A History of the Beis Din
Margaret E. Retter, Esq.
Definition: Beis Din-lit. Bet Din “House of Judgment” (pl. Battei Din). 1
Beis Din is the term in rabbinical sources, for a Jewish court of law. In modern times it usually refers to an ecclesiastical court dealing with religious matters such as divorce, and supervision of the dietary laws, and acting, with the consent of all concerned, as a court of arbitration. (In Israel, the term has come to mean the rabbinical court as opposed to the secular court).
While the secular legal system remains the likely arena for resolution of domestic violence, this is not necessarily the case for the observant Jew who must resort to the Jewish court system and the Jewish Courts, Beis Din in order to obtain a Jewish divorce (Get).
The Biblical source for the establishment of Beis Din, is found in the following verses:
Judges and officers shall you appoint in all your cities-which, your G-d gives you-for your tribes; and they shall judge the people with righteous judgment. You shall not pervert judgment, you shall not respect someone’s presence, and you shall not accept a bribe, for the bribe will blind the eyes of the wise and make just words crooked. Righteousness, righteousness shall you, so that you will live and possess the Land that your G-d gives you…” (Deut., 16:18-20, Parshas Shoftin).
It is recorded that Moses sat as a magistrate among the people (Ex. 18:13) and either on the advice of Yisro, his father-in-law (Ex. 18:17-23), or on his own initiative (Deut. 1:9-14), he later delegated his judicial powers to appointed “chiefs of thousands, hundreds, fifties and tens: (Deut. 1:15; Ex. 18:21) reserving to himself jurisdiction in only the most difficult, major disputes.
The rabbis ascribe the development of Battei Din to leading biblical personalities such as Shem, Moses, Gideon, Jephthah, Samuel, David, and Solomon (Mak. 23b; Av. Zar. 36b; RH 2:9; RH 25a). Historical evidence of the existence of a Bet Din in the time of Jehoshaphat is found in Deuteronomy Rabbah 19:8. However, the Bet Din belongs essentially to the period of the Second Temple, and its establishment is attributed to Ezra. He decreed that a Bet Din, which was to sit on Mondays and Thursdays (BK 82a), be established in all populated centers. There were local courts, while the Great Sanhedrin of Jerusalem served as the supreme court (Deut. 17:8-13; Sot. 1:4 Sanhedrin 1:6). The Sanhedrin existed for the duration of the Second Temple. A decree against immoral behavior is ascribed to the bet din of the Hasmoneans (Ac. Zar. 36b).
After the destruction of the Temple, Johanan b. Zakkai established his Bet Din in Yavneh as the cultural and political center of the Jews, and it succeeded the previous Sanhedrin Gedolah. The Yavneh Bet Din was responsible for regulating the calendar and thereby became the religious and national center not only in the land of Israel, but also of the Diaspora. In addition to this central bet din, local battei din continued to function, particularly in the vicinity of the academies. The Talmud speaks of the courts of R. Eliezer in Lydda R Sepphoris (Sanh. 32b). Under R. Johanan’s successor, Gamaliel II, the power and influence of the central bet din increased. The summit of its authority was reached under Judah ha-Nasi I. His grandson, Judah Ha-Nasi, may be regarded as the last nasi under whose President direction the bet din was still the actual center of the Jewish people. The Talmud therefore refers to Gamaliel and his bet din (Tosef. Ber. 2:6) and to Judah Ha-Nasi and his Bet Din (Av. Zar. 2:6), thereby indicating the central civil and religious authority of the Jews.
Toward the middle of the third century, the Bet Din of the Nasi gradually lost its importance due to he rise of Jewish scholarship in Babylonia alone. This situation continued throughout the geonic period, as no central bet din could be established because of the rivalry between the two academies.
The judicial qualifications (were) enumerated by Maimonides as follows: judges must be wise and sensible, learned in the law and full of knowledge, and also acquainted to some extent with other subjects such as medicine, arithmetic, astronomy and astrology, and the ways of sorceress and magicians and the absurdities of idolatry and suchlike matters (so as to know how to judge them); a judge must not be too old, and as he must be pure in mind, so must he be pure from bodily defects, but as well a man of stature and imposing appearance; and he should be conversant in many languages so as not to stand in need of interpreters. The seven fundamental qualities of a judge are wisdom, humility, and fear of God, disdain of money, love of truth, love of people and a good reputation. A judge must have a humble soul, must be pleasant in company, and speak kindly to people; he must be very strict with himself and conquer lustful impulses; he must have a courageous hear to save the oppressed from the oppressor’s hate, cruelty, and persecution, and eschew wrong and injustice (Yad, Sanh. 2:1-7). A judge who is a relative of one of the litigants, or has any other personal relationship toward him (“loves him or hates him”), must disqualify himself from sitting in judgment over him (Sanh. 3:4-5).
Principles of Judicial Conduct
A judge must show patience, indulgence, humility, and respect for persons when sitting in court (Yad, Sanh. 25:1; Sh. Ar., HM 7:2-5); he must always hear both parties to the case (Sanh. 7b; Shev. 31a; and Codes); he may not in any way discriminate between the parties (Lev. 19:15; Shev. 30a-31a; Yad, Sanh. 21:1-2; 20:5-7; Sc. Ar., HM 17:1 and commentaries ad. Loc.); nor may he act under the possible pressures of any undue influence, including bribery by money or by words (Deut. 16:19; Sanh. 3:5; Sha. 119a; Ket. 105b; and Codes), he may not in any way discriminate between the parties (Lev. 19:15; Shev. 30a-31a; Yad, Sanh. 21:1-2; 20:5-7; Sh. Ar., HM 17:1 and commentaries ad. Loc.); nor may he act under the possible pressures of any undue influence, including bribery by money or by words (Deut. 16:19; Sanh. 3:5; Shab. 119a; Ket. 105b; and Codes); he must, on the one hand, proceed with deliberation and care, and reconsider again and again before finally pronouncing his verdict (Avot 1:1; Sanh. 35a; Siv. Deut. 16 and Codes), but may not, on the other hand, unduly delay justice (Yad, Sanh. 14:10 and 20:6); and he must so conduct himself that justice is not only done but is also manifestly seen to be done (Yoma 38a; Shek. 3:2) and readily understood by the litigants (HM 14:4) J. Before joining a court, a judge must satisfy himself that the judges sitting with him are properly qualified (Yad, Sanh. 2:14: and no judge should sit together with another judge whom he hates or despises (Sh. Ar., HM 7:8).
Medieval and Modern Period:
The Bet Din became the stronghold of Jewish autonomy in the Middle Ages, and continued with reduced powers into modern times. It experienced many changes in the various centers of Jewish life in the Diaspora, while retaining the continuity of the principles of Talmudic law. A vast literature of rabbinic response grew out of the written judgments passed by the scholars of every age on actual cases this setting precedents and affording an orderly development of Jewish jurisprudence.
In the absence of a central authority in the newly developing Jewish settlements in Europe the judiciary became part of the local government of each community. Either the elders themselves constituted a court of justice, or special “judges” dayanim were selected. In the days of Gershon b. Judah (tenth century) these local courts were invested with full judicial authority to impose fines and exact penalties. They were constituted mostly of laymen, not necessarily versed in the law. Later, when communities began engaging rabbis, the lay judges were expected to consult them on Talmudic law.
Whereas the traditional Bet Din for civil cases consisted of three judges, there were other compositions of this court ranging from one person, usually the local rabbi, to the seven elders of the community (“tovei ha-ir”). Large cities had more than one Bet Din. A court of arbitration whereby each litigant selected one judge and these two judges appointed the third, “Zabla” was very common Small rural settlements which were administratively allied with a neighboring community (kahal) took their litigation to the bet din of that community (kahal). Associations within a community, mainly those artisans, had their own bet din for their members by permission of the community (kahal). On the arrival of the Spanish exiles in Turkey after the “Expulsion of 1492”, each congregation established its own Bet Din.
In Russia, the Bet Din was especially powerful until the latter part of the 19th century. Before the abolition of the kahal there in 1844 the bet din not only applied strict penalties to guilty individuals but also had jurisdiction over the kahal itself in claims of individuals against it.
The distinguishing characteristic of the medieval Bet Din was, that it served as an arm of the self-governing community that possessed powers of law enforcement. As emancipation of the Jew in the modern era dissolved the corporative structure, Jews tended increasingly to resort to the general courts. Wherever the Bet Din has survived to this day it enjoys the prerogatives only of a court of arbitration whose decisions are generally upheld by the law of the country. In many countries, in particular in England and its dominions, Belgium, and to a lesser degree in France, the Bet Din system, headed by the chief rabbi of the country, still plays a central role in Jewish life. In Israel, under the mandatory government, an elaborate network of Bet Din courts was established under the Supreme Rabbinical Court in Jerusalem. The State of Israel has taken over this system, giving the Bet Din exclusive jurisdiction over the Jewish population in matters of personal status, matrimonial issues and family law.
In modern times, the term Beis Din usually refers to an ecclesiastical court dealing with religious matters such as divorce, the supervision of dietary laws, and acting with the consent of all concerned a court of arbitration.
Resorting to secular courts to resolve disputes, except under certain circumstances, is strictly forbidden in Jewish law (Halacha). (Shulchan Aruch, Choshen Mishpat: Ch. 26). Therefore, the general rule is that two members of the Jewish faith who have a dispute must resort to the Jewish Court; Beis Din, and may not go to Secular Court. Even if both parties agree, and in fact stipulate in writing that they will utilize the civil court system, it remains forbidden by Jewish law except under certain circumstances. This is true even if the secular courts would rule exactly as the Beis Din.
***There are certain circumstances, however, which allow for utilizing the civil courts. However, the Beis Din must rule that these circumstances exist, and must grant permission.
For example, a Beis Din cannot issue a Certificate/Judgment of Divorce and the parties must obtain the divorce decree from a secular court. Likewise, the civil court cannot issue a Get, the Jewish Divorce. According to Jewish law, the power to grant a Get, a bill of divorce, lies only with the husband, who must do so freely, voluntarily, and without coercion. By Jewish law, a marriage is not terminated until the husband has executed a Get and the Get freely and voluntarily accepted by the wife. I actuality, the Beis Din retains the original court document and issues a P’tur (“permission to remarry”) to both parties. Today, reputable Battei Din will not release the P’tur to either the husband or wife until proof of the civil divorce is presented to the Beis Din in the form of a Certified Judgment of Divorce. Further, the civil courts retain jurisdiction over matters involving the “best interest(s) of the child” regardless of the ruling of the Beis Din. (Child custody, child support, visitation, etc.).
It is apparent, therefore, that it is in the best interests of all parties, that the secular civil courts and the Jewish courts understand each other and work together for the benefit of all parties.
1 Quoted liberally from Encyclopedia Judaica, The Macmillan Company, Keter publishing house, Ltd., Jerusalem, Israel, Vol 4, pages 719-727.
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