לזכות כל החטופים והפצועים שיחי’

Based on the commandment in Devarim 16:18, a judiciary system is a critical component of Jewish law.

שֹׁפְטִים וְשֹׁטְרִים תִּתֶּן־לְךָ בְּכׇל־שְׁעָרֶיךָ אֲשֶׁר ה’ אֱ-לֹהֶיךָ נֹתֵן לְךָ לִשְׁבָטֶיךָ וְשָׁפְטוּ אֶת־הָעָם מִשְׁפַּט־צֶדֶק׃

Judges and officers shalt thou make thee in all thy gates, which the Lord thy God gives thee, throughout thy tribes: and they shall judge the people with righteous judgment

Ideally, Jewish courts have jurisdiction in all facets of law – civil, criminal and religious. Our masechet deals not only with the court system but with (in Rav Steinsaltz’ words) “a blueprint for a Jewish state as a whole.” It also addresses dilemmas created by the concept of a theocratic Jewish government. Rav Steinsaltz explains that the courts’ authority derives the “universal dominion of G-d,” Who created not only the laws of nature but also the laws governing human behavior. Leadership is derived from G-d, as Yeshayahu says (33:22): כִּי ה’ שֹׁפְטֵנוּ ה’ מְחֹקְקֵנוּ ה’ מַלְכֵּנוּ הוּא יוֹשִׁיעֵנוּ׃ For the Lord is our judge, the Lord is our lawgiver, the Lord is our king; he will save us. Note that this verse includes references to all branches of government:

כִּי ה’ שֹׁפְטֵנוּ – For the Lord is our judge: Judicial

ה’ מְחֹקְקֵנוּ – the Lord is our lawgiver: Legislative

ה’ מַלְכֵּנוּ – the Lord is our king: Executive

This divine authority is delegated by G-d to humans. The Sanhedrin system is the judicial branch, entrusted with the power to interpret Torah law as it applies to changing circumstances. There is no “real” legislature in this paradigm, since all laws were legislated by G-d Himself. However, the Rabbis have the ability to enact ordinances as safeguards or to deal with situations not addressed in Torah law. The executive branch of the ideal Jewish state is the king, who is head of state and commander in chief. While required to act in accordance with Torah law, the king has unlimited authority in all matters not directly addressed by law and in matters concerning the way the country is run. He also has some judicial authority, heading a court that was not subject to the same standards of procedure and evidence as the Sanhedrin. It is important to note that, during the Second Temple era, the kings did not derive from the Davidic dynasty, and many of the discussions in our masechet deal with the political and societal realities of kings from the Hasmonean or Herodian dynasties.

The word Sanhedrin derives from the Greek synhedrion: “sitting together.” The judges would gather in one central location to sit in judgment.

STRUCTURE OF THE JUDICIARY SYSTEM:

There are 3 levels of courts, each with its own jurisdiction. In each court (known as bet din, house of law), a group of judges hear and decide the cases, questioning witnesses, and handing down verdicts and sentences. In cases other than capital crimes, a simple majority prevails; in capital cases, there must be a majority of at least two to find the defendant guilty. In Jewish law, there is no appeals process – as soon as a verdict is rendered and sentence pronounced, the sentence is implemented. Because of this, there are many precautionary measures taken to prevent any error.

A. Court of Three

Lowest level of court system, which deals with monetary claims such as loans, thefts, torts etc. Comprised of three judges. This type of court can function even outside of Israel, and still functions today.

B. Court of Twenty-Three – Sanhedri Ketana (Lesser Sanhedrin)

Appointed for any town in Israel that contained a minimum number of people (discussed in the Mishna on 2b), hears capital cases. The Gemara in Makkot (7a) relates that any court which pronounced a death sentence more than once in seven years (or, according to others, 70 years) is regarded as a “destructive court.”

C. Court of Seventy-One – Sanhedri Gedola (Greater Sanhedrin)

Highest court, which adjudicated cases beyond the scope of the lesser courts. Examples of these issues include determining if a person is a false prophet, or declaring an entire city to be an ir nidachat (subverted to idolatry and subject to extermination). This court is the final decisor of any questions of Torah law, regardless of category; decisions of this nature could only be overturned by another ruling of the Sanhedri Gedola. The court also handled matters affecting the nation as a whole, such as determining the calendar, expanding legal limits of cities, appointing judges for the Sanhedri Ketana, and declaring war (in conjunction with the king). Until 191 BCE, the Kohen Gadol was the head of the Sanhedri Gedola, but – as that position became more corrupt – the position of Nasi was established. Generally, the Nasi was a descendant of Hillel. The second-ranking position was Av bet din, who presided over the court when it judged criminal cases.

HISTORICAL SIDENOTE:
During the Second Temple, the Sanhedrin Gedola met in the Bet Hamikdash, in a special chamber known as Lishkat HaGazit (Chamber of the Hewn Stones), convening every day except for Shabbat and holidays. The lishka was built into the northern wall of the Temple Mount (half inside the Bet Hamikdash precinct and half outside). The Mishna (Sanhedrin 4:2) details the court’s members as Kohanim, Leviim, and Jews whose lineage was pure enough for their daughters to marry Kohanim. After the Bet Hamikdash was destroyed, the body moved to Galilee, first in Shefaram, then Bet Sharim, then Tzipori, and finally to Tverya, where it remained until it was disbanded in 425 CE. The last universally binding decision of the Sanhedrin was the establishment of the systemic calendar, in 358 CE. When Napoleon Bonaparte (1769-1821) wanted to establish a ruling religious authority for the Jews, he called it “Le Grand Sanhedrin.” Its purpose was to give legal sanction to responses to 12 questions that had been posed to the Assembly of Notables in 1807, which were not in line with halachic Judaism.

QUALIFICATIONS FOR JUDGES:
In general, judges for any of the three levels of courts must be natural-born adult male Jews of untainted lineage. The Rambam (Hilchot Sanhedrin 2) states:

אֵין מַעֲמִידִין בְּסַנְהֶדְרִין בֵּין בִּגְדוֹלָה בֵּין בִּקְטַנָּה אֶלָּא אֲנָשִׁים חֲכָמִים וּנְבוֹנִים. מֻפְלָגִין בְּחָכְמַת הַתּוֹרָה בַּעֲלֵי דֵּעָה מְרֻבָּה. יוֹדְעִים קְצָת מִשְּׁאָר חָכְמוֹת כְּגוֹן רְפוּאוֹת וְחֶשְׁבּוֹן וּתְקוּפוֹת וּמַזָּלוֹת וְאִצְטַגְנִינוּת וְדַרְכֵי הַמְעוֹנְנִים וְהַקּוֹסְמִים וְהַמְכַשְּׁפִים וְהַבְלֵי עֲבוֹדָה זָרָה וְכַיּוֹצֵא בְּאֵלּוּ כְּדֵי שֶׁיִּהְיוּ יוֹדְעִים לָדוּן אוֹתָם. וְאֵין מַעֲמִידִין בְּסַנְהֶדְרִין אֶלָּא כֹּהֲנִים לְוִיִּים וְיִשְׂרְאֵלִים הַמְיֻחָסִים הָרְאוּיִים לְהַשִּׂיא לִכְהֻנָּה. שֶׁנֶּאֱמַר (במדבר יא טז) “וְהִתְיַצְּבוּ שָׁם עִמָּךְ” בְּדוֹמִין לְךָ בְּחָכְמָה וּבְיִרְאָה וּבְיַחַס:

אֵין מַעֲמִידִין בְּכָל הַסַּנְהֶדְרִין לֹא זָקֵן מֻפְלָג בְּשָׁנִים וְלֹא סָרִיס מִפְּנֵי שֶׁיֵּשׁ בָּהֶן אַכְזָרִיּוּת. וְלֹא מִי שֶׁאֵין לוֹ בָּנִים כְּדֵי שֶׁיְּהֵא רַחֲמָן:

We appoint to a Sanhedrin – both to the Supreme Sanhedrin and to a minor Sanhedrin – only men of wisdom and understanding, of unique distinction in their knowledge of the Torah and who possess a broad intellectual potential. They should also have some knowledge concerning other intellectual disciplines, e.g., medicine, mathematics, the fixation of the calendar, astronomy, astrology, and also the practices of fortune-telling, magic, sorcery, and the hollow teachings of idolatry, so that they will know how to judge them. We appoint to the Sanhedrin only priests, Levites, and Israelites of lineage of fine repute who can marry into the priesthood. This is derived from Numbers 11:16: “And they shall stand there with you.” Implied is that they should resemble you, Moses in wisdom, the fear of heaven, and in lineage.

We should not appoint to a Sanhedrin a man of very old age or one who does not possess male physical attributes, for they possess the trait of cruelty, nor a man who is childless, so that the judges should be merciful.

A convert or mamzer (born of an illicit relationship between a married woman and a man other than her husband) cannot serve on either sanhedri.

With regard to a court of three judges, the Rambam writes:

בֵּית דִּין שֶׁל שְׁלֹשָׁה אַף עַל פִּי שֶׁאֵין מְדַקְדְּקִין בָּהֶן בְּכָל אֵלּוּ הַדְּבָרִים צָרִיךְ שֶׁיְּהֵא בְּכָל אֶחָד מֵהֶן שִׁבְעָה דְּבָרִים וְאֵלּוּ הֵן. חָכְמָה. וַעֲנָוָה. וְיִרְאָה. וְשִׂנְאַת מָמוֹן. וְאַהֲבַת הָאֱמֶת. וּבַעֲלֵי שֵׁם טוֹב.

We are not careful to demand that a judge for a court of three possess all these qualities. He must, however, possess seven attributes: wisdom, humility, the fear of God, a loathing for money, a love for truth; he must be a person who is beloved by people at large, and must have a good reputation.

Many of the laws regarding the courts’ authority apply only in the Land of Israel. Included in this is the institution known as semicha – ordination. This is described by Rambam as an unbroken chain of ordination beginning with Moshe until the end of the 4th century CE. Semicha could only be enacted in Israel, so when the majority of Jews were driven out of Israel due to persecution, it lapsed. Semicha is required for a judge of either of the two Sanhedrin, and for a court of three which imposes penalties. The implication of this is that these types of cases were generally only judged in Israel.

Rav Steinsaltz describes semicha as “more than the authority to judge; it also granted a certain degree of divine involvement and blessing to ensure correct judgment.” Because of this, it is a mitzva to obey the rulings of the court, as noted in Devarim 17:11: עַל־פִּי הַתּוֹרָה אֲשֶׁר יוֹרוּךָ וְעַל־הַמִּשְׁפָּט אֲשֶׁר־יֹאמְרוּ לְךָ תַּעֲשֶׂה לֹא תָסוּר מִן־הַדָּבָר אֲשֶׁר־יַגִּידוּ לְךָ יָמִין וּשְׂמֹאל׃ according to the sentence of the Tora which they shall teach thee, and according to the judgment which they shall tell thee, thou shalt do: thou shalt not deviate from the sentence which they shall tell thee, to the right hand, or to the left.

A judge is disqualified if:

He has been found guilty of any transgression for monetary gain

He is a relative of the accused, any of the litigants, any of the witnesses, or any of the other judges

HISTORICAL SIDENOTE:

The Rambam (Hilchot Sanhedrin 4) writes: נִרְאִין לִי הַדְּבָרִים שֶׁאִם הִסְכִּימוּ כָּל הַחֲכָמִים שֶׁבְּאֶרֶץ יִשְׂרָאֵל לְמַנּוֹת דַּיָּנִים וְלִסְמֹךְ אוֹתָם הֲרֵי אֵלּוּ סְמוּכִים וְיֵשׁ לָהֶן לָדוּן דִּינֵי קְנָסוֹת וְיֵשׁ לָהֶן לִסְמֹךְ לַאֲחֵרִים It appears to me that if all the all the wise men in Eretz Yisrael agree to appoint judges and convey semicha upon them, the semicha is binding and these judges may adjudicate cases involving financial penalties and convey semicha upon others.

Based on this, Rabbi Yaakov Berav attempted to renew semicha in 1538 in Tzefat, and ordained four men, including Rabbi Moshe of Trani and Rabbi Yosef Karo, author of the Shulchan Aruch, who in turn granted semicha to others. Most notably, he granted semicha to Rabbi Moshe Alshich, who then ordained Rabbi Chaim Vital, leading disciple of the Ari. One etymology of Rabbi Yosef Karo’s title of MaRaN (our Master) is Maatayim Rabanan Nismach – ordained by two hundred Rabbis. However, this chain of semicha was not universally accepted and eventually died out. With the return of Jews to Israel beginning in the 1800s, there were multiple attempts to revive semicha, including one by Rabbi Yisrael Shklover, leader of the students of the Gra who settled in Jerusalem. with the establishment of the State of Israel, Rabbi Yehuda Leib Maimon (first Minister of Religions and a member of the first Knesset) proposed renewing semicha, with the ultimate goal of establishing a Sanhedri. This idea met great opposition across religious circles. In 2004, another attempt was made, and is still ongoing. Rabbi Moshe Halberstam of the Eida HaCharedit was the first person to receive semicha from this group.

WITNESSES:
In general, circumstantial evidence is not acceptable in bet din proceedings, and all cases proceed based on witness testimony.

According to Devarim 19:15, two witnesses are required:

לֹא־יָקוּם עֵד אֶחָד בְּאִישׁ לְכׇל־עָוֺן וּלְכׇל־חַטָּאת בְּכׇל־חֵטְא אֲשֶׁר יֶחֱטָא עַל־פִּי  שְׁנֵי עֵדִים אוֹ עַל־פִּי שְׁלֹשָׁה־עֵדִים יָקוּם דָּבָר׃

One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he may commit: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established.

A person cannot be sentenced to any sort of physical punishment (lashes or execution) unless at least two witnesses can testify that he committed the crime, and that he was warned in advance that he was violating a prohibition and subject to punishment (discussed on daf 8b). In monetary cases, a claimant cannot exact payment unless there are two witnesses to support him. However, should there be one witness, the court obligates the defendant to swear an oath denying the claim.
In some cases, the court will accept the testimony of a solitary witness. These include evidence that a man has died (so that his wife may remarry and not be an aguna -chained wife), establishment of the guilt of a sota (so that she does not have to undergo the ordeal), and identification of a murderer so that a town does not have to engage in the egla arufa ritual. Additionally, questions of issur veheter (generally, kashrut) are also resolved by the testimony of one witness.

Any case requiring the testimony of two witnesses requires the testimony of two adult male Jews. With the exception of cases which would require an oath, women’s testimony is accepted in “single-witness” cases. Even adult Jewish males can be disqualified from testimony if:

They have committed any type of transgression for monetary gain (theft, etc.)
They have willfully violated other mitzvot (see daf 27a)
They are closely related to the defendant or the plaintiff
They are closely related to the other witness

Witnesses are carefully examined by the court to determine their veracity. There are two types of questions:

Chakirot: basic questions. These are 7 questions designed to pinpoint the time and place of the event in question. If a potential cannot answer any of these questions, his testimony is disqualified immediately.

Bedikot: supplemental questions. These questions are asked to establish the details of the incident, and to test the general truthfulness and reliability of the witness. Inability to answer one or more questions of this type does not disqualify the witness, unless there are conflicting responses from other witnesses.

Note that, according to Torah law, these types of questions should also be asked of witnesses in monetary cases. The Rabbis enacted an ordinance relaxing this requirement in some cases (see daf 32a) so that lenders would feel confident in their ability to recover funds through the court if needed, and thus ensure that money would be available for loans (the reasoning is similar to that behind the enactment of pruzbul, allowing loans to remain in effect even after the Shemitta year abrogation of loans).

Once testimony has been given, it cannot be retracted by the witness. Even if the witness admits/claims that he lied, the retraction is rejected, and the original testimony stands (Ketubot 18b). This is known as כיון שהגיד (שוב אינו חוזר ומגיד) :Once he has testified (he cannot testify again).

Testimony of witnesses can be disavowed in one of two ways:

Hakchasha – contradiction: A second set of witnesses testify that the event did not occur. In that case, both testimonies carry equal weight, and the court can only consider the testimony inconclusive. Note that the number of witnesses testifying to each “fact” is irrelevant to this decision. This is known as trei kemeah – two (witnesses) are like one hundred.

Hazama – refutation: A second set of witnesses testifies that the first set could not have witnessed the incident, since they were seen elsewhere. This does not concern the incident itself, just who saw it. In this case, the Torah law is that the second set of witnesses is believed and the first set are declared eidim zommim – false witnesses (see Makkot 5a). The punishment for eidim zommim is that they are subject to the punishment that would have been imposed on their victim. As Devarim 19:19 states: וַעֲשִׂיתֶם לוֹ כַּאֲשֶׁר זָמַם לַעֲשׂוֹת לְאָחִיו וּבִעַרְתָּ הָרָע מִקִּרְבֶּךָ׃ then shall you do to him, as he had thought to have done to his brother: so shalt thou put the evil away from among you. Note that this punishment is not implemented if the accused was already punished.

PUNISHMENTS:
Monetary penalties: Usually for property crimes and damages
Malkut Lashes:
Biblical: maximum of 39 lashes with a leather strap; usually for violation of a negative Toraj commandment (mitzvot lo taase)
Rabbinic: Makat mardut (lashes for rebelliousness); imposed for violation of a Rabbinic prohibition or to force compliance with the law.
Execution: Discussed in chapters 6-10 of the masechet
Sekila stoning: condemned is pushed from a height; if he does not die, stones are dropped on him.
Seraifa burning: condemned is forced to drink molten lead
Hereg beheading: decapitation with a sword
Chenek strangulation
Excommunication: Communal ostracism of varying severity (cherem or nidui)
Extra-legal measures: the courts can impose punishment if they determine that the times and circumstances warrant a harsh reaction. This is described on daf 46b. The authority for this is based on Devarim 13:6: וּבִעַרְתָּ הָרָע מִקִּרְבֶּךָ So shalt thou put the evil away from the midst of thee.

STRUCTURE AND CONTENT:
Unlike most masechtot, which focus on a few primary topics derived from a few verses, Masechet Sanhedrin covers most of the book of Devarim, with many different topics. Basically, any topic in Devarim that is not addressed elsewhere in the Gemara is discussed here.

1. 2a-18a – דיני ממונות – Structure of the judiciary system
Judges and their responsibilities
2. 18a-22b – כהן גדול – Status of the king and kohen gadol
3. 23a-31b – זה בורר – Procedures for deliberations
4. 32a-39b – אחד דיני ממונות – Specific requirements for proceedings of Sanhedri ketana
5. 40a-42a – היו בודקין – Methods of investigation used by Sanhedri ketana
6. 42b-49a – נגמר הדין – Court-imposed capital punishment
7. 49b-68a-  ארבע מיתות – Types of capital punishments
Offenses punished by stoning
8. 68b-75a –  בן סורר ומורה – The stubborn and rebellious son
The right to self-defense
Prevention of sins
9. 75a-84a – אלו הן הנשרפין – Offenses punished by burning or beheading
Administrative punishments
Ordinances to improve society
10. 84b-90a – אלו הן הנחנקים – Offenses punished by strangulation
11. 90a-113b – כל ישראל יש להם חלק – Principles of faith and ethical behavior
Mashiach and the end of days

הָשִׁיבָה שׁוֹפְטֵינוּ כְּבָרִאשׁוֹנָה וְיוֹעֲצֵינוּ כְּבַתְּחִלָּה