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Is there a concept of appealing a Bet Din’s decision in Halacha?
By Dayan Yitzhak Grossman[1]
Introduction
In Part 1 of this series, examined a Talmudic precedent for the possibility of appealing a decision of a Bet Din. We noted a few sources which appeared to indicate that appealing a decision would not be recommended or permitted, while others may have supported the idea, at least when one of the litigants had been forced to go to a specific Bet Din against his will. We concluded with the citation of the Noda B’Yehuda who argued that even if a litigant received a summons to go to Bet Din, this too may qualify as being “forced” to go, and he may be allowed to question or appeal the decision. In this article, we will analyze whether it may be easier to permit appealing in later generations for some reason, and the practical opinions of Poskim today on the subject.
Are the Decisions of Later Generations More Liable to be Mistaken?
The Noda B’Yehuda mentioned that in his generation, it was especially important to allow the review of decisions, since forgetfulness is common, and many errors are made by Dayanim. This point is subject to a major dispute, which will play an important role in the halachic development of this issue through modern times.
Although as we mentioned, the Bet Yosef, and many authorities after him, rule that one Bet Din should not reexamine the conclusions of another, some argue that in later times, this principle is no longer operable. The Radvaz (printed by Maran himself in his responsa Avkat Rochel 21) was the first to adopt this position, and claims that even in his time (15th century), one Bet Din can reexamine the conclusions of another, because they are not as expert as in previous times. The Radvaz points to a number of passages in Teshuvot HaRashba to prove his stance. It should be noted though that the Maran (in the glosses) argues with the Radvaz and claims the case of the Rashba was unusual and cannot serve as a general example. The Sho’el U’Meshiv explains that to mean that that case was of a little known Halacha, and only for that reason did the Rashba allow appealing that ruling, but in general, appeals are not permitted.
However, the Mabit (2:173), another contemporary of Maran, cites the Tzeror HaKessef (student of the Rashba), who also sides with the position of the Radvaz, as does the Ma’aseh Hiyya, who adds that this is especially true in small towns. He explains that while the Gemara asserts that there is no concern of an erring Bet Din; today everyone, even great Torah scholars, are less knowledgeable and prone to error.
Still, most Aharonim reject the opinion of the Radvaz. The Shach says explicitly that even today, one Bet Din may not reexamine the conclusion of another, and this is the conclusion of Rav Refael Yitzchak Mayo as well.[2] He argues that since the Rosh, Rambam, and Bet Yosef all cite the rule of not reexamining a decision of Bet Din without distinguishing between earlier and later generations, we accept this principle for all future generations as well. He adds that even today, as if the losing litigant is allowed to appeal any decision that he wishes, it will cause degradation of the system. Other Aharonim who follow this opinion include the Sho’el U’Meshiv and the Hacham Tzvi (although his main argument is that it is unfair to the winning litigant to have to undergo another case). Rav Hayim Palacci in Semichat Hachamim authored a long Teshuva on this matter and concludes the consensus is not to reopen a case.
What if Bet Din Just Happened to See the Case?
Even if the rule is accepted that there may be no second-guessing or review, there is one exception mentioned by Rav Hayim Palacci: if the second Bet Din did not intentionally reopen the case but rather just happened to see the ruling, and believe that it is incorrect, then their critique of the decision is acceptable. He explains that in this case, the second Bet Din can’t simply pretend that they didn’t see the ruling; once they have seen it, they must evaluate it as they see fit.
Rav Palacci adds that this is a common occurrence, and is included in the Gemara’s case of “To’eh BiD’var Mishna” – a court that errs on an explicit Halacha in the Mishna (or other undisputed Halacha) where the ruling must be retracted. Moreover, he argues that the first Bet Din would be happy to have their ruling overturned if they knew it was wrong, citing the Gemara in Bava Metzia (59b) where even Hashem seems to concede to the opinion of the majority of the Hachamim exclaiming that “my sons have bested me…”
Appeals in Modern Times
During the modern era, this issue of Halachic appeals has become even more relevant, as most Western democracies have a formal system of appellate and review. Consequently, many modern Poskim have needed to confront this question in this context:4
Sofia, Bulgaria: The Hoshen Ha’Efod
The earliest Teshuva on this subject was written in the early 1900s by the Hoshen Ha’Efod. In Sofia, Bulgaria, there was a large meeting of the community heads of Bulgaria, who voted to establish a central Bet Din to serve as an venue to appeal a local Bet Din’s decision. Subsequently, a case arose where the loser wanted to appeal, but the winner responded argued that in his country the accepted custom is not to appeal, while the loser responded that it does not matter, as the Halacha does not sanction such a practice of compelling him to be retried. The Hoshen Ha’Efod leaned strongly to the side that the case may not be reheard, both due to the degradation of the first Bet Din, as well as because of the unfairness to the winner.
Towards the middle of the discussion, he changes direction claiming that in this case, since there was an official enactment, designed to function as the regular system, it certainly must be followed like all other enactments in monetary Halacha. He adds that even though it also involves a potential prohibition of degrading a Bet Din, nevertheless, once this has become the official policy of the community, the consideration of disrespect to a Bet Din is no longer relevant. Finally, he says that all parties litigate with this possibility in mind and thus it should be the proper recourse.
Rav Kook and the Rabbanut
In contemporary times, the Rabbanut in Israel, does have a Bet Din of appeals (Bet Din L’Ir’urim), which was instituted in 1920 when Eretz Yisrael was under the control of the British, who may have pressured them to introduce the appellate system based on the Western legal system. It became a hot topic of debate among the Rabbanim, and ultimately, Rav Avraham Yitzchak Kook, the chief rabbi of Palestine (as the territories of Eretz Yisrael were referred to by the British), felt that they could and should establish it, following the logic of the Hoshen Ha’Efod that it is just like any other Takana. Rav Kook also gives several examples of other Takanot that went against rules given by the Gemara, and are nevertheless valid and binding.
The Tzitz Eliezer
The Tzitz Eliezer (16:67) also discusses this question in the context of the current Israeli Bet Din L’Ir’urim, in addition to siding with the Hoshen Ha’Efod, he notes that because the Bet Din gives a summons to appear before them, forcing the litigant to appear, then the litigant can ask for an explanation to bring to another Bet Din for review. Rav Waldenberg concludes by assuring the questioner that in a case of such a modern system of appeals, “Ein Makom L’Ar’er K’lal” – there is no reason to object whatsoever[3].
The Mishpete ‘Uziel
Rav Ben-Zion Uziel (the first Sephardic chief rabbi of the modern-day Rabbanut), in Mishpte Uziel (H.M. 1) also defends the appeals system, against the objections of other Rabbanim such as Rav Hayim Hirschenson (author of Malki BaKodesh). He first argues that the Gemara who said that a Bet Din another Bet Din’s decision only means that it was common practice not to do so, but not that it is prohibited. Although such a system did not exist in the times of the Gemara, Rav Uziel insists that this was because that wanted the rulings of the Bet Din to be reliable, however, if a mistake was suspected, even in the time of Hachamim it would be reviewed.
Rav Uziel also presents some non-halachic considerations, stating his opinion that if the people desire it, then we should not block a Halachically legitimate demand of the people, invoking the idea that we must accept the truth from those who state it.
Hacham Ovadia Yosef
Hacham Ovadia Yosef also discusses this question (Yabia Omer, Vol. 9 H.M. 2) with regard to the system in Egypt and Israel. He discusses the various points of the Mishpete Uziel, and concludes that it is a worthwhile system which will give legitimacy to all rabbinic rulings issued in Bet Din, and allow the government to incorporate the Bet Din into its legal system.
Footnotes:
[1] Based on an audio Shiur. [2] Author of Shorshe HaYam. One Teshuva is printed in Hikre Lev, the other in Sefat HaYam [3] C.f. Tehumin 15, p.187, article by Rav Hayim David HaLevi (former chief rabbi of Tel Aviv). [3] A play on words, as the Hebrew word for appeals is Ir’ur, the same root as l’ar’er, to object.