גריי מאטר ג, פסיקת הלכה, ערעור על פסק בית דיןGray Matter III, Halachic Process, Appealing a Halachic Decision
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1In this section, we will discuss the parameters of when Halachah permits a second Rav to appeal or reverse a halachic decision of another Rav.1For further discussion of the parameters of when a halachic decision may be reversed, see Encyclopedia Talmudit 8:507-510. In this context, we will also discuss the institution of the Rabbinical Court of Appeals that functions in Israel under the auspices of the State of Israel’s Chief Rabbinate.2For further discussion of this fascinating institution, see Rav J. David Bleich’s Contemporary Halakhic Problems IV:17-45 and Professor Eliav Shochetman’s Seder Hadin pp. 443-470.
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2The Gemara’s Story of Yalta
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3The Gemara (Niddah 20b) relates that Yalta, the wife of Rav Nachman and a remarkable Talmudic figure in her own right, once brought dam (blood) to Rabbah bar bar Chanah to determine whether it rendered her a niddah.3See Tosafot ad. loc. s.v. Kol, Rosh to Nega’im 2:5, Shach Y.D. 187:5, and Teshuvot Yabia Omer 6 Y.D. 18 for a discussion of why she did not consult her eminent husband for a halachic decision. Rabbah bar bar Chanah ruled that it did render her a niddah. Yalta appealed the ruling to Rav Yitzchak the son of Rav Yehudah, who ruled that she was not a niddah.
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4The Gemara is troubled by Rav Yitzchak’s ruling in light of the principle that once a Rav has ruled, it is forbidden for another Rav to reverse the decision of his colleague. The Gemara therefore explains that Rav Yitzchak at first told Yalta that she should follow Rabbah bar bar Chanah’s ruling. Yalta, however, explained to Rav Yitzchak that Rabbah had routinely ruled that the shade of dam that she had shown him did not render her a niddah. It seemed, argued Yalta, that in this instance, Rabbah bar bar Chanah’s eyesight had been impaired, preventing him from rendering an accurate decision. Rav Yitzchak accepted this argument and only then ruled that Yalta was not a niddah. Thus, Yalta’s situation differed from a typical situation of one Rav attempting to reverse another’s decision.
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5Limitations on the Second Rav
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6The Rishonim offer various theories for why Halachah generally imposes limits on the second Rav. Rashi (ad. loc. s.v. Mei’ikara) indicates that the rule stems from concern for the dignity of the first Rav who was consulted, while the Ran (Avodah Zarah 1b-2a in the pages of the Rif, s.v. Hanish’al) explains that reversal makes it “appear as if there are two Torahs.” The Ran also quotes from the Ra’avad that when one presents an issue to a Rav, he binds himself to the jurisdiction of that Rav, creating an obligation equivalent to that of a neder (vow). This Talmudic concept is referred to as “Shavya anafsheih chaticha d’issura,”- “He has established the item as prohibited for himself.”
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7Tosafot (Niddah 20b s.v. Agamrei) are troubled by Yalta’s apparent violation of the Gemara’s (Avodah Zarah 7a) rule that if one posed a question to a Rav and received a strict ruling, he may not appeal the decision to another Rav. Even if Rav Yitzchak was allowed to reverse Rabbah bar bar Chanah’s decision, how was Yalta permitted to ask him to do so? Tosafot explain:
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8The prohibition devolves on the Rav, not on the individual posing the question. The questioner may ask as much as he wishes – he will merely cause the second Rav to investigate the matter more thoroughly, and sometimes, as a result, it will be discovered that the first Rav erred.
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9In other words, there is no prohibition to appeal a decision, but it has little purpose in most cases, because a Rav cannot reverse a decision under normal circumstances.
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10Tosafot in Avodah Zarah (7a s.v. Hanish’al), though, take a more restrictive approach to this issue. They resolve the inconsistency by explaining that the prohibition applies only when the questioner does not disclose to the second Rav that he previously received a strict ruling from another Rav. Since Yalta told Rav Yitzchak that she already received a ruling from Rabbah bar bar Chanah, she was permitted to ask him to reevaluate the situation. Tosafot also state that the second Rav is forbidden to reverse the first Rav’s decision unless he succeeds in convincing the first Rav that he erred. Tosafot in Niddah, by contrast, appear to permit the second Rav to reverse the first Rav’s decision even in the absence of the latter’s consent.
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11Rama and Acharonim
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12The Rama (Y.D. 242:31), following the Ran,4Also see Tosafot to Chullin 44b s.v. Heichi, who present a similar approach. offers a compromise between the two approaches of Tosafot. He rules that the second Rav may overrule the first Rav if the first made a blatant mistake – an error in “devar mishnah,” accepted halachic practice. Additionally, if the second Rav believes the first to have made an error in judgment – what the Gemara calls “ta’ut beshikul hada’at”5See Sanhedrin 33a, Rosh to Sanhedrin 4:6, and Shulchan Aruch C.M. 25:2 for the parameters of what is considered shikul hada’at in contradistinction to devar mishnah. – the former should attempt to convince the latter to retract his ruling.6The Chochmat Adam (104:6) clarifies that if the second Rav “cannot support his argument with proofs, the [original] strict ruling remains in effect even if the [first] Rav retracts his ruling, since the item already has been established as prohibited.” If the first Rav refuses to retract, though, the second Rav may not reverse the decision of the first.
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13The Shach (Y.D. 242:53) cites differing opinions among the Rishonim as to whether the second Rav is authorized to reverse the decision of the first if the former is of greater stature. The lenient view maintains that the greater Rav is indeed authorized to do so, even in a matter of shikul hada’at. The Aruch Hashulchan (Y.D. 242:62) is inclined to follow this approach, arguing that the reasoning of a more eminent Rav should be considered more compelling.7The Chochmat Adam (104:6) also presents the lenient position as the primary one. Indeed, superior reasoning ability is often the basis for regarding a particular Rav as greater than his colleagues. On the other hand, Rav Ovadia Yosef (Taharat Habayit 1:323) rules in accordance with the Rishonim who forbid even a great Rav to reverse the halachic decisions of a Rav of a lesser stature unless the first Rav erred in a devar mishnah. Needless to say, it is often exceedingly difficult to decide which Rav is of greater stature.
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14No restrictions apply, however, if the first individual who rendered a decision was a Torah scholar but not qualified to render halachic decisions (lo higia l’hora’ah). As the Aruch Hashulchan notes, the halachic decisions of such an individual are considered null and void. Of course, it is difficult at times to determine if someone is regarded as lo higiah l’hora’ah. Obviously, each Torah scholar and Rav must be honest with himself and refrain from issuing rulings when it is not appropriate for him to do so.
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15The Aruch Hashulchan (Y.D. 242:62) rules that if the Rav is the mara d’atra (Rav of the area or synagogue),8The concept of mara d’atra appears in Shabbat 19b, Eruvin 94a, Pesachim 30a, and Chullin 53b. he may reverse a decision issued in violation of his jurisdiction.9Conversely, it appears that the decisions of the mara d’atra cannot be reversed even by a Rav of greater stature. It is essential to show proper respect for the authority of a community’s mara d’atra. Rav Hershel Schachter extends this so far as to state that one should not observe a chumrah (stringency) that the Rav of his shul does not observe. Rav Schachter gives the example of standing for keriat hatorah, which essentially is not required by Halachah (see Shulchan Aruch O.C. 146:4).
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16If a Rav rendered a halachic decision for a Sephardic Jew in accordance with Ashkenazic authorities but in conflict with Rav Yosef Karo, Rav Ovadia Yosef (Taharat Habayit 1:331) writes that the decision may be overturned, because Rav Yosef Karo is viewed as the mara d’atra of all Sephardic Jews.
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17The Israeli Rabbinical Court of Appeals
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18The concept of a court of appeals is widely accepted in the Western world as a basic element of a fair judicial system. Accordingly, beginning in 1921, originally upon the insistence of the British Mandatory Authority, the Israeli Chief Rabbinate’s system of rabbinic courts has included a Supreme Rabbinical Court of Appeals. Rav Avraham Yitzchak Hakohen Kook and Rav Ben-Zion Uzziel (Teshuvot Mishpetei Uzziel C.M. 1), the Chief Rabbis of Eretz Yisrael, endorsed the establishment of this institution. Rav Uzziel sees this as an example of incorporating positive ideas from nochrim (non-Jews) into the Torah system.10The Gemara (Megillah 9b) refers to this as “Yafyuto shel Yefet yishkon b’aholei Sheim.” Many in the Chareidi community, however, object to this institution, viewing it as an inappropriate emulation of foreign systems of law. Rav Moshe Shternbuch (Teshuvot V’hanhagot 1:796), for instance, writes, “The great rabbis of Israel vigorously protested the establishment of the Rabbinical Court of Appeals as nothing but an imitation of foreign legal systems.”
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19Many eminent poskim have sat on this special beit din, including Rav Zalman Nechemia Goldberg, Rav Yitzchak Herzog, Rav Eliezer Waldenberg, and Rav Ovadia Yosef.11Hundreds of this beit din’s rulings are cited throughout Professor Eliav Shochetman’s Seder Hadin. Many of these decisions involved the reversal or modification of the rulings of lower batei din.
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20The Halachic Basis for the Court of Appeals
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21Scouring all of the Talmud, Rishonim, and Acharonim yields no explicit mention of a beit din of appeals in a halachic context.12Although the Seforno understands Shemot 18:21 as presenting a system of appeals, the Seforno is generally seen as a commentary meant to explain verses in the Torah, not as a halachic source. Indeed, the Gemara (Bava Batra 138b) states, “Beit dina batar beit dina lo dayki,” “One beit din does not challenge the ruling of another,” which serves as the basis for both the Sema (C.M. 19:2) and the Shach (C.M. 19:3) to forbid a beit din to rehear a case that another beit din already has judged. Nonetheless, rabbinic courts of appeals functioned in a number of Jewish communities before the twentieth century (as noted by Rav Bleich, Contemporary Halakhic Problems IV:21-24). Indeed, the Gemara itself (Sanhedrin 33a) provides criteria for when a judicial decision may be reversed, and it records cases (ibid. and Ketubot 50b) in which this actually was done. Thus, beit din decisions may be reversed, but there appears to be no traditional formal system for doing so.
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22Rav Ovadia Yosef (Teshuvot Yabia Omer 2 C.M. 2) justifies the institution of the Supreme Rabbinical Court of Appeals with several arguments. First, the Gemara states only that a rabbinic court “does not” review the decisions of another rabbinic court. Rav Ovadia understands this to mean that their practice was not to do so, but not that it is forbidden to do so.
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23Second, the Shach and the Sema prohibit only rehearing a case from the beginning. However, Rav Ovadia writes, it is entirely permissible for a second beit din to review the reasons the original beit din gave for its decision and to see if it erred in its decision.
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24Finally, since it has become accepted practice to maintain a supreme rabbinical court of appeals, it is understood that the dayanim in the lower batei din issue their decisions only on condition that their rulings are not reversed by the Appeals beit din. Indeed, we saw earlier that the Aruch Hashulchan is inclined to rule that a Rav of greater stature (which the Appeals beit din should be) may always overturn the rulings of a Rav of lesser stature. In addition, since the institution of the Appeals beit din appears in the takanot hadiyun (Rules of Conduct) for the State of Israel Rabbinic Courts, all litigants accept in advance that the Appeals beit din may legitimately reverse the decision of the lower beit din (see Piskei Dinim Rabbaniyim 10:180). The takkanot hadiyun of 5753 (section 135) allow for the Appeals beit din to reverse the decision of the lower beit din if there is either a halachic error, an obvious error in judgment or establishment of the facts, or procedural mistakes that affect the results of the litigation.13Rav J. David Bleich (Contemporary Halakhic Problems IV:44) observes that these categories can be understood as conforming with the Gemara’s (Sanhedrin 33a) standards for when a beit din’s ruling may be reversed. The establishment of the Appeals beit din, accordingly, merely formalizes a mechanism presented in the Gemara. However, some Rishonim permit reversal only if the original beit din concedes that it erred. These Rishonim might agree, though, that a beit din of greater stature may reverse the decision even without the consent of the original beit din.
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25Rav Ovadia Yosef observes that the Supreme Rabbinical Court of Appeals has worked quite well, and “many times it is found that the lower beit din has erred.” He adds that the Appeals beit din “performs a great mitzvah by insuring proper justice.” Indeed, Rav Yosef Dov Soloveitchik has stated that history can sometimes resolve a hashkafic or halachic dilemma (Nefesh Harav p. 88).14See the chapter dealing with incorporating Torah verses into songs and the chapter dealing with the role of archaeology in Halachah for further applications of this assertion. Accordingly, the question of the propriety of the Appeals beit din might be resolved by the fact that it has worked well for many decades.
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26Conclusion
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27In certain cases, Halachah provides for the reversal of halachic authorities’ decisions in both ritual and monetary matters. However, the authorities of the past did not institute a formal system for making such appeals. It is possible that Halachah has allowed each community to establish its own mechanisms for appealing halachic rulings. In Israel, Rav Ovadia Yosef reports that the institution of a Supreme Rabbinical Court of Appeals has worked well for many decades, and this model could be emulated by Jewish communities elsewhere as well. Indeed, the rules and procedures of the Beth Din of America (available at www.bethdin.org) provide for appealing rulings to the Av Beit Din (chief justice).15Rav Ronald Warburg informs me that the Av Beit Din actually has reversed some decisions.