The following post is a request by me for further information. I am not trying to teach here; I am instead trying to appeal and request for someone else to teach me.
We know that in a traditional Jewish community, the rabbi was hired with a strict contract stipulating his rights and duties. We also know that a gezera or taqana is nothing unless the people accept it. We also know that the Torah is our constitution, and that we have rule-of-law in that the rabbis have no power to contradict the Torah, and that any ruling they make is null-and-void if they go against the Torah.
(Of course, it can be difficult to tell when this is. There is a fine line between a zaqen mamre who has violated the Sanhedrin's ruling and ignored its authority and must be executed, versus a hakham who has correctly pointed out the Sanhedrin's very real error and need to bring a qorban for the entire edah (Mesekhet Horayot). I sincerely hope the execution of a zagen mamre was of those threats that was never actually carried out, similar to the ben sorer u-moreh, unless it was obvious that the zaqen mamre was like Korah and was obviously trying to egregiously rebel for his own honor and not for G-d's. Because otherwise, you could have many cases of men who were honestly concerned for the honor of the Torah, being executed because they felt the Sanhedrin was wrong.)
Everything I've said is nothing but pure democracy, pure federalism. But the following is my question, for which I need answers from someone more knowledgeable than myself.
We know that the "rabbis" have the power of hefker beit din hefker, that the beit din can unilaterally declare property to be ownerless and redistribute it. Theoretically, the beit din could declare that your car now belongs to your neighbor.
But what if I don't recognize the authority or jurisdiction of the beit din? Maybe it's a Sephardi beit din and I'm Ashkenazi, or it's a Mitnagdik beit din and I'm Hasidic, etc.
The powers of the beit din assume that the people recognize its authority. According to the halakhah, any X-number of men (usually three) with the proper credentials (semikhah) can constitute a beit din, but if three men with semikhah walked into New York City, sat down, and started laying down rulings, do you think anyone would pay attention? Of course not!
In a traditional Jewish community, there was one beit din, and it was recognized by everyone who lived there. The Jewish community was a self-contained entity, in which the people, the rabbis, and the dayanim were all interrelated. For example, rabbis were hired according to strict contracts laying down their precise duties and rights.
I haven't studied this issue, but I assume that the power of the beit din was limited by the people's acceptance. I've never read anything saying this, but it just seems logical. I assume that if ever the beit din started doing things which the people didn't approve of, that the people would just stop listening. The community functioned because the people trusted the dayanim and the dayanim felt loyal to the Torah and the people they were ruling for, etc. Everyone had a contractual obligation with everyone else, whether or not an actual written contract was in existence.
So if the dayanim started abusing their power, or making rulings which the people felt were definitely and obviously not correct according to the Talmud, then I assume the people would simply reject the beit din's authority.
The Torah, which is our constitution, grants the beit din the power of hefker beit din hefker. This is a special power granted by our constitution. But I'm arguing that the beit din could not unilaterally exercise this power, unless it was sure the people would consent and not rebel. If, for example, the beit din suddenly announced that all property was publicly owned, and that Judaism was going socialistic, I bet the people would refuse to obey.
I.e., laws that are straight and explicit in the Torah, the beit din doesn't need the people's approval. Pork is treif no matter who says so, so the beit din doesn't need the people's approval to declare that pork is treif. If the people want to ignore the beit din, then fine, they're sinning and violating an explicit law of the Torah, and it's their sin before G-d.
But laws that are discretionary, like taqanot and gezerot and hefker beit din hefker, I'm betting that there's something in Jewish law or history acknowledging that the beit din's power is conditional on the people accepting it. I don't know where, but there's got to be something to that effect. Otherwise, any three people could simply join together when no one's looking and pass a serious of ridiculous and absurdly tyrannical laws, and no one would have any recourse. After all, they formed a beit din!!! I'm sure there must be something that says that no, if the people reject their basic authority, that then, their laws are null and void.
My point is that the beit din operates according to democracy as well. The beit din has a fixed legal code and constitution (the Written and Oral Torot), and it has a contractual obligation with the people. If the beit din rules against the Torah, then its rulings are null and void - that is clear. What I am further arguing, albeit without any sources, is that similarly, if the people felt the beit din was overstepping its bounds or abusing its authority, that they'd simply stop listening to it. And what are three dayanim going to do when 100 townspeople stop paying them any attention?
I'm not learned enough in Jewish history to know the precise dynamics. Furthermore, I'm sure dynamics were different in different places. But I'm sure that there must be some halakhic source somewhere which grants the people this power. I don't know where, but I'm sure that there's something, somewhere in the Talmud or Jewish history, which would support my claim. Does anyone know anything with proves or disproves me?
We know that a gezera or taqana is not binding unless the people accept this. This is an established, indisputable principle. I am betting there is something similar about other discretionary powers that the beit din holds.
*** Update: Come to think of it, however, we learn that a taqana or gezera is nothing until the people accept it. Maybe the halakhic sources do not mention the democratic nature of the beit din itself, preferring instead to discuss the democratic nature of its actual rulings? In fact, if I, Michael Makovi, make a taqana or gezera, and if the people all accepted it, then it'd become minhag ha-maqom (a locality-based custom, obligatory on all inhabitants of that locale), even though I'm not a dayan. So perhaps it isn't that the beit din itself is democratic, but rather, its rulings are, regardless of who the dayanim are. A Torah-true ruling is binding regardless of who says it, a Torah-false ruling is not binding regardless of who says it, and a taqana or gezera - i.e., a discretionary ruling not explicitly permitted or forbidden by the Torah - is binding if the people accept it, regardless of who promulgated it. The democratic nature of the beit din is not within the beit din itself or its members, but rather, it is its rulings which are bound by democracy.
***Update continued: Also, as one commenter below noted, Rambam in Hilkhot Sanhedrin 1:1 says that it is a mitzvah to appoint judges. But Rambam words this in the general, implying that every individual has such a mitzvah. Likewise, the Torah says that "you" will appoint judges, implying that the people at large, and not any one special body, appoint judges. Presumably, this means that if the community didn't appoint someone as a dayan, then he has no power; one cannot install himself tyrannically as a self-appointed dayan.
Do Christians and Muslims Worship the Same God? - A great article by Thomas Kidd here. Kidd discusses Miroslav Volf’s Allah: A Christian Response. Wolf, a Yale Professor, is one of the most prominent Chri...
1 hour ago