[Avodah] Democracy and the Beit Din

[Chana]

RMM writes: 
> A beit din is a community institution, and presumably, just as the
> parnasim are appointed by the people, so too the dayanim.

This premise is false.

I discussed this at http://www.aishdas.org/avodah/vol27/v27n006.shtml#11  .
While there is an *alternative* option for the appointment of dayanim (and
for that matter parnasim) based on appointment by the people, that is not
the primary mechanism.  The primary mechanism is via the melech or nasi or
the Sanhedrin.

> 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),

Not sure how one can bear with you when you are positing the impossible.
There is a concept called hefker beis din hefker which allows for the
removal of property from people even if improperly. Ie it may be wrong but
it works and the property is no longer theirs.  Similarly there are
extensive discussions regarding the kings's powers of which this may form
one.  Again I discussed this, albeit briefly at the bottom of the post I
refer to above.

 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.

Again this is a hugely complicated subject, which you cannot learn out from
one small piece of aggadita.  There are purely Torah sourced powers and then
there are powers sourced from din melech, which allow for a lot more
discretion.  There are questions of issur v'heter, dinei nafashos and dinei
mamonos and they are all different.  Dinei mamonos has, as I indicated
above, a universally applicable get out, that makes it binding even if
against Torah law.  Dinei nafashos are subject to the melech's general power
and right to keep order by whatever means necessary, which allows for an
incredibly wide range of powers if the proper procedures for appointment
have been followed. Admittedly the width of the powers of the king is itself
subject to machlokus in the gemora and subsequently.  That leaves questions
of issur v'heter.

> 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.

Again, not so straightforward.  Assuming we are now talking only about issur
v'heter I have seen arguments from rishonim for both sides.  The easier case
is where a rav or dayan tells you something is assur when it is mutar.
There is a lot of discussion about whether an issur then attaches to the
chefetz (assuming a chafetz like a chicken).  It may depend on whether they
are toeh in a dvar mishnah or not.  Even this is not so simple.
Even more difficult is the case where a rav tells you something is mutar
when in fact it is assur.  If you rely on his word, whose aveirah is it, his
or yours?  Do you have responsibility to go and second guess him or have you
discharged your responsibility by going to ask somebody who, as far as you
are aware, is reputable?  

> 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.

Again this strikes me as a vast oversimplification.  Usually the first is
phrased in the reverse, a takana or gezera falls away if it becomes clear
that the people are unable to endure it not that any ratification formal or
informal by the people is needed.  There is no formal mechanism for a layman
to promulgate a minhag, and it would seem that it needs some form of
recognition by the Torah authorities before it becomes accepted as a minhag.
Our history is absolutely littered with rulings and minhagim that violate
the Torah.  Some of them (ie when done by Torah authorities) are deemed
horas sha'ah (see for example the Rashba I quoted in the post I refer to
above).  Some of them the authorities spend a lot of time grappling with the
fact that there seems to be a minhag that violates the Torah.  Sometimes
they rail against it, sometimes they seem to find some sort of
accommodation.  It doesn't necessarily mean the minhag goes away (an example
I am thinking about off the top of my head is the minhag, codified in the
Rema, that women should not make brachos, bench or daven when they have
their periods.  The Magen Avraham duly jumps up and down and says how can
you have a minhag that has no basis and which violates the Torah obligation
on women to bench and make Kiddush.  And the later codes such as the Mishna
Brura and the Shulchan Aruch HaRav agree.  And it is probably reasonably
fair to say that today this minhag has possibly disappeared.  But how do you
explain the Rema and what seems to have been occurring in Ashkenaz for
centuries!  Note by the way that the Chatam Sofer finds an accommodation
with it, bringing a reference to Nach and  quoting the Ramban al haTorah on
Rachel Imanu, which suggests to me that in Hungry at least it was extant
until much later).  Of course sometimes such a minhag prompts a
reinterpretation of the Torah that would seem to be contrary to the way it
was previously understood but which then gets accepted as normative.  And
there are many thousands upon thousands of other examples which to my mind
makes this kind of summary way too simplistic.

> Michael Makovi

Regards

Chana