Rabbi Jachter's Halacha Files
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Parshat Shoftim          6 Elul 5765             May 14, 2005             Vol.15 No.1


Appealing a Halachic Decision
by Rabbi Chaim Jachter

This week, we will discuss the question of when we are entitled to appeal a Halachic decision that a Rav has rendered. In this essay we will discuss the parameters of when Halacha permits a second Rav to reverse the decision rendered by the first Rav. In this context, we will also discuss the institution of the Rabbinical Court of Appeals that functions in Israel under the auspices of the State of Israel’s Chief Rabbinate. For further discussions of this fascinating institution, see Rav J. David Bleich in Contemporary Halachic Problems IV: 17-45 and Professor Eliav Schochetman in Seider Hadin pp.443-470.

Gemara
The Gemara (Niddah 20b) relates a very interesting story that involved Yalta, an interesting Talmudic figure who was the wife of Rav Nachman. Yalta brought Dam (blood) to Rabba bar bar Chana for a Halachic determination as to whether it rendered her a Niddah. (See Tosafot ad. loc. s.v. Kol, Rash to Nega’im 2:5, Shach Yoreh De’ah 187:5, and Teshuvot Yabia Omer 6:Y.D. 18 for a discussion of why she did not consult her eminent husband for a Halachic decision.) Rabba bar bar Chana ruled that it did render her a Niddah. Yalta, however, was dissatisfied with this decision and appealed the ruling to Rav Yitzchak the son of Rav Yehudah. Rav Yitzchak in turn ruled that she was not a Niddah.
The Gemara is troubled by Rav Yitzchak’s ruling in light of the principle that once a Rav has ruled, it is forbidden for another Rav to reverse the decision of his colleague. The Gemara therefore explains that Rav Yitzchak at first told Yalta that she was a Niddah. Yalta, however, explained to Rav Yitzchak that Rabba bar bar Chana had routinely ruled that the shade of Dam that she had shown him did not render her a Niddah. It seems, argued Yalta, that in this instance Rabba bar bar Chana’s eyesight was impaired and he was unable to render an accurate decision. Rav Yitzchak accepted this argument as valid and ruled that Yalta was not a Niddah. Thus Yalta’s situation differed from the typical situation where a Rav may not reverse a colleague’s decision.
The Rishonim offer various theories why in general Halacha imposes limits on the second Rav. Rashi (Niddah 20b s.v. Mei’Ikara) indicates that the rule stems from concern for the dignity of the first Rav who was consulted. The Ran (Avodah Zara 1b-2a in the pages of the Rif, s.v. HaNish’al) explains that reversal makes it “appear as if there are two Torahs.” The Raavad (cited by the Ran) asserts that when one presents an issue to a Rav, he binds himself to the jurisdiction of that Rav. It is equivalent to creating a prohibition by imposing a Neder (vow) upon himself. This Talmudic concept is referred to as “Shavya Anafshei Chaticha De’Issura.”

Tosafot – Niddah 20b and Avodah Zara 7a
Tosafot (Niddah 20b s.v. Agamrei) are troubled by Yalta’s apparent violation of the Gemara’s (Avodah Zara 7a) rule that if one posed a question to a Rav and he issued a strict ruling he may not appeal the decision to another Rav. Tosafot explain:
The prohibition devolves on the Rav and not on the individual posing the question. The questioner may ask as much as he wishes – as a result the second Rav will investigate the matter more thoroughly and sometimes as a result it will be discovered that the first Rav had erred.
Tosafot in Avoda Zara (7a s.v. HaNishal) takes a more restrictive approach to this issue. They answer the question by explaining that the prohibition applies only when the questioner does not disclose to the second Rav that he previously presented the question to another Rav who issued a strict ruling. They also state that the second Rav is forbidden to reverse the first Rav’s decision unless the former succeeds in convincing the latter that he erred. Tosafot in Niddah, in contrast, appear to permit the second Rav to reverse the first Rav’s decision even in the absence of the latter’s consent.

Rama and Acharonim
The Rama (Y.D. 242:31 following the Ran; also see Tosafot to Chullin 44b s.v. Heichi) offers a compromise between the two approaches of Tosafot. The Rama rules that the second Rav may overrule the first Rav if the latter made a blatant error. This refers to a case where the first Rav erred in “Devar Mishna” - accepted halachic practice (see Sanhedrin 33a, Rosh Sanhedrin 4:6, and Shulchan Aruch Choshen Mishpat 25:2). The Rama adds that if the second Rav believes that the original Rav made an error in judgment (what the Gemara calls “Ta’ut BeShikul HaDa’at”), the former should attempt to convince the latter to retract his ruling. If the first Rav refuses to retract, the second Rav may not reverse the decision of the first Rav.
The Shach (Y.D. 242:53) cites differing opinions among the Rishonim as to whether the second Rav is authorized to reverse the decision of the first if he is of greater stature than the first Rav. The Shach appears to accept as normative the view that he is indeed authorized to do so even in a matter of Shikul HaDa’at. The Aruch Hashulchan (Y.D. 242:62) is inclined to rule in accordance with the Shach. He argues that the reasoning of a more eminent Rav is more compelling. Indeed, superior reasoning ability is often the basis to regard a particular Rav as greater than his colleagues. On the other hand, Rav Ovadia Yosef (Tahorat Habayit 1:323) rules in accordance with the Rishonim who forbid even a great Rav to reverse the Halachic decisions of a Rav of a lesser stature, unless the first Rav erred in a Devar Mishna. Needless to say, it is often exceedingly difficult to decide who is the Rav of greater stature.
The Aruch Hashulchan, notes, though that no restrictions apply if the first individual who rendered a decision was a Torah scholar but not qualified to render Halachic decisions (Lo Higiah LeHora’ah). The Halachic decisions of such an individual are considered null and void. Obviously, each Torah scholar and Rav must be honest with himself and not issue rulings when it is not appropriate for him to do so (Makir Et Mekomo; see Avot 6:6). It is also difficult at times to determine if someone is regarded as Lo Higiah LeHora’ah.
The Aruch Hashulchan (Y.D.242:62) rules that if the original Rav was the Mara De’Atra (Rav of the area or synagogue) then under no circumstances may his decisions be reversed. It is very important to show proper respect for the authority of a community’s Mara De’Atra. Indeed, Rav Hershel Schachter has stated that one should not observe a Chumrah (stringency) in Jewish law that the Rav of a Shul does not observe. Rav Schachter gave the example of standing for Keriat HaTorah, which is not required by the Halacha (see Shulchan Aruch Orach Chaim 146:4). The concept of Mara De’Atra appears in Shabbat 19b, Eiruvin 94a, Pesachim 30a, and Chullin 53b.
Rav Ovadia Yosef writes (Tahorat Habayit 1:331) that if a Rav rendered a Halachic decision for a Sephardic Jew in accordance with Ashkenazic authorities but conflicting with traditionally accepted Sephardic authorities such as Rav Yosef Karo, the decision may be overturned because Rav Yosef Karo is viewed as the Mara De’Atra of Sephardic Jews.
For further discussion of the parameters of the issue of when a Halachic decision may be reversed, see Encyclopedia Talmudit 8:507-510.

The Israeli Rabbinical Court of Appeals
The concept of a court of appeals is widely accepted in the Western world as a basic element of a fair judicial system. Indeed, beginning in 1921 the Israeli Chief Rabbinate’s system of rabbinical courts has included a Supreme Rabbinical Court of Appeals (apparently upon the insistence of the British Mandatory Authority). Rav Avraham Yitzchak HaKohen Kook and Rav Ben Zion Uzziel (Teshuvot Mishpitei Uzziel C.M. 1), the chief rabbis of Eretz Yisrael, endorsed the establishment of this institution. Rav Uzziel sees this as an example of incorporating positive ideas from Nochrim into the Torah system (Yafyuto Shel Yefet BeOhalei Shem; see Megilla 9b). However, many in the Chareidi community object to this institution and see it as an inappropriate emulation of foreign systems of law (see, for example, Teshuvot VeHanhagot 1:796, where Rav Moshe Shternbuch writes, “the great rabbis of Israel vigorously protested the establishment of the Rabbinic Court of Appeals as nothing but an imitation of foreign legal systems”).
Many great Poskim have sat on this special Beit Din, including Rav Yitzchak Herzog, Rav Eliezer Waldenburg, Rav Ovadia Yosef, Rav Yosef Shalom Eliashiv, and Rav Zalman Nechemia Goldberg. It has functioned with great success for decades and continues to function with great success. Eminent Rabbanim such as Rav Shlomo Dichovsky and Rav Avraham Sherman currently are members of this Beit Din.
However, one may scour the entire Talmud, Rishonim, and Acharonim without finding any explicit mention of a Beit Din of appeals (although the Seforno understands Shemot 18:21 as presenting a system of appeals). Nonetheless, the Gemara (Sanhedrin 33a) does provide grounds for when a judicial decision may be reversed and records cases (Ketubot 50b and Sanhedrin 33a) where decisions were reversed. Thus, we see that Beit Din decisions may be reversed, but there appears to be no traditional formal system for doing so.
The Gemara (Bava Batra 138b) states that “Beit Din Batar Beit Din Lo Daiyki,” one Beit Din does not challenge the ruling of another Beit Din. Both the Sma (C.M. 19:2) and the Shach (C.M. 19:3) rule based on this Gemara that a Beit Din is not authorized to rehear a case that another Beit Din has already judged. Nonetheless, rabbinical courts of appeals functioned in a number of Jewish communities before the Twentieth Century (see Rav Bleich’s article, ad. loc. 21-24).
Rav Ovadia Yosef (Teshuvot Yabia Omer 2: C.M. 2) justifies the institution of the Supreme Rabbinical Court of Appeals. First, he notes that the Gemara states that a rabbinic court does not review the decisions of another rabbinic court. Rav Ovadia understands this to mean that their practice was not to do so, but not that it is forbidden to do so. Second, the Shach and Sma prohibit only rehearing a case from the beginning. However, Rav Ovadia writes, it is entirely permissible for another Beit Din to review the reasons given by the Beit Din for its decision and see if the original Beit Din erred in its decision.
Rav Ovadia offers a third reason, that since it has become accepted practice to maintain a Supreme Rabbinic Court of Appeals, it is understood that the Dayyanim in the lower Batei Din issue their decisions as binding only if they are not reversed by the Appeals Beit Din. In addition, since the institution of the Appeals Beit Din appears in the Rules of Conduct (Takanot Hadiyun) for the State of Israel Rabbinic Courts, the litigants have accepted in advance that the Appeals Beit Din may legitimately reverse the decision of the lower Beit Din(see Piskei Dinim Rabbaniyim 10:180). ndeed, we saw earlier that the Aruch Hashulchan is inclined to rule that a Rav of greater stature may overturn the rulings of a Rav of lesser stature.
The Takkanot Hadiyyun of 5753 (section 135) allow for the Appeals Beit Din to reverse the decision of the lower Beit Din if there is 1) Halachic error, 2) obvious error in judgment or establishment of the facts, or 3) procedural mistakes that have an effect on the results of the litigation. Rav Ovadia Yosef observes that the Supreme Rabbinic Court of Appeals have worked quite well “and many times it is found that the lower Beit Din has erred.” He adds that the Appeals Beit Din “performs a great Mitzvah to insure proper justice.” Indeed, Rav Soloveitchik has stated that history can sometimes resolve a Hashkafic or Halachic dilemma (Nefesh HaRav p. 88). Accordingly, the question of the propriety of the Appeals Beit Din might be resolved by the fact that it has worked so well for many decades.

Conclusion
The Halacha provides for the reversal of decisions rendered by Halachic authorities in certain cases in both ritual and monetary matters. However, the Halacha has not in the past instituted a formal system for making such appeals. It is possible that the Halacha has allowed each community to establish its own mechanisms for appealing Halachic rulings. The institution of a Supreme Rabbinical Court of Appeals has worked well in Israel for many decades, and theoretically this model could be emulated by Jewish communities elsewhere as well. On the other hand, rabbinical courts in North America lack the institutional structure of the State of Israel’s Rabbinical Courts, and thus establishing a Rabbinic Court of Appeals outside of Israel is probably not feasible.

 

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