[Avodah] Democracy and the Beit Din

[Michael Makovi]

Re: the democratic nature of batei din

If taxes levied by a Jewish community are somehow contrary to the
Torah (I don't know what exactly this would mean, but just bear with
me), then the taxes may surely be ignored, and if dayanim are not
worthy of being trusted to uphold the Torah, etc., then their rulings
are to be ignored. As the Gemara says in Sanhedrin daf zayin, a false
dayan is like an asherah.

Ein shaliah b'davar `averah dictates that if the dayanim or parnasim
violate the Torah, that their non-Toraitic rulings or policies are not
binding on anyone. A beit din has power only to rule according to the
Torah, but not against the Torah. No matter who you are, the Torah is
our constitution, and no one, no matter how powerful or influential,
has power to contradict it.

A taqana or gezera is valid only if the people accept it and turn it
into minhag ha-maqom, and so no dayan or beit din has the power to
foist unpopular laws on the people. Also, if a layman promulgates a
new minhag and the people accept it, then it is a binding minhag
ha-maqom, even though no dayan promulgated it. Also, if the minhag
violates the Torah, then it is null and void, regardless of whether a
layman or dayan promulgated it. In the end, only the Torah-true (or
Torah-false) nature of the ruling or minhag or taqana or gezera, and
the people's acceptance, matter, and not the personality of the
promulgator.

If the law or ruling is a Torah law, however, then of course anyone,
dayan or not, may certainly foist it onto the people, and the people
cannot complain.

A beit din is a community institution, and presumably, just as the
parnasim are appointed by the people, so too the dayanim. Rambam, in
Hilkhot Sanhedrin 1:1, implies that the mitzvah to appoint dayanim
devolves onto each individual, and the language in the Torah implies
the same; it says YOU will appoint shoftim and shotrim, but it doesn't
say any one special person will appoint judges. Presumably, this means
that if the community didn't appoint someone as a dayan, then he has
no power; one cannot install himself tyrannically as a self-appointed
dayan.

If this is not federal ( = Latin for "covenant") Locke-ian democracy,
then there is no such thing as democracy on earth.

Michael Makovi