Autonomy, Judicial
AUTONOMY, JUDICIAL
AUTONOMY, JUDICIAL , the right granted to Jews under non-Jewish rule to administer justice and to execute judgment according to their own law and by their own judges. The practical administration of justice in the Jewish society of the Diaspora was conditioned by the general socio-political conditions and government legislation; but Jewish factors also played an important role in obtaining and maintaining legal status for the Jewish judicature.
Certain general trends in Jewish autonomy are apparent throughout Diaspora history despite persistent exceptions and a variety of practices. Religious and family matters were subject exclusively to Jewish jurisdiction. Civil and often criminal cases involving Jews only were also the sole domain of the Jewish court. Sometimes the privileges granted to the communities in Europe in the Middle Ages allowed a Christian to cite a Jewish defendant only in cases tried by Jewish judges. In mixed cases involving both Christians and Jews an equal number of Christian and Jewish witnesses (e.g., three of each, as stipulated in some grants of privileges) or an equal number of judges was often stipulated. The bet din followed Jewish law, except in such matters as taxes or pledges on loans, which were often disposed of according to the law of the land. In several countries the Jewish legal system was under the jurisdiction of a chief rabbi. The Jews sometimes resisted the imposition of such authority from the outside. In England the Presbyter Judaeorum (see *Archpresbyter) seems to have exercised judicial functions only in matters affecting the royal exchequer; he was mainly an administrative officer.
From an early period of the Jewish settlement in Europe, the consensus of Jewish society insisted on recourse both to its own law and to its own judges. A responsum delivered by a rabbi of the Rhine district in the 11th century (in Ma'aseh ha-Ge'onim) concerns a case in which Jewish litigants "came before the camerarius (chamberlain) of the Gentiles; and he ordered Jews – as the case was brought before him – to judge them according to [Jewish] law." The Christian official then pronounced judgment as his Jewish advisers had counseled. Although the successful litigant thought that he had won his suit "according to [the law of] both Jews and Gentiles," the rabbi decided "that what has been adjudged to him by Jews through the Gentile court is null and void"; a Jewish judge had to consider the matter.
Long before municipalities originated in Europe, the Jews had more than a millennium of experience in self-government. Nor were they subject to irrational procedures. The rules of evidence in Jewish law were rational. They admitted the testimony of witnesses or legal documents only. Thus as early as the days of the Carolingian Empire, Jews were granted exemption from the ordeals of fire and scalding water.
Judicial autonomy was stipulated in privileges issued by kings and lesser authorities. Only in the *Byzantine Empire were Jews sometimes denied their own tribunals. In Muslim countries the *exilarchs and *geonim supervised local Jewish courts, which enjoyed extensive jurisdiction. Jewish courts were generally free to use their own system of sanctions and punishment; in Christian Spain they had the right to impose capital punishment against informers. A pronouncement of the ḥerem ("excommunication") by Jewish courts was not usually interfered with by the authorities, who often had recourse to it for their own purposes.
As early as 1084 Bishop *Ruediger of Speyer granted the Jews within his diocese the right to try suits between Jews in a Jewish court. A Christian plaintiff against a Jewish defendant also had to take his case to this court. If the court found itself unable to pass judgment, the suit might come for decision before the bishop or his chamberlain. The privilege granted by Emperor Henry iv to the Jews of Worms in 1090 became the model for many subsequent documents of this sort. It states: "… not the bishop, nor the chamberlain, nor the count, nor the bailiff, nor anyone else, shall presume to interfere in any judicial issue arising between Jews, or with Jews as defendants, but [such matters shall be treated] only by the person elected by them [i.e., the Jews] and appointed by us to exercise authority" in matters of justice among Jews according to Jewish law. The same attitude is found in the oldest code of Castile, that of Alfonso vi (c. 1042–1109). The principle was confirmed with slight variations by succeeding emperors, princes, and municipal authorities throughout medieval Christian Europe. In several cities, however, such as Zurich and Nuremberg, attempts were made to compel Jews to bring their suits before municipal courts.
In Spain – both in Aragon and in Castile – the exercise of maximum Jewish judicial autonomy found confirmation not only in the various grants of privileges and laws but also through long-established precedent. Capital punishment was sometimes meted out in the 13th and 14th centuries, and even in the 15th, by Jewish rabbis. Their procedure, however, was often modeled on that of the Christian courts rather than on strict talmudic rules. Pedro iii of Aragon (1276–85) ordered Solomon b. Abraham *Adret and Jonah b. Abraham *Gerondi, the two most respected rabbis of Catalonia, to pass judgment on an informer accused by the communities of Aragon, and urged them to arrive at a decision. They finally informed the king "that he may proceed according to his law; that we have found him deserving of the death penalty, if he should wish to put him to death." The informer was publicly executed.
From the end of the 13th century a trend to limit Jewish judicial autonomy in Christian Spain began, particularly in criminal matters, and became increasingly pronounced during the 14th and 15th centuries. Jewish jurisdiction in criminal cases was abolished in Castile in 1380 by Juan i, although reinstated in 1432. In 1412 a decree of Juan ii of Castile abolished Jewish judges for both civil and criminal cases. Evidently shelved for a time, the decree was renewed and extended to all Spain by Ferdinand and Isabella in 1476.
In Poland–Lithuania the Jewish community exercised considerable judicial autonomy; in the first half of the 16th century the kings even granted the chief rabbis appointed by them the sanction of capital punishment for "… any Jew who ventures to take censures and bans lightly." The courts of the *Councils of the Lands and of single communities administered and executed justice, but capital punishment is rarely mentioned in the sources.
Referring to the Jews of the territories annexed from Poland in 1772, Catherine ii of Russia decreed that "the administration of law and justice by Jews shall continue to be vested in their present tribunals." However, as early as 1786 such autonomy was withdrawn and the statute of 1804 states that "Jews, too, in their lawsuits… shall seek law and justice in the general courts." The bet din was recognized only as a court of arbitration. In this decision Russian absolutism reflected the general trend in Europe commencing with the *Haskalah movement against the exercise of Jewish judicial autonomy within the state.
In practice, the Jews of Russia, and all other countries where there was a vibrant Jewish life, jealously guarded their judicial autonomy and in the majority of cases prevented Jews from appearing in non-Jewish courts. The case of *Novaya Ushica (Russia), where, as late as 1836, rabbis sentenced two informers to death, exemplifies the strength of the Jewish determination to be governed by Jewish law.
bibliography:
Baron, Community, 2 (1942), 208–45; 3 (1942), bibliography; Kisch, Germany, 172 ff.; Finkelstein, Middle Ages; Baer, Spain, 2 (1966), index; I. Levitats, Jewish Community in Russia 1772–1884 (1943); M. Elon, in: ilr (1967), 515–40; (1968) 119–26, 416–42.
[Isaac Levitats]