Published September 02, 2010
We have been discussing the jurisdiction of the courts beginning with the Great Sanhedrin while it existed, and the courts of 23 judges in capital cases. We also discussed the jurisdiction of the courts of three judges (the Beit Din) and this court had very broad jurisdiction while judges were ordained. We discussed the lapsing of ordination and now a Beit Din is composed of non-ordained judges, and thus their jurisdiction is somewhat curtailed. One of the Talmudic passages which discusses the jurisdiction of the non- ordained judges deals with divorces. The non-ordained court was coercing a man to divorce his wife according to the prescribed law, a function that was previously limited to ordained judges. When a jurisdictional objection to the proceeding was raised it was answered that courts of non-ordained judges have jurisdiction over the types of matters which occur frequently. This case in Tractate Gittin (88b) seems to make the frequency of the occurrence the test as to whether non-ordained judges can judge cases that were formerly within the sole jurisdiction of ordained judges. Alfasi (1013-1103) quotes the Talmudic text without comment as do Asheri (1250-1327) and Maharshal (1510- 1574). Ran (d. ca 1375), however, commenting on Alfasi says that the Talmud shows that two criteria must be met before non-ordained judges may exercise jurisdiction over cases which according to Torah law were limited to ordained judges. That is, in addition to being the type of case which occurs frequently, it must also involve a loss of money. It would seem, however, that the reason why in Tractate Gittin the sole test discussed is that of frequency, and no mention is made of money loss, is that Talmudic case is a non-monetary case. The issue raised in it is limited to the question of jurisdiction over a coerced divorce. In a similar manner in a situation of overriding importance, courts of non-ordained judges were given jurisdiction to accept the conversion of proselytes (a matter where there is clearly no involvement of money and is of infrequent occurrence). In Tractate Baba Kama (84b), by contrast, in discussing the remaining types of cases encompassed by the jurisdiction of non-ordained judges the Talmud states a two-prong test that the case must be of a type that (1) occurs frequently and (2) involves a loss of money.
Thus if a certain type of case occurs frequently but the claimant has not suffered a monetary loss (such as the case of embarrassment) the non-ordained judges cannot judge the case. Conversely, if it is the type of case which involves a loss of money to the plaintiff but is not the type that occurs frequently (such as a person maiming another) the non-ordained judges are not empowered to judge the case if it was of the type that the Torah had delegated to ordained judges only.
All the codes and authorities cite the statement of the Talmud as enunciating the present status of the law. There exists unanimity of opinion on this matter. In the next lesson IYH, we will give examples of cases in which non- ordained judges presently have jurisdiction.
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