Drawing depicting a Jew in kuna (stocks) in the anteroom of a synagogue. From Toyznt yor Pinsk (Thousand-Year-Old Pinsk) by Benzion Hoffmann (New York: Pinsker Branch 210, Workmens Circle, 1941). (Courtesy Roberta Newman)

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Legal Institutions

The Jewish courts of Eastern Europe were for centuries a central dimension of autonomous Jewish life in the region: a fully functioning judicial system exercised authority over many aspects of Jewish communal life. The Jewish court system gradually fell into a state of decline, however, and by the early part of the twentieth century was limited in its authority to matters of ritual and family law. Earlier, the rabbinical courts (Heb., bate din; sg., bet din) and lay courts of individual communities and the regional courts of each medinah (province) not only determined matters of ritual law, but also served as the central courts with respect to commercial matters, family law, intercommunal disputes, and even many criminal matters.

In addition to Talmudic legal tradition and longstanding communal practice, Jewish law in Eastern Europe developed around two main sources: codifications of halakhah, especially the commentary of Mosheh Isserles (Rema’) on the Shulḥan ‘arukh; and the many responsa written by rabbinic leaders dealing with various aspects of Jewish law (ritual, family, and commercial) as applied to the circumstances of various communities. In particular, the Jewish court system of Eastern Europe was an indispensable aspect of Jewish commercial activity.

Jewish Courts and Jewish Autonomy

The story of the Jewish courts in Eastern Europe is really two different stories. The first is the history of these courts when they were autonomous, functioning independently of local (Polish and Ukrainian) law—roughly, through the eighteenth century. The second is the history after the significant erosion of their autonomy, until the destruction of the Jewish communities of Eastern Europe in the 1940s.

Dating back to the Middle Ages, Jewish law in European communities was publicly enforced by the rabbinical courts, communal self-identification was central to enforcement, and excommunication was a significant threat that any community could impose. Nearly every sizable community had a bet din that was granted jurisdiction to hear and resolve commercial, civil, and many criminal matters as well as numerous ritual disputes. The judges (Heb., dayanim) were paid by the local community; the necessary revenue was raised through both individual taxation and communal control over many aspects of commerce, such as the regulation and taxation of kosher meat and salt.

As communal functionaries undertook increased responsibility for the organization and governance of the community, a greater division of responsibility developed between lay and rabbinic leaders. In many ways, these changes were mutually beneficial and reinforcing. Obedience to communal norms (as well as to Jewish law) was expected as a religious duty, and communal bylaws were set out in the form of written takanot—rabbinic edicts. Although such rules were often promulgated by lay leaders, the binding force of the takanot came from their halakhic underpinnings, and rabbinic scholars were responsible for interpretation in cases of uncertainty. At the same time, the systematic collection of taxes allowed for long-term, salaried rabbinic appointments, and often for the maintenance of yeshiva students as well. Community rabbis thus increased in number and prestige even as their scope of influence was circumscribed.

New judicial institutions also emerged as part of this division of responsibility. Comprised of or supervised by the community’s lay leaders, these new courts became an enforcement arm with respect to communal policies and norms. For instance, the regulations of the Council of Lithuania set out that

communal leaders [manhigim] shall serve as judges in matters of arguments, fights and quarrels, arendas [leases of land, chattels, or tax-farming and minting rights], the liquor tax, and fines and punishments, while the judges [dayanim] of the community shall judge matters involving money. The leaders shall not become involved in money cases, and the judges shall not become involved in matters which do not belong to them.  (Katz, 1993, p. 297)

While this statement and similar ordinances seem to draw a clear distinction between criminal and civil law, one ought not conclude that civil law remained entirely within the framework of the halakhic system. In fact, many of the individuals who were appointed as dayanim of the community were not halakhic experts by any standards. When not acting solely in accord with communal regulations, judges most often based their decisions on local (Polish) commercial customs or common folk wisdom. In this respect, the lay courts functioned as tribunals somewhat akin to the justice courts of English common law.

Although these lay courts (often referred to as courts of hedyotot—those not expert in Jewish law—or of ba‘ale batim, householders) were criticized for “judging as they see fit” rather than according to the traditional principles of halakhah (see, e.g., Shelomoh Luria’s responsum 93), the binding authority of such courts was repeatedly upheld by the leading European halakhic authorities. Often these justifications pointed to the wide-ranging ability of Jewish law to incorporate common commercial custom. And abiding by the decisions of these courts, even if they were not ideal, was seen as preferable to having cases heard before gentile courts. Isserles explicitly affirmed the right of a claimant to choose to have a case adjudicated by a lay tribunal rather than a rabbinic court (responsum 33). Two centuries later, this right was reaffirmed in the authoritative glosses of Akiva Eger to Shulḥan ‘arukh, Ḥoshen mishpat 3:1.

There is scholarly disagreement with respect to the relative popularity of lay and rabbinic courts. Some historians have hypothesized that there was a preference for lay panels over rabbinic courts (when a dispute did not fall under the express purview of either), based on several considerations. For one, justice meted out by lay courts was perceived to be swifter. Communal regulations often set time limits regarding both the length of trial proceedings and the time allowed for reaching a verdict. Bate din, on the other hand, were bound to the particular requirements of evidence, proof, and deliberation prescribed by halakhah. Halakhic matters might also be referred to greater scholars in other communities for advice or appeal, a potentially time-consuming process. One may also surmise that rulings arrived at according to established commercial practice and conventional notions of justice were commonly preferred to the more abstract principles and categories of the halakhic system, most of which were unfamiliar to the unlettered majority.

With the reemergence of independent heads of yeshivas and halakhic authorities, concurrent with the weakening of autonomous communal structures, rabbinic leaders sought to reassert jurisdiction over a wider range of matters. These efforts were at least partially successful: in many instances, rabbinic civil courts were established alongside lay courts, or halakhic experts were appointed to lay panels. Lay courts were never entirely done away with, however, and the rabbinic establishment continued to criticize their practices. According to written accounts of his sermons, for instance, Prague chief rabbi Yeḥezkel Landau bemoaned the paucity of significant cases judged by rabbinic scholars in Prague and its environs in the latter half of the eighteenth century (Derushe ha-Tselaḥ, 8).

Jewish Courts in the Modern Period

From the mid-seventeenth century on, the broad scope and authority of the Jewish court system declined, a result both of forces from without the community and of pressures from within. On the one hand, the increasing rationalization of governmental activities led to changes in the status of Jews. The jurisdictional mandate of Jewish courts over internal criminal and then civil matters was progressively curtailed. In many locales, communal leaders were barred from enforcing excommunication and other punishments. The move toward emancipation and full, equal citizenship for Jews further weakened the autonomous structures governing corporate Jewish life.

At the same time, Jewish courts in Eastern Europe were embattled by internal opposition stemming mainly from two movements, the Haskalah and Hasidism. As Enlightenment thinking spread, many Jews sought to shed practices and institutions that marked them as different from the general population. This revolutionized the nature of European Jewish society. The community (or communities) of coreligionists living apart, bound by normative Jewish law and practice, was no more. In this new era, rabbinic tradition and authority were no longer sacred, but rather were open to criticism and refutation. This shook the very foundations of rabbinic authority.

The influence of the courts was also weakened, to a lesser extent, by harsh divisions between Hasidim and Misnagdim. Hasidic Jews located authority in a single, charismatic rebbe rather than in the traditional structures of leadership. Non-Hasidic Jewish authorities such as Eliyahu, the Gaon of Vilna, stridently opposed this innovation, to the point of excommunicating large groups of Hasidim—thereby, at least in theory, excluding a growing segment of the community from its instruments of governance, including the court system.

Jewish courts were thus in a state of decline at the advent of the modern era. Segments of the community more often resorted to state courts. Jewish courts increasingly incorporated principles of secular law in addition to commercial custom, applying the notion that “the law of the land is the law” (dina’ de-malkhuta’ dina’) more expansively than in the past. And decisions reached by rabbinic courts in accordance with halakhah lacked the teeth of enforcement. The courts lacked even equitable authority in most matters; their rulings were reduced to settlements based on compromise, subject to the acceptance of both parties. Wide swaths of Jewish law became disciplines studied theoretically but not applied in practice.

Ritual law, however, remained of great concern to Jewish courts in Eastern Europe. In this area, despite the lack of broader legal autonomy and a diminishing number of adherents submitting to the authority of traditional halakhah, for the community that wished to comply there were always rabbinic authorities willing to rule. East European governments mostly left Jewish courts alone when it came to specifically religious rulings, such as determining what was or was not kosher and the many other matters of ritual law encountered in Jewish life. Rabbinic leaders also maintained control over Jewish family (matrimonial) law and its attendant restrictions, including practices maintained even by Jews no longer professing fealty to other areas of Jewish law. Yet even in this regard, rabbinic authority was dependent on the degree to which Jewish marriage and divorce were recognized by the secular authorities.

The Breadth and Scope of Judicial Autonomy

At the height of the period of communal autonomy, the Jewish court system had a full range of disciplinary measures at its disposal, from fines and confiscation to lashes and imprisonment—and sometimes even execution. In many cases, the community granted its agents wider authority to enforce rules and laws than they had in medieval times. This is perhaps best seen in the increased use of punishment by imprisonment in the fifteenth and sixteenth centuries. Numerous responsa and takanot indicate the extensive use of jails (known as dudik) maintained by the Jewish community. A wide range of crimes was now punishable by imprisonment, ranging from public begging for alms, to theft and assault, to repeatedly informing gentile authorities.

Consider the legislation against gambling (a transgression not punishable by imprisonment according to Talmudic law) in the enactments of the Jewish community of Kraków of 1595. Men and women, residents and visitors, young and old were enjoined from gambling in the city—and violators were subject to fines or imprisonment. Women were to be housed in a separate jail (nayen [new] dudik), however, and the jail sentence for women was to last from the end of morning prayers until the end of evening prayers, rather than overnight. The names of individual prisons and the identities and salaries of Jewish wardens are recorded as well.

Takanot such as these were typical of the Jewish communities of Eastern Europe. Broadly speaking, communal enactments punished actions not necessarily prohibited by Jewish law, in ways certainly not consistent with classical Jewish law or with the processes Jewish law prescribed for punishing offenders.

Indeed, punishments included practices adopted from the society around them. A pillory, or kuna, was often set up in the entrance to the town synagogue, typically consisting of a chain attached to the synagogue wall that shackled the criminal’s hands and neck. Public shaming via the kuna was a form of punishment in Polish towns; kuna is itself a Polish word. In the Jewish community, the pillory was employed in particular contexts to punish violations against communal interests, such as public defamation or informing to secular authorities.

In some instances, the authority of the autonomous Jewish courts knew no bounds: a number of East European communities were empowered to punish criminals by execution. Although this power was used selectively and with little fanfare, it is indicative of the degree of independence and power that communal bodies possessed. No formalized procedures were developed for adjudicating capital offenses; indeed, the process remained somewhat secretive. In most cases, the manner and method of implementation were left to the discretion of individual tribunals or to agents acting on their behalf (see Isserles’ responsa 11 and 17). Jewish leaders would also occasionally decide to hand over egregious violators to secular authorities for execution. As Jewish communal autonomy waned and judicial independence was curtailed, the leadership increasingly resorted to this option, although dealing with the non-Jewish authorities could be fraught with complications.

In addition to the above-mentioned punishments, Jewish courts also used coercive tactics to keep community members in line. The primary tool in this regard was the ban of excommunication (ḥerem). Social and legal coercion, particularly when formulated in religious terms, reinforced the authority of communal leaders to legislate and to compel obedience. Though it was occasionally employed against heretics, the penalty of excommunication was primarily exercised not for theological violations of Jewish dogma, but to exclude from the community those who engaged in conduct disruptive of communal order and social norms. And while lay leaders had an important role in formulating the bylaws that established those standards, responsibility for imposing and enforcing the ḥerem rested solely in the hands of rabbinic authorities.

In mild cases, a ban merely prevented an individual from holding public office, leading synagogue prayers, being counted in a minyan (quorum), or being called to the Torah. A full-blown ḥerem also forbade all social contact with the person. Ostracism also affected one’s family: a son could not be circumcised, and burial in the Jewish cemetery was refused. So powerful was the ḥerem that around 1650, Shabetai ben Me’ir ha-Kohen (Shakh) noted that it was tantamount to a death sentence (Gevurat anashim 72). In the modern period, though, the force of excommunication grew weaker, for the reasons mentioned above. By the late nineteenth century, all but the most devoted ignored the bans of excommunication posted in various Jewish communities.

Regional Judicial Institutions

In the era in which supercommunal organizations such as the Provincial Council of Lithuania and the Council of Four Lands handled regional administrative and executive functions, they also played an important judicial role. From the inception of these organizations in the sixteenth and seventeenth centuries, their members also arbitrated disputes among attendees. As the role of these organizations grew, they created permanent courts with two important functions: handling intra- or intercommunal disputes (including appointments to the communal leadership) and hearing appeals of local rulings.

These courts were particularly important to merchants conducting business in more than one community; in previous eras, no individual body had jurisdiction to resolve disputes in such circumstances. The existence of binding judicial authority over wide areas fostered greater commercial interaction and movement within regions.

Despite their importance, these courts met relatively infrequently; there is evidence of ongoing judicial activity only in Moravia. Takanot placed constraints on the right to appeal to the higher court; in Moravia, appeals were limited to lawsuits involving amounts of 10 gold coins or more, and had to be filed within two days of the original court’s decision. As a further disincentive, court costs were to be borne by the appealing party if that party did not prevail. In Lithuania, appeals to the regional court required the assent of the two principal communities involved or a letter from the av bet din (chief rabbinical judge) refusing to confirm the judgment of the lay court in question.

It should be noted that appeals are not a simple matter according to Jewish law. Rabbinic courts were customarily reluctant to revisit judicial decisions; according to the Talmud, a bet din does not scrutinize the decisions of another bet din (Bava’ Batra’ 138b). Rabbis were willing to hear appeals, however, on grounds of judicial error or if additional evidence came to light. While competence or the lack of it was sometimes cited as a factor, rabbinic authorities were often willing to let the judgments of lay panels stand even when they were not based on principles of Jewish law. The rehearing of proceedings brought before a non-Jewish court was never permitted.

Complex matters of Jewish law were often brought to the attention of eminent rabbinic authorities as well as to the provincial courts. Though not unique to Ashkenazic Jewry, the concept of halakhic authority vesting in a single scholar (Heb., posek; pl., poskim) was the normative model throughout Eastern Europe. Larger cities appointed rabbis of superior erudition and competence. These authorities frequently sought to provide direction and guidance through the writing of responsa, addressed to their regional rabbinic colleagues, regarding matters that frequently arose. For most practical matters, though, appeal to another Jewish legal authority was either too slow or too expensive, and the local rabbi was the final authority.

In some instances, prominent rabbinic figures were appointed to the position of rav ha-medinah (regional rabbi), equal in rank to the council leadership (in Lithuania and the Four Lands, a panel of noted rabbis shared this role). In the nineteenth and twentieth centuries, rabbinical eminences often remained independent of the communal structures, sometimes as heads of yeshivas in important centers of rabbinic scholarship, and served as decisors for wide swaths of the community—and, indeed, for their generation. For example, Mosheh Sofer (Ḥatam Sofer) served as the leader of Hungarian Jewry during his lifetime, and though he was not the titular head of the community, he was in fact considered the final authority on Jewish law within the community that shared his ideological orientation.

Suggested Reading

Simha Assaf, Bate ha-din ve-sidrehem aḥare ḥatimat ha-Talmud (Jerusalem, 1923/24); Salo Baron, The Jewish Community: Its History and Structure to the American Revolution (Westport, Conn., 1972); J. David Bleich, “The Appeal Process in the Jewish Legal System,” in Contemporary Halakhic Problems, vol. 4, pp. 17–45 (New York, 1995); Michael J. Broyde, “Forming Religious Communities and Respecting Dissenters’ Rights,” in Human Rights in Judaism: Cultural, Religious, and Political Perspectives, ed. Michael J. Broyde and John Witte, Jr., pp. 35–76 (Northvale, N.J., 1998); Menachem Elon, ed., The Principles of Jewish Law (Jerusalem, 1975); Menachem Elon, Jewish Law: History, Sources, Principles, trans. Bernard Auerbach and Melvin J. Sykes, vol. 2 (Philadelphia, 1994); Jacob Katz, Tradition and Crisis: Jewish Society at the End of the Middle Ages, trans. Bernard Dov Cooperman (New York, 1993); Stanisław Wielgus, The Medieval Polish Doctrine of the Law of Nations, trans. John M. Grondelski (Lublin, Pol., 1998).