Sanhedrin 5a, 88b
During the days of the Sanhedrin, the judiciary was structured in a three-tier system. The סנהדרין גדולה / Great Sanhedrin of 71 judges was the Supreme Court of Israel. Beneath the Great Sanhedrin were the סנהדרי קטנה /Minor Sanhedrins of 23 judges each, located in each major city.
The Minor Sanhedrin courts had sole jurisdiction over most offenses involving capital punishment. The Minor Sanhedrin courts were the courts of last resort for all questions of Torah law arising in their area of jurisdiction, except for certain national and unusual matters, which were reserved for the Great Sanhedrin.
The lowest courts consisted of three ordained judges. These courts had jurisdiction over all monetary disputes, including personal injury cases and cases involving קנסות/kenasot/ fines and punitive damages such as cases involving theft, robbery, rape and seduction. Accordingly, if the plaintiff was injured by the defendant, the lowest courts of three ordained judges had the authority to render judgment to pay compensation for the injury.
The compensation that the courts of three were authorized to award in personal injury cases was of five types: נזק /nezek, compensation for the actual damage caused, – צער /tsa’ar, compensation for pain suffered, – רפוי /ripui, compensation for doctors’ bills, – שבת /shevet, compensation for unemployment arising from the injury, and – בושת /boshet, compensation for the humiliation endured. Similarly, the courts of three had the authority to impose – כפל /kefel, a punitive fine of double payment for persons convicted of stealing objects and תשלומי ארבעה וחמישה /tashlumei arba’ah ve’chamishah/fines of four and five times the value in cases of livestock stolen and killed or sold.
Cases involving fines and punitive damages, – קנס /kenas, required a court of three judges ordained with authentic semicha. Three non-ordained judges, however, could adjudicate cases of regular monetary disputes such as claims involving loans, business transactions, partnerships, agency, rentals and lost property but not cases involving fines..
One judge, מומחה לרבים /mumcheh larabim, could also adjudicate these regular monetary disputes provided he had earned a reputation of an experienced judge who had successfully tried many cases.
The lowest court of three also had jurisdiction to administer corporal punishment/ מלקות/malkot for the transgression of negative Torah commandments. Needless to say, during the time of the Sanhedrin, all courts in the judicial system, from the Sanhedrin down to the court of one judge, were vested with the sovereign power to enforce their jurisdiction even over recalcitrant litigants.
Today, the situation is very different. In the absence of a Jewish state governed by all the laws of the Torah, and in the absence of a duly constituted Sanhedrin and authentic semicha, there is no Torah judicial system with mandatory authority and there is no real independent power of enforcement.
But the absence of all these cannot mean that Jews can behave lawlessly to one another or that a wife who needs a divorce, a get, from her husband has no recourse. Even in the Diaspora, the Jews need some Jewish judicial system for dealing with one another.
Accordingly, the rabbis in the post-Sanhedrin era have set up a judicial system whose authority is based, essentially, on the consent of those Jewish litigants who agree to submit their disputes to the Batei Din for adjudication.
These courts may not adjudicate the full variety of disputes and cases that were adjudicated by the Sanhedrin.. They are not authorized to try cases involving kenasot, fines and punitive damages, and in personal injury cases they may only award the costs of ripui, doctors’ bills and shevet, compensation for unemployment. Even the monetary disputes that the contemporary Beit Din may try are limited to frequently occurring disputes that would result in financial loss to one of the litigants if there were no Beit Din.
There are also certain non-monetary disputes which must have a Jewish court of law to go to in order for Jews to survive in the Diaspora. Accordingly, contemporary Batei Din have authority to compel a husband to give a get to his wife where such compulsion is permitted by Torah law. So too, in order not to close the door of Judaism on those who wish to convert, the contemporary Batei Din have the authority to convert people to Judaism.
In assuming this authority and maintaining the basics of Jewish law and order among Jews in the Diaspora, the contemporary Batei Din act as agents of the authentic courts of old.
Today we have shoftim, judges of diminished authority. But apart from the power of excommunication, which is rarely used, we have no shotrim, no enforcement.
Raphael Grunfeld, a partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, received Semichah in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Harav Haga’on Dovid Feinstein, zt”l. This article is an extract from Raphael’s book “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerai’m” available for purchase at www.amazon.com/dp/057816731X or by e-mailing Raphael at [email protected].
