Governmental and Judicial Ethics in the Bible & Rabbinic Literature
CHAPTER III – ENFORCEMENT OF JUDICIAL ETHICS IN JUDAISM
Subjects reviewed in Chapter III
Introduction: Taryag Mitzvoth, Laws with Stated Reasons, Laws without Stated Reasons, Bases for Legal Equity – Recognition of Authority: God as Ultimate Authority, Rabbinical Authority, Rabbis and Scripture, Rabbis and Halakhic Legal Literature – Establishment of the Court System: The Role of Moses, Jethro’s Advice, Moses’ Response, Moses’ Charge, The People’s Response, The Result, The Rabbinic Courts, Courts of Three, Courts of Twenty-Three, Great Sanhedrin: Powers Curtailed, Great Sanhedrin in Rabbinic Literature, Judges and Judicial Procedure, Summary – Ethical Leadership: Men of Integrity, Historical Leadership Precedents, The Nasi, Summary – The Law and Morality: A Close Relationship, Sanction by God and by Court, “Beyond the Letter of the Law”, A Rabbinic Debate, Summary
Introduction
The Rabbis were very sensitive to the relationship between God’s biblical commandments and man’s personal response to them. “In all parts of the Hebrew Bible, especially in the Pentateuch and the Prophets, the only and eternal God is the God of Israel Who brought His people out of the bondage of Egypt, to Whom it owes allegiance, to Whose voice and will the people as a whole and every individual of it have to hearken, and Whose commandments as the detailed expression of His will every Israelite has to obey. The identity of the obligation to hearken to God’s voice and of that to keep His laws is unmistakably assumed on every page of the Pentateuch and the Prophets . . .”1
The rabbinical tradition held the total number of these commandments to be 613. The Rabbis also believed that all of them were delivered to Moses by God. “[‘Therefore gave he them Torah (teachings) and many commandments . . .’] R. Simlai when preaching said: Six hundred and thirteen precepts were communicated to Moses, three hundred and sixty-five negative precepts, corresponding to the number of solar days [in the year], and two hundred and forty-eight positive precepts, corresponding to the number of the members (n. Joints, or bones, covered with flesh and sinews [excluding the teeth].) of man’s body.”2
Taryag Mitzvoth – 613 Commandments
The Taryag Mitzvoth, as these 613 commandments were mnemonically called, became a virtual code of law as enunciated by the Rabbis. Considerable attention was devoted through the centuries to the proper classification of these laws in order that they might be clarified and better understood.
As one examines the “613 commandments,” one finds two things of special interest with reference to the subject of governmental ethics: (1) a large number of the laws are concerned with judicial and ethical matters; (2) many of the commandments are interpreted by the Rabbis in ways which produce meanings not obvious from the biblical text alone. As Rosenblatt points out, “Some of the exegetical methods of the Mishnaic expositors of the Bible . . . might be called auxiliaries. . . . the Tannaitic exegetes were assisted in their Bible interpretation by traditions regarding the meaning of words and the popular usage, as well as by their knowledge of the neo- Hebrew and Aramaic languages, which were current in their milieu.”3
Yet, almost invariably, the subtle meanings extracted by the Rabbis indicate a high ethical consciousness. This is especially apparent with reference to judges, courts, judicial legislation, and justice generally.
Laws with Stated Reasons
The Rabbis were desirous of understanding and applying the laws in ways which would assure stable government and justice for all. In this way the intrinsic meaning with which the laws had been clothed would be realized. In their search for the principles contained in this great body of biblical literature, they found evidences of a very high ethical rationale in some of those laws which contained within them reasons for their existence, e.g., “You shall not oppress a stranger; you know the heart of a stranger, for you were strangers in the land of Egypt.”4
Laws without Stated Reasons
On the other hand, the Sages were aware, of course, that many of the biblical laws did not carry with them the explicit reasons for their presence in Scripture. The rabbinic tradition explained this phenomenon with the following teaching: “R. Isaac also said: Why were the reasons of [some] Biblical laws not revealed? – Because in two verses reasons were revealed, and they caused the greatest in the world [Solomon] to stumble. Thus it is written: ‘He shall not multiply wives to himself.’ (n. ‘That his heart turn not away,’ Deut. 17:17) whereon Solomon said, ‘I will multiply wives yet not let my heart be perverted.’ Yet we read, ‘When Solomon was old, his wives turned away his heart.’ (I Kgs. 11:4) Again it is written: ‘He shall not multiply to himself horses’; concerning which Solomon said, ‘I will multiply them, but will not cause [Israel] to return [to Egypt].’ Yet we read; ‘And a chariot came up and went out of Egypt for six [hundred shekels of silver].’”5
Bases for Legal Equity
The rabbinical schools proceeded on the basis of the conviction that the Torah was of God; that it was given to govern Israel; that merit would result from studying and keeping Torah; and that troubles and even disaster would result if Torah was disregarded. Therefore, the equitable application of the laws (government) was of great concern to the scholars. “Their strict interpretations of legal portions of the Pentateuch cannot be found fault with. That is the only way to construe a legal document, nor is there anything unnatural about their theory that repetition or redundancy has the effect of emphasis and extension of application.”6
Ideally, they saw their task as requiring: (1) a general recognition of valid authority, (2) the establishment of a court system functioning according to high judicial ethical standards, (3) capable leadership not subject to corruption, and (4) the application of justly administered laws within the various communities. Each of these areas of concern is now considered in the order just mentioned, as it relates to the ethics of the courts and of the government.
Recognition of Authority
Germane to the ethics of government is the question of duly constituted authority. This question is not restricted to ultimate authority, or source, but is also concerned with the transmission, or perpetuation, of authority. The Sages of Judaism, throughout their long and influential history, were unanimously agreed as to the ultimate source of authority and the channel through which that delegated authority was to flow through the succeeding generations.
God as Ultimate Authority
God is the source of authority in Judaism. “Law and righteousness were the special concern of Yahwè; in his name justice was dispensed and to him were all legal ordinances referred.”7 His will was made specific in the Torah received by Moses at Sinai. The Tradition stated: “Moses received the Torah at Sinai and transmitted it to Joshua, Joshua to the Elders, and the Elders to the Prophets, and the Prophets to the men of the Great Synagogue.”8
The Sages agreed that Moses received the Oral Law, as well as the Written Law, at Sinai. The Oral Law was articulated through the ancient traditions from the earliest post-Mosaic generations and also through the formulations of the halakhic scholars of each era. Gray describes this transmission process in the following words: “According to Hebrew or Jewish theory, Yahwe is the source of all law. Moses the medium through whom it was revealed to Israel. . . . At a later period the Jews formulated the theory that the oral law or tradition . . . as well as the written law or scripture, was in the first instance communicated to Moses.”9
This continuing process enabled these scholars to continue to develop principles of law through the ages which were accepted as divinely authorized, and, as time went by, this growing body of literature became more and more encompassing in scope, dealing with almost every detail of life.10
Rabbinical Authority
Thus, rabbinical authority was recognized as the constituted channel through which God was to make his will known to his people. The Torah had been given from heaven, but it was no longer in heaven.11 The Rabbis, as the human element, were to develop and cultivate the halākhāh within society, while at the same time repudiating any suggestion that mysticism, heavenly voices, or miracles have any place in the formulation of law.
Rabbis and Scripture
The Sages looked to certain biblical passages where, in early times, the people were required to go before judges and priests for decisions about their disputes. According to rabbinic interpretation, that procedure was to remain valid throughout postbiblical Judaism. The following Scripture with a rabbinic comment on it illustrates this point.12 “If any case arises requiring decision between one kind of homicide and another, one kind of legal right and another, or one kind of assault and another, any case within your towns which is too difficult for you, then you shall arise and go up to the place which the Lord your God will choose, and coming to the Levitical priests, and to the judge who is in office in those days. You shall consult them, and they shall declare to you the decision.”13
The Sages recognized the principle that the solutions to specific problems were disclosed directly by God, and in that way became a part of Torah (Written Law); e.g., “Now while the children of Israel or Israelites were in the wilderness, they found a man gathering wood on the sabbath day. And those who found him gathering wood brought him to Muses and Aaron, and to all the congregation; and they put him in custody because it had not been declared what should be done to him. Then the Lord said to Moses, ‘The man shall surely be put to death; all the congregation shall stone him with stones outside the camp.’ So all the congregation brought him outside the camp, and stoned him to death with stones, just as the Lord had commanded Moses.”14
On the other hand, the Sages held that with the passage of time the law was entrusted to judges and scholars, just as it once had been the responsibility of priest and Levite, as indicated in the Torah.15
Rabbis and Halakhic Legal Literature
During talmudic times the Rabbis saw themselves as participants in a long historical line of Scripture and Tradition transmission. They were involved in interpreting and further developing the Torah. This process had its expression within the framework of the Torah in the halakhic legal literature of Midrash, takkanah, etc. As Berkovits explains: “Halakhah is not the Law but the Law applied – and by the manner of its application rendered meaningful – in a given situation. The purpose of the Halakhah is to render the Torah in a given historic situation a) practically feasible: b) economically viable; c) ethically significant; d) spiritually meaningful. . . . Halakhah is the bridge over which Torah enters reality, with the capacity to shape it meaningfully and in keeping with its own intention. . . . while the Torah is eternal, the concrete historic situation is forever changing. Halakhah therefore, as the application of Torah in a given situation, will forever uncover new levels of Torah-depth and Torahmeaning and thus make new facets of Judaism visible.”16
The implementing of the law as interpreted and developed in this way required the establishment and functioning of an enlightened and equitable court system if a high ethical standard of government was to be maintained. Recourse to biblical and Talmudic sources shows the foundation, formation, and operation of the court system in Judaism.
Establishment of the Court System
The court system of Judaism had its roots deeply embedded in biblical history. In fact, according to the Book of Exodus, one finds the interesting phenomenon of judicial activity among the Hebrews before they received the Law at Sinai.17
The Role of Moses
Moses is pictured as judge before he became lawgiver. “And it came about the next day that Moses sat to judge the people, and the people stood about Moses from the morning until the evening.”18 His role as judge, however, was not without its difficulties. As indicated, the people were slow in getting their cases heard. Obviously, this was trying for them as well as for Moses.
Jethro’s Advice – From the objective point of view of Jethro, Moses’ father-in-law, it was apparent that the single-handed administration of judgment as practiced by Moses was not very efficient. He is reported as saying to Moses: “What you are doing is not good. You and the people with you will wear yourselves out, for the thing is too heavy for you; you are not able to perform it alone. Listen now to my voice; I will give you counsel, and God be with you! You will represent the people before God, and bring their cases to God; and you shall teach them the statutes and the decisions, and make them know the way in which they must walk and what they must do. Moreover choose able men from all the people, such as fear God, men who are trustworthy and who hate a bribe; and place such men over the people as rulers of thousands, of hundreds, of fifties, and of tens. And let them judge the people at all times; every great matter they shall bring to you, but any small matter they shall decide themselves; so it will be easier for you, and they will bear the burden with you. If you do this, and God so commands you, then you will be able to endure, and all this people also will go to their place in peace.”19
Moses’ Response – The Scripture account implies that Moses took this sound advice of Jethro and weighed it very carefully in his mind. After having become convinced of the merits of the proposal, he took the initiative in establishing a graded system of courts according to the model suggested by his father-in-law, Subsequently, Moses is pictured as implementing this court system in the following manner: “And at that time I said to you, ‘I am not able alone to bear you; the Lord your God has multiplied you, and behold, you are this day as the stars of heaven for multitude. May the Lord, the God of your fathers, make you a thousand times as many as you are, and bless you, as he has promised you! How can I bear alone the weight and burden of you and your strife? Choose wise, understanding, and experienced men, according to your tribes, and I will appoint them as your heads.’ And you answered me, ‘The thing that you have spoken is good for us to do.’ So I took the heads of your tribes, wise and experienced men, and set them as heads over you, commanders of thousands, commanders of hundreds, commanders of fifties, commanders of tens, and officers, throughout your tribes.”20
Moses’ Charge – In order to impress upon the judges appointed under this system of judicial procedure the gravity of their responsibility, Moses charged them with strong words, saying, “Hear the cases between your brethren, and judge righteously between a man and his brother or the alien that is with him. You shall not be partial in judgment; you shall hear the small and the great alike; you shall not be afraid of the face of man, for the judgment is God’s: and the case that is too hard for you, you shall bring to me, and I will hear it.”21
The People’s Response – The Bible relates how the people rose to the challenge of Moses. The system was established. The people saw this new procedure as a good thing. The appointed judges exercised their responsibility as it had been assigned to them, showing themselves to be wise and experienced men.22 If, however, a case proved too difficult for the judges of the lower courts, it was eventually presented to Moses himself for final judgment. “And they judged the people at all times; hard cases they brought to Moses, but any small matter they decided themselves.”23
The Result – Thus, a simple but effective judiciary system was established very early. The high ethical standards required of the judges are apparent in the charge given by Moses. Rashi’s remarks, in the following commentary on the text, throw additional light on the qualifications required of the appointed judges. “Deut. 1:13 – Get yourselves ready for the matter . . . Take righteous, desirable men – i.e., men who can understand a matter out of (i.e., by comparison with) another matter. – and men known amongst your tribes – i.e., men who are known to you. And I will place them at your heads – as chiefs and persons honoured by you, i.e., that ye should pay them respect and reverence. This teaches that Israel’s transgressions (asham) are placed upon the heads of their judges, because it is their duty to prevent them from sinning, and to direct them into the right path. Deut. 1:14 – And you answered me and said, ‘The thing which you have said is good.’ – You at once decided the matter to your benefit, in that you said, ‘Many judges will now be appointed over us; if one of them does not happen to be an acquaintance of ours, we shall bring him a gift and he will show us favour.’ Deut. 1:15 – So I took . . . and appointed them heads over you . . . – i.e., that you should pay them respect-regard them as first . . . in all matters of business. . . . and officers for your tribes ... these are they who bind and flog with the lash at the bidding of the judges. Deut. 1:16 then I charged our judges at that time . . . be deliberate in judgment: if a certain point of law comes before you once, twice, three times, do not say, ‘This point of law has already come before me several times,’ but discuss it well on that occasion also. . . . It is not now as heretofore: heretofore you were your own masters (lit., under your own control), now you are in the service of the Community! Deut. 1:17 you shall not show partiality in judgment. . . . This is addressed to him whose office it is to appoint judges – That he should not say, Mr. So-and-so is a fine or a strong man, I will make him a judge; Mr. So-and-so is my relative, I will make him a judge in the city, – whilst, really, he is not expert in the laws, and consequently he will condemn the innocent and acquit the guilty. You shall hear the small and the great alike . . . i.e., that a lawsuit regarding a peruta be as dear to you (shall be as of equal importance) as a lawsuit regarding a hundred maneh – that if it (the former) comes before you first, you shall not set it aside until the last. Or, Ye shall hearken unto the words of the small as to those of the great – i.e., that you should not say: This is a poor man and his fellow (opponent) is rich, and is in any case bidden to support him; I will find in favour of the poor man, and he will consequently obtain some support in a respectable fashion. Or, How can I offend against the honour of this rich man because of one dinar? I will for the moment decide in his favour, and when he goes outside (leaves the court) I will say to him, Give it to him because in fact you owe it to him. You shall not fear man . . . Ye shall not gather in (shall not restrain) your words before any man. The judgment is God’s – Whatever you take from this man unjustly you will compel Me to restore to him; it follows, therefore, that you have wrested judgment against Me.”24
The regulatory effects of the judicial procedure instigated by Moses were so commendable that he saw the far-reaching potential for good of a similar system on a permanent basis. The biblical account describes how, before he surrendered his leadership to his successor, Joshua, Moses urged the people to continue the system and adapt it to their needs when they were settled in the land to which God was leading them.25 He said, “You shall appoint judges and officers in all your towns which the Lord your God gives you, according to your tribes; and they shall judge the people with righteous judgment.”26
The Rabbinic Courts
This order given by Moses became one of the focal points around which Rabbis of later ages shaped their concepts of the court system of the Jews.27 To appoint judges and officers “in all your towns . . . according to your tribes . . . [for] righteous judgment” was a decree which had far-reaching consequences in the subsequent history of Israel.
It is noteworthy that this system, in principle, was operative among the Israelites into rabbinic times. While in the wilderness, leaders from each of the tribes, along with the elders and Moses, met and legislated for the people (Ex. 19:7, Num. 11:16-24, Deut. 27:1). During the period of Judges, the elders, heads, judges, and officers of Israel were called together to make a covenant at Shechem (Josh. 24). Even during the Monarchy one sees in the legal reforms of King Jehoshaphat the continuation of this system, i.e.: “He appointed judges in the land in all the fortified cities of Judah, city by city, and said to the judges, ‘Consider what you do, for you judge not for man but for the Lord; he is with you in giving judgment. Now then, let the fear of the Lord be upon you; take heed what you do, for there is no perversion of justice with the Lord our God, or partiality, or taking bribes.’ Moreover in Jerusalem Jehoshaphat appointed certain Levites and priests and heads of families of Israel, to give judgment for the Lord and to decide disputed cases. They had their seat in Jerusalem.”28
Epstein sees this division of jurisdiction by Jehoshaphat into “matters of the Lord” and “the king’s matters” (II Chron. 19:11) as being the pattern for the governmental senate of the Jews operating during the postexilic period. He states, “At the head of this governing body, which later became known as the Sanhedrin, stood ‘pairs’ of teachers named Zuggoth, one of whom was the Nasi (Prince) and the other Ab Beth Din (Chief of the Court). This dual appointment appears to have been an adaptation to changed conditions of the system introduced by King Jehoshaphat whereby the administration of the strict religious law and that of the civil law were separated from each other . . .”29
Rabbinical dialogue often centered around the type of judicial government which could be deduced from Moses’ statement; e.g., “The appointment of the Sanhedrin is by seventy-one. Whence do we derive this law? – Since we find that Moses set up Sanhedrins, and Moses had an authority equal to that of seventy-one. Our Rabbis taught: ‘Whence do we know that judges are to be set up for Israel? – From the verse, ‘Judges thou shalt make thee’ (Deut. 16:18). Whence do we deduce the appointment of officers for Israel’? – From the same verse, ‘Officers shalt thou make thee.’ Whence the appointment of judges for each tribe? – From the words, ‘Judges . . . for thy tribes.’ (Deut. 16:18). And the appointment of officers for each tribe? – From the words, ‘Officers . . . for thy tribes.’ Whence the appointment of judges for each town? – From the words, ‘Judges . . . in all thy gates.’ And the appointment of officers for each town? – From the words, ‘Officers . . . in all thy gates’ ’ (Deut. 16:18). R. Judah says: ‘One [judicial body] is set over all the others, as it is written, . . . ‘shalt thou make thee.’ ’ Rabban Simeon b. Gamaliel said: ‘[The immediate connection] of ‘they shall Judge’ and ‘for thy tribes’ indicates that the tribal court must judge only those of its own tribe.”30
It is quite logical that specific statements by Moses, such as Deuteronomy 16:18,31 became the mainsprings for the development of an intricate and highly sophisticated judicial system in Judaism. It is well to remember that the evolvement of the court system in Judaism is historical evidence of a sustained determination to achieve the highest degree of judicial ethics possible. This is seen, not only in the broad framework and power of the courts, but also in the minute ways in which the laws were actually executed. The strenuous ethical demands of the Jewish court system are also seen in the qualifications of judges as discussed above,32 their strict jurisdictional regulations, and the strong ethical principles governing the conduct of judges. What were the characteristics of this court system when fully developed? A look at rabbinical sources gives the answer to this question.
Just as in the days of Moses, when the courts were grouped as to size with leaders of thousands, hundreds, fifties, and tens, and regulated in jurisdiction in that the more difficult cases were brought to Moses, so the courts in later Judaism were varied in size and regulated in their jurisdiction.
Courts of Three – A court composed of three members was an ad hoc court agreed to by the parties to a case.33 “Whence do we deduce that three are needed [for the composition of a court]? – From what our Rabbis taught: ‘It is written: ‘The master of the house shall come near unto God (the judge),’ here you have one; and again: ‘the cause of both parties shall come before God (the judge),’ here you have two; and again: ‘whom God (the judge) shall condemn,’ (Ex. 22:7-8) so you have three.”34
However, these small courts had a rather wide range of jurisdiction, primarily in civil cases. An examination of some of the areas of their jurisdiction throws light on the high ethical standards they were expected to maintain in administering justice within their particular governmental environment. For example, they had authority to absolve from vows: “In respect of what law [is this deduced] in the chapter of vows? – Said R. Aha b. Jacob: To teach that three laymen are qualified [to grant absolution] . . . Then on the view of Beth Shammai, whence do we know that three laymen are valid? – They deduce it from [the teaching reported by] R. Assi b. Nathan. For it is written, ‘And Moses declared unto the children of Israel the set feasts of the Lord’ (Lev. 23:44).”35
They also handled monetary and other cases. “Monetary cases [must be adjudicated] by three judges; cases of larceny and mayhem, by three; claims for full or half damages, the repayment of the double or four- or five-fold restitution [of stolen goods], by three, as must cases of rape, seduction and libel; so says R. Meir.”36
And they ruled in divorce cases. “It has been stated: [On the question] how many persons must be present when the bearer of the Get gives it to the wife there was a difference of opinion between R. Jobanan and R. Haninah, one holding that a minimum of two were required and the other a minimum of three. . . . The authority who says that two persons are sufficient holds that an agent may act as witness and a witness may act as judge (n. And therefore the bearer of the Get may join with the two witnesses of the delivery to form a Beth Din.), whereas the one who insists on three holds that while an agent may act as witness, a witness may not act as judge.”37
Examples from other areas could be given. However, these three show that the courts of three did, indeed, have heavy responsibilities. They were involved with the integrity of the people (in cases of vows), financial problems (in cases involving monetary matters), and domestic relations (in questions about divorce). It is easy to see that the moral tone and ethical quality of life would be set largely by the actions of the courts, and the small courts touched the lives of the people at the grass-roots level in much of their civic relationships.
Courts of Twenty-Three – If a village grew to a population of one hundred and twenty, it was eligible for a court consisting of twenty-three members. However, most villages of such small size, and even bigger ones, did not have courts of twenty-three. “The Great Sanhedrin consisted of seventy-one members; the Small Sanhedrin of twenty-three. . . . What must be the population of a town to make it eligible for a [Small] Sanhedrin? – one hundred and twenty . . .”38
In contrast to the courts of three, which dealt chiefly with civil matters, the courts of twenty-three were largely concerned with criminal cases. Just as the examples above illustrate the depth of involvement of the courts of three in civil cases, the following example illustrates the involvement of the courts of twenty-three in criminal cases. “Capital cases are adjudicated by twenty-three. The person or beast charged with unnatural intercourse, by twenty-three, as it is written, ‘Thou shalt kill the woman and the beast’ (Lev. 20:16), and also, ‘and ye shall slay the beast’” (Lev. 20:15). “The ox to be stoned (Ex. 21:28) is tried by twenty-three, as it is written, ‘The ox shall be stoned and its owner shall be put to death’ (Ex. 21:29) – as the death of the owner, so that of the ox, can be decided only by twenty-three.”39
Great Sanhedrin
Powers Curtailed
The Great Sanhedrin was the highest court in the land. However, as Hoenig puts it, “Many of the records pertaining to the functions of the Great Sanhedrin are considered theoretical and academic, voiced by scholars who had lived and taught in different academies in an age subsequent to the era of the Second Temple.”40
This situation must be kept in mind, as, in the next few pages, a description of the functions of the Great Sanhedrin as found in the Talmud is given.
Great Sanhedrin in Rabbinic Literature “The Great Sanhedrin consisted of seventy-one members.”41 It met in the chamber of hewn stone at the Temple in Jerusalem. “In the chamber of hewn stone the Great Sanhedrin used to sit and judge [among other things the applicants] for priesthood.”42
In the appellate court arrangement of the judicial system of Judaism, the Great Sanhedrin was the “supreme court.”43 Cases could be appealed from one court to another, as the following example concerning a rebellious elder shows, but from a ruling of the Great Sanhedrin there was no appeal. “An elder rebelling against the ruling of Beth Din [is strangled], for it is written, ‘If there arise a matter too hard for thee for judgment’ (Deut. 17:8), [etc.]. Three courts of law were there (n. In Jerusalem; cf. ‘Then thou shalt arise, and get thee up into the place which the Lord thy God shall choose’ [Deut. 17:8].), one situate at the entrance to the temple mount, another at the door of the [temple] court, and the third in the hall of hewn stones. They [first] went to the beth din which is at the entrance to the temple mount, and he [the rebellious elder] stated, ‘Thus have I expounded and thus have my colleagues expounded; thus have I taught, and thus have my colleagues taught.’ If [this first beth din] had heard [a ruling on the matter], they state it. If not, they go to the [second beth din] which is at the entrance of the temple court, and he declares, ‘Thus have I expounded and thus have my colleagues expounded; thus have I taught and thus have my colleagues taught,’ if [this second beth din] had heard [a ruling on the matter], they state it; if not, they all proceed to the Great Beth Din of the hall of hewn stones whence instruction issued to all Israel, for it is written, ‘[which they] of that place which the Lord shall choose [shall shew thee].’”44
Of course, this court had broad powers.45 The validity of its existence, like that of the other courts, was grounded in ancient teaching. In the structure and work of the Great Sanhedrin the people could see echoes of that group of men gathered together by Moses under the direction of God for the purpose of bearing the burden of the people so that Moses would not have to bear it alone. “And the Lord said to Moses, ‘Gather for me seventy men of the elders of Israel, whom you know to be the elders of the people and officers over them; and bring them to the tent of meeting, and let them take their stand there with you. And I will come down and talk with you there; and I will take some of the spirit which is upon you and put it upon them; and they shall bear the burden of the people with you, that you may not bear it yourself alone.’”46
The Great Sanhedrin was the exclusive court of jurisdiction over certain very grave legal cases. If certain persons in high places of responsibility and leadership were indicted, or some particularly reprehensible act was committed which had extremely adverse consequences, the Great Sanhedrin became the sole court of jurisdiction.47 The Talmud amplifies the exclusive prerogatives of the Great Sanhedrin in these and other areas as follows: “A tribe, a false prophet and a high priest can only be tried by a court of seventy-one. War of free choice can be waged only by the authority of a court of seventy-one. No addition to the city of Jerusalem or the temple courtyards can be sanctioned save by a court of seventy-one.” “Small Sanhedrins for the tribes can be instituted only by a court of seventy-one.” “No city can be declared condemned save by a decree of a court of seventy-one.”48
The Gemara of the tractate Sanhedrin speaks of the authority of trial jurisdiction by the Great Sanhedrin to include the trial of the head of a tribe who had sinned. “The case in question,” says R. Mathna, “is one where the head of the tribe has sinned”; (n. Irrespective of the manner of transgression, provided it carries with it the penalty of death) did not R. Adda b. Ahabah say: ‘ ‘Every great matter they shall bring unto thee’ (Ex. 18:22) means the delinquencies of the great man; (n. I.e., the High Priest [lit., ‘great priest’].) so this one [sc. the head of a tribe] too, is a great man.’ (n. Who, accordingly, is tried by seventy-one.)”49
Regarding these cases over which the Great Sanhedrin had exclusive jurisdiction there are some meaningful observations which may be made. Individuals subject to trial by this court were a false prophet, a high priest, the head of a tribe who sinned, and a woman under the trial of adultery. “They bring her up to the Great Court of Justice which is in Jerusalem, and [the judges] solemnly charge her in the same way that they charge witnesses in capital cases and say to her, ‘My daughter, wine does much, frivolity does much, youth does much, bad neighbours do much. (n. I.e., there may be some excuse for your behaviour.) Do it (n. Confess if you are guilty, and so make the ordeal unnecessary which includes the use of the Divine Name.) for the sake of His Great Name which is written in holiness so that it may not be obliterated by the water.’” (Num. 5:23)50
Each of these individuals was in a strategic place in society. The prophet was God’s spokesman; the high priest officiated over worship of God; the tribal head was crucial in God’s government; the wife was prominent in the home. If high moral standards were not maintained by these persons, it was inevitable that society would degenerate. Thus, the strong defense of a high ethic in all these areas was sought through exclusive jurisdiction and valid exercise of authority by the Great Sanhedrin.
Not only were these individuals and their trials under the power of the Great Sanhedrin, but, as was noted above, “war of free choice” was subject to the court of seventy-one. Additions to Jerusalem or to the Temple courtyards were not permitted without the approval of this court. A city could not be condemned unless by decree of the Great Sanhedrin. Smaller Sanhedrins for the tribes could not be set up except by the Sanhedrin.
All of these elaborate arrangements reflected a theoretical design perhaps to be applied in a reconstituted Jewish state. There was little, if any, application of these rules under Herodian or Roman rule.
According to the theory as it applied to the more broad perspectives of society – war, worship, municipality, court systems – the Great Sanhedrin exercised a pervading governmental authority which sought, by valid judicial, legislative, and administrative processes, to nurture and maintain a high standard of governmental ethics within the nation.51
Contributing to the “problem of the Sanhedrin” is “the apparent conflict between the Hellenistic and rabbinic sources as to its nature and function. While in the Hellenistic sources, in Josephus and the Gospels, it appears as a political and judicial Council headed by a ruler, the tannaitic sources depict it chiefly as a legislative body dealing with religious matters, and in rare cases acting as a Court.”52
According to Isidore Epstein, the withdrawal of the Pharisees from politics, generally speaking, after the rise of Herod, involved “a separation of the political and religious administration of the country. This gave rise to the two Sanhedrins, the political and religious.”53 The first to advance the theory of the two Sanhedrins was Adolf Büchler in his work Das Synedrion in Jerusalem (Vienna, 1902). This view has been favorably, though not unanimously, received.54
Judges and Judicial Procedure
The caliber of the judges serving in the court system of Judaism, as indicated earlier by an examination of their qualifications, was required to be exceptionally high.55 A judge’s conduct in office was to be above reproach. In fact, he was expected not only to avoid misconduct, but to avoid the very appearance of misconduct. “For it is a man’s duty to be free of blame (n. I.e., to give no cause for suspicion.) before men as before God, as it is said: ‘And be guiltless towards the Lord and towards Israel,’ (Num. 32:22) and again it says: ‘So shalt thou find favour and good understanding in the sight of God and man,’” (Prov. 3:4).”56
Just as in the days of old, when the injunction was, “You shall not pervert justice; you shall not show partiality; and you shall not take a bribe, for a bribe blinds the eyes of the wise and subverts the cause of the righteous,”57 so the judge in Judaism was expected to shun the temptation to accept bribes arising out of words, acts, or gifts.58 “Our Rabbis taught: ‘And thou shalt take no gift’; (Ex. 23:8) there was no need to speak of [the prohibition of] a gift of money, but [this was meant:] Even a bribe of words (n. Or ‘acts.’) is also forbidden, for Scripture does not write, ‘And thou shalt take no gain.’ (which would have meant a monetary bribe.) What is to be understood by ‘a bribe of words’ (n. Or ‘acts.’) – As the bribe offered to Samuel. He was once crossing [a river] on a board when a man came up and offered him his hand. ‘What,’ [Samuel] asked him, ‘is your business here?’ – ‘I have a lawsuit,’ the other replied. ‘I,’ came the reply, ‘am disqualified from acting for you in the suit.’”59
When a court convened and the judges proceeded to hear a case, they were to observe certain judicial rules of conduct in order to insure a fair trial.60 For example, they were required to hear all testimony in the presence of both plaintiff and defendant. “‘Hear [the causes] between your brethren and judge righteously’ (Deut. 1:16). This, said R. Hanina, is a warning to the court not to listen to the claims of a litigant in the absence of his opponent; and to the litigant not to explain his case to the judge before his adversary appears. Shāmōa’ [hear], in the verse, can also be read, shammēa'. (n. In the Pi'el, which has a causative sense, [make hear].)”61
Neither could there be any discrimination shown by the judges for any of the litigants in a case. “Our Rabbis taught: ‘And the two men shall stand’: it is a precept that the litigants stand. R. Judah said; I heard that if they desire to allow them both to sit, they may allow them to sit. What is prohibited? One should not stand, and the other sit; one speak all that he wishes, and the other bidden to be brief.”62
Summary
A retrospective glance at the court system in Judaism finds that system to be one of the key ingredients for the enforcement of governmental ethics within the nation. This court system also reached out beyond the borders of Palestine. “‘A Sanhedrin has jurisdiction within the land . . . and outside it. What [Scriptural] authority is there for this'’ – Our Rabbis taught: [From the text,] ‘And these things shall be for a statute of judgment unto you throughout your generations in all your dwellings’ (Num. 35:29), we learn that a Sanhedrin has jurisdiction both in and outside Palestine.”63
Organizationally, the court system in Judaism was well adapted to the varied living conditions of a rural people. The small ad hoc adjudicators or referees, the courts of three in the villages, helped the people to live by law and maintain their integrity under law. At the same time, the larger courts of twenty-three wielded sufficient power to command the respect of the people in maintaining law and order, especially in their jurisdiction in criminal cases with authority to apply capital punishment. Finally, the Great Sanhedrin, with its extensive jurisdiction, stood, in theory at least, as a towering citadel of preservation and perpetuation of that which was ultimately just and right in Jewish law.
Ethical Leadership
The admirable organization of the court system in Judaism was made viable by men of conscience and dedication.
Men of Integrity
While the Talmud contains hundreds of examples of Rabbis of comparable competence differing sharply on both small and large matters of law, there is, with but few exceptions, no reason to challenge their dedication, integrity, or conviction. On the contrary, the honorable resiliency of the judges under all kinds of strain and tension through the centuries, together with the efficient organization within which they functioned, indicates a major element in maintaining and enforcing governmental ethics in Judaism. This healthy influence existed in spite of the fact that rabbinical authority was usually confined to judicial and religious matters.64 They rarely enjoyed governmental authority.
Historical Leadership Precedents
This kind of ethical leadership was not present merely as a matter of law; it grew out of ancient heritage and biblical example and teaching. Even as early as the wilderness migrations of the Israelites, men of leadership stature were prominent. They were often referred to as “leaders of the congregation” (Ex. 16:22) or “rulers of the congregation” (Ex. 34:31 NASB).65 On occasion, the importance of their role as “leaders of their ancestral tribes” is apparent as they are listed by name as “heads of the clans of Israel.”66
The grave responsibility of spying out the land of Canaan rested on the shoulders of men of this stature. When it was time for this information to be gathered, the record states: “‘Send men to spy out the land of Canaan, which I give to the people of Israel; from each tribe of their fathers shall you send a man, every one a leader among them.’ So Moses sent them from the wilderness of Paran, according to the command of the Lord, all of them men who were heads of the people of Israel.”67
It seems only natural, then, that when the question of dividing the land of Canaan among the tribes was being considered, the responsibility for this apportionment fell to men of integrity, leadership, and unquestioned devotion to equity and justice. This helped insure a fair settlement and thus reduced the feelings of ill will within the population that might possibly- have resulted had they believed any basic injustice was being thrust upon them through incompetence or dishonesty. So the responsibility for dividing the land was placed upon a group of leaders made up of one from each tribe. “The Lord said to Moses, ‘These are the names of the men who shall divide the land to you for inheritance: Eleazar the priest and Joshua the son of Nun. You shall take one leader of every tribe, to divide the land for inheritance.’”68
The Nasi
With reference to the high ethical leadership within the courts of Judaism, it was earlier noted that such leadership was not present merely as a matter of law, but that it grew out of ancient heritage and biblical example and teaching. It is interesting to note that the term applied to these leaders in ancient Israel described above was Nāsī',69 and this very same term was also applied to the leaders of the Sanhedrin during much of its history.70 A Mishnah points out that these early leaders of the Sanhedrin were known by the title of Nāsī',71 and tractate Aboth gives a list of the names of these leaders.72
Summary
The linguistic evidence leads one to conclude that the Jewish nation looked to the ruler of the Great Sanhedrin as a true leader.73 Ideally, the authority which he possessed and the justice which he represented were to be reflected throughout the entire court system. This exalted view of law not only resulted in an easier enforcement of governmental ethics in Judaism, but also made it possible to relate all facets of the law to the community in a more realistic and acceptable manner.74 Therefore, an examination of the law and its relationship to the morality of the community is in order.
The Law and Morality
The enforcement of governmental ethics in Judaism was made easier because of the close relationship between law and morality. The law in Judaism was not viewed as a mere legal apparatus governing the relationships among men. The law also included the relationships between God and men.
A Close Relationship
This meant that Jewish law and morality sprang from the same source, viz., the Written Law and the Oral Law. There was to be no conflict or ambiguity between law and morality.
The common tie between law and morality in Judaism was their common origin-God. This seemed obvious to the Jews; e.g., the Decalogue commandments,75 “You shall not Kill” and “You shall not steal” (Ex. 20:13, 15), were stated with no less divine authority than “you shall love your neighbor as yourself: I am the Lord” (Lev. 19:18b).
Sanction by God and by Court
The close blend of the legal and the moral accounts for an interesting feature of Jewish law with regard to the application of sanctions. Under many laws the sanction by the court was sure and swift in coming: in other cases it was felt that the sanction was not the prerogative of man, but of God. As Rabbi Joshua taught, “There are four acts for which the offender is exempt from the judgments of Man but liable to the judgments of Heaven. They are these. To break down a fence in front of a neighbour’s animal [so that it gets out and does damage]; to bend over a neighbour’s standing corn in front of a fire; to hire false witnesses to give evidence; and to know of evidence in favour of another and not to testify on his behalf.”76
“Beyond the Letter of the Law” This “holy” view of law held by the people made it much easier to maintain a high legal ethic in the enforcement of governmental regulations. Obedience to law was not merely a civic duty under this concept; it was a God-given responsibility.77 Since God was merciful to His people, it was understood that law originating from Him should be applied mercifully. This idea led to the practice of going beyond the letter of the law while acting under a moral imperative. The following episode explains how this practice was applied. “Rab Judah once followed Mar Samuel into a street of wholemeal vendors, and he asked him: What if one found here a purse? – [Mar Samuel] answered: It would belong to the finder. What if an Israelite came and indicated an identification mark? – [Mar Samuel] answered: He would have to return it. Both? [Mar Samuel] answered: [He should go] beyond the requirements of the law. (n. I.e., in saying ‘he would have to return it’ R. Simeon b. Eleazar did not give a legal decision but indicated what he would regard as the proper action to take on the ground of morality. The term used means literally ‘within the line of justice,’ i.e., performing a good action even if one is not compelled to do so legally.) Thus the father of Samuel found some asses in a desert, and he returned them to their owner after a year of twelve months; he went beyond the requirements of the law.”78
This principle of going beyond mere law out of concern for one’s neighbor or out of compassion for one’s fellow man was more widely practiced when the law beyond which one went in his deed of thoughtfulness had emerged out of scholarly decree rather than from the Written Torah. This was the natural course since the decrees enacted by the scholars were generally more leniently approached than those obviously originating directly from the Written Torah. This principle was taught by Rabbi Joshua b. Karha as follows: “In laws of the Torah (n. Laws explicitly stated in Scripture.) follow the stricter view, in those of Soferim (n. Laws enacted by the Scribes [soferscribe] from the time of Ezra onward.) follow the more lenient view.”79
A Rabbinic Debate
However, it must be added that, with the passage of time, there was a tendency for many of the Rabbis to apply to their enactments the force of rules of the Torah.80 This resulted in a sustained debate which emerges from time to time in the rabbinical writings; e.g., “The case of partnership in an alley-way is different, because [the prohibition of taking things out there on the Sabbath] is only Rabbinical. (n. And therefore it does not matter if she did not strictly obtain possession.) R. Hisda said: Waradan was reduced to silence. What could he have answered? – [He could have said that] the Rabbis gave to their regulations the force of rules of the Torah. What could the other say to this? – That the Rabbis gave to their regulations the force of rules of Torah in matters which have some basis in the Torah, but not in a matter which has no basis in the Torah.”81
Although the debate continued, and the position that the enactments or decrees coming directly from the Written Torah were to be more specifically and rigorously applied remained theoretically valid, in practical application the decrees of the scholars came to carry virtually the same legal weight as laws traced directly to the Written Torah.
Summary
Perhaps this emphasis on rabbinical authority seen as emerging out of the same origins as all Jewish law, both Written and Oral, goes a long way to explain why it was often (though not always) possible to enforce a high governmental ethic in Judaism through the centuries. This was the cement for the legal machinery which made the practical application of the legal system possible. The people embraced this system of enforcement because they saw the Rabbis as religious figures as well as judges and lawmakers. For, as already pointed out, Jewish law was considered a matter of faith, seen as having its ultimate origin in divine revelation, and the Rabbis, as duly ordained scholars, were the means by which the law was interpreted, expanded, vitalized, and applied. Thus, whether the law involved religious commands about religious festivals or legal regulations concerning property, obedience was necessary in order to maintain acceptable relations among men and between God and men. Obedience to law was a matter of morals, and this morality of obedience was a matter of religious conviction.
Therefore, within the framework of a governmental system which was a blend of legal and religious responsibilities, the people saw no disparity between such laws as “Remember the sabbath day, to keep it holy” and “You shall not steal” (Ex. 20:8, 15). And, under this legal system in Judaism, the people saw it as fitting that their problems and disputes within both religious and legal areas should be brought to the rabbinical courts for settlement. This philosophy of government made the application of the law and obedience to the law questions of moral and religious ethics. This kind of rule, by its very nature, made it theoretically possible to maintain high judicial and governmental ethical standards.
Footnotes:
1 A. Büchler, Studies in Sin and Atonement in the Rabbinic Literature of the First Century, Library of Biblical Studies (New York: KTAV, 1967), p. B.
2 Mak. 23b [trans. H.M. Lazarus].
3 Samuel Rosenblatt, The Interpretation of the Bible in the Mishnah (Baltimore: John Hopkins Press, 1935), p. 26.
4 Ex. 23:9. Many other examples may be found in biblical literature, viz., Deut. 4:5-8, 11:16-17, 17:16-17, 23:3-4 (Heb. 23:4-5).
5 San. 21b [trans. Jacob Shachter]. The real reason for the objection to multiplying horses was not trading with Egypt, but the provision of Israelite (or Judahite) mercenaries in exchange for the horses.
6 Rosenblatt, Interpretation of the Bible, p. 34.
7 Immanuel Benzinger, “Law and Justice,” Encyclopaedia Biblia (1902), vol. 3, col. 2714.
8 Ab. I, 1.
9 G.B. Gray, “Law Literature,” Encyclopaedia Biblia (1902), vol. 3, col. 2714.
10 Meg. 19b.
11 B.M. 59a-59b; cf. Deut. 30:12.
12 R.H. 25b. “The Scripture places three of the most questionable characters on the same level as three of the most estimable characters, to show that Jerubaal in his generation is like Moses in his generation, Bedan in his generation is like Aaron in his generation, Jepthah in his generation is like Samuel in his generation [and] to teach you that the most worthless, once he has been appointed a leader of the community, is to be accounted like the mightiest of the mighty. Scripture says also: ‘And thou shalt come unto the priests the Levites and to the judge that shall be in those days.’ Can we then imagine that a man should go to a judge who is not in his days? This shows that you must be content to go to the judge who is in your days.”
13 Deut. 17:8-9. S.R. Driver, Deuteronomy, International Critical Commentary, 3d ed. (Edinburgh, T & T Clark, 1902), p. 401, comments on this passage as follows: “Two great duties of the priestly tribe are indicated in these words: (1) to decide, in cases brought before them, in accordance with the principles of Jehovah’s ‘direction,’ or ‘law,’ of which they were the guardians (Jer. 8:8); (2) to maintain the service of the altar. . . . By judgments will be meant decisions in civil and criminal causes, or the ordinances founded upon them (See Ex. 21:1; Ez. 44:24; and cf. on 4:1, 17:7).”
14 Num. 15:32-36 (NASB). This principle is also illustrated in Lev. 24:10-16.
15 Deut.33:8-10.
16 Eliezer Berkovits, “The Centrality of Halakhah,” in Rabbinic Judaism from Talmudic to Modern Times, (ed. Jacob Neusner], (New York: KTAV, 1974), pp. 69-70.
17 Mayer Sulzberger, The Am Ha-Aretz: The Ancient Hebrew Parliament (Philadelphia: Julius H. Greenstone, 1909), pp. 7-8. This author sees biblical evidence of an early council, or governing body, in Ex. 3:16-18; 4:10, 16, 29-31; 12:21, etc., to which Moses made his appeal as a “newcomer.”
18 Ex. 18:13 (NASB). J. Coert Rylaarsdam, “Exodus,” Interpreter’s Bible, vol. 1, p. 966. The author states that “the function of Moses was comparable to that of the Bedouin tribal sheik today. Each morning such a sheik ‘sits’ briefly as judge. As Israel gradually became an ever-greater aggregate of clan and tribal units such simple administration by one man became impossible. Moses may here be considered as priest as well as tribal chief or judge.”
19 Ex. 18:I7b-23. Rylaarsdam, “Exodus,” p. 967. Commenting on the larger context of this passage, this author states that “to inquire of God” (v. 15) means “to seek an answer for an issue for which no precedent can suffice. . . . The outcome of an inquiry . . . had the value of revelation. It was the word of God, not only in rhetorical fashion but also in effect.” In contrast, Rylaarsdam states that “the statutes of God and his decisions” (v. 16) were apparently “oracular decisions.” Thus, one sees the process and method which Moses utilized that enabled him to be “judge before he became lawgiver” (ibid.). This coincides with the stance of the Bible and the Talmud that Moses received the law from God.
20 Deut. 1:9-15.
21 Deut. 1:16-17.
22 Jacob Z. Lauterbach, [ed.], Mekilta (de-Rabbi lshmaeh, vol. 2 (Philadelphia: Jewish Publication Society, 1933). Cf. pp. 179-185 for rabbinic commentary on Ex. 18:13-27 dealing with the establishment of the court system. Also Cf. A.M. Silbermann, [ed.], Pentateuch with Rashi’s Commentary: Exodus, [trans. and annotated by M. Rosenbaum, A.M. Silbermann, A. Blashki, and L. Joseph], (London: Shapiro, Vallentine, 1930), p. 95. The rabbinic view of these judges comes to light as follows: “Ex. 18:21 – MOREOVER THOU SHALL PROVIDE through the Holy Spirit that is upon thee, MEN OF ABILITY (but may mean ‘wealth’ and in this sense the words would mean) – rich men who will not need to flatter or to show favour. MEN OF TRUTH – These are people commanding confidence; who are deserving that one should rely upon their words – appoint these as judges because on account of this their words will be listened to. HATING LUCRE – men who hate (pay no regard to) their property when it is to be made the matter of a law-suit, in accordance with what we say: Any judge from whom one has to wring the money he owes only by means of a law-suit is no fitting judge.”
23 Ex. 18:26.
24 A.M. Silbermann, [ed.], Pentateuch with Rashi's Commentary: Deuteronomy, [trans. and annotated by M. Rosenbaum, A.M. Silbermann, A. Blashki, and L. Joseph]. (London: Shapiro, Vallentine, 1934), pp. 5b-7.
25 Driver, Deuteronomy, p. 201: “No attempt is made to regulate the details of the institution, such as the method by which the judges are to be selected, their numbers, the organization of the courts, & c.; the Writer contents himself with affirming the broad principle that provision is to be made for the administration of justice, and that this is to be done by the appointment of judges possessing local jurisdiction.”
26 Deut. 16:18. Calum M. Carmichael, The Laws of Deuteronomy (Ithaca: Cornell University Press, 1974), pp. 96-97. Discussing the close relationship between the D narratives and the D laws, specifically Deut. 1:9 ff. and 16:18 ff., Carmichael says, “The beginning of D (1:9-18) contains a historical account of Moses’ commanding the people to choose leaders and judges. His address to the judges there is very similar to D’s law on the judges (which is also to be understood as spoken by Moses). It may be assumed that the law alludes to this narrative account, particularly since the law's motive clause promises the inheritance of the land and this promise recalls the historical situation in 1:8, when Israel was commanded to possess the land and to appoint leaders and judges (1:9 ff.)”
27 For laws, regulations, and rationale for judges in ancient Israel, cf. Elihu A. Schatz, Proof of the Accuracy of the Bible Based on Chronological, Organizational, Prophetic and Legal Analyses (Middle Village, N.Y.: Jonathan David, 1973), pp. 600 ff.
28 II Chron. 19:5-8.
29 I. Epstein, Judaism: A Historical Presentation (Baltimore: Penguin Books, 1959), pp. 89-90.
30 San. l6b.
31 William F. Albright, The Biblical Period from Abraham to Ezra, rev. ed. (New York: Harper Torchbooks, 1963), p. 18. In speaking of the “considerable body” of legislation found in the Torah, Albright refers to these laws as having “a basic similarity about their cultural and religious background which makes it impossible not to attribute their origin to the beginnings of organized Israelite monotheism – in other words, to Moses.”
32 The rabbinic discussions concerning qualifications for judges eventually reached the point of idealization, as indicated by S. Mendelsohn, The Criminal Jurisprudence of the Ancient Hebrews (Baltimore: M. Curlander, 1891), pp. 92-95: “Some detailed positive and negative qualifications are given as follows: worthy, true piety, untarnished character, a Jew, knowledgeable in the written and unwritten laws, familiar with languages (San. 17a) and contemporary science (Menahoth 65a), affable but not merely popular (Keth. 105b), good appearance and not haughty (San. 17a), experienced but not too old (Sotah 22b; Aboth V, 21), a father (San. 36b), no electioneer, no king (San. 18b), no dishonorable vocation (San. 24b), no deformity (San. 36b), no relatives on the same court (San. 27b).” However, cf. Meyer Waxman, “Civil and Criminal Procedure of Jewish Courts,” in Studies in Jewish Jurisprudence, [ed. Edward M. Gershfield], (New York: Hermon Press, 1971), pp. 193-194, where he states that the qualifications given above applied only to judges who sat in criminal courts. However, with respect to civil courts, “Every Jew, even of illegitimate birth (San. 36b), if he but possesses high intellectual and moral qualities (wisdom, modesty, fear of God, love of people, of truth, hate of greed, and respectability), is qualified.”
33 M. San. III, 1
34 San. 3b.
35 Ned. 78a.
36 M. San. III, 1.
37 Git. 5b [trans. Maurice Simon].
38 M. San. I, 6.
39 M. San. I, 4.
40 Sidney B. Hoenig, The Great Sanhedrin (Philadelphia: Dropsie College, 1953), p. 85.
41 M. San. I, 6.
42 M. Mid. V, 4.
43 Historically speaking, however, the Hasmonean, Herodian, and Roman regimes left few functions and very little power for the Sanhedrin. After the destruction of Jerusalem (70 C.E.), the Sanhedrin ceased to exist. Therefore, one is again reminded that much of what the Talmud says about the Sanhedrin is academic and hardly reflects real life. Cf. Alexander Guttmann, Rabbinic Judaism in the Making (Detroit: Wayne State University Press, 1970), pp. 21-24 for functions of the Sanhedrin. Also, cf. ibid., pp. 17-21 for a brief historical sketch of the Sanhedrin in which, among other things, it is stated, “The history of the Sanhedrin may be divided into several periods. The first major period began with its establishment or endorsement by the Hasmonean rulers about 160 B.C.E. and ended with Herod’s rise to power in 37 B.C.E. During Herod’s time, after the members of the Sanhedrin that tried him were massacred, a new Sanhedrin was established that continued until, or nearly until, the destruction of the Temple in 70 C.E. . . . It possessed the greatest power under the Hasmoneans when it enjoyed official recognition. . . . At the beginning of the second major period of the history of the Sanhedrin, Herod assumed dictatorial power. During his rule the new Sanhedrin was no more than a great academy, a Beth Midrash Gadol, concentrating on study and regulating religious law, without the benefit of support by the political government.”
44 M. San. XI, 2 [trans. H. Freedman].
45 Hugo Mantel, “The Nature of the Great Synagogue,” Harvard Theological Review 60 (1967): 87. “Prior to the Maccabean ascendancy, the city and state courts were under the supervision of the high priest (e.g., The Book of Judith 4:6-8; 11:14), and to him the Pharisaic interpretations of the Torah had no validity.” This is, of course, based on the theory (which is not accepted by most scholars) that the origin of the Pharisees goes back to pre-Maccabean times.
46 Num. 11:16-17. John Marsh, “Numbers,” Interpreter’s Bible, vol. 2, p. 197: “We must note that although this arrangement (vs. 17) is clearly meant to remedy Moses' complaint (vs. 12), it relieves his burden not because Yahweh Himself carries some of that burden, but because Moses shares it with the seventy elders. Two complementary truths can be discerned: the service to God cannot be achieved without divine aid; God’s work cannot be accomplished without human instruments.” These “two complementary truths” are apparent not only here, but throughout the entire judicial and political system as the Jews saw it and practiced it.
47 Mendelsohn, Criminal Jurisprudence of the Ancient Hebrews, loc. cit.; cf. pp. 87-91 for further details concerning organization and jurisdiction of the Great Sanhedrin. Also, cf. H. Mantel, “The High Priesthood and the Sanhedrin in the Time of the Second Temple,” in The World History of the Jewish People, [eds. Michael Avi-Yonah and Zvi Baras], (New Brunswick: Rutgers University Press, 1975). Here involved arguments are presented concerning the problems surrounding the nature of the Sanhedrin during Roman times. The conclusion is reached that during the times of the procurators there was not only a halakhic Sanhedrin in the Temple compound of Pharisaic scholars and headed by their Nasi: there was also “a council consisting of the acting and former High Priests – all of them owing their appointments to the procurator – (who) headed the political Sanhedrin of the country” (pp. 274-281).
48 M. San. I, 5.
49 San. 16a [trans. Jacob Shachter].
50 M. Sotah I, 4 [trans. A. Cohen].
51 Hoenig, Great Sanhedrin. The author speaks of “the problem of the Sanhedrin” as being complex. This is because the scholarly discussions of the Sanhedrin are so numerous and are found in such scattered sources. Cf. Hoenig’s “Attempts at a Solution of the Sanhedrin Problems,” pp. 121-132. Also cf. above, pp. 91-92, 96 where the theoretical nature of much of the discussion about the functions of the Great Sanhedrin is stressed.
52 Hugo Mantel, “Sanhedrin,” Encyclopaedia Judaica, vol. 14, col. 836.
53 Epstein, Judaism, p. 100.
54 Mantel, “Sanhedrin,” cols. 837-839.
55 R. Travers Herford, The Ethics of the Talmud: Sayings of the Fathers (New York: Schocken Books, 1962), p. 29. Here, in his commentary on Ab. I, 8-9, Herford points out that Aboth speaks of legal rather than ethical maxims, and that their intent is to encourage judges “to foster the most scrupulous sense of justice, the most strict impartiality. They are addressed to such as were called upon to administer the Torah in its application to civil or criminal offences, and they have no immediate bearing upon matters outside the courts.”
56 M. Shek. III, 2 [trans. M.H. Segal].
57 Deut. 16:19.
58 R. Joseph Caro, “Laws of Judges,” in Code of Hebrew Law: Shulhan 'Aruk; with Glosses of R. Moses Isserles, [trans. and commentary by R. Chaim N. Denberg], (Montreal: Jurisprudence Press, 1955), chap. 9, par. 3, p. 120. “It was [formerly] customary to provide a fund for the [members of the ] Court, [i.e.,] they [the townspeople] undertake to pay a fixed sum of money for the maintenance of the Court, and they collect it [from the townspeople] at the beginning of the year and at the end thereof, and it does not bear the designation of a bribe or the designation of remuneration [for pronouncing judgment], for it is obligatory for Israel to support its Judges and scholars.”
59 Ket. 105b. Other examples from Ket. 105b, showing how careful judges were expected to be to avoid anything that could even remotely be considered bribery, are: Rab Judah stated in the name of R. Assi: “The Judges of Civil Law in Jerusalem received their salaries out of the Temple Funds [at the rate of] ninety-nine maneh. If they are not satisfied they were given an increase. [You say] ‘They were not satisfied’? Are we dealing with wicked men? The reading in fact is, [If the amount was] not sufficient an increase was granted to them even if they objected.” R. Papa said: “A man should not act as judge either for one whom he loves or for one whom he hates; for no man can see the guilt of one whom he loves or the merit of one whom he hates.” Raba stated: ‘What is the reason for [the prohibition against taking] a gift’? Because as soon as a man receives a gift from another he becomes so well disposed towards him that he becomes like his own person, and no man sees himself in the wrong.” Mar 'Ukba once ejected some saliva and a man approached and covered it. “What is your business here?” [Mar `Ukba asked him.] “I have a lawsuit,” the man replied. “I,” came the reply, “am disqualified from acting as your judge.”
60 Büchler, Studies in Sin and Atonement, p. 65. After referring to Sotah 47b, Büchler quotes, “Since judges increased in number who respected persons in judgment, the observance of the prohibition in Deut. 1, 17b, ‘Ye shall not be afraid of the face of any man,’ ceased and the observance of ‘Ye shall not respect persons in judgment,’ stopped, and they broke off the yoke of God and put upon them the yoke of man.’ The disregard of the authority of God in favour of that of man referred to here points most probably to actual conditions prevailing in Jerusalem in the last decades before the year 70, when, on account of some men of influence and of circumstances otherwise unknown, the administration of justice in the Jewish courts of law in the capital and in the towns of Judæa deteriorated.” Thus, the ideal of fairness and justice under the law was not always reflected in reality.
61 San. 7b (trans. Jacob Shachter].
62 Shebu.30a.
63 Mak. 7a.
64 The Apocrypha, [ed. Bruce M. Metzger], (New York: Oxford University Press, 1965). Ecclus. 39:1-5 + notes.
65 U. Cassuto, A Cornmentart on the Book of Exodus, [trans. Israel Abrahams], (Jerusalem: Magnes Press, 1951). Cf. in both Ex. 16:22 and Ex. 34:31 “chieftains of/in the congregation” (pp. 197, 449).
66 Num. 1:5-16.
67 Num. 13:2-3. However, ten out of the twelve men sent turned out to be misleaders rather than leaders.
68 Num. 34:17-18.
69 Mantel, “Great Synagogue.” The author points out that “The heads of the Pharisaic Sanhedrin, beginning with the Zugot, are reported to bear the title Nasi” (p. 90). Also, cf. Hugo Mantel, “The Title Nasi in Jewish Tradition,” and “The Offices of the Nasi,” in Studies in the History of the Sanhedrin, [Harvard Semitic Series, no. 17], (Cambridge: Harvard University Press, 1965), pp, 1-53, 175-253.
70 E.A. Speiser, “Background and Function of the Biblical Nasi,” in Oriental and Biblical Studies, [eds. J.J. Finkelstein and Moshe Greenberg], (Philadelphia: University of Pennsylvania Press, 1967), pp. 116, 121-122. In this penetrating article on the term nasi', Speiser maintains that “in order to qualify as a tribal leader, the nāsī' had to be a duly recognized head of a bēt-’āb (tribe).” However, he goes on to say, “With clans and tribes the title is best reproduced as ‘chieftain.’ With larger units, notably political states, ‘leader’ or ‘president’ should satisfy the requirements. In no case is ‘prince’ justified; as a translation of nāsī’, this term is misleading in its primary sense and meaningless in its customary derivative usage.”
71 M. Hag. II, 2.
72 Ab. I, 1-12.
73 Hoenig, Great Sanhedrin, p. 43: “Proof of the rabbinic leadership can also be found in the assertion that Hillel, Simon, Gamaliel and Simon were Nesi'im, heads of the Great Sanhedrin during the century before the destruction of the Temple (Shab. 14b). The mere fact that the phrase ‘they appointed him Nasi over them’ already was used in the ancient story of Hillel’s elevation by the Bene Bathyra (Shab. 31a) proves that the position of Nasi was an early institution. Hence all passages which record the Zugot of the Second Temple era are authentic sources of the epoch's history.”
74 Louis Jacobs, Jewish Law (New York: Behrman House, 1968), pp. 140-150.
75 Salo W. Baron, A Social and Religious History of the Jews, vol. 1, rev. ed., (New York: Columbia University Press, 1952), p. 227, “Law does not mean . . . ceremonial law exclusively. In fact, it may easily be proved that in Judaism morality, however dependent on specific social attitudes, was the source of law. . . . Judaism, and all its official spokesmen, always taught its children that the first and greatest revelation of God was the pronouncement of the Ten Commandments, the ethical rather than the ritual Decalogue.”
76 B.K. 55b.
77 Charles Foster Kent, Israel’s Laws and Legal Precedents (New York: Charles Scribner’s Sons, 1907), p. 11: “The various processes and stages whereby the different laws attained the final form may be traced in detail; but they are of minor importance compared with the supreme fact that Israel’s laws contain God’s directions, adapted at each point to the intelligence and needs of the race.”
78 B.M. 24b [trans. Samuel Daiches]. For another example of “going beyond the letter of the law,” cf. above, p. 53-55, and B.M. 83a.
79 A.Z. 7a [trans. A. Mishcon].
80 Hugo Fuchs, “Halachah,” Universal Jewish Encyclopedia (1941), vol. 5, p. 173. Speaking of the growing importance of the rabbinic rulings about the time of the formation of the Mishnah (ca. 200 C.E.), Fuchs says, “Judaism now had an authentic law-book, embodying both the written laws of the Torah and the oral laws of the rabbis, dealing with every phase of life, and the complete embodiment of the idea of God’s rule over mankind.”
81 Git 64b-65a [trans. Maurice Simon].
