The Role of Beit Din of the Shevet
This week's shiur will depart in certain respects from the standard format. Instead of focusing upon a topic which showcases the methodology of talmudic analysis, I would like to address an issue which arose out of the discussion surrounding the beginning of masekhet Sanhedrin, which we are currently learning in yeshiva.
The gemara in Sanhedrin (16b) deduces from the opening pasuk of Parashat Shoftim the existence of an elaborate judicial system including municipal circuit courts, as well as a centralized 'supreme' court known as Beit Din Ha-gadol or Sanhedrin Gedola (located in the lishkat ha-gazit - a chamber adjacent to the mikdash). The gemara also mentions a court for each shevet - each of the twelve tribes; the gemara infers this from the Torah's syntax "Shoftim ve-shotrim titen lekha be-khol she'arekha asher Hashem Elokekha noten lekha LI-SHVATEKHA" (you should appoint judges and policemen in all the gates of the various cities which Hashem gave your respective TRIBES). From this the gemara infers, according to one position, the existence of a tribal court. What exactly was the status of this court and is its presence agreed upon by everyone?
Rabbenu Yona in his commentary on the gemara poses the following question:
Once the Torah mandates the system of municipal courts, what is the role of a tribal court? Each citizen already had recourse to his own municipal court. Rabbenu Yona concludes (parallel to Tosafot) that in certain cases these municipal courts were further subdivided along tribal lines. For example, if certain cities had different tribes within its population, distinct municipal courts were allotted for each tribe. This arrangement accommodated the opinion of Rav Shimon Ben Gamliel (cited further in the gemara) that there is a mitzva to solicit a court composed of individuals from your own tribe. (In fact the Ramban in his commentary to the Torah (Bereishit 19:8) claims that benei Yisrael were punished in the Pilegesh Be-giv'a incident, in part because they acted to punish the perpetrators instead of deferring to the local courts of shevet Binyamin.) According to Rabbenu Yona (and Tosafot) the halakhic judicial system does not recognize an independent notion of a tribal court; rather, these courts were municipal courts established along tribal lines.
The Ramban in his commentary on the Torah (Devarim 16:18) presents the most sophisticated notion of a distinct beit din for each shevet. The Ramban claims that not only did these courts exist but they functioned as mini-Sanhedrins at the shevet level. Their authority transcended that of the municipal courts.
Accordingly, these tribal 'Supreme courts' were charged with the following tasks:
1. Settling disputes between cities and provinces
2. Forcing members of their shevet to appear in this central court. Generally, one is forced to appear only in the court of his town. According to the Ramban, though, the shevet Supreme court could force the members of its shevet to appear in court.
3. Instituting special takanot and gezeirot for their particular shevet. The Ramban claims that these 'decrees' had the validity of national decrees instituted by the Sanhedrin Ha-gadol.
The Ramban establishes the notion of a Sanhedrin Gedola at the shevet level. According to his line of reasoning, one can envision an additional role for this special beit din - to appoint local courts at the city and province level. According to the Ramban, not only did a special shevet beit din exist but it possessed unique authority modeled after the central beit din.
In truth, the Ramban does not deduce his position only from the pasuk in Shoftim (cited earlier) which stresses the identity of shevatim within the judicial system. The first mishna in Sanhedrin implies as much. The mishna lists several functions performed only by the Central Beit Din in Yerushalayim, among these the appointment of minor-Sanhedrin's for each shevet. Evidently, these tribal courts had the status of a 'Sanhedrin' and were not merely alternate options to one of the lower courts. The use of the term Sanhedrin rather than beit din is critical, emphasizing the unique status which these shevet-courts enjoyed. In truth this statement also implies that the central Sanhedrin did NOT appoint municipal courts. Might this have been the role of shevet-Sanhedrins as suggested earlier? (Interestingly enough, Rashi in his commentary to the Mishna reinterprets this reference to minor-Sanhedrins as referring to municipal courts. Possibly, Rashi would deny these courts' status as Sanhedrin and would view them in a different light.)
The Ramban also cites a mishna in Horayot (4b) as proof for his position. In parashat Vayikra (4:13-21) the Torah describes the korban known as par he'elem davar shel tzibbur - a chatat sacrifice offered if the entire population commits a sin based upon an incorrect verdict issued by the Sanhedrin Gedola. The mishna cites the position of R. Yehuda that if the beit din of a shevet rules incorrectly leading to a communal sin by the entire shevet, a similar korban is offered. This halakha seems to indicate the similarity between the Sanhedrin Gedola and the Sanhedrin of each shevet.
We have located the source for the existence of a separate court for each shevet - the opening verse of parashat Shoftim. In fact, many positions, such as Rabbenu Yona, downplay the existence of such a court. According to these positions, if a tribal court did exist, it served as a special type of municipal court; fundamentally, though, there was no separate court for each shevet. On the other extreme, the Ramban takes the boldest stance in recognizing these courts as independent and possessing unique authority - that of Supreme Courts in the model of mini-Sanhedrins. Others may recognize the existence of tribal courts without ascribing to them this unique status (possibly Rashi on the first mishna in Sanhedrin).
In truth, much of this debate might revolve around a fascinating fundamental issue. The Torah provides us with the notion of tribes, at one point, very much shaped our identity. Even before uniting into a nation during yetziat Mitzrayim twelve separate tribes take form. Though the Torah does not emphasize identities during the actual story of yetziat Mitzrayim, they play critical roles throughout the rest of the Torah. (See, for example, the Torah's description of the encampment formation, the garments of the kohen gadol, the census taking, the tribute offerings during the inauguration of the mishkan, the dispatching of spies to the land, and ultimately the actual apportionment of Eretz Yisrael itself.)
As we proceed through Tanakh we see these tribal affiliations becoming less and less central. Though the books of Yehoshua and Shoftim still present these divisions (sometimes leading to internal strife and even hostilities) the appointment of a central king (a federal government if you will) in Sefer Shmuel signals a turning point in the role of shevatim. Ultimately, the exile of ten tribes in Sefer Melakhim diminishes the role of tribal affiliation within Jewish identity. The question remains: in theory, does Halakha relate to the concept of 'shevet' as a distinct socio-demographic entity? Or do these affiliations play dominant roles in the Scriptural drama but fade once Halakha develops? This general question might go a long way in determining the viability of separate shevet Supreme Courts.
Interestingly enough, the Ramban himself, commenting on the prohibition of 'lo tasig gevul' (Devarim 19:14), assumes a prohibition to alter the boundaries of Eretz Yisrael which were set according to shevet. This statement alone, however, does not necessarily confirm halakhic recognition of the concept of shevet. Simply, the original borders of Eretz Yisrael must remain intact; as these borders were established according to shevatim, they entail a concrete geographical or cartographic reality which cannot be altered. This alone does not mean that the population of a certain shevet (possibly dispersed in different cites and living in the lands assigned to OTHER shevatim) possess a halakhic status. Are there any halakhot which relate to the shevet rather than to the person, to the city, or to the nation?
The mishna in Horayot (4b) might provide one such example. While delineating the laws of the par he'elem davar shel tzibbur, the mishna cites the position of R. Yehuda: rather than beit din offering one sacrifice on behalf of the entire nation, each separate population that sinned must offer its own independent korban. According to R. Yehuda since each shevet exists as a kahal, a distinct community, each shevet that sinned must offer a separate korban. In fact, the gemara locates two pesukim which refer to a shevet as kahal thus confirming its status as a separate population. This position of R. Yehuda clearly recognizes the shevet not merely as a historical allegiance but as a halakhic reality.
A parallel gemara can be found in Pesachim (79b-80a). The gemara distinguishes between a situation in which individuals are impure during Pesach and one in which the entire tzibbur is impure. In the former case, those individuals reschedule their korban Pesach for Pesach Sheni. In the latter case, we rule "tum'a hutra be-tzibbur" (a collective tum'a is annulled) and the korban is sacrificed on the first Pesach even though everyone is impure. The gemara debates the manner of determining a 'collective' tum'a. According to one position, we assess the population at large and classify the degree of tum'a based upon the majority. According to R. Shimon, however, if the majority of ONE SHEVET is impure that entire shevet sacrifices the Pesach while impure. Since an entire mini-kahal is impure this tum'a is considered 'be-tzibbur' (collective) and is annulled. R. Shimon cites the same logic of the gemara in Horayot that the Tanakh refers twice to a shevet as a kahal - corroborating the notion that the shevet retained some form of autonomous identity.
We have located positions in two gemarot which halakhically recognize the concept of a shevet as an independent socio-political entity. At least regarding certain korbanot, we treat a single shevet as its own community.
These positions do not necessarily mandate that each shevet be awarded its own beit din or that this beit din be treated as a mini-Sanhedrin. We might acknowledge a shevet as a separate community but not grant a Sanhedrin to each community. Thus, the Ramban's position does not necessarily stem from these halakhot.
The one halakha which might support the Ramban's concept directly is one recorded in the continuation of the mishna in Horayot (cited earlier and quoted by the Ramban). R. Yehuda rules that if the beit din OF A PARTICULAR SHEVET issued an incorrect ruling and that shevet acted upon this edict, a he'elem davar korban must be brought. This statement not only confirms the status of each shevet as a halakhically recognized entity but also establishes its BEIT DIN as a Sanhedrin whose incorrect ruling leads to a he'elem davar sacrifice. Such could not be said if the courts served merely as municipal courts, for municipal courts do not enjoy a quasi Sanhedrin status.
The Ramban established the concept of a separate 'mini-Sanhedrin' for each shevet. Each of his assumptions were inspected. Did such a beit din exist at all? If so, what was its status? Was it more similar to local municipal courts or did it possess a Sanhedrin-like status? Ultimately, the Ramban's doctrine reflects a broader issue of whether Halakha affords any status to a shevet. Two examples in Halakha were located but, again, they do not necessarily mandate a Supreme court for each shevet.
To a certain degree the question raised by the Ramban and expounded upon in this article reflects a more general political question. What balancing of power should exist between central Federal Governments and local ones. This question obviously has shaped the development of many of our modern democracies (students of American History will readily recognize this question as the foundation for the debates surrounding ratification of the Constitution and the drafting of the Federalist Papers). This basic question must be confronted by any society and from our standpoint must be inspected both within the parameters of Halakha as well as historically, within Tanakh.