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Published online by Cambridge University Press: 24 April 2015
One of the most striking images of God, both in the Bible and in Jewish tradition generally, is that of judge: “The judge of all the earth.”In this sense, one may describe God as He who holds in His hands all legal authority: He is the legislator, He is the judge, and He is the one who executes judgment. Alongside God's judgment, the Bible recognizes the existence of a human system of judgment, in which human beings act as judges; indeed, it even commands it: “You shall appoint judges and officers in all your gates.”What is the relation between God, the judge of all the earth, and those human beings who fulfill the function of judges? The majority of classical Jewish sources in the Bible and in Rabbinic literature that deal with law and the legal system reflect a certain relationship between human judgment and divine justice. Thus, we find in the Bible the notion that God emanates His authority to the judges who perform this function. In this spirit, Moses commands the judges whom he has appointed: “judge righteously… for the judgment is God's.”The relation assumed here between God and human judgment finds expression in different ways, extending over a considerable spectrum. At one end, one might describe God as the transcendent source of authority of the legal system, whose practical significance is limited. On the other end, one might describe it as a Divine Presence that inspires the judges and even allows them to appeal to God and to involve Him in the legal decision.
1. Gen 18:25 (All Biblical citations are taken from the King James Version or from the new King James Version unless otherwise stated).
2. Deut 16:18.
3. Deut 1:16-17.
4. Schiffman, P., Doubt in Halakhah and in Law, 1 Shenaton Ha-Mlshpat Ha-'Ivri 336–39 (1974) (Hebrew)Google Scholar; Radziner, A., The Fundaments of Laws of Penalties in Talmudic Law 278–81 (2001), (unpublished Ph.D. dissertation, Bar-Ilan University)Google Scholar (on file with author) (Hebrew); Lifschitz, B., Compromise, in Mishpetei Eretz 137 (Ungar, Y. ed., Mishpetei Eretz Inst. 2002) (Hebrew)Google Scholar; Lifschitz, B., Compromise, in The Jewish Political Tradition Over the Generations 83 (Bar-Ilan Univ. Press 2010) (Hebrew)Google Scholar; Gruenwald, I., God and Man in Jewish Law: The Philosophical Aspect and its Practical Consequences, 43 Jewish Stud. 201 (2005–2006) (Hebrew)Google Scholar; Sinai, Yuval, The Religious Perspective of the Judge's Role in Talmudic Law, 25 J.L. & Religion 357 (2009–2010)CrossRefGoogle Scholar; Rosen-Zvi, Ariel, ‘For the Law is God's’: On the Force of Law and Its Power in Face of Its Limitations and Boundaries, 17 Tel Aviv U. L. Rev. 5 (1992)Google Scholar (Hebrew). A broader and more theoretical treatment of this topic was presented recently in an article by Jackson, Bernard, Human Law and Divine Justice: Toward the Institutionalisation of Halakhah, 9 JSIJ 1 (2010)Google Scholar.
5. Ps 98:9.
6. The punishment of karet (excision) is mentioned in the Priestly Code alone. Most Biblical commentators assume that it refers to death at the hands of Heaven, but some argue that it means the cutting off of one's seed, whether by death without offspring or through the death of the latter. See Wold, D.J., The Meaning of the Biblical Penalty of Kareth (1978) (unpublished Ph.D. dissertation, University of California at Berkeley (on file with author)Google Scholar; D.J. Wold, “The Kareth Penalty in P: Rationale and Cases,” SBL Seminar Papers 1979, 1.1; S. Loewenstamm, s.v. “Karet” 4 Encyclopaedia Blblica 330 (Bialik Inst. 1952-82) (Hebrew); Schwartz, B.Y., The Doctrine of Holiness-Studies in the Priestly Code of the Torah 52 (Hebrew Univ. Magnes Press 1999) (Hebrew)Google Scholar.
7. Deut 1:16-17.
8. 2 Chron 19:6.
9. The main collections of law are: (a) the collection of laws in Exod 20:22-23:33, which is generally referred to as the Book of the Covenant; (b) the laws of the Priestly Code, which are scattered primarily in the books of Leviticus and Numbers, but some of which also appear in Exodus; (c) the laws of the book of Deuteronomy, concentrated in Deut 12:1-28.68; (d) within the laws of the Priestly Code, it is customary to distinguish an independent unit, the Holiness Code, concentrated in Lev 17-26. On the various collections, see Freedman, David Noel, The Anchor Bible Dictionary (Doubleday 1992)Google Scholar; Westbrook, Raymond, The Laws of Biblical Israel, in The Hebrew Bible: New Insights and Scholarship 99–119 (Greenspahn, F.E. ed., N.Y.U. Press 2008)Google Scholar.
10. Jeffers, Ann, Magic and Divination in Ancient Palestine and Syria (Brill, E.J. 1996)Google Scholar; Gevaryahu, H. & Loewenstamm, S., s.v. “Goral” 2 Encyclopaedia Blblica 459 (Bialik Inst. 1952–1982) (Hebrew)Google Scholar.
11. Prov 16:33.
12. Josh 7:10-26.
13. Josh 7:20.
14. 1 Sam 14:37-45.
15. 1 Sam 14:37.
16. 1 Sam 14:43.
17. 1 Sam 14:45.
18. Jonah 1:1-16.
19. Jonah 1:7.
20. Jonah 1:9-10.
21. The Masoretic text is somewhat unclear on this point. The version reflected in the Septuagint, according to which Saul sought out the Urim and Tummim, is more explicit. On this point, see the modern commentaries on the book of Samuel; e.g. Mccarter, P. Kyle Jr., I Samuel 243, 247 n. 41 (Doubleday 1980)Google Scholar.
22. See commentaries of Rashi, Radak and Ralbag in The Rabbinic Bible; cf. Pirkei de-Rabbi Eliezer ch. 38, at 90.
23. 1 Sam 10:17-24.
24. Joshua 7: 14-18; 1 Sam 14: 36, 41-42; 1 Sam 10: 20-21.
25. In other contexts, another type of language is used, in which the lot “ascends” or “comes up” 
from some storehouse. It is thus that the lot cast for the division of the land among the tribes is portrayed (Num 26:55-56; 33:54; Josh 18:5-6), as well as the lot used to choose the goat to be sent into the wilderness (Lev 16:8-10; m. Yoma 4.1). These passages seem to speak of two different techniques of casting lots, which were used for different purposes. See the studies on “lot” cited above, supra note 4.
26. Exod 28:30. See the survey by Jeffers, supra note 10, at, 197-215; and 1 Vangemeren, Willem, New International Dictionary of Old Testament Theology and Exegesis 329 (Zondervan Pub. House 1997)Google Scholar.
27. Num 27:21.
28. Lev 16:8-10.
29. Num 26:55-56; Num 33:54; and cf. Josh 18:5-6. Within these contexts, the sources mention the fact that the lot “ascends.” This term alludes to a different technique. According to the Talmudic Sages, in these cases speak of the drawing of slips of paper from a box (see Rashi's comment on these verses). Some commentators think that the use of the lot in this context reflects an accepted practice of the use of lots for purposes of dividing property, such as at the time of inheritance. However, this practice is not explicitly mentioned in Biblical law.
30. I deviated here from the classical translation and stuck to the Hebrew source that uses the word Elohim (God). King James Version as many other translated version render the word Elohim: judges. Compare Exod 21:6 regarding the matter of the Hebrew slave: “then his master shall bring him to the judges,” and Exod 22:28, “You shall not revile God, nor curse a ruler of your people.” See also the tannaitic dispute concerning the subject, where Rabbi Akiba interprets the word “God” in this verse as referring to the Divine while R. Eliezer interprets it as referring to the judges. Mekhilta de-Rabbi Yishma'el, Kaspa, ¶ 19, at 317 (Horowitz-Rabin ed., and parallels).
31. Mekhilta de-Rabbi Yishma'el, Nezikin, 252 (Horowitz-Rabin ed.): “‘Then his master shall bring him to God’-before the judges”; and cf. id. at 15, p. 300, and Targum Onkelos. These texts were interpreted in similar manner by the medieval exegetes. See, e.g., commentaries of Rashi, Rashbam, Ibn Ezra, Ramban and others in Rabbinic Bible.
32. For example, see Driver, S.R., The Book of Exodus 211 (Cambridge Univ. Press 1953)Google Scholarand compare Cassutto, M.D., A Commentary on the Book of Exodus 186 (Varda Books 2005, 1982) (Hebrew)Google Scholar. According to Cassutto, this passage speaks of an archaic, pre-Biblical linguistic expression, which originally referred to pagan gods, but once assimilated within the framework of the Torah is to be understood as referring to the court.
33. Francis Brown, Edward Robinson, S.R. Driver, Charles A. Briggs, The New Brown-Driver-Briggs-Gesenius, Hebrew and English Lexicon: With An Appendix Containing the Biblical Aramaic (Hendrickson 1979); Freedman, David Noel, 1 The Anchor Bible Dictionary 1006 (Doubleday 1992)Google Scholar.
34. Noth, Martin, Exodus: A Commentary 184 (S.C.M. Press 1962)Google Scholar; Childs, Brevard S., Exodus: A Commentary 468-69, 475 (S.C.M. Press 1974)Google Scholar; Propp, William Henry, Exodus 19–40 (Doubleday 2006)Google Scholar; Sarna, Nahum M., Exodus: The Traditional Hebrew Text with The New Jps Translation 120 (Jewish Pub. Soc'y 1991)Google Scholar; Jackson, Bernard S., Theft in Early Jewish Law 237 n.l (Clarendon Press 1972)Google Scholar; Jackson, Bernard S., Wisdom-Laws: A Study of The Mishpatim of Exodus 21:1-22.16, at 337–44 (Oxford Univ. Press 2006)CrossRefGoogle Scholar.
35. In addition to the cases mentioned in the previous section, see also the case of the daughters of Zelophehad in Num 27:1-5, “And Moses brought (vayakrev) their case before the Lord.” The Rabbis raised the possibility that the case spoke here of a decision made with the help of the Urim and Tummim, but rejected it. See Mekhilta de-Rabbi Yishma'el, Nezikin (Mishpatim) 15, at 300.
36. Exod 22:9-12. The former case deals with guarding money or goods (according to rabbinic interpretation: shomer hinam: “an unpaid keeper”), whereas the latter refers to guarding an animal (shomer skakhar: “a paid keeper”). In the former case, the keeper claims that the object was stolen and, if his claim proves correct, he is exempt from payment. In the latter case, the keeper is responsible for theft, but is exempt in the event of force majeure. In such a case, he claims that an act of force has taken place. In either case, it is necessary to verify the claim of the keeper. The Rabbis interpreted both cases as speaking of an oath. See, e.g., Mekhilta de-Rabbi Yishma'el, Nezikin (Mishpatim) ¶ 15, at 300; Mishnah (m.) Bava Metzi'a ch. 3; m. Shevu'ot, ch. 5.
37. This conclusion depends on the reliability of the extant text. Scholars debate the unitary and originality of each of these two laws. Specifically, some argue that the phrase “If he has not put his hand to his neighbor's goods” (im lo shalah yado be-melekhet re'ehu) in the law of deposit is not original, thereby undermining the comparison between the two laws. For a detailed discussion, see Jackson, supra note 34.
38. Frymer-Kemsky, Tikva Simone, Judicial Ordeal in Ancient Near-East (1977) (unpublished Ph.D. dissertation, Yale University) (on file with author)Google Scholar; Julian Morgenstern, Trial by Ordeal Among the Semites in Ancient Israel, Huca Jubilee Volume, 1875-1925, at 113 (Hebrew Union College 1925); H. Goitein, Primitive Ordeal and Modern Law (Allen & Uwin 1923); and compare the survey of Friedman, D., Shall You Kill and also Inherit?, in Law, Ethics and Society in Biblical Narrative 21 (Dvir Publ'g House 2000) (Hebrew)Google Scholar.
39. Code of Hammurabi § 2, 132. Regarding a woman, the law distinguishes between an accusation brought by the husband, which imposes upon the woman the obligation of taking an oath, and one brought by some other party, which requires the test of the river. See Driver, Godfrey Rolles & Miles, John C., The Babylonian Laws 1–2 (Clarendon Press 1952–19555)Google Scholar. See also supra note 38 and accompanying text.
40. Bartlett, Robert, Trial by Fire and Water: The Medieval Judicial Ordeal (Clarendon Press 1986)Google Scholar; and see Whitman, James Q., The Origins of Reasonable Doubt: Theological roots Of Criminal Trial ch. 3 (Yale Univ. Press 2008)Google Scholar. Jews made every effort not to undergo trials based upon these methods, and in a number of verdicts of innocence it is explicitly stated that Jews were exempt from the tests of fire and water. See Eidelberg, Shlomo, Trial by Ordeal in Medieval Jewish History: Law, Customs and Attitudes, 46–47 PAAJR 105 (1979–1980)Google Scholar.
41. Num 5:11-31.
42. Id. at 5:27.
43. Fishbane, M., Accusations of Adultery: A Study of Law and Scribal Practice in Numbers 5: 11-31, 45 HUCA 25 (1974)Google Scholar; Frymer-Kansky, Tikva Simone, The Strange Case of Suspected Sotah, 34 VT 11 (1984)Google Scholar; Licht, J., The Examination of the Sotah as an Ordeal, in Studies in the Bible 173 (M.D. Cassutto FS, Dvir Publ'g House 1987) (Hebrew)Google Scholar.
44. According to its description, the ceremony seems to belong to that type of trial in which the punishment comes about as a direct result of the test itself. On the other hand, there is a clear distinction between this ceremony and the test of the river. Whereas in the test of the river the observers witnessed the immediate punishment of the woman, it is difficult to imagine that such was the case in the event of the sotah. It therefore seems more accurate to classify it as a punishment that comes from Heaven. See in this connection the description in the Mishnah, m. Sotah ch. 3, art. 4-5: “She does not suffice to finish drinking, until her face turns pale and her eyes bulge out and she is filled with sinews, and they say, ‘Take her out! Take her out! So that she will not render the Temple courtyards impure,’” and the subsequent discussion as to whether, if she has some merit, this may suspend her punishment. On the entire subject, see the discussion of Rosen-Zvi, Y., The Ceremony That Never Was 103–31 (Hebrew Univ. Magnes Press 2008) (Hebrew)Google Scholar.
45. Exod 18:13-27.
46. Id. at 18:15.
47. Medieval exegetes debate whether the phrase “to seek out God” here indicates judgment or some other function of Moses. See commentary of Rashi, Rashbam, Ibn Ezra and Ramban in THE Rabbinic Bible. Modern commentators tend to see it in the context of judgment. See CHILDS, supra note 34, at 329-32. Jackson, Wisdom-Laws, supra note 34.
48. Exod 18:21.
49. See Jackson, Wisdom-Laws, supra note 34, at 422-25. Jackson emphasizes that Jethro rejected the old system on a practical basis and not in principle. However, as in many other reforms the declared reason does not always reflect the real one. The deeds are more important than the words.
50. Exod 18:19-20.
51. Id. at v. 22.
52. It was explained thus by Ibn Ezra (long commentary on v. 22), as likewise follows from Rashbam's words in The Rabbinic Bible. Some modern commentators also interpreted it in a similar fashion. See, e.g., Durham, John I., Exodus 246–53 (Thomas Nelson 1987)Google Scholar.
53. Exod 18:20. For a slightly different analysis of this story, see Schwartz, Baruch J., The Visit of Jethro: A Case of Chronological Displacement? The Source-Critical Solution, in Mishneh Todah: Studies in Deuteronomy and its Cultural Environment in Honor of Jefferey H. Tigay 29 (Fox, Nili Sachaer, Glatt-Gilad, David & Williams, Michael eds., Eisenbrauns 2009)Google Scholar. Schwartz emphasizes that “the statutes and laws” (hukim ve-torot) here do not refer to a system of commandments that Moses received from God, but rather to specific instructions for the cases brought before him. Thus, in his opinion “the statutes and laws” are specific rulings needed in cases that are difficult from the factual viewpoint (that is to say, where there is no conclusive evidence). However, I find the use of the term “statutes and laws” in this context problematic. As against that, according to my suggestion, these cases are difficult from the legal viewpoint-that is, where the law itself is not known. In such cases, the specific rulings create general laws; hence, the term “statutes and teachings” is appropriate. This matter is well exemplified in the fourth case mentioned above, in which Moses brought questions before God (the fact that from a critical viewpoint this belongs to a different source than the chapter of Jethro is not decisive in this respect). This reading also fits better, in my opinion, the logic of the story, as according to my suggested interpretation, in the final analysis, all disputes (and not only “the great thing”) are resolved according to the word of God, thereby providing a more complete response to the people's request to “seek God.”
54. Lev 24.
55. Num 15.
56. Num 27:1-11.
57. Num 9:6-12.
58. Deut 17:8.
59. Levinson, Bernard M., Deuteronomy and the Hermeneutics of Legal Innovation 127–33 (Oxford Univ. Press 1997)Google Scholar; Jackson, supra note 34, at 411-22; Jackson, supra note 4.
60. Deut 1:17.
61. Weinfeld, Moshe, Deuteronomy and Deuteronomic School (Clarendon Press 1972)Google Scholar. For specific references, see infra.
62. Deut 1:9-18.
63. Id. at 1:17. The Rabbis of the Midrash distinguished this and said that for this reason, Moses was punished and forced to bring the case of the daughters of Zelophehad before God. Sifre on Deuteronomy ¶ 17, at 29 (L. Finkelstein ed., JTS 1969) and parallels.
64. Weinfeld, supra note 61, at 233-34. There are further differences between these two stories, the most striking of which is the absence of any mention of Jethro in the book of Deuteronomy. Another difference relates to the qualities of the judges. Unlike Exodus, which emphasizes the integrity of the judges, Deuteronomy emphasizes their wisdom: “wise and discerning men, who are known to your tribes.” Deut 1:15. This case is used by Weinfeld, along with other cases, to show the connection between Deuteronomy and the Wisdom literature. Id. at 244-81.
65. Deut 1:16-17.
66. In the terms of Bernard Jackson: the words of Moses do not reflect the “charismatic model” but “the delegated model.” Jackson, supra note 4, at 223-24. For a similar interpretation, see Nahmanides, Commentary on the Torah, Deut 1:6. Some scholars point to the law of the Prophet that promises to send the people of Israel “a prophet like Moses.” Deut 18. They assert that this prophet may give new laws, and thus reflect another version of the connection between human law and divine justice. For literature and discussion, see Jackson, Bernard, The Prophet and the Law in Early Judaism and the New Testament, in Essays on Halakha in the New Testament (Brill 2008)Google Scholar. I wish to emphasize that this law is not connected in any way to the judicial process. The bodies that deal with judgment are mentioned in Deuteronomy 17, and are the local courts and the high court. The prophet is mentioned against and contra to other divine personalities (such as an augur, soothsayer, and sorcerer), and not in any connection with judgment. One may even question the association of the prophet (in this context) with a new revelation of new laws, but in any case it is clear that he is not connected to judgment.
67. Weinfeld, supra note 61.
68. Deut 16:18. From other laws in the book, it would appear that this function is fulfilled, generally speaking, by the elders of the city. See Deut 19:12; 21:2-4; 21:19-20; 22:16-18; 25:7-9. Nevertheless, the conjecture has been raised that the commandment to appoint judges and officers came to introduce a command to appoint other judges who were not the elders of the city. See S. Loewenstamm, s.v. “Mishpat, Mishpat ha-Mikra,” Encyclopaedaia Blblica V.329 (Hebrew); cf. Milgrom, Jacob, The Ideological and Historical Importance of the Office of Judge in Deuteronomy, in Isaac Leo Seeligman Volume: Essays on the Bible and the Ancient World 129 (Rofe, Alexander & Zakovitch, Yair eds., E. Rubinstein 1983)Google Scholar.
69. Deut 17:8-13 (ESV-English Standard Version.).
70. Levinson, supra note 60. Jackson, supra note 34. Such interpretation was already given in Second Temple period by the Dead Sea sect. A text from Qumran describes how the High Priest, during the Day of Atonement ritual, clarified by cultic means those laws that were hidden from the congregation: “[And he shall approach t]o the ark of testimony and expound [all the commandments] of the Lord, of all [the hidden thi]ngs from you, and [he] went out before a[ll the head patriarchs] of the congregation” (4Q375). On this text, see Shemesh, Aharon, Halakhah and Prophecy: False Prophet and Rebellious Elder, in Renewed/Modern Jewish Commitment 935(Sagi, A. & Zohar, Z. eds., 2001) (Hebrew)Google Scholar.
71. Deut 17:9. This matter emerges more clearly from 2 Chron 19. This chapter, which describes the establishment of a legal system by King Jehoshaphat of Judah, was influenced by the law in Deuteronomy and may reflect its ancient exegesis. The composition of Jehoshaphat's court includes “Levites and priests and heads of families of Israel”—that is, elders alongside the priests. 2 Chron 19:8 (ESV). This composition reflects an internal division of authority between “the word of the Lord,” for which the “chief priest” is responsible, and the “word of the king,” with which the “governor of the house of Judah” is charged. On the historical issues related to this chapter, see Albright, W.F., The Judicial Reform of Jehoshaphat, in Alexander Marx Jubilee Volume: On the Occasion of his Seventieth Birthday 61 (Jewish Theological Soc'y Am. 1950)Google Scholar; Yafeth, S., The Ideology of the Book of Chronicles 361–74 (Mossad Bialik 1977) (Hebrew)Google Scholar; Jackson, Bernard S., Law in the Ninth Century: Jehoshaphat's Judicial Reform, in 143 Proceedings of the British Academy 369 (Oxford Univ. Press 2007)Google Scholar; Jackson, Bernard S., Law in the Ninth Century: Jehoshaphat's Judicial Reform, in Understanding the History of Ancient Israel 369 (Williamson, H.G.W. ed., Oxford Univ. Press 2007)Google Scholar.
72. See Weinfeld, supra note 61; Jeffery Tigay, The JPS Torah Commentary: Deuteronomy 163-64 (Jewish Publ'n Soc'y 1996).
73. Deut 19:15-21.
74. Id. at 19:17. According to the literal sense of the Bible, it would appear that “both parties to the dispute” are the witness and the accused. Id. (ESV) It is explained thus by the majority of modern commentators. See, e.g., Driver, S.R., A Critical and Exegetical Commentary on Deuteronomy 235–36 (ICC 1985)Google Scholar. As against that, according to the Rabbis, who speak here of a contradiction between two conflicting testimonies, the “two people” are two groups of witnesses: “both parties shall appear.” Further, Scripture speaks here of “witnesses,” Midrash Tannaim 116 (ed., Hoffman); Babylonian Talmud (b.) Shevu'ot 30a. However, it would seem that, according to this approach of the Sages, the litigants were also present in the procedure. Id.; cf. Sifre on Deuteronomy ¶ 190, at 230.
75. Deut 19:18. The commentators deliberated the interpretation of “before the Lord” in Deuteronomy. This expression usually indicates standing before God in the Sanctuary or in the Temple. The book of Deuteronomy assumes the existence of a single central Temple “in the place of which the Lord shall choose,” from which it follows that the case of a conspiring witness must be clarified in the High Court located in the Temple. The question is: Why does a routine problem of contradictory testimonies need to be clarified specifically in the High Court? The midrashic Sages rejected this possibility, and interpreted the expression “before the Lord” as indicating that standing before any court is tantamount to standing before the Lord. Sifre Deuteronomy 190. Modern commentators have suggested various solutions. Some explained this case as falling under the rubric of an “extraordinary thing” which needs to be brought up to “the place which He shall choose”; for example, Driver. Deut 17:8. See Driver, supra note 74. Others rejected this possibility and suggested that it refers to local courts, located in sacred places where there was not any sacrificial service. Yet another interpretation suggests a direction similar to that of the Rabbis, namely, that standing before the judges is “standing before the Lord,” as they act at His charge. See, e.g., Christensen, Duane L., Word Biblical Commentary: Deuteronomy 430 (Thomas Nelson 2002)Google Scholar; Tigay, supra note 72, at 184.
76. Deut 13:15; 17:4.
77. On the reality of judgment by the prophet, see, e.g., Judg 4:4-5; 1 Sam 7:15-17. The Bible does not explain the manner of judgment of the prophet, either by means of lots and ordeal or other means of prophecy.
78. Mekhilta de-Rabbi Yishma'el, Nezikin, ¶ 15, at 300 (Horowitz-Rabin ed.).
79. This interpretation creates further difficulties. “And he shall draw near to God” or “the master of the house will draw near to God” in Deut 19:17 express a kind of closeness or accessibility characteristic of concrete representatives of God (compare the more distant expression, “before the Lord”). However, one could interpret this as saying that it refers to turning towards the Temple. But this interpretation raises difficulties of a different kind: which Temple is referred to? From the perspective of the Sages, one may assume that it refers to the central Temple. If so, then why must the law of guardians be clarified in the Temple? According to modern Bible commentators, the book of Exodus does not assume the centralization of the cult, and it must allude to a local Temple. The reading of elohim as judges resolves these difficulties as well.
80. m. Sotah 1.1; Jerusalem Talmud (y.) Sotah 1.2 (16c); b. Sotah 5b. The requirement of warning in front of witnesses is subject in the Mishnah to a dispute between R. Eliezer and R. Joshua, but in y. Sotah 1.1 another tradition is brought in the name of R. Eliezer, who admits that such warning is required. See Halbertal, M., Interpretative Revolutions in the Making 94–104 (Hebrew Univ. Magnes Press 1997) (Hebrew)Google Scholar.
81. m. Sotah 1.1; y. Sotah 1.2 (16c); b. Sotah 5b.
82. Rosen-Zvi, Ishay, The Ceremony That Never Was 152–80 (Hebrew Univ. Magnes Press 2008) (Hebrew)Google Scholar. As Rosen-Zvi comments, the Sages were not exposed to the use of the ordeal, not even in their surrounding milieu, as this procedure was not accepted in Roman law or culture.
83. Lev 27:34.
84. Sifra, Behukotai, 8.13, 7. But according to the Rabbis the prophet can make a temporary order (left sha'd) that contradicts Biblical commandment. The classical precedent for such authority is Elijah, who ordered the sacrifice on Mount Carmel. See the rabbinic interpretation on Deuteronomy 18 in Sifrei Deuteronomy 175.
85. m. Avot 1.1.
86. b. Rosh Hashana 7a, 19a, Taanit 17b, Hulin 137 a, and see the following note.
87. b. Hagiga 10b, Bava Kama 2b, Nida 23a.
88. On this entire subject, see Urbach, E.E., Halakhah and Prophecy, 18 Tarbitz 1 (1947) (Hebrew)Google Scholar; Elon, Menachem, Jewish Law: History, Sources, Principles 214–35 (Jewish Pub. Soc'y 1988)Google Scholar.
89. b. Bava Metzi'a 59b; y. Mo'ed Qatan 3.1 (10b).
90. Since R. Eliezer is always considered as a dissenting opinion. Compare m. ’Eduyot 1.6: “If so, why are the words of the individual mentioned together with those of the many? To refute them, so that if a person should say, ‘Thus have I received,’ one may say to him, ‘From the words of so-and-so you heard it”; and Tosefta (t.) Eduyot 1.4: “They say to him: According to the words of R. Eliezer you have heard.” Urbach discusses a few examples where the Sages rely on Divine revelations and the like. But these examples do not alter the overall picture, and demonstrate, specifically, the marginality of this phenomenon.
91. Ps 82:1; b. Berakhot 6a. The Talmudic text is a revision of m. Avot 3.6, which discusses three people who engage in Torah. And compare the gemara there: “Should you say, law is dominant in the world and the Presence does not come? As we have taught, that judgment is also Torah.”
92. The tendency to emphasize God's immanence is not unique to this subject, but reflects a broad tendency in Rabbinic thought after the Destruction, and possibly as a result thereof. See Urbach, E.E., The Sages: Their Concepts And Beliefs 29–59 (Hebrew Univ. Press 1969) (Hebrew)Google Scholar; Lorberbaum, Y., The Image of God: Halakhah and Aggadah 89–101 (Schocken Publ'g House 2004) (Hebrew)Google Scholar.
93. t. Sanhedrin 1.9, at 416 (Zuckermandel edition); y. Sanhedrin 1.1 (18b); b. Sanhedrin 6a. The text cited is based upon the Erfurt MS. of the Tosefta.
94. y. Sanhedrin 1.1 (18b) adds these words.
95. y. Sanhedrin l.l(18a), and in the Bavli as an independent idea: “R. Hamma son of Hanina said: The Holy One blessed be He said. It is not enough for the wicked that they take money from this one and give it to that one unlawfully, but that they trouble Me to return money to its [rightful] owners.” b. Sanhedrin 8a.
96. In practice, the explanation of the Yerushalmi is not unique to the idea of God's Presence and is equally fitting to the idea of agency. It is enough that we assume that the judges fulfill the role of God, who oversees them, to arrive at the idea that the judge obligates God in the sense that He is required to correct that which is crooked.
97. Deut 19:17. See, e.g., Exod 28:12, 29, 30; Lev 1:3, 11; 4: 4, 6, 15, 17, 18, 24; Deut 14:23, 26; 15, 20; and many others.
98. Ps 82:1. See, e.g., the commentary of R. Abraham Ibn Ezra in The Rabbinic Bible.
99. According to this interpretation, Elohim is used in the same verse in a double sense: the first time in the sacred sense [i.e., as a name of God], the second time in a mundane sense. Thus it is stated in tractate Soferim 4.6: “‘Elohim stands in the congregation of El, among Elohim He shall judge’—this serves as both sacred and mundane.” Tractate Soferim 4, 21, at p. 144 (Michael Higger ed., Masekhet Soferim 1937) (Hebrew).
100. 2 Chron 19:6 and Deut 1:17.
101. It may be that the source relates also to the sequel of the verse “who is with you in the judgment.” 2 Chron 19:6. Here too one may discern the transition from the literal meaning, where “with you” is understood in the metaphoric sense, as an expression of support. Compare Gen 28:15, “Behold I am with you and will guard you [or: keep you] wherever you go,” and many similar passages. Here it is understood in the literal sense, as an expression of presence in judgment.
102. y. Sanhedrin 1.1 (18a); Midrash Tannaim to Deut 19:17, at 116 (Hoffman ed.).
103. It would be tempting to see R. Akiva as the author of this saying and the creator of this approach. However, it would seem that the language of the Yerushalmi is secondary and draws upon the Tosefta. Note that the incident involving Rabbi Akiba speaks of “a person” (bar nash) in the singular, whereas Rabbi Akiva's words, “you [plural] should know” is couched in the plural.
104. Cohen, S.J.D., The Rabbi in Second Century Jewish Society, in III Cambridge History of Judaism 922 (Cambridge 1999)CrossRefGoogle Scholar; Schwartz, Seth, Imperialism and Jewish Society 103–28 (Princeton Univ. Press 2001)Google Scholar; Z. Safrai, ‘For There is a Higher Above the High [One], And Yet Higher Ones Over Them’ [Eccles 5:7]: Sages and Legal Systems in the Age of the Mishnah and Talmud, in Judaism Within and Without 219 (A. Sagi et. al eds., Hebrew Univ. Magnes Press 2000) (Hebrew).
105. b. Sanhedrin 19a-b. The text is brought below according to the Vilna edition. The differences among the textual witnesses are minimal and not significant for our purposes.
106. There is a parallel to this story in Josephus, Jewish Antiquities bk. 14, verses 128-38 (Loeb Classical Lib. Harv. Univ. Press 1966), which evidently served as inspiration for the Talmudic story. Josephus's version speaks of the trial of King Herod, who killed Jewish rebels in the Galilee without a trial. The parallel between the two incidents has already been noted by the Maharsh”a, in his Hiddushei Aggadot on Sanhedrin 19a (albeit he refers there to the [medieval] Sefer Yosifon). The matter was subsequently discussed by historians of the period and Talmudic scholars. See, e.g., Mantel, H., Studies in the History of The Sanhedrin 72–73 (Harv. Univ. Press 1961)CrossRefGoogle Scholar. (The Hebrew version of Mantel's book, published in 1969, contains a full discussion at pp. 357-65); Efron, Y., Hikrei Ha-Tekufah Ha-Hashmonait 131–94 (Hakibbutz Hameuchad 1980) (Hebrew)Google Scholar; see also the recent discussion by Lorberbaum, Y., Disempowered King: Monarchy in Classical Jewish Literature 98–102 (Continuum Int'l Pub. Group 2011)Google Scholar. From a methodological viewpoint, the comparison to Josephus suggests that, even if this story has a historical basis, the present text is literary and is not a report of historical facts, and therefore must be judged from that perspective. Concerning the status of Shimon ben Shetah, according to m. Hagiggah 2.2, Shimon ben Shetah was the Head of the Court, whereas in t. Hagiggah 2.8, he was the Nasi. See also m. Ta'anit 3.8, Sanhedrin 6.4; t. Sanhedrin 6.6.
107. There is a resemblance between the aggadah in the Bavli and the Palestinian sources discussed above (Tosefta, Yerushalmi), which suggests the Palestinian origin of the story. The same conclusion was reached, for other reasons, by Kister, M., Studies in Avot De-Rabbi Nathan: Text, Editing and Interpretation 149 n.158 (Yad Ben-Zvi 1998) (Hebrew)Google Scholar.
108. Yannai's approach represents the Hellenistic Roman view of monarchy. See, e.g., the Greek sentence that appears in the Jerusalem Talmud: “Para basileus ho nomos agraphos”—i.e., “The law is not written regarding the king.” y. Rosh Hashanah 1.3 [57b]; Lev. Rab. 35.
109. The lesson that emerges from this story is that one ought to impose the yoke of law upon the king. The Talmud, as is known, arrives at a different conclusion from this story; namely, it sees this incident as the background for the law of the Mishnah that “The king does not judge and is not judged.” b. Sanhedrin 19b. This realpolitik conclusion expresses doubt as to whether faith and determination are sufficient to impose authority over rulers.
110. See also Mekhilta de-Rabbi Yishma'el, Shirah, § 1, at 120: (“‘I will sing unto the Lord’ that He is judge, as is said, ‘for the judgment is God's’ (Deut 1:17), and it says, ‘God sits in the council of the judges [gods]’ (Ps 82:1), and it says ‘The Rock, his work is perfect [for all his ways are just]’ (Deut 32:4).”).
111. Exod22:7-8.
112. Mekhilta de-Rabbi Yishma'el, Nezikin, 15 (p. 302) and parallels: y. Sanhedrin 1.1 (18a); b. Sanhedrin 3b, and further on in the midrash two additional approaches (R. Jonathan and Rabbi), who learn this in slightly different ways.
113. Nahmanides, Commentary on the Torah, Exodus 21:6.
114. See ben-Menachem, Hanina, Postscript: The Judicial Process and the Nature of Jewish Law, in An Introduction to the History and Sources of Jewish Law ch. 16 (Hecht, N. et. al eds., Oxford Univ. Press 1996)Google Scholar (postscript), supporting the second option.
115. m. Sanhedrin 3.1-2. It speaks there of judges who are chosen in a manner of “This one chooses one, and that one chooses one, and the two of them choose themselves another one.”
116. t. Sanhedrin 5.1., at 422. (Zuckermandel edition).
117. y. Sanhedrin 1.1 (18a): “R. Ba in the same name of R. Abahu said: If they said to him: ‘You are acceptable to us like three [judges], on condition that you judge according to the law of Torah,’ and he erred, and judged them according to his own understanding [shikul ha-da'at)…” This usage of the term is somewhat different from its meaning in the Bavli, at b. Sanhedrin 6a and 33b, in which shikul ha-da'at indicates a decision when there is no clear rule but only a custom. In this context shikul ha-da'at indicates a decision that is taken within Torah law and not an alternative track. Nevertheless, in both contexts, in the Bavli and in the Yerushalmi, the core meaning of shikul ha-da'at is similar. It refers to a decision made on a basis of personal judgment and not on a basis of conventional rule. y. Ketubot 9.2 (33 a).
118. b. Sanhedrin 5a, in the words of R. Yosef and those of R. Hiyya, “If they accepted you upon themselves, you are not required to pay [in event of error].” However, in the Bavli there is no explicit legitimation for an alternative form of judicial procedure, but only for the possibility of departure from the law, which falls under the rubric of “error.” But in practice the result is quite similar, as the judge is not initially limited to precisely following the law of the Torah. See Rashi, Sanhedrin 5a, s.v. “ee kablukh aleihu.”
119. Y. Sanhedrin 1.1 (18a).
120. Some medieval halakhic sages interpreted the incident of R. Yossi as deriving from reasons of fear of judgment. See Sefer Mitzvot ha-Gadol (Semag) ‘Aseh 107, and Tur, Hoshen Mishpat 12, and in their wake many others. See B. Lifschitz, supra n. 4. In my opinion, this interpretation does not suit this passage. I do not see R. Yossi's words as an expression of fear or trepidation but, to the contrary, as an expression of power.
121. This passage is not speaking here of a settlement or compromise between the two parties, but of a judicial decision that is not limited to Torah law, something similar to the decision of an arbitrator. This judicial decision can also be one-sided, as in a process of arbitration. As against that, compromise must be based upon agreement of the litigants and must lead to an intermediate result. See on this A. Lifschitz, Compromise in Jewish Law 123-43 (2004) (unpublished Ph.D. dissertation, Bar-Ilan University) (Hebrew) (on file with author); Shapira, Haim, The Debate over Compromise in the Goals of Judicial Process, 26 Dinei Israel 183 (2010)Google Scholar.
122. m. Bekhorot 4.4; y. Sanhedrin 1.1 (18a); b. Sanhedrin 6a, 33a, and 5a in the words of R. Yosef. The question as to who is considered a mumheh (expert) requires a separate discussion. In any event, one ought not to assume that R. Yossi was considered an expert judge, as not everyone who was ordained and received the title of “Rav” necessarily enjoyed the status of “expert” in judicial matters. See, e.g., the ordination of Rav described in y. Hagiggah 1.8 (76c); y. Nedarim 10.10 (42b) and b. Sanhedrin 5a. On the entire matter, see Aminah, N., Experts in the Halakhic Tradition, 8 Dinei Yisrael 141 (1977) (Hebrew)Google Scholar.
123. Compare the explanation of 2 Alon, G., in Mehkarim Be-Toldot Ysrael 30–31 (Hakibbutz Hameuchad 1976) (Hebrew)Google Scholar. Alon made the dispute dependent upon the possibility of reopening the verdict in the event of error. It seems to me that, in light of the Talmudic sources brought within the body of this article, matters are more consistent as protection against lawsuit.
124. b. Sanhedrin 19a.
125. Exod 21:1.
126. y. Sanhedrin 1:1 (18a).
127. The connection is not clear. It would appear that, according to this, the word lifneihem (“before them”) is interpreted as meaning “before the judges,” meaning that they are given full discretion in matters of judgment. According to the commentary of P'nei Moshe, there is implied here a certain homily: “‘Before them’—the judge has naught but what his eyes see.” This is according to R. Yossi, who judges according to his own judgment. In other places as well, the phrase “before them” is interpreted as “before the judges.” E.g., b. Gittin 88b: “Before them and not before Gentiles.” A similar homily is implied in the words of R. Eliezer b. Azariah in Mekhilta de-Rabbi Yishma'el, Nezikin, ¶ 1, p. 246, and in Mekhilta de-Rashbi: “‘Before them’—to the outstanding ‘faces’ among them; from this one infers that one does not teach matters of civil law before the ignorant.” Parshat Bo, ¶ 1, p. 162.
128. y. Sanhedrin 1:1 (18a).
129. There is no sign to indicate that the incident involving R. Akiva disagrees with that of R. Yossi. Furthermore, from the flow of the sugya it seems that the second case (r. Akiva) was cited to support the first one (r. Yossi). Compare Lifshchitz, supra note 120, who thinks that these two incidents disagree and represent different approaches.
130. Deut 1:17.
131. 2 Chron 19:6-7.
132. t. Sanhedrin 1:9, at 416 (Zuckermandel edition) discussed above, supra note 92.
133. Deut 1:9.
134. Prov 22:22-23.
135. Sifrei on Deuteronomy § 9, at 17 (Finkelsein ed.); compare Deut Rab. ¶ 15, at 13-14 (Lieberman ed.). This midrash is discussed by Lifschitz, B., On Judges in Israel and the Art of the Homily, 94 Sinai 71 (1984) (Hebrew)Google Scholar.
136. Prov 22:22-23.
137. The phrases within square brackets are corrections based upon the Munich manuscript. The last section is brought in a more delicate formulation in the Yemenite manuscript of Yad Harav Herzog: “And the judge should see it as if a sword is resting on his neck.” Compare Maimonides' wording in Hilkhot Sanhedrin 23.8.
138. R. Shmuel b. Nahman and R. Yonatan are Palestinian amoraim, but greater weight should be given to the fact that the material is found in the Babylonian Talmud, as we do not know the exact formulation of things in the Palestinian source. Hence the matters must be examined in the context of the sugya in the Bavli.
139. Compare Mekhilta de-Rabbi Yishmael, Amalek, Yitro § 2, at 196:
Whoever brings about a truly true judgment (emet la-amito) is considered by Scripture as if he were a partner of the Holy One blessed be He in the acts of Creation. It is written here “[Moses sat to judge the people] from morning till evening” [Exod 18:13], and in the in acts of Creation it is written “and it was evening and it was morning” [Gen 1:5]; see also b. Shabbat 10a.
140. This passage does not appear in the Kaufmann manuscript (except in the margin), nor is it mentioned in other manuscripts of the Mishnah. Evidently, it is not part of the Mishnah but rather a beraita that was added to it. See the notes of Shishah Sidrei Mishnah, Zera'im, 352 (H. Albeck ed.), and Epstein, Y.N., Introduction to the Text of the Mishnah 975 (Hebrew Univ. Press 2000) (Hebrew)Google Scholar.
141. On this idiom, see C. Hayes, Legal Truth, Right Answers and the Best Answers: Dworkin and the Rabbis, Dinei Israel 25 (2008) (Hebrew) (in English Section at 73-121). Hayes rightly emphasizes that one is speaking of the propriety and fairness of the procedure and not of the objective “truth” of the ruling. However, as I argue here, in the Babylonian Talmud “a true judgment” has a different meaning. Here a certain concept of truth in judgment is already assumed. Another interpretation is proposed by Tosafot, which said in a number of places that this refers to a true judgment as opposed to “false judgment.” b. Shabbat 10a, Megillah 15b, Bava Batra 8b; and compare Hiddushei ha-Ritba to Bava Batra 8b. “False judgment” (din merumeh) refers to a ruling based on the testimony given, but in which the judge knows-on the basis of information that is not acceptable within the framework of the procedure-that one is dealing with false testimony. In such a case an obligation is imposed upon the judge to judge “a truly true judgment”-i.e., on the basis of his own truth-and not to suffice with a formalistic decision based upon the laws of evidence. See Maimonides, Hilkhot Sanhedrin 24.1-3. An additional interpretation of this matter has been proposed by R. Yehoshua Falk Katz, author of the Derishah on the Tur. “That he judges according to the place and time in the matter saw that it will be true, to teach us that he does not always rule literally according to the law of Torah, for at times the judge must rule beyond the letter of the law, depending upon the time and the subject matter.” Tur, Hoshen Mishpat, 1, in Derishah § 2. According to this interpretation, a judgment that is “truly true” indicates specifically a deviation from normative law.
142. In the Yemenite manuscript (Yad Harav Herzog): R. Shemuel bar Nahmani.
143. b. Sanhedrin 7b, according to Munich manuscript (with deciphering of abbreviations).
144. b. Sanhedrin 7b. The mention of ten judges is deserving of attention. In the Mishnah and in other Talmudic sources, we do not know of a bench with ten judges, but this number does appear in Biblical sources. Boaz gathers ten elders in order to redeem Ruth (Ruth 4:2); Ecclesiastes mentions “ten rulers who were in the city” (Eccles 7: 19); and also Damascus Document mentions ten judges (CD P. 10). The language of R. Yehoshua b. Levi, “ten who sit in judgment,” alludes to the fact that this practice still existed during the period of the amoraim. See Ginsberg, L., An Unknown Jewish Sect 47–48 (Jewish Theological Seminary Am. 1976)Google Scholar; Schiffman, Lawrence, Halakah, Practice and Messianism in the Judaean Desert Sect 136–43 (Mrekaz Zalman Shazar 1993)Google Scholar.
145. b. Sanhedrin 7b.
146. Rashi, Sanhedrin 7b s.v. “denimtayan.”
147. In practice, there is a contradiction between the words of R. Joshua b. Levi that “a yoke hangs over the neck of them all” and those of Rav Huna, that this comes to make matters easier for those sitting in judgment. See Lieberman's comment: “We have not seen the teachers when they preached their disciples. Was it said in seriousness and sobriety, or was it perhaps with a wink.” Lieberman, S., ‘It Was Thus and It Was Thus’: Palestinian Jewry and World Jewry During the period of the Mishnah and the Talmud, in Mehkarim Be-Torat Eretz Yisrael 331 (Hebrew Univ. Magnes Press 1991) (Hebrew)Google Scholar.
148. b. Sanhedrin 7b, based on Munich Manuscript. According to the printed version, the incident involved Rav.
149. It is worth comparing these words of Rav Ashi with those of R. Yishamel b. R. Yossi in the Mishnah: “One who withholds himself from judgment removes himself from enmity, theft and false oaths, m. Avot 4.7. The same R. Yishmael b. R. Yossi was an expert judge in Zippori. Buchler, Studies in the Period of the Mishnah and the Talmud (Hebrew) (Mossad Karav Kook 1968). It would seem that these words express his life experience, but there is no indication that they caused him to refrain from judgment.
150. t. Sanhedrin 1.9.
151. See, e.g., b. Sanhedrin 31b.
152. A. Radziner, The Fundaments of Laws of Penalties in Talmudic Law 278-819 (2001) (unpublished Ph.D. dissertation, Bar-Ilan University) (Hebrew) (on file with author). On the nature of the laws of penalties, see id. at 136-94, and Radziner's, A. article, ‘Penalties’ in Payment for Damages in Tannaitic Literature, 24 Shenaton Ha-Mlshpat Ha-Ivri 287 (2006–2007) (Hebrew)Google Scholar.
153. See R. Yitzhak Alfasi (Rif), Sanhedrin 1-2; Maimonides, Laws of Sanhedrin 23.8; R. Ya'akov b. Asher, Tur, Hoshen Mishpat 8; Levush, ‘Ir Shoshan, Hilkhot Dayanim 8.2.
154. Maimonides, Introduction to the Mishnah 47-48 (Shilat ed., Ma'ale Adumim 1996) (Hebrew).
155. Maimonides, Laws of the Sanhedrin ch. 24.3.
156. Blidstein, G.J., The Judge's Own ‘Truth’ as Judicial Instrument: Maimonides’ Laws of Sanhedrin 24:1-3, in 24 Dinei Israel 119 (2007) (Hebrew)Google Scholar.
157. Maimonides, Laws of the Sanhedrin ch. 23. The relevant statements are primarily from b. Sanhedrin 7a and 6b (t. Sanhedrin 1.9; y. Sanhédrin 1.1 [18 b]). It would appear that the expression, “as if he corrected the entire world” is based upon b. Shabbat 10a, cf. m. Avot 1.18.
158. See Twersky, Isadore, Introduction to the Code of Maimonides (Mishneh Torah) 356 ff.Google Scholar (Yale Univ. Press 1982); Levinger, Y., Maimonides' Ways of Halakhic Thought ch. 4 (Hebrew Univ. Magnes Press 1965) (Hebrew)Google Scholar; Levinger, Y., Maimonides as Philosopher and as Posek 100–11 (Mossad Bialik 1990) (Hebrew)Google Scholar; Hartman, David, Maimonides: Torah and Philosophic Quest (Jewish Publ'n Soc'y Am. 1978)Google Scholar.
159. Maimonides, Guide for the Perplexed Pt. 1.18-19.
160. Id. at ch. 1.64. The concept of the Divine Glory occupies an important place in pre-Maimonidean philosophy. Rabbi Saadya Gaon and others made use of the doctrine of Glory to explain the concrete descriptions of revelation described in the Bible. According to this doctrine, one is not speaking of a revelation of God himself, but rather of His Glory, an entity created by God specifically for this purpose. R. Saadya Gaon, Emunot ve-De'ot, Part 2. The idea developed in parallel among Karaite thinkers, as well as among other thinkers such as R. Abraham Ibn Ezra. See Dan, J., The Esoteric Doctrine of Ashkenazic Hasidism 104–16 (Mossad Bialik 1968) (Hebrew)Google Scholar. In wake of this, Maimonides draws a distinction among three meanings of Glory: the one intended by his predecessors; the second as a term for God himself; the third the philosophical meaning which he proposes.
161. Maimonides, Guide for the Perplexed Pt. 1.64.
162. This subject is connected to Maimonides' understanding of the Divine image of man. See in this context Lorberbaum, Y., Maimonides on the Image of God: Philosophy and Halakhah-The Sin of Murder, Criminal Law, and the Death Penalty, 68 Tarbitz 533 (1999) (Hebrew)Google Scholar.
163. Maimonides, Laws of the Sanhedrin, ch. 23. 9.
164. “Gehinnom” signifies the opposite of “the World to Come.” See Maimonides, Foundations of the Torah ch. 5.4. The World to Come signifies the eternal spiritual life assured to those who have attained complete philosophical apprehension. See Maimonides, Laws of Repentance ch. 8.2. For discussion, see Halbertal, M., Maimonides 122–26 (Merkaz Zalman Shazar 2009) (Hebrew)Google Scholar.
165. In this context it is worth referring as well to the concluding chapter of The Guide for the Perplexed, Pt. 3.54, in which Maimonides draws a connection between the intellectual perfection of the philosopher and the performance of “loving kindness, justice and righteousness in the land.”
166. R. Abraham Ibn-Ezra, Long Commentary to Exod 21:6. In his Short Commentary to the same verse he simply writes “because they are the officials of God in the land.”
167. Nahmanides, Commentary on the Torah, Exod 21:6.
168. Nahmanides, Commentary on the Torah, Num 11:16. On the entire subject, see Halbertal, M., In the Way of Truth 72–76 (Shalom Hartman Inst. 2006) (Hebrew)Google Scholar.
169. Nachmanides, Commentary on the Torah, Num 11:16.
170. Commentary to Deut 17:11. This mystical interpretation is brought alongside another, rationalistic interpretation. Rather than being based on the infallibility of the Divine Presence, it is based upon the conveying of the Torah's authority upon the Great Court, “for it was with their consent [to this] that He gave the Torah.”
171. b. Bava Batra 12a.
172. Hiddushei ha-Ramban, Bava Batra 12a; Halbertal, supra note 165, at 203-04.
173. R. Nissim's reservations regarding Nahmanides in the area of Kabbalah are testified to by his disciple, R. Yitzhak b. Sheshet: “And I have made known to you that which was told me privately by my master, R. Nissim of blessed memory, that the Ramban z'l immersed himself far more than necessary to believe in these matters of Kabbalah.” Teshuvot ha-Ribash 157. On his status and system in the realm of Talmudic exegesis, see Ta-Shma, I., The Exegetical Literature of the Talmud 85–89 (Hebrew Univ. Press 2000) (Hebrew)Google Scholar. On his theoretical approach, see Lorberbaum, M., Politics and the Limits of Law: Secularizing the Politics in Medieval Jewish Thought 124–28 (Stan. Univ. Press 2001)Google Scholar, and the bibliography mentioned there. On R. Nissim's legal doctrine and his relation to Nahmanides, see Harvey, Z.W., On R. Nissim's Philosophy of Halakhah, in New Studies in the Philosophy of the Halakhah 171–80 (Ravitzky, A. & Rosenak, A. eds., Van-Leer Inst. 2008) (Hebrew)Google Scholar.
174. R. Nissim, Derashot ha-Ran, 214 (Machon Shalem 1977) (Hebrew).
175. Id. at 215.
176. Id. at 191.
177. b. Sanhedrin 7a.
178. R. Nissim, Derashot ha-Ran, supra note 170, at Eleventh Sermon, 189 ff. This subject has been discussed extensively in the research literature. See Ravitzky, A., On Kings and Laws in Medieval Jewish Thought, in Culture and Society in Jewish History in the Middle Ages 469-92 (Bonfil, R.et al. eds., Merkaz Zalman Shazar 1989) (Hebrew)Google Scholar; Ravitzky, A., Religion and State: Competing Models in Jewish Thought, in Freedom Inscribed 49–89 (Am Oved 1999) (Hebrew)Google Scholar; M. Lorberbaum, supra note 169, at 124-52.
179. R. Nissim, Derashot ha-Ran, supra note 170, at 190.
180. Id. at 190.
181. On R. Moses of Coucy and his book, see Urbach, E.E., The Tosaphists 465–79 (Hebrew Univ. Press 1976) (Hebrew)Google Scholar; Galinsky, Y., ‘Come and Make a Torah Scroll of Two Parts’: On R. Moses of Coucy's Intention in Writing the Semag, 35 Ha-Ma'ayan 23–31 ff (1995) (Hebrew)Google Scholar.
182. Sefer Mitzvot ha-Gadol (the Semag), ‘ASEH 107 (Venice ed.).
183. Matters were interpreted thus by all the commentators who came in his wake. See the interpretation of Isaac Stein's Commentary on Sefer Mitzvot ha-Gadol (the Semag) 61 (Venice ed.); Bayit Hadash on the Tur, Hoshen Mishpat 12.
184. He is first quoted in the Sema“k (Sefer Mitzvot Katan), Mitzvah 227 (“keep far away from a false word”); Hagahot Maimoniot to Hilkhot Sanhedrin 24.2; and Orhot Hayyim 2; Hilkhot Dayanim 516 (Berlin 1899). Thereafter he is quoted in the Italian Recanati; and in the 14th century his words are already mentioned in Spain, as in Derashot R.Y. Ibn Shueib (Parshat Mishpatim), and in Tur, Hoshen Mishpat 12. Notably, in the 13th and 14th centuries the Semag was among the most popular halakhic works. See Urbach, supra note 177, at 476, and the Introduction by Ta-Shma, I. to b. Efraim's, AvrahamKitzur Sefer Mitzvot Gadol 13–21 (Horowitz, Y. ed., Mossad Bialik 2005)Google Scholar.
185. Hoshen Mishpat 12.20.
186. The Semag's words are cited in the Tur and the Shulhan Arukh in the framework of the section dealing with compromise. The Semag himself did not cite the words in this framework; it therefore seems that he intended that the judges would judge on the basis of their own understanding and not necessarily within the framework of compromise.
187. His description of this matter was influenced by that of Maimonides in his Introduction to the Mishneh Torah.
188. Semag, citing y. Sanhedrin 1.1 (18a), and in the version brought in the Tur: “And we read in the Yerushalmi in the first chapter of Sanhedrin: In the days of R. Shimon ben Yohai they abolished the [adjudication of] monetary law. R. Shimon ben Yohai said: There is no sage able to judge.” Hoshen Mishpat 12. The Semag notes that these things are also cited in Sefer Hefetz, a book mentioned by a number of other rishonim but which is not extant. See Levin, B.M., Sefer Metivot 30 ff. (Jerusalem 1934) (Hebrew)Google Scholar, where he quotes the words from the Semag at p. 131.
189. As matters were interpreted by Bayit Hadash on the Tur, Hoshen Mishpat 12.6: “And according to what was copied by our teacher, there is no sage for judgment; R. Shimon b. Yohai interpreted its reason as said, as to why they abolished adjudication of civil law in his day, and he said that it was because there is no complete sage who is able to judge according to the law of Torah.” Compare R. Isaac Stein's commentary on the Semag, supra note 179.
190. The reading, “from Israel” appears twice in the language of the beraita and is repeated again in y. Sanhedrin 7.2 (24b). This reading is preferable.
191. The text of the beraita here (18a) is: “In the days of R. Shimon b. Shetah they abolished the [adjudication of] civil law.” But it should read ”In the days of R. Shimon ben Yohai,” as in the text of the beraita in ch. 7, and as cited by the Semag, supra note 180.
192. y. Sanhedrin 1, 1, 18a.
193. For the historical background of these edicts, see Herr, M.D., The Edicts of Apostasy and Martyrdom in the Days of Hadrian, in Holy Wars and Martyrdom 73–92 (Israeli Hist. Soc'y 1968) (Hebrew)Google Scholar.
194. Instead of “civil law was removed (nitlu),” he had before him the text “civil law was abolished” (batlu), which enabled him to assume that they were abolished by the Sages. In the matter of R. Shimon ben Yohai he read: de-leika hakim ba-din (“that there is no sage in judgment”)-that is, there is no sage fit to judge. But the extant version is: de-leina hakim ba-din-”that I am not [qualified to act as] a sage in judgment.” That is, R. Shimon states that he is not qualified to judge.
195. He relied extensively on Maimonides, whose book Mishneh Torah served him as a model for imitation. But he also added to it the innovations or novellea of the sages of Germany and France. See Urbach, supra note 177; cf. Galinsky, supra note 177.
196. On the Semag's closeness to the circle of Ashkenazic Hasidism, see Urbach, supra note 177, at 469-70; Galinsky, Y., To be a Faithful Servant Before You all the Days”: A Chapter in the Religious Thought of Moses of Coucy, 42 Da'at 13–31 (1999) (Hebrew)Google Scholar. Unfortunately, I was unable to find any explicit source for this in the writings of Ashkenazic Hasidism, but Sefer Hasidim greatly stresses the presence of God in judgment and the great care to be taken when engaged in judgment. See Sefer Chassidim §§ 1307-23, at 323-27 (Mekitzei Nirdamim 1891).
197. On the various forms of compromise in Jewish law, see Haim Shapira, The Debate Over Compromise and the Goals of Judicial Process 26-27 Dinei Yisrael-Studies in Halakha and Jewish Law 183 (2009-10) (Hebrew).
198. Maimonides, Laws of the Sanhedrin 22.4.
199. A. Hafuta, Limits of Law and Compromise, 17 No'am (1934) (Hebrew); Neriah, M.Z., The Law of Compromise, in Rabbi J.B. Soloveitchik, Jubilee Volume 358 (Jerusalem & N.Y. 1984) (Hebrew)Google Scholar.
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