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Jurisdiction

The 1901 Jewish Encyclopedia

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The authority of a court of law to decide cases of certain kinds. This depends on the kind of matter in dispute; on the locality of the subject; on the residence of the parties; and on their willingness to submit themselves to some local tribunal.

I.

As to the kind of question, the Mishnah discusses the court of seventy-one elders, the intermediate courts, the criminal courts of twenty-three judges, the courts of three ordained judges for cases involving damages and penalties, and courts of three judges for ordinary civil cases, besides some special courts whose functions were rather religious or administrative than judicial. If the law-making and executive powers of the court of seventy-one be left out of view, the scheme is very much as follows:

The Sanhedrin.

The court of seventy-one alone has jurisdiction over a tribe accused of idolatry; the seduced city (Deuteronomy 13:13-18) can be tried only by this court (such a trial never took place); the trial of a false prophet (Det. 18:20-22) or of a rebellious elder (Deuteronomy 17:8-13) must take place before it; also any proceeding in which the high priest is a defendant (Sanh. 3:5, 11:4).

This seems to be its only original jurisdiction; but the importance of the Great Sanhedrin as a court of justice is based on Deuteronomy 18:8-11. Whenever an inferior court feels itself incompetent to decide a legal question, whether it arises in litigation or in a matter of ritual law, the judges of that court are to proceed to the religious center of Israel and to seek counsel there, and must then act upon the instruction there received. According to Sanh. 11:2, there were at Jerusalem two intermediate courts each composed of twenty-three members, to which the judges of the country first submitted their doubts; and only if such courts could not satisfy them, would they together with these courts lay the matter before the supreme court.

The constitution of the local court of twenty-three and its jurisdiction in capital cases have been mentioned under see Accusatory Procedure and CRIMINAL PROCEDURE. The trial of involuntary homicide, punishable by exile to the cities of refuge, also belonged to a court of twenty-three, as did that of an ox or any other privately owned animal that had killed a person, either free or slave (Sanh. 1:4).

According to the prevailing opinion in the Mishnah, only three judges were required for a court to try a criminal charge involving the punishment of stripes. Where a crime was punishable only by double or manifold restitution, like theft, or by a fixed mulct, the proceeding to ascertain the guilt of the accused was considered a civil action, and came before three judges.

The Mishnah mentions some procedures not of contested jurisdiction: the ordaining of elders and the inquest and expiation over the beheaded heifer should both be performed by five elders; the ceremonies of ḤALIẒAH and MI'UN must take place before three; redemption of the fourth-year fruit-tree and of the second tithe, before three; the appraisement of consecrated things for redemption, before three; Estimates, if to be paid out of movables, before three, one of them a kohen; if to be paid from land, before ten, one of them a kohen (Sanh. 1:3). Actions on contract (technically called "loans and admissions") were tried before three judges, who were not required to be ordained.

II.

Venue.

In contradiction to modern Western notions, the plaintiff—which term in most cases meant the creditor—had the right to bring suit in the court of his own domicile. The Talmud (Sanh. 31b) has the following: "If two are in hot litigation, and one says, 'Let us plead here,' while the other says, 'Let us go to the place of assembly [],' they compel him to plead in his own town; and if necessary to ask a question of law, they write it out and send for a decision and the reasons therefor." But the distinction is afterward made that if the creditor asks for it, on the principle laid down in Proverbs 22:7, "the borrower is subject to the lender," the cause is thrown into the higher court, and the debtor is compelled to go there for trial. These views are copied by Maimonides and by the Shulḥan 'Aruk, Ḥoshen Mishpaṭ (14), where, however, the gloss of ReMA questions whether the demand for trial in a higher court is applicable in his day, when there is no patriarchate nor regular rank among rabbinical courts. The medieval authorities were much divided about the meaning of "Place of Assembly" and "Great Court" used in the same connection, and whether these words have the same meaning; but Maimonides says ("Yad," Sanh. 6:9) that in Spain it was the custom for the defendant to follow the plaintiff to a court recognized as higher than that of the city of domicile.

However, at the very foundation of civil jurisdiction is the right of the parties to choose their judges among those who are qualified, which right is recognized by the Mishnah (Sanh. 3:1; the grounds for challenge being regulated in the following sections). Hence, in a large community holding more than three men qualified by learning and character, a bench of judges for the cause would be made up under the initiative of the local rabbi, somewhat as a jury is made up in English and American courts by the presiding judge (for details of qualification and election, JUDGE). At any rate, a court should not consist of less than three judges: if the parties agreed upon one, he would be only an arbitrator, whose award, based on their contract, might be enforced by a court (Ḥoshen Mishpaṭ, 3, following Sanh. 1:1). The exception that a single expert () might try cases of contract ("loans and admissions") is no longer valid because ordination ("semikah"), which alone can make an expert, is no longer practised.

But both the Palestinian and Babylonian Talmuds, in commenting on Sanh. 1:1, give instances of prominent amoraim who sat as sole judges; and the latter states that a rabbi holding "authority," e., one appointed for the purpose by the patriarch in Palestine or by the head of the Exile in Babylonia, might so sit.