THE RABBI AS ARBITER

What is interesting about such binding arbitration is that it was allowed to continue as a form of conflict resolution alongside, but distinct from, the formal institution of the beit din. The fact that arbitration panels were an alternative system of justice seems to have been already recognized in Roman times. Asher Gulak cites an example of a Roman law that recognizes the right of Jews in the empire to go to their own courts rather than Roman courts if they agree to arbitration. Presumably the sides would choose judges according to the pattern enunciated by the Mishnah and could reach a solution in this way outside the bounds of Roman law. According to Gulak this type of court was generally recognized as having jurisdiction in the Jewish community even when in all other cases Jewish legal self-rule was restricted by the governing power. Thus the Roman recognition of arbitration as a legitimate alternative to formal court proceedings provided an important precedent for the future struggle to maintain Jewish institutional and legal autonomy. Although the subject has not been researched sufficiently, it seems that Jewish communities routinely resorted to such arbitration courts when outside powers restricted the jurisdiction of formal Jewish courts.” Thus some semblance of Jewish communal autonomy was retained. I want to investigate this phenomenon a bit more closely.

This resort to arbitration courts in order to get around imperial restrictions developed especially in post-Talmudic times. The basic structure of these panels was developed in Sassanian Babylonia ; notwithstanding the fact that the Jewish community was generally allowed legal autonomy within the late Persian empire. The rabbis and gaonim of Babylonia knew of the Roman legal tradition and adopted it to their own needs. For the Babylonian masters, this sort of litigation, in which both parties agreed to a compromise, was deemed superior to the imposition of a legal ruling. On this we can cite, for example, the following Talmudic

passage:

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