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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: Bava Batra) בי דינא בתר בי דינא לא דייקי ,One Beit Din does not investigate after a previous Beit Din .1 138b) אין כח ביד בית דין ,It is not within the power of one Beit Din to disqualify the ruling of another Beit Din .2 לבטל דברי בית דין חברו חכם שאוסר אין חברו If a scholar prohibits something his fellow scholar cannot permit the same thing .3 רשאי להתיר a mistake in the weighing of opinions where the ruling is ,טעות בשיקול הדעת ,The category of .4 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 that one Beit חזקה prohibition. Secondly, he suggests that this principle may be a legal presumption or 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 All three of these moves allow Rav Uziel to say that this is not .מידת דרך ארץ between the Batei Din or 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 speaks of a case in which the law is decided in favor of one party, and סמע Uziel’s view. For instance, the rules that the Beit Din is סמע the losing party then tries to bring the case to a different court. The 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 July 26, 2013 Center for Modern Torah Leadership Parshat Ekev 5773 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 .is found טעות only applies when no בי דינא בתר בי דינא לא דייקי .error in them 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 July 26, 2013 Center for Modern Torah Leadership Parshat Ekev 5773 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 ethical- religious 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.

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