Question:

Regarding Devarim 19:17, please see Gemoro Sanhedrin 46a, 81b and Yevamos 90b where it shows that the Beth Din can take extra legal powers in an emergency.
What constituted an emergency?
When did the emergency powers cease?
Is there any record of the Beth Din / Sanhedrin actually doing this?
Were there any checks and balances in place?

Answer:

The issues you raise are addressed in Choshen Mishpot.

Below is an English translation of the summary of the Shulchan Aruch written by Rav Yechiel Michel Halevi Epstein (Aruch Hashulchan) with an introduction written by Rav Baruch Rubanowitz and some notes.

I trust this will address your questions and perhaps raise some new ones.

Table of Contents

Translation of Aruch HaShulchan—Choshen Mishpot 2

Extra-Judicial Powers 2

Introduction: Law and Order 2

Extra-Judicial Powers of the Beis Din (Four Sections) 4

  1. Extra Powers Granted to a Beis Din beyond Adjudication of Torah Law.. 4
  2. Requirements to Hold such Authority. 8
  3. Various Levels of Communal Authority. 9
  4. The Discretion of Beis Din’s Extrajudicial Power 11

 


 

Translation of Aruch HaShulchan      Choshen Mishpot

By Rav Baruch Rubanowitz                 rav@ravbaruch.com                            Tammuz 5776

Siman 2:

Extra-Judicial Powers

Introduction: Law and Order

At Sinai, Hashem gave Moshe Rabbeinu civil and criminal law—together with the Ten Statements—not as a practical means of maintaining social order, but as a system of absolute truth designed to funnel Divine influence into the world and provide supernatural protection to the Jewish people. The primary function of halochos requiring payment of damages or debts, for example, is not to compensate for a loss, but to elicit Divine influence. In fact, since keeping order is only a secondary objective of Torah law, it is entirely possible that in certain instances human legislation may seem more effective toward this end than the Torah. Hashem did, however, provide a means of maintaining civil order when the objective law cannot be enforced due to legal technicalities or when the system seems otherwise inadequate—the Jewish king. The Jewish king was charged with preventing the spread of lawlessness and the rule of armed bandits by issuing decrees as necessary to preserve civil order. His mandate was meant to complement any perceived practical deficiencies of the judiciary, which—unlike the king—was bound by the strict letter of Torah law. For example, if a murderer escaped punishment in beis din through a legal loophole, the king was empowered to execute him.[1]

When the Jewish monarchy ceased to exist, this mandate fell to the Sanhedrin, which then assumed responsibility for both arms of justice: adjudicating according to Divine law, and directing practical, extra-judicial corrective measures. Nowadays, the Sanhedrin has been reduced to the beis din, whose power is substantially less. While a beis din today can act as a proxy for a halachically qualified beis din of authentically ordained dayonim for certain matters, it lacks general legislative power and broad jurisdiction and cannot take measures to preserve civil order in all scenarios. It is, however, still charged with equitably applying Divine law to many modern circumstances with a view to promoting civil order and world peace. Moreover, the beis din has retained some of the monarch’s power and extra-judicial mandate as detailed in siman 2 of Shulchan Aruch Choshen Mishpot. Broadly, this power enables the beis din to legislate for the community or sanction an individual when there is a dire spiritual need (see siman 2, section 1.1). All of the above objectives are indeed the Divine will, and when a beis din rules professionally and without prejudice, it can be an instrument through which the Jewish people regain their rightful place in fulfilling the purpose of creation. This, in turn, will restore Hashem’s special providence for His nation until the Jewish legal system and Davidic monarchy are reinstated and the balance of justice is fully reestablished.[2]

Extra-Judicial Powers of the Beis Din (Four Sections)

1. Extra Powers Granted to a Beis Din beyond Adjudication of Torah Law

[The titles, all bracketed sections and notes were added by Rav Baruch]

  • [From the Torah’s perspective, a beis din not only has authority and jurisdiction over all civil, commercial and financial matters, but also over religious violations, criminal activity and any matter required to ensure fulfillment of mitzvos. However, many of these powers have long been curtailed.][3] In fact nowadays, Jewish courts do not judge cases involving capital punishment, lashes or fines.[4] However, if a beis din sees that circumstances require it (such as when society degenerates and is unrestrained), all of these types of cases may be heard and appropriate decisions rendered in order to maintain social order, ensure communal safety or benefit society spiritually. Such decisions should only be rendered when the beis din has legal jurisdiction.
  • Permission to rule on such matters is given not only when the beis din notices a communal laxity requiring attention and correction; should the beis din observe an individual who sins repeatedly and whose behavior may negatively influence others to sin, the dayonim may fine him as they see fit, provided their intentions are virtuous.[5]
  • Permission to take action against such a person is granted even if there is no halachically valid testimony.[6] Circumstantial evidence together with an incessant rumor (where there are no enemies who might generate such a rumor) are sufficient to require Beis Din to prevent the perpetrator from continuing his behavior. However, Beis Din should only take action if the Dayonim believe it is reasonable that they will succeed. Were Jewish Courts to be required to rely only on the strict letter of the law, such as halachically valid witnesses and a proper warning, the world would degenerate into chaos. In fact, [historically,] Yerusholayim was destroyed because the Sages of the time insisted on following the [letter of the] Torah’s law (Bovo Metzia 30b – Rashbo in responsa, part 3 s.393).[7]
  • [In such cases when the Beis Din determines that there is a religious need to protect the spiritual character of the community], the judges have permission both to mete out corporal punishment and confiscate a person’s property[8] according to what they estimate will constrain the breach [in behavior].[9]
  • If the individual [being tried happens to be] powerful [enough to escape Beis Din’s grasp, the] intervention may be carried out by enlisting the secular courts to order the accused to listen to Beis Din.[10]
  • [As a rule,] anyone who has the power to take measures to support the Torah’s values and searches for halachic ways to avoid taking strict measures against people who trample Hashem’s vision for the world and Jewry will not live long nor have survivors. Even their meritorious acts will not shield them from harsh eternal judgment. (Beis Yosef in Bedek HaBayis in the name of the Recanti Mishpotim citing Midrash Hane’elam on Megillas Rus).[11]
  • Likewise, it is incumbent upon Beis Din to ensure that there not exist members of the Jewish community who have rebellious sentiments against the Duke or his ministers. Our Sages have already said that Hashem has caused Jewry to swear that they not rebel against the governing empire (Kesubos 111a). It is also written (Mishlei 24:21) “Fear Hashem my child, and also the king.”[12] Here Shlomo Hamelech exhorts all Jews to exhibit docility and disassociate from any revolutionary movements, mirroring one’s deference to the Almighty. {An anarchist, therefore, or dissident among the Jews must be restrained by Beis Din whenever possible.}[13]

2. Requirements to Hold such Authority

  • [The above mentioned] power [to judge and intervene with emergency measures without being strictly bound by procedural law] is reserved for a person great in Torah or the agreed upon municipal administrators.[14] Halochoh recognizes the authority of elected civil servants in matters entrusted to them by the city’s residents to be on par with the power of the Sanhedrin [over world Jewry]. In our times, it is incumbent on the city’s Rav and leaders to contain breaches in the behavior of Jewry with all their ability. [To this end,] (after being granted legal permission from the local government) any tax which they levy upon the residents must be paid even if it is obviously inequitable in that one party loses while another gains. [Such sweeping authority over community assets and other restrictive legislative power is granted to the trusted communal leaders] only when these measures are expected to have communal benefits or curtail improper deviations from religious norms.
  • Anyone who resists or sabotages this [process] is considered an ally of [the evil] Yerovam, son of Nevot.[15] [Moreover,] one should not be swayed if one notices some learned people supporting those who sabotage this process, for it can be presumed that they lack fear of Heaven; check and you will find this to be true.[16]

3. Various Levels of Communal Authority

  • However, in situations when there is no clear municipal need or religious breach requiring a corrective measure, the authority granted City Council for extraordinary measures is limited. Unless explicitly empowered, an appointed City Council can only compel the residents to maintain the status quo.[17] Only municipal activities, interests and expenditures already in place may be continued by the existing council. The city’s representatives may only add items to their agenda at their discretion if they have been given a specific mandate to add to that agenda as they see fit or if the specific matter has been brought to a vote by the entire community.[18]
  • In financial matters in general, Halochoh requires a kinyon, a legal act of acquisition, to be performed to create a binding obligation or effect a transaction. Commitments pledged by a community and other communal matters, however, are exceptions to this rule. Since it is impractical to have an entire community perform a kinyon, halochoh allows for communal obligations to be finalized orally. A simple affirmative statement or vote is sufficient to halachically bind an entire community. Once the vote is in favor, City Council is authorized to collect funds or compel all residents to abide by the agreed upon decisions.[19] In the absence of any of the conditions mentioned, the City Council is powerless to do anything which benefits some and causes loss to others. However, if previous City Councils acted according to their discretion in all municipal matters including those not previously addressed, this constitutes a minhag, an established precedent, which allows each successive Council to continue to legislate, enforce or deal with any matter as it deems appropriate.[20] Alternatively, the community may vote to assign the City Council the power to deal with any and all matters that may arise according to the council members’ discretion. In both of these situations, they may enforce any measure they wish even if it benefits some and causes loss to others. City representatives whose hearts are directed heavenward [approaching communal service for altruistic reasons with no personal agenda] will be helped by the Almighty to succeed. In fact, whenever a person wishes to purify his heart and act with appropriate motives instead of self-serving interests, the Almighty will assist him (Shabbos 104a).

4. The Discretion of Beis Din’s Extrajudicial Power

  • Historically, the later authorities ruled that someone who is liable for lashes must pay forty gold pieces.[21] [Since this was only a temporary ruling based on extra judiciary power, however,] in this type of case [nowadays], Beis Din has permission to do whatever the Dayonim deem fit. [They may collect money or] even exonerate the defendant if they wish, as once happened in early times. The incident in early times involved one who was liable to receive lashes. He was seated on the ground to be lashed and the person appointed to give him the lashes did not show up. At that point, our Rabbis excused him from being lashed since he had already been degraded by [merely] preparing himself to receive the lashes (SMA16). This was in accordance with what our Sages said (Makkos 22b, 23a), “Once he has been degraded, he is exempt” (Rambam ch.17 of Sanhedrin h.5).[22]

 

Notes:

 

[1] Before the anointment of Shaul as king, this power was held by Moshe Rabbeinu and the subsequent leaders of the Jewish people (Yehoshua and the Judges), who were all technically Jewish monarchs.

[2] The ideas presented herein are based on Derashos HaRan (chapter 11) and are not found in the Aruch HaShulchan. For a fuller understanding of the two branches of Jewish justice, see the writings of the Ran.

ע”ע אברבנאל ריש פרשת שופטים, ושו”ת אבני נזר יו”ד סימן ש”ב אותיות מז-נב.

[3] Sentences, phrases and words in brackets are added for background information and readability. The rest is a non-literal translation of the Aruch HaShulchan that attempts to clearly and accurately present the ideas contained therein.

[4] The Aruch HaShulchan is referring to all Jewish courts both in Israel and the Diaspora, since there is no distinction nowadays (see SMA 1:1 and 1:9). Historically, however, there was a brief time when the powers of the Jewish court were fully reinstated. In the 1500s, during the Spanish Inquisition, many of the expelled Jews had sinned under duress and were concerned they would not receive full atonement without being lashed. In order to facilitate that, the Mahari BeiRav and other rabbis in Tzfat reestablished authentic semicha. Despite fierce opposition by rabbis in Jerusalem, particularly Mahari ben Chaviv (Maharlbach), some rabbis did receive this semicha, including Rav Yosef Karo, the Alshich and Rav Pinto. The endeavor did not last long. Attempts to launch a Sanhedrin since then have been met with skepticism and have not entered mainstream Judaism—perhaps due in part to legitimate concerns that such control over the direction of Jewish law, ethics and even religion could fall into irresponsible hands. The Chazon Ish, aligning himself with the reasoning of the Maharlbach, ruled that there is no halachic basis for reinstating semicha today.

[5] The Aruch HaShulchan, based on the SMA (s. 3), distinguishes between legislation in response to communal laxity versus corrective measures against an individual who is a negative spiritual influence. When a community lapses, new community-wide legislation may be enacted to constrain the lapse. Anyone who violates the new legislation can then be punished, even if that person never sinned in the way which prompted the legislation. When an individual lapses on the other hand, only the perpetrator himself may be sanctioned as the beis din sees fit.

[6] The Rashbo in responsa (4:311) explicitly allows relatives, women, and children to be witnesses for the purposes of this law when their testimony is supported by circumstantial evidence or can be assessed for veracity, at least subjectively. In another source, the Rashbo allows for second-hand testimony which is when one witness testifies to what another witness told him he saw (עד מפי עד, עיין שו”ת הרשב”א המיוחסות לרמב”ן רע”ט) (See Rashbo’s responsa attributed to the Ramban no. 279).

Based on the principles in this chapter, Panim Meiros (2:155) allows the Jewish court to rely on circumstantial evidence (umdan daas) in any case in order to force an admission from a defendant. In one case in which a safe was broken into and robbed under circumstances which suggested that domestic help was responsible, Panim Meiros ruled that force could be used to squeeze a confession from the defendant. Such speculation based on circumstantial evidence, however, is not sufficient grounds to rule that a defendant must pay. (See note 22 which further delineates this application of extra-judicial power).

The Chidushei Harim, in his commentary on Shulchan Aruch (2:3), goes one step further. He maintains that the testimony of people who have been disqualified as witnesses due to their susceptibility to lie in court (pesulei eidus) can also be used as the basis for punitive or corrective measures at the discretion of the Dayonim.

[7] The Rashbo’s interpretation of the gemoro in Baba Metzia (30b) seems novel. A simple reading of the gemoro directs judges to influence litigants to act beyond the letter of the law. The Rashbo, however, understood it to be saying that the Judges of Yerusholayim erred in not using their extra-judicial powers to forestall the city’s degeneration. Accordingly, they ought to have used circumstantial evidence, for example, to correct deviant behavior and enforce a higher ethic even when it was not otherwise halachically warranted.

[8] Throughout the generations, Jewish courts have been authorized to revoke and transfer ownership of personal assets. The authority for such powers is drawn from verses in Yehoshua and Ezra (see Yevamos 89b) and is relevant to extra-judicial measures as well. The Rashbo (attributed to the Ramban 256) considers this authority to be Biblical, mandated directly from Hashem and apparent to us from verses in the Prophets. Mishpot Sholom, in section 12 of Kuntras Tikun Olam, a manuscript describing the parameters of communal authority found in Shulchan Aruch Choshen Mishpot 231, concludes that every Jewish court, even contemporary batei din (Jewish court active today) who, per force, do not have authentic semicha (ordination) nevertheless has such Biblical authority. In section 9 he distinguishes between the Jewish court’s forced revocation of ownership of personal assets (hefker beis din hefker) in order to safeguard a community’s spiritual deterioration and forced revocation of personal assets for other societal benefits such as protecting the financial interests of immature heirs. The Torah itself authorizes every Jewish court accepted by its community to forcibly disown property if the purpose is to constrain a religious breach (lemigdar milsa); whereas if it is for other societal benefits, it is rabbinically authorized.

[9] In fact, the authority extends to torture (pulling out hair), imprisonment and beating in order to deter the defendant from his reprehensible behavior. Halachic authorities remind the Jewish court to be considerate of human dignity and act only with the purest of motives. Should the defendant be a Torah scholar, they should act in secrecy, taking extra care not to cause a desecration of Hashem’s name (SMA 2:8). The statement of Chazal lauding judges who bear full responsibility for judging correctly (emes la’amito) thereby ensuring the improvement of the world and G-d’s presence among Jewry applies to these extra-judicial corrective measures as well. (See SMA 8:14).

עיין סמ”ע סימן ח’ סקי”ד כל דיין שדן דין אמת לאמתו אפילו שעה אחת כאילו תיקן כל העולם כולו וגורם לשכינה שתשרה ישראל לא רק בדין תורה אלא גם לפי השעה למגדר מילתא, ולא יאמר מה לי ולצרה הזאת.

[10] Although a final decision from Beis Din is normally required before seeking the support of the secular judiciary, in extra-judicial cases Beis Din may enlist the support of secular courts even before issuing a final ruling (SMA 2:7). The Aruch HaShulchan’s choice words allude to this point when he writes that Beis Din may enlist the secular authorities to enforce compliance with “Jewish values” instead of solely with “the decision of the Jewish Court.” The Tur, however, only allows the Jewish court to request assistance from the gentile legal system after a decision has been issued by Beis Din, effectively ensuring that the secular system is merely upholding a Jewish decision. According to the Tur’s opinion, it is never permissible to enlist the local non-Jewish authorities to deal with a Jew who is a menace to society. Although the Aruch Hashulchan’s allusion to the SMA’s opinion mentioned above is less than definitive, it may be relied upon in practice.

[11] While the Aruch Hashulchan has not given specific guidelines for when to implement this sweeping power other than writing that it be applied “according to the needs of the time,” an important factor seems to be concern for the public. For example, if the accused is a sex offender, has committed homicide, sells drugs, drives a motor vehicle under the influence of intoxicants, or performs religious sins in such a way that may lead others astray with or without physical harm, a Beis Din may be required to act. An example cited in the Beis Yosef is a Judge who ordered someone killed for displaying affectionate behavior toward a married woman in public. As the Aruch HaShulchan continues to explain, such a concern would also include taking action against anyone who would undermine the local governing authority since this threatens the Jewish community harboring such a seditionist.

[12] The full verse in Mishlei is ירא את ה’ בני ומלך ועם שונים אל תתערב

The Malbim, a contemporary of the Aruch Hashulchan, translated the verse as follows:

Shlomo Hamelech is exhorting all Jews to fear Hashem in religious matters and to be obedient to the governing authority in matters relating to the social structure. Do not associate with people who show an interest in revolting against the government and establishing a new authority. Such subversive activity is an infraction of Hashem’s will in that He requires reverence for the governing administration.

It is possible that the choice to cite this verse was influenced by the Malbim’s translation. The Malbim died in Kiev in 1879 at the age of 70. While he was one of the great Jewish leaders of his time in halochoh and communal matters, he dedicated his writings to his work on Tanach. Rav Yechiel Michel Epstein, the author of the Aruch Hashulchan, lived in Novardok and printed this volume in 1891.

[13] While it is possible that the Aruch Hashulchan meant this seriously, since protecting such people was, in fact, dangerous, it may be that he felt compelled to add it lest its omission provoke unnecessary antagonism from the authorities. If so, he may never have meant it as normative halochoh. Indeed, it seems quite odd to require having a Jewish investigative unit to make sure no Jew even thinks of rebelling against the local anti-Semitic dictator.

[14] Rav Shneur Zalman of Liadi, the first Lubavitcher Rebbi, in his commentary on Shulchan Aruch, writes that the elected members of the community should not use their authority in this regard without first seeking guidance from a reputable Jewish court. Deciding such matters without input from Torah scholars would indicate an extremely low level of fear of the Almighty. (Shulchan Aruch HoRav, Nizkei Guf 16). Unfortunately, some communities with noble intentions seek professional help to deal with threats to the public (e.g., sexual offenders) but neglect to ensure competent rabbinic supervision over all decisions.

[15] Yerovam, a civil servant, was expected to collect a certain amount of tax from his tribe, Efraim. When Shlomo HaMelech refused to lessen Yerovam’s tax burden, he rebelled. His rebellion eventually created an undesirable, lasting split in the nation, with the Davidic dynasty ruling over the tribe of Yehuda and Yerovam becoming the first king of an alternative monarchy ruling the rest of Yisroel (see Kings I chapters 11, 12 and 14, Kings II chapter 17 and Chronicles II chapters 10 and 13). The Talmud (Sanhedrin 90a) teaches that Yerovam’s behavior earned him the infamous title of being one of the few to be denied any pleasure in the world to come.

[16] Rav Yaakov ben Shmuel of Zvizmir, also known as the Beis Yaakov, forbade advocating for someone that Beis Din planned to punish as a deterrent to potential future offenders. He explained that from the time the rumor of the defendant’s misdemeanors had circulated, and Beis Din had commenced plans to apply punitive measures, any association with or support of the defendant would be considered an alliance with a known rosho (evildoer) and was therefore forbidden; at that point, despite a lack of proper evidence against him, the defendant must manage on his own. (Beis Yaakov, Siman 107; printed in 1696, available on Hebrewbooks.org).

[17] According to the Aruch HaShulchan then, there are two instances mentioned here in which the City Council has authority even when there is no communal need or religious breach. The first is when they are explicitly empowered and the second is when they act to maintain the status quo. The first scenario is mentioned explicitly by the Ramo. The second scenario is referred to by the Ramo more obliquely. The Ramo first mentions a rejected opinion stating that the City Council does not possess jurisdiction to enact inequitable legislation even though there is a communal benefit. Then, according to the Aruch HaShulchan, the Ramo later notes that even still, all agree that City Council may enforce the status quo even when it is inequitable to individuals and even when there is no communal benefit or expected constraint of a religious breach.

[18] This halochoh is still applicable in all communal matters. Synagogue or condominium boards or any other multi-partner group who have appointed representatives to deal with the ongoing functioning of an institution or communal entity must follow these principles. When the partners have enough trust in the representatives, it is often most efficient to give the council freer rein to do as they see fit. For an appointed council to function expeditiously, it can be invested with the power to operate without restrictions. Official forums usually have detailed charters describing the powers conferred. These are halachically binding delineations of the representatives’ authority. In smaller forums such as vaad habayit in which no clear guidelines have been given, the scope of their powers is usually limited to such things as paying bills and collecting funds.

[19] A kinyon is a halachic act of acquisition, typically irreversible, designed to demonstrably affirm the intent of a party or parties to undertake a transaction or obligation with full awareness of its implications and complete seriousness. Since the function of a kinyon is to finalize one’s commitment to an obligation or transaction, technically, it can also be accomplished with an oral statement. In fact, in exceptional circumstances, halochoh will rely on an oral statement to effect a kinyon such as when it is necessary but impractical for an entire community to perform a kinyon.

[20] In general, a known custom is akin to an unspoken contract which binds the relevant parties. When both parties know or are expected to know of a given custom, it is considered to have been discussed and agreed upon as a binding condition to any obligation, transaction or appointment even when there was never any mention of it.

[21] One gold coin per lash.

[22] There are many other examples of Beis Din exercising their authority as allowed for in this Siman, including the following cases:

  1. In one instance, the Rosh endorsed the decision of a local rav to cut off a widow’s nose which she had beautified in order to attract an Arab man. Rumor had it that the Arab had impregnated her resulting in the denigration of Judaism and Jewish laws by the local gentiles. R’ Yehuda ben Yitzchak, the local rav, was concerned about other women learning from this precedent but was unable to find bona fide halachic witnesses to convict the widow. The Rosh endorsed the corporal punishment and urged a swift response to prevent the widow’s further assimilation. He also recommended fining her in accordance with her wealth. (Responsa 18:13).
  2. R’ Yehuda ben Asher, the Rosh’s son, recommended amputating both hands of a defendant who disfigured a Dayan as revenge for having found him liable to pay a tax. The Dayan testified that the defendant ambushed him, beat him, cut his face from eye to chin and lacerated his lips, permanently disfiguring him. Reputable witnesses could only testify about the defendant’s threats, ambush and escape, but not the actual attack. Rav Yehuda wrote that any attack on any person must be dealt with, especially against a representative of Beis Din involved in upholding justice, and particularly against a Dayan himself. Killing the defendant was not recommended since he was not technically liable for the death penalty. Moreover, it was thought that amputating both his hands – one for each wave of attack – and leaving him alive would be a more effective deterrent while still preventing further aggression from the defendant. (Chidushei Harim 2:3 ruled that it is forbidden to kill someone even as a deterrent without proper halachic witnesses. This responsa seems to contradict that assertion). Rav Yehuda also urged the rabbinic leaders to make certain they approach this type of justice with only the purest of intentions. (Responsa no. 79)
  3. Rav Yisrael Isserlin, also known as the Terumas Hadeshen, who lived from 1390 to 1460 and was Chief Rabbi and Rosh Yeshiva of Vienna, ruled that someone who was alleged to have purposely pushed another during hoshanos, causing him injury, be required to apologize publicly and pay the victim a fine. The defendant claimed that he was unaware that he was the one who pushed and if he was, it was done accidentally. There were no witnesses to testify otherwise. The plaintiff claimed that they had been enemies for years, and a witness said that the defendant notified him the night before that he would push the plaintiff. Also, upon leaving shul after the incident, the same witness said that the defendant turned to him and asked sarcastically, “Why didn’t you help the plaintiff when he was pushed?” The witness understood this as an admission that he had carried out his threat from the previous night. The Terumas Hadeshen explained that none of this testimony is enough to exact judgment according to strict halochoh. The threat may have been posturing, the “admission” was unacceptable since it wasn’t made in a Jewish court, and such circumstantial evidence was insufficient to exact punishment or charge for medical care. However, in light of Siman 2 in Shulchan Aruch and out of concern that hoshanos become a forum for revenge which might one day lead to their cessation, as well as the incident’s desecration of the shul, the mitzvah and the sefer Torah which was on the bimah, he required the defendant to apologize in shul on a day of kerias haTorah in front of the shul’s dignitaries and pay the victim a fine which he could use for the mitzvah purpose of his choice. (Responsa, Terumas Hadeshen, pesakim 210).

A Further Application of Beis Din’s Extra-Judiciary Power

The Chofetz Chaim found another example when the Jewish court is entitled to use their discretion to cause bodily harm to a person which is otherwise halachically unwarranted in a situation outside the scope of the above Siman in Shulchan Aruch. In general, the Chofetz Chaim rules that if it is obvious that negative information about a person is true then one may believe it but may still not share the news with others. Likewise, one is not permitted to physically harm that person even to recoup a missing possession. In order to reclaim such an item, a proper suit in a Jewish court is required. Beis Din, however, is entitled, by virtue of its extra-judicial powers, to use this halachically unreliable information as the basis to coerce a confession or other information which may incriminate the suspect. (See 7:12 and 7:13 of The Laws of Loshon Hora and Be’er Mayim Chaim 7:31 and 7:32 based on the Rosh and Nemukei Yosef to Baba Metzia 24a).

The Panim Meiros (2:155) mentioned earlier (note 6) says essentially the same thing. These rulings effectively expand the authority of the Jewish court to a case not addressed in the Shulchan Aruch. In these cases, corporal punishment is permitted neither to punish an offender nor to help the community but rather as an interrogation technique in a private civil matter.

כתב בבאר מים חיים כלל ז’ ס”ק ל”א, דפשוט דאין להכות חבירו ע”י השערת אומדן דעת לבד, וההיא דב”מ כד. מיירי שמר זוטרא היה דיין ולא היה כלי שלו, ומותר רק מפני צורך השעה כדאיתא בריש חו”מ (סימן ב). אולם יש להזכיר דאין דבריו מוסכמים. עיין חכמת שלמה בגליון חו”מ סימן שמ”ח דהוכיח מהרא”ש דמותר לצורבא מרבנן להכותו כדי שיודה על הגניבה אף שלא בביה”ד. ומה שהביא הח”ח (והפ”מ) ראיה מסימן ת”ח י”ל דביה”ד אסור להוציא ממון ע”פ אומדנא אבל יחיד רשאי.

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