 with talmudic discussions. The precise role and status of these officials is debated but they may have been judges and/or a type of attorney general. (20) Sheq. 4:2, 47a. Num. R 11:3. Ket. 106a f. (21) M Ket. 1:1 and parallels. (22) M Sanh. 1.3. M Macas. Sheni 4:2. Sanh. 14b. BB. 113b on a court constituted ad hoc to hear the last requests from a dying man. Sanh. 3:2,21a and Sanh 23a on the ap\eCa of Syria; Allon, Toledot I, p. 346 defines them as public archives of Hellenized cities. (23) M Sanh. 3:1 f. (24) Sanh. 6a, 33a. See below. (25) M Sanh. 1:1 f.




Single scholars frequently judged cases in their own batei-midrash with 26 out setting up a court to support them: R. Abbahu used to sit and judge by himself in the synagogue at the gate of Caesarea . . . Rav, R. Aha, R. Jonah and R. Jose each gave verdicts by himself. BT adds: 2 7 The Rabbis taught: Monetary suits require a court of three judges. And if one man is an expert (mumha, ) he can judge even by himself. R. Nahman said: One such as I may judge monetary suits by himself. And so said R. Hiyya: One such as I may judge monetary suits by himself. Both sources note that the judgment of a single mumha would be consid ered binding, although in the Babylonian courts, a scholar usually would not judge without the consent of the exilarch. The special significance of these and other similar passages is that they attest to the validity of a court verdict given by an individual scholar. However, although many cases were brought before individuals, the practice was not entirely approved even when the litigants had agreed to accept the verdict: 28 We were taught: Let no one judge by himself for no one may judge by himself but One. R. Judah b. Pazi: Even the Holy One does not judge by Himself as it is said, "And all the hosts of the heavens stand with Him to the right and left." These are inclined to vote innocent and these to vote guilty R. Johanan: Truly the Holy One does nothing in His world without consulting the heavenly court . . . R. Lazar: Wherever it says, "And God," it means Him and His court. Judgment in a civil or criminal case must be differentiated from a ruling given on a question of ritual by an individual. In the latter, the ruling was more a statement of information than a judicial decision. It was not as legally binding, and if a person were uncertain or dissatisfied with the ruling of one scholar he could bring his question to a second one, as long
(26) Sanh. 1:1, 18a. (27) Sanh. 4b~5a. One text cites R. Hiyya before R. Nahman. The definition of mumha is much discussed, but can be taken in a general way as meaning "qualified to judge." (28) M Avot 4:8. Sanh. 1:1, 18c.





as the honor of the first was not demeaned. In fact, any reluctance to deal with the inquiry a second time should come only from the second 30 c scholar and not from the petitioner. T Eduyot 1:3 offers a difficulty: If one scholar was asked and he pronounced it unclean, (clean according to a variant text) let him (the questioner) not ask another scholar. Tosafists (cAZ.7a) argue quite plausibly that indeed it would be best to obtain the opinions of many wise men not merely one. Certainly, a petitioner should be encouraged to ask a second scholar. The Tosefta's dictum must mean that it is forbidden to the petitioner to ask a second time only if he does not inform the second scholar of the ruling of the first. It is incumbent upon the second scholar to be very careful and sure before contradicting the ruling of his colleague. The Talmud, in fact, contains many instances of such inquiries brought from before one scholar to another.

Talmudic discussions on the topic of transferring cases from one court to another again point up the great lack of formality within much of the judicial system. There are three stages at which one might want to transfer a case: (1) while the case was in progress, (2) before the case had been brought to the first court, and (3) after the first court had handed down its verdict. (1) While the Case Was in Progress Even while a case was in progress it was held permissible for the judge, or for either litigant, in some opinions, to back out, as long as the final verdict was not yet obvious: 31 R. Simeon b. Menasia said: . . . When two people come before a single judge for judgment; before he heard their arguments, or even if he heard them but did not know to which the law inclined, he can say to them, go forth and compromise out of court. But once he heard the arguments and knows where the law inclines he may not say to them, go and compromise outside of court. R. Judah b. Lakish adds that the judge may back out of the case before the
(29) See Eduyot 1:3. Shab. 19:1, i6d. Nidda 20b. . 7a. Hul. 44b. (30) Cf. R. Hanan'el on Nidda 20b. Also Tosafot there and on BQ. 100a "Tiher," and on C AZ. 7a "Hanishal." (31) Sanh. 1:3. Sifre on Deut. 1:18. Sanh. 1:1, 18b. Sanh. 6b.




decision becomes obvious even if only because he is afraid of one of the litigants. However, all this seems to have applied only to cases that were brought before a single judge. (2) Moving before the Case Had Begun The Gemara relates a number of dicta of third century amoraim which define the circumstances under which a case might be brought to a court other than the one with most immediate jurisdiction before the case had opened in the first court. R. Johanan said: If one man summons his fellow to court, and one says, "Let us be judged here," and the other, "Let us go to the higher court (TSnm Dipo) they shall force him to go to the higher court. R. Elcazar said before him: Rabbi: Shall one who is owed a maneh spend a maneh to (get back) his maneh? But they force him to be judged in his city.32 R. Johanan's thinking is difficult, as his student and colleague R. Elcazar pointed out. R. Ashi modifies and explains what R. Johanan probably meant: One forces the litigants to the local court only when it is the borrower (or any defendant in a civil suit) who wants to move the case. This is to protect the creditors or plaintiffs from becoming easy targets for maneuvers designed only to extort out-of-court settlements, by threaten ing to prolong a case. Also, any delay in bringing the issue to trial would be to the disadvantage of the creditor. However, if it is the creditor who insists on bringing the case before a higher court, then it should be brought there. 33 The discussion in the Palestinian Talmud seems to support the view that R. Ashi's interpretation is, in fact, the correct explanation of R. Johanan's thinking and not merely a later qualification:34 R. Johanan said . . . Two people had a dispute in Antioch. (R. Johanan was head of the academy in Tiberias). One said to his fellow, "I will accept whatever R. Johanan decides." R. Johanan upon hearing of the incident said: That one cannot force his fellow to come here; but let the court there hear their statement and if necessary they can write and send the matter to the rabbis (here). Only in a case where some valid ground for the complaint could be established prior to the actual trial could one party be named as plaintiff
(32) Sanh. 31b. The last line, "But . . . city" is omitted in some texts. (33) Cf. Git. 28b. (34) Sanh. 3:2, 21a. See arguments on this issue, BQ. 112b. Tosafot.




or creditor and force his opponent to a higher court. Rabina records a practice in Babylonia of the high court sending a letter to the lower court ordering them to hear a case despite the request of one litigant to go to the high court.35 It is noteworthy that the sources nowhere indicate that a higher court would order the lower court to send a case up. Also, neither Talmud delineates any specific apparatus for moving a case voluntarily to a higher court. However, it would seem from the above passage that such a move could be brought about, but only with the approval of the local court, who alone could decide whether the plaintiff had enough evidence to warrant moving the case.36 BT cites R. Safra's dictum which is identical with R. Johanan's and which in some texts is cited in R. Johanan's name: R. Safra said (in the name of R. Johanan) If two people were quarreling over a law, and one said let us go to the main court (Dip iimn), they require him to be judged here . . . (in his city). BT reports another similar statement by R. Johanan that even a borrower may have a case moved but only from a court of non-mumhim to a court of mumhim.37 R. Papa adds that the borrower could require the removal of his case from before mumhim of lesser stature to mumhim of greater stature as long as the move caused no inconvenience to his opponent. (Perhaps this applied only in Babylonia, not in Palestine.) However, seemingly, a case would never be moved from a fully qualified court. These laws would seem to apply largely to courts or institutions which, while perhaps not qualified as mumhim, at least sat with some permanence.38 Of course, no litigant could be forced to trial before an ad hoc court unless he had had his due voice in the selection of judges.39 At least one primary consideration for not transferring cases on the demand of the borrower was to protect the creditor, as noted above. The Talmud does not explain what would be done if the borrower were willing to defray in full his opponent's expenses in moving.40 However, in line with amoraic opinions already reviewed, it would probably have been very
(35) BQ. 112b. (36) Medieval rabbinic commentators discuss this point at some length. See glosses on Sanh. 31b. Also Alfasi, Asheri, Nemukei Yosef. (37) Sanh. 32a. (38) See note 22. (39) M Sanh. 3:1 with PT and BT. BM. 20a. BB. 168a. (40) Hagahot Asheri on Sanh. 23a raises the question. Tosafot and Asheri on Sanh. 31 discuss also the question of court expenses.



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difficult, under ordinary circumstances, for a borrower to move a case out of any respectable court. If the* litigants were unwilling to go to a court in their own city, or if 41 there were no court there, R. Lazar said: If one wishes (to go to) Tiberias and the other says to Sepphoris, we listen to the one who said Tiberias . . . This case of R. Lazar applies when the litigants are residing in a place equidistant from each (city), e.g., seven millin or nine millin . . . They should go to Tiberias, if there is no added inconvenience, because Tiberias, in R. Elcazar's day (the third quarter of the third century), was the seat of the main academy. The better court should be used when it causes no inconvenience. Similarly,42 R. Jose said . . . If two people had a case in Tiberias, and one wanted to go to the high court and the other to a lesser court, we listen to the one who wanted the high court. Certainly then, during the amoraic period in Israel, it was possible under certain circumstances to bring a trial to a higher court before it would begin in the lower court. However, there seems to be no clear evidence of a rigid or structured system of different levels of courts leading to the high court. The highest court, such as that of R. Johanan in Tiberias before his death in 279 CE., held its position by the learning and prestige of its members. R. Johanan never held any official title. Indeed, the nesiim of his time held a higher political office, which was recognized by the Roman government. The court in Tiberias was, in fact, the academy, the central gathering place of most of the country's leading scholars, and R. Johanan was its chief scholar and only secondarily a chief justice. The nesiim too maintained their courts in Tiberias. They came into conflict on a number of occasions with the scholars of the day. However, R. Johanan showed great respect to the nesiim and relations between them were probably good. 4 3 While the court of the nasi was probably more active in national affairs,44 the court of the academy was occupied more with teaching and with administering justice in individual cases. This situation was not arranged according to any halachic constitutional
(41) (42) (43) (44) Sanh. 3:2, 21a. Ibid. Sanh. 2:6, 20cd. MQ. 3:8, 83d. Gen. R 80:1, 78:12. E.g., M CAZ. 2:6.




requirement, but was the result of the personalities and circumstances involved. Some amoraic patriarchs were not solely political figures but, like R. Judah Nesia I, important religious leaders as well.45 Sanhdrin 31b records an instance of a case being sent from Babylonia to Tiberias, probably ca. 250 CE. However, this was not a regular judicial procedure, and the case was sent only to show honor to Mar c Uqba, who was the plaintiff. The court of Tiberias had no authority over the courts of Babylonia. (3) Appeals of Verdicts Sources on the Second Temple Period describe a process of sending inquiries to the three courts in the Temple complex. 46 However, it should be noted that these are merely inquiries for information. There is never a reference to an appeal of a verdict. R. Jose said At first there were no disputes in Israel, but the Sanhdrin of seventy-one would sit in the Chamber of Hewn Stone and two courts of twenty-three each sat, one in the chel and one on the Temple Mount. And courts of twenty-three used to sit in all cities of Eretz Israel. If any one had to ask on a halachic matter, he would come and ask in the court of his city. If they knew (the answer) they would tell him; if not, he and the mufla47 (of that court) would come and inquire in a court near his city. If they knew, they would tell them; if not, he and the mufla would go and ask in the court of the Temple M o u n t . . . in the court of the c h e l . . . to the High Court in the Chamber of the Hewn Stone. From there the Torah goes forth and spreads over all I s r a e l . . . If they knew, they told them; and if not, they voted . . . The Mishna mentions instances of questions brought to the court of the Chamber of the Hewn Stone. 48 These passages seem to be speaking of inquiries on questions of purity, ritual, and the like. Josephus includes the sending up of civil and criminal cases. However, his description of the Sanhdrin is probably based on his interpretation of Scripture as well as on the existing situation.49 But if these judges are unable to give a just verdict about the cases
(45) See G. Allon, "Ilan Demitmanin Bekesef," Mehqarim Betoledot Yisrael, II, p. 16. (46) Sanh. 1:19c. Cf. M Sanh. 11:2. Sanh. 7:11. Hag. 2:9. Sanh. 88b. Variations in minor details appear in several sources. See Maimonides Fad:Mamrim 1:4 with Lehem Mishna. (47) A leading official. (48) M Peah 2:6. M e Eduy. 7:4. (49) Ant. beginning and 4:8:14.




that come before them . . . let them send the unsettled cases to the Holy City and there let the high priest, prophet and gerousia deter mine as seems fit to them. Prophets were not found in the first century government. Josephus was certainly familiar with the basic facts about the Sanhdrin. According to his own account, he was given wide powers by the Sanhdrin (or a part of it) and sent to Galilee in the early stages of the revolt against Rome. There, he set up a group of seventy rulers of Galilee, borrowing the number seventy from the Sanhdrin he knew, and he selected councils of seven men for each city.50 Josephus' councils were probably more in the nature of temporary, local administrators than courts in the strictest sense. It is difficult to draw any clear information from Josephus about precise interrelationships of various courts or about any specific process of appeal. The clearest discussion of appeals on verdicts in civil suits comes from the period of R. Johanan. If a court could not come to a decision on a civil suit:51 R. Safra said in the name of R. Johanan. . . They write and send (the matter to a higher court). And if he (one of the litigants) would say, "write down and give me (a document stating) the reason that you judged me thus," they write and give it to him. The written opinion presented to the litigant was probably a means of keeping the judges above suspicion of any wrongdoing or special interests. 52 However, once the case had opened in any court, there was no process for moving it to a higher court. The forwarding of the record of the case, when the case was in doubt, was the act of judges asking other judges for information. The trial itself would not be moved, and thefinalverdict would still come from the original court. M Sanhdrin 4:1 f. and the BT discussion, Sanhdrin 33a, give further information on this. The Mishna states: They may reverse verdicts in monetary suits either from (conviction) to acquittal or from (acquittal) to conviction. BT cites, in contrast, the text 53 If one judged a case and declared him innocent that was culpable or
(50) (51) (52) (53) Bellum 2:18:10, 2:20:5, 4:5:4. Vita 7 and 12 t. Sanh. 31b. Cf. BM. 6gab. Cf. M Bekh. 4:4.




him culpable that was innocent, declared unclean what was clean and clean what was unclean, what he did is done and he must make restitution from his own property. A number of opinions are offered to reconcile the two statements. BT finally posits two explanations. ( ) R. Hisda states that when the judge had not enforced his decision, he might reverse it and require the proper transference of the money involved. When he had enforced his wrong verdict, he must compensate the wronged party, even from his own purse if necessary. (2) R. Sheshet adds that if the judge erred on a clear point of law, 54 natP ima, then his verdict would be invalid and should be reversed. R. Hisda's dictum applied only to instances where the law was based not on a clear mishnaic ruling but on later interpretation, nsnn VlpnP. (5 Vlp'lP is defined, in a statement of R. Papa, as an unresolved argument between two tannaim or two amoraim; Ketuvot 9:2, 33a cites a dispute between R. Johanan and Resh Lakish as to whether mtP 1313 is more like 5 Vip* and therefore irreversible or more like an error on a clear biblical law and therefore subject to reversal.) Thus, the Talmud maintained that a verdict could be changed only when there was a clear error in the judge's application of the law. It was felt that if a judge's decision could be challenged on a matter of opinion, then no verdict would ever be secure. The medieval rabbinic commentaries discuss Sanhdrin 33a and the related material on Sanhdrin 5a at great length. For our purposes the important point to note is that mumhim can, under specified circumstances, reverse their own decisions. However, it seems that the judge must do it essentially of his own volition. The Talmud does not offer the litigant any specific process for appeal to a higher court.55 Both Sanhdrin 1:1, and BT Sanhdrin 5a agree that while a lone mumha can force someone to answer charges before him, if he does force him and then judges wrongly, the judgment stands and the judge must compensate the wronged party. In Babylonia, one who sat as judge with consent of the exilarch was never required to pay. reports the explana(54) Cf. Ket. 84b, 100b.The Talmud discusses the problems of court cases in which no legal principle favored either side and a decision was rendered solely on the basis of the judge's personal inclination (' KTW). See Git. 14b, BB. 35a, Ket. 94b and parallels. An unusual episode is cited, BQ. 6:7, 5c and Shev. 6:2, 37d. R. Yishmael b.R. Jose died before all the litigation in a very complex case was completed. R. Hiyya took his place as judge. (55) Modern rabbinic commentators have noted the Talmud's lack of precision on this point, e.g. Aruch Hashulhan: Hoshen Mishpat, 14:8.




tion of R. Abbahu of the passage in Bekhorot, "What he did stands and he pays from his own." R. Ba said in the name of R. Abbahu: When they (the litigants) said to him, "We accept you as (we would a court of) three, on condition that you judge us correctly according to the Law," and he erred and judged according to fljnn Vlp'W, what he did is done . . . and he pays from his own since he was so arrogant as to judge the Law by himself. R. Abbahu's statement seems to view the judge more harshly than does BT. While BT sees such a judge more as an indirect cause of damages, 56 R. Abbahu seems to argue that a judge, at least when judging alone, im plicitly accepts upon himself the responsibility of not making a mistake. If he does err, then he should pay damages. In any case, it seems clear that although a judge may reverse his own decision, a litigant had no official means of appeal to another court. The Talmud simply does not seem to contain any concept of appeal compara ble to that of many modern national judicial systems. A judge who ren dered an erroneous or criminal judgment would have to be prosecuted for damages by the wronged litigant just as in any other suit,57 or else be summoned to trial by a higher court, but his decision could not be formally appealed. A judge had no special privilege in regard to not being brought to trial by a higher authority. The famous story of R. Judah b. Ezekiel and the Nehardean provides an example of a Babylonian rabbi summoned to trial. It shows too that a judge was not obligated to heed a summons to a lower court. 58 It was axiomatic in the Talmud that a case could not be closed until all possible evidence had been presented and the litigants had stated that they had no more to offer. The disputes in the Mishna and Gemara on this matter were only as to how far the rule extended. Newly obtained proofs could be presented even after a verdict had been rendered. However, this would again be in the same court. Inquiries only would be sent to the higher court. The case itself would not be transferred.59 In criminal cases too, verdicts could be reversed only by the presiding court. The sources of the talmudic period mention nothing of appeals. 60 Within that same court, punishment of a condemned criminal would be
(56) (57) (58) (59) (60) See BQ. 100a, 117b. Cf. the end of Nemukei Yosefs comments on Sanh. 33a. ". Qidd. 70a. M Sanh. 3 end with PT and BT. See M Sanh. chapters 4, 5, and 6.

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postponed as long as there was any reasonable hope that new arguments or evidence in his favor would be presented. Any of the judges could change his vote from guilty to innocent at any point. Indeed, in cases where a guilty man had been set free through a blatant misinterpretation of law by the court, even a verdict of innocent could be reversed. 61 Thus, while in both civil and criminal cases an urgency to rectify incorrect verdicts was always felt, this was not accomplished through formal appeals to higher courts. The Mishna also states the concept that One court shall not reverse the decision of another unless it is greater in wisdom and in number. 62 This idea is mentioned often in both Talmuds and is modified by addi tional arguments that a decree may be annulled even by a lesser court ( ) if the decree "is not spread in all of Israel" or (2) if the majority of the people are unable to^fulfill it. 63 However, this dictum seems to apply more to takanot or decrees promulgated by earlier courts. It has little bearing on the question of appealing verdicts. 64 It should be added that the court system established by Moses at Jethro's suggestion also did not seem to the rabbis to contain a process of appeal, except in the sense that the most most difficult cases were sent to Moses. 65 In summary, it seems that the Jewish jucliciary system of Palestine in the amoraic era had no defined process for appeals. The apparatus of Jewish law remained the law itself as wielded by its scholars. The law never became exclusively identified with any one particular structure or system or political entity. Much more so than after the Babylonian conquest of 587 B.c.E. the law replaced the structures of central authority as the guide and essence of Jewish living.
(61) Especially Sanh. 4:3, 22b. Sanh. 33b. (62) M c Eduyot 1:5 and 7:4. M Ma c as. Sheni 5:2. c Eduyot 1:3. Shab. 1:3d. Meg. 2a. Git. 36b. C AZ. 36a. and parallels. (63) Ibid. See Tosafot "Eia" on Git. 36b. (64) See R. Hai Gaon's interpretation of Rava's dictum of BB. 130b, Otzar Hageonim on Sanh. 33a. See, however, R. Nahman's dictum Sanh. 33a. (65) See Exod. 18 with Mekh. d e R. Yishmael a n d Mekh. d e R. Shimeon, and Deut. 1 with Sifre.

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