THE RABBI AS ARBITER

Peter Haas

There is a governing presumption in Jewish law that the

halakhah has no gaps. The revelation given to Moses at Sinai covers every contingency, either directly or through analogy. For this reason, it is understood, the courts and judges who adjudicate disputes in Judaism do not in fact make law, as we seem to take for granted in the American judicial system. Rather it is the goal of the court and its judges to discover the proper precedent for the case at hand. Legislation is a matter of the Divine. What is left in human hands is merely the application.

It has become an unquestioned, widely accepted, and wrong assumption today that the only valid institution for such an adjudication of disputes within the Jewish community was the beit din and that all such decisions were to be made only by scholars. This assumption has been pushed, of course, by the Orthodox rabbinate in its attempt to delegitimize any attempt by non­Orthodox rabbis, scholars or laypeople to make any pronouncements whatsoever as regards what might count as proper Jewish practice. In fact another institution existed outside the beit din, an institution which was always given halakhic recognition. This institution is the arbitration court. I want to describe this little known institution of Jewish law, pointing out in the process that the halakhah until modern times was much more diverse, open and tolerant that the current Orthodox myth allows. The halakhah, the arbitration court shows, was hardly“orthodox” at all.

The origin of this legal mechanism, that is, arbitration, as a parallel to the formal batei din, is lost in the mists of history. The general consensus is that is has its roots in the Greco-Roman legal system." In all events, it was already taken, more or less, for granted by the time the Mishnah was compiled. The fact the Tannaim saw the two types of courts as essentially equivalent. In either case the litigants come before a panel that elicits testimony