חכם שאוסר אין חברו 3. If a scholar prohibits something his fellow scholar cannot permit the same thing

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1 In continuing our discussion about the possibility of errors in the Beit Din, the SBM explored the issue of appellate courts within Jewish law. This question was addressed by two of the major poskim of the twentieth century: Ben-Zion Meir Hai Uziel and Chaim Hirschensohn. In 1920, Rav Uziel (Mishpat Uziel 4, Choshen Mishpat 1) was asked if it is halakhically permissible to set up an appellate court. This issue was an important topic of discussion at the beginnings of the foundation of a Jewish State. There are multiple potential issues with appellate courts within a halakhic system. Among these are: 1. One Beit Din does not investigate after a previous Beit Din, בי דינא בתר בי דינא לא דייקי (Bava Batra 138b) אין כח ביד בית דין Din, 2. It is not within the power of one Beit Din to disqualify the ruling of another Beit לבטל דברי בית דין חברו חכם שאוסר אין חברו 3. If a scholar prohibits something his fellow scholar cannot permit the same thing רשאי להתיר 4. The category of, בשיקול הדעת,טעות a mistake in the weighing of opinions where the ruling is generally said to be upheld despite the error. To the contrary, however, there are numerous sugyot in Shas in which it does seem that the established law is overturned. This may indicate a gap between academic law and case law. בי דינא בתר בי דינא To deal with these issues, R. Uziel offers three possible explanations of He begins by stating that this principle should not be viewed as a commandment or a legal.לא דייקי warning. His begins by offering a distinction between procedural and substantive rules. This principle may be understood as a procedural rule, so that courts can run effectively rather than an actual prohibition. Secondly, he suggests that this principle may be a legal presumption or חזקה that one Beit Din may assume that a previous Beit Din s rulings were dealt with correctly. Lastly, he seems to suggest that the principle that one Beit Din should not investigate the rulings of another is a matter of courtesy between the Batei Din or דרך ארץ.מידת All three of these moves allow Rav Uziel to say that this is not really a legal prohibition. Rav Uziel then makes an even stronger move. He argues that it is not prohibited to correct a false ruling; rather, one is actually obligated to do so. There are a number of sources that seem to contradict Rav Uziel s view. For instance, the סמע speaks of a case in which the law is decided in favor of one party, and the losing party then tries to bring the case to a different court. The סמע rules that the Beit Din is prohibited from listening to the client s claims. This would seem to indicate that there is indeed a prohibition against investigating the rulings of another Beit Din. Rav Uziel makes an okimta in this case, and says that the ruling only applies to situations in which the rationale of the first ruling was not known. The second Beit Din could not see the error and therefore could not rule against the previous ruling. 1

2 R. Uziel thinks there is an obligation to find the truth but if taken ad infinitum one would have to investigate every previous Beit Din; therefore, parameters are needed. He believes a court should only investigate another court s ruling if they had seen an error in rational or pesak, but a court should not actively seek out another court s reasoning. He is making a presumption that there can be no evidentiary challenges. This may be in order to create a workable system. R. Uziel brings a proof for his claim from a sugya in Baba Batra 130. The gemara there records a discussion between Rava and his students. Rava tells them that if they read a psak from him and find it questionable they should not rip it up until they bring it to him. If I have a response I ll tell you and if not then I will be revoke my psak. After my death, Rava says, do not rip it up because I may have a proper response to your challenge. However, do not follow it lehalakhah, because a Dayan only has what his eyes can see. From here Rav Uziel learns that even a Talmid can challenge his Rav s ruling if he sees an error in them. בי דינא בתר בי דינא לא דייקי only applies when no טעות is found. He then brings up the Chatam Sofer (6:6) who questions the implications of the gemara in Bava Batra and a previously seen sugya in Rosh Hashanah (25). Chanina ben Dosa introduces the potential danger of a Beit Din having the ability to alter another beit din s decision as every Beit Din s decision from Moshe Rabbeinu till today would be open for reevaluation. These two gemaras seem to contradict: the gemara in Bava Batra portrays rabbinic decisions as open for reevaluation while the gemara in Rosh Hashanah presents a Beit Din s decision as binding. The Chatam Sofer introduces the case of R. Gamliel and R. Yehoshua (Rosh Hashanah 25). R. Gamliel was willing to accept testimony from witnesses whom others thought were self-contradictory. The Chatam Sofer claims that the logic of R. Gamliel s reasoning could not have plausibly been a result of proper testimony from the witnesses so there must have been some other rational that his contemporaries were unaware of. He therefore concludes when the rational is unclear or unknown to later courts, the later courts must uphold the previous court s ruling. R. Uziel proposes his own solution to the apparent contradiction between these sugyot. He qualifies the statement of Chanina ben Dosa that one should not challenge the ruling of the beit din is only applicable to Kiddush HaChodesh (establishment of the month), which was down under the auspices of the nasi. R. Uziel then explains only mitzvot bein adam lechavero can be reevaluated by a court. However, rulings that have a wider affect and national consequences that are given to the nasi are unchallengeable. It is unclear whether R. Uziel s specification of a nasi relates to rulings that the nasi would usually undertake or more literally rulings that the nasi presides over. To frame it differently is it an issue in the type of case or with challenging the nasi s authority. Rav Uziel s phrasing indicates that he wishes to apply to this to all ruling under the jurisdiction of the nasi. If that is the case one can ask why there would be such a prohibition, specifically on national law? The answer may be an extension of lo titgodedu that we wish not to create more factions within the nation. One difference between the Hatam Sofer and R. Uziel is if the nasi makes a glaring error. The Chatam Sofer would instruct the beit din to change the law, while R. Uziel would let the error stand. It would follow from R. Uziel s position that there are certain things that once decided, even if incorrectly, are unalterable. There are certain things that need to have a status that cannot be challenged in order to avoid anarchy. Framed within the context of the founding of a state, it makes sense that R. Uziel would take into account the need for formal laws. R. Uziel seems to hold a middle 2

3 ground between the paradigm of zaken mamre which may indicate that one must always follow his own conception of the truth even against the Beit Din, and the other extreme which may hold that one must always follow the Beit Din, even if it errs. R. Uziel then quotes R. Chaim Hirschensohn (Malki Bakodesh, question 5) who discusses the issue of appellate courts. As part of his answer, R. Hirschensohn introduces a distinction between ethicalreligious cases and national cases. For ethical and religious cases an appellate court is not necessary, but for civil cases an appellate court is necessary. R. Uziel understands R. Hirschensohn as claiming that the realm of ethics and the realm of politics are mutually exclusive when in fact R. Hirschensohn may have been making a different claim. R. Hirschensohn may have been describing a historical reality. When there was no Jewish state, halakhah was a personal religious obligation divorced from the law of the land; however, once the Jews had control of both religious and civil law an appellate court became necessary. R. Hirschensohn s claim that history has changed the way halakhah is utilized is a procedural claim. Halakhah has not changed, but the way it is utilized continues to change. Both R. Uziel and R. Hirschensohn set up imperatives that are not internal to the system. R. Uziel claim relates to nation s desires, while R. Hirschensohn understands the need for halakhah to stay in line with standard civilized practice. The next related issue that we will discuss is the relationship of personal subjective knowledge and the law. Specifically how the Beit Din reacts to a person whose own subjective knowledge is different than theirs. There are cases in which the parties coming to the Beit Din have a conflict of facts, and the goal of the court is then to figure out what actually happened. In this case the Beit Din knows one party must be wrong. However, if each party has their own conception of what happened or if an individual were to ask a question that only he or she can testify to, the Beit Din s role may be different. We have already seen that with monetary issues the Beit Din s psak must always be binding even if it is found to be incorrect. We have seen that the Beit Din uses hefker Beit Din hefker, in order to ensure that the pesak remains binding. It may be the case that this kind of principle may apply to all criminal law since a pesak that cannot be imposed on both parties does not fulfill its purpose. This raises the question, however, whether this model should apply to all of Jewish law, or whether there are some laws in which one must follow his conception of the truth, even against the Beit Din. In Ketubot 22b, there is a case of multiple sets of witnesses testifying to contradictory things. The example brought is of two witnesses saying a woman s husband is dead and two others say he is alive, or alternatively of two witnesses saying a couple was divorced while two others claim divorce never occurred. All agree that if the women had not yet remarried when the testimony was given, that she should not remarry. An argument is recorded in regards to a case where the woman remarries anyway. The question arises whether she may remain with her new husband? Chachamim say they can stay together while Menachem bar Yosi says they cannot. Menachem bar Yosi then explains that he says the women should leave, only if the second testimony came before she remarried. The gemara then challenges this, how could we say that she can remain with her new husband? Isn t this putting the husband in a situation of safek karet, in which case he would have to bring an asham 3

4 talui? R. Sheshet responds that this is a case in which the man she is marrying is actually the witness testifying to her husband s death. The gemara then asks, well isn t the women herself also being put in a state where she would have to bring an asham talui? The gemara answers that she too is sure that her husband is dead. Rashi explains that one is only obligated to bring an asham talui when he is unsure whether the action is forbidden. Therefore, the new husband (who was also a witness) would not be obligated in an asham talui even though objectively the Beit Din would normally consider this case an infinite safek given the contradictory testimonies. Rashi explains that the woman herself is not obligated since she may claim that she is sure her husband is not alive, because if he was alive he would have come home. This is a fairly remarkable claim because it shows that personal knowledge of someone s character can actually be used to reach personal halakhic conclusions. From here it is seems clear that there are certain cases in which one can follow his own subjective knowledge of the facts, even though they are against the facts the Beit Din may have. The question left for us are two-fold: 1. What are the boundaries of her personal knowledge? Is it a procedural claim and therefore we don t care where she has this knowledge from? Or must it be the type of knowledge that we would accept, but we just don t have access to it? 2. How far can we take this principle? Where can it be applied? The Meeiri (Ketubot 22b) believes that the woman doesn t even have to tell the Beit Din her grounds. All that matters is that she is subjectively certain. A less radical understanding of the Meeiri may be that there is a hazakah that a woman does not make a claim that her husband is dead unless she investigated the claim sufficiently. The Shitat Mekubetzet (Ketubot 22b) quotes the Re ah who has a different understanding. He requires that the subjective knowledge must be of a nature that if others were to have access to it they too would find it sufficient. The Meshach Chochmah (Bereshit 44:20) brings up a case from Yosef s brothers to better understand subjective knowledge. When the brothers come to Yosef earlier on in the story (prior to Yosef revealing himself), the brothers tell him that their brother (Yosef) is dead. The Meshach Chochmah claims that their evidence stems from a claim that if Yosef were alive he would have sent his father a letter. He understands the gemara in Ketubot as ruling that the knowledge of someone else's character is sufficient to trust someone. In the time of the gemara, a women would wear all white in public during the seven day period after she saw blood. This meant that everyone would know whether she was a niddah. This created a legal presumption (hazakah) that this woman was in her seven clean day period. The Shu t HaRema deals with a case in which a husband and wife agree to pretend that she is in niddah in order to cover up a pregnancy. The question arises whether this woman can have relations with her husband, even though the rest of the world has a legal presumption that she is a niddah. In Kiddushin 80b Rav Yehuda says that a woman who is muhzak as a niddah by her neighbors, if her husband has relations with her, he receives lashes. The Rema suggests that this statement implies that the wife itself would not receive lashes in this case, because she is certain about her own status. The 4

5 Rema raises the possibility that her husband can have relations with her since he can rely on her subjective knowledge, but the Rema rejects and says even her husband has to rely on the public legal presumption. The Yad Hamelech (Hilchot Gerushin 12:4) similarly believes the husband must rely on the presumption and is forbidden to his wife. The Aruch HaShlkhan (YD Hilchot Nida (קפה believes that the court can only give lashes to the husband since he was supposed to rely on the public legal presumption that she is niddah, but the wife is not punished. The case and the commentaries raise the issue if a person must rely on a legal presumption if he or she has contrary personal knowledge. Here we seem to have a clear case in which someone is permitted to ignore the legal presumptions of the halachic systems and follow their own knowledge of the truth. One may view the hazakah as function on the principle of Rov in which case the woman s claim can be viewed as one of the exceptions. Alternatively, the hazakah becomes a hard fast rule in which case her claim contradicts the hazakah entirely. Therefore there might be a distinction between toen beri against a formal procedural law as opposed to against claims that are actually based on factual grounds. Another case of personal knowledge is brought up in the Shu ut Chut Hameshulash (1:10). A woman married a minor (someone under 13), and he died a few months after turning thirteen. He had a brother who was two and in normal circumstances the woman would need to wait for the minor to grow up and then do yibum or halitzah. The woman claims she didn t consummate the marriage after he turned thirteen, which would make her exempt from having to do yibum or halitzah. However, there is a hazakah that a man and woman who have yichud together are also having relations. In this case any psak given will not only impact the women but any future husband. The simple understanding of this hazakah is that it would apply whether or not the women tries to deny its validity. The Chut Hameshulash suggests, however, that this is rooted in a makhloket rishonim. He believes that Rashi holds that a hazakah can never be upheld against taanat beri, or claim of certainty made by a woman, since normally a Beit Din can give the death penalty or malkut based off of hazakot. He explains that Rashi thinks that without the hazakah, in these cases, the woman could not be made liable based on her own testimony. Her own admission of guilt and the hazakah combine to make her liable. The Chut Hameshulash concludes that one can even rely on the opinion of Rashi who believes that taanat bari can go against a hazakah. The Chut Hameshulash suggests that taanat bari can only override chazakot in cases of issura, but not in monetary cases. It may be that the reason for this distinction is because of the different functions of psak in these two realms of Halakhah. In monetary claims, the point of psak is to have objective psak that s binding on individuals. In issura, however, it may be that the point is only to guide individuals to do the right thing. It may even be that psak is only relevant in cases where the person is mesupak, unsure of what the law is in a particular situation. Throughout the teshuvah, the Chut Hameshulash uses the language of k heiticha dehetera (literally meat which is allowed). He is borrowing language from the gemara s phrase k chatikha d issura (meat which is forbidden). The gemara has a case of a person who testified that a certain piece of meat was forbidden, but the Beit Din in the end rules it is permissible. Nevertheless, the meat is forbidden to that individual. This may be because the person made a neder that forbad the meat or perhaps for some other reason like ne emanut or personal metaphysical reality. Rabbi Klapper suggests that the Chut Hameshulash may be using the same logic for a scenario where a person claims it is permitted, but the court rules it is forbidden. In this case the person would be allowed to follow his own opinion though to everyone else would be forbidden from it. If this is the case, then this mechanism cannot work through 5

6 neder, because one cannot make something permitted through neder. It may that he relies on some other logic which in some way makes it actually muttar or assur for that individual. The Chut Hameshulash ( א סימן יג (חלק in another teshuvah asks, if person made a mistake after relying on her rabbi, is she liable? He says that the woman would not be liable as long as she is following the pesak of someone more muvhak. If, however, she relied on a Rav who wasn't of that caliber then she would be liable for relying on that psak. It is possible to argue that today there are no rabbis who meet the qualifications of a moreh muvhak. People would then be held responsible for relying on any rabbinic pesak. This would also mean that if the person believes the pesak was incorrect he would be obligated not to follow it. R. Kook in the Mishpat Kohen ( ארץ ישראל סימן קכה (עניני brings up a case of a town which had two set courts one of which was larger yet not as intelligent, while the other was more intelligent but smaller. The smaller court is more intelligent and therefore should be followed according to Rav Kook. This seems to be paskening like Beit Shamai, that hadadei (sharpness) is decisive rather than quantity. Rav Kook says that smaller is not violating lo titgodedu by paskening differently than the larger court. He explains that from the perspective of the smaller and more intelligent court, the larger court s psak is not actually binding. The larger court should have conceded their rulings to the smaller court because they are more intelligent, therefore all their rulings are not hora ah but rather ta ut. This is a rather expansive use of ta ut. Here, taut is not an error in the facts or in the sources, but rather an error in the decision making process among the decisors. Since it is taut it is not considered a ruling and therefore according to the other court it is not lo titgodadu. Who to follow becomes an issue as it is a reflexive self-referential loop since each court view the other court as the minority. The Pnei Yehoshua ( כב (כתובות discusses when personal subjectivity comes in contact with a court through exploring various Rishonim that deal with a woman claiming beri. The case that he explores we have presented above as part of the Chut Hameshulash. The Pnei Yehoshua presents the Ran s understanding of Rashi that we have seen previously that a woman thinks she knows her husband well enough that if he were still alive he would have contacted her. Therefore, he must be dead and she is willing to rely on that to remarry. The Ran understands that Rashi brings this explanation as opposed to a case where a woman claims complete certainty because in that case the woman would be believed even without witnesses. It cannot be a complete beri; it must be quasi beri. The counterintuitive position follows that a case with contradictory witnesses or testimonies has a lower threshold of belief. The Pnei Yehoshua agrees with the Ran that this understanding of Rashi would lead to an illogical conclusion. He offers an alternative understanding that Rashi believes whenever no other compelling evidence is brought he is willing to rely on subjective evidence, but the Pnei Yehoshua is not willing to concede that Rashi thinks if there are actual witnesses then personal knowledge can be relied upon. However, in the strange case that there are witnesses on both sides quasi beri will work. The Pnei Yehoshua offers these different conclusions but does not offer a reasoning for why this is the case. Tosafot asks on the same sugya why the gemara asks whether the witness who intends to marry the woman is not obligated in an asham talui, instead of asking why he isn t obligated in a chatat since it is a case where he would be sleeping with a muhzak eshet ish. Tosafot ask further why the woman herself is allowed to marry this witness since it would appear that she is an eshet ish. Rabbanu Tam answers that there is another hazakah at play in this scenario. We assume that a woman would not get married unless she sufficiently investigated to see her that previous husband was dead. This contradictory 6

7 hazakah moves the case from being obligated in a chatat to a safek in which she or he would bring an asham talui. Pnei Yehoshua questions the logic of this Tosfot. Rabbenu Tam says that there is a contradictory hazakah that she investigated, and this is the reason why the gemara asks why she is obligated in an asham talui as opposed to a chatat. Assuming that this hazakah is equivalent to the claim of Beri li the original question remains: why prior to the gemara s response do we presume she is chayav an asham and not a chatat. (It is not entirely clear in Tosafot that Beri li is equal to the hazakah R. Tam speaks of). Pnei Yehoshua explains that the questioner following the opinion of Rashi, that it is a case where the witness makes a quasi beri claim. The answer is that this is really a case in which the witness makes a claim of complete certainty, beri li mamash. Quasi beri is enough to turn a chayav chatat to a chayav talui; however, real beri makes one totally permitted. The generally difficulty presented in this case is that the woman should be mehzeket as an eshet ish, why is she allowed to marry after contradictory testimonies come? Shouldn t she remain muhzeket as eshet ish. We have seen that for Tosafot (R. Tam) the answer is that the original hazakah comes in conflict with the hazakah that she has investigated sufficiently. The Pnei Yehoshua struggles, however, to find a reasoning for this within the opinion of the Ran until he reads the Rashba. The Rashbah (Kiddushin 66) thinks that if a person is certain of something then a hazakah does not trump that persons convictions, and the Beit Din has no authority based on the hazakah, as long as there are no witnesses. He views a hazakah as a legal formality that allows the Beit Din to treat a safek as a certainty, which in turn allows them to require everyone to treat a safek as a vadai. That is why, he says, we are willing to give the death penalty based on a hazakah because people know that it is treated as a vadai. He also explains that the function of hatra a us to ensure that there is a hazakah in those cases, without the person can claim subjective certainty. If, however, the person denies that the hazakah is true we cannot compel them based on hazakah, when it comes to laws pertaining specifically to that individual. The Pnei Yehoshua goes on to explain all sugyot that limit the power based on personal certainty are only when the consequence of the action will only affect the person. He also explains that if a person is unsure then he or she is legally bound to the court s ruling but if the person has personal certainty then he or she is obligated to follow his own feelings. He believes this is the case both if there is a hazakah or a rov being used by the court. The bottom line according to the Pnei Yehoshua seems to be that the Rashbah holds subjective certainty insulates a person from indirect proofs brought by the Beit Din (like hazakah and rov). The Ran applies the Rashbah s svarah to cases of beri mamash, and Rashi extends the svarah even to quasi beri. If we take this further, we would say that the all three agree that subjective certainty based on objectively valid evidence would overturn a hazakah. Rashi holds further that subjective certainty, even based on evidence which is subjective would overturn a hazakah. According to the Pnei Yehoshua, this also explains why Rashi makes the case a case of a quasi beri. If it were a case of beri mamash everyone would agree that she can remain with her husband. In the case of quasi beri, Menahem Bar R Yose is cholek that, lechatchila she should not remarry. 7

8 It is important to note that the Pnei Yehoshua derives these positions within Rashi and the Ran based on an argument from silence. He believes this principle is so clear that they didn t need to state it explicitly. He does admit, however, that Tosafot would not agree with this claim. R. Shimon Shkop brings a case of a woman who claims she is teme ah while her husband claims she is tehorah. He asks why the law is that the woman should not be believed (though Rabbi Klapper stresses we do not pasken that way lehalakhah). He answers that Beit Din can compel the woman to have relations (or her ketubah will be taken away) because the wife is meshubedet to the husband. If, however, the woman knows she is actually teme ah, she should still act according to her own knowledge, against the psak of the beit din! Even though there may be a decision within the legal system, each person is compelled to a higher court - the heavenly court. Yossi Quint Jason Samstein Summer Beit Midrash Fellows