This week’s parsha, Shoftim, begins by mandating the appointment of judges for each sheivet (tribe) and in every city.(1) A study of the structure of the halachic judicial system reveals that, in some ways, it bears a strong resemblance to the structure of the American system established centuries later. This post will highlight one of the similarities: the establishment of special courts with jurisdiction over cases involving litigants from different geographical areas.
Diversity Jurisdiction in American Courts
The jurisdiction of federal courts is limited to that which is expressly provided by the Constitution and statutes enacted by Congress.(2) One type of jurisdiction conferred on federal courts is “diversity jurisdiction,” which allows a court to hear cases based on state law between citizens of different states.(3) The concept of “diversity jurisdiction” spans back to the founding of the nation. In the Judiciary Act of 1789, the First U.S. Congress established certain federal courts with “original cognizance . . . of all suits of a civil nature . . . where the matter in dispute exceeds . . . five hundred dollars . . . between a citizen of the State where the suit is brought, and a citizen of another State.”(4) Currently, U.S. district courts have original jurisdiction of civil actions between citizens of different states, where the matter in controversy exceeds $75,000.(5)
The primary rationale underlying diversity jurisdiction is that it affords out-of-state litigants an impartial forum. U.S. Supreme Court Justice Felix Frankfurter explained as follows:
Diversity jurisdiction is founded on assurance to non-resident litigants of courts free from susceptibility to potential local bias. The Framers of the Constitution, according to [Chief Justice John] Marshall, entertained “apprehensions” lest distant suitors be subjected to local bias in State courts, or, at least, viewed with “indulgence the possible fears and apprehensions” of such suitors.(6)
In other words, “It was believed that, consciously or otherwise, the courts of a state may favor their own citizens. Bias against outsiders may become embedded in a judgment of a state court . . . . To avoid possible discriminations of this sort, so the theory goes, a citizen of a state other than that in which he is suing or being sued ought to be able to go into a wholly impartial tribunal, namely, the federal court sitting in that state.”(7)
Diversity Jurisdiction in Jewish Law
While there were no independent “states” in ancient Israel, the different shevatim (tribes) did live in separate delineated areas, an arrangement that clearly influenced the structure of the judicial system.
The Gemara records a Tannaic discussion regarding the courts appointed for each tribe.(8) The first (anonymous) Tanna deduces from a Biblical verse that each city (containing a certain minimum number of inhabitants)(9) must have a beis din of 23 members with authority to adjudicate capital offenses. Though there may be many cities that meet the requirements, and thus many such courts within a tribe, according to this opinion, there is no specific court that has authority over the others. If a tribe does not have any city with the minimum number of inhabitants, it must still have at least one beis din of 23 members for the tribe located somewhere within its territory.
R. Yehuda argues on one part of the previous opinion. He states that in addition to a court in each city, each tribe must have one court that functions as a “supreme court” of the tribe. It must be composed of the wisest jurists of the tribe, and it has authority over the municipal courts. This tribal supreme court has two unique functions. First, it has jurisdiction over inter-city matters. Such cases could arise if there is a dispute between citizens of two different cities (similar to the diversity jurisdiction of U.S. federal courts) or a dispute between two cities (e.g. a border dispute). Second, this court may make certain enactments or decrees to promote religious observance and the general welfare.
Rabbi Yaakov Emden explains the reason for the tribal supreme court’s jurisdiction over inter-city matters:
שאם ארע ריב בין עובר אורח עם בני העיר שב״ד שלהם נוגע ופסול לדון ביניהם, יחד למשפט יעמדו לפני ב״ד הראשי של השבט
If a dispute arises between a [non-resident] traveler and the citizens of a city, the court of that city has a conflict of interest and is not authorized to adjudicate the matter. Rather, the litigants must appear before the supreme court of the tribe.(10)
Moreover, Rabbi Emden suggests that, for a similar reason, if the litigants are from different tribes, they must present their case to the Beis Din HaGadol, the highest court in the nation.(11)
Thus, it is clear that the concern for local bias is certainly not a new one. Interestingly, thousands of years before the U.S. federal courts began exercising diversity jurisdiction, the Torah-based judicial system of ancient Israel dealt with such issues in a strikingly similar manner––by establishing special courts to serve as impartial forums.
(1) Devarim [Deutoronomy] 16:18; Rashi ad loc.
(3) 28 U.S.C. § 1332.
(5) 28 U.S.C. § 1332.
(8) Sanhedrin 16b. There is much discussion regarding the exact meaning of the ambiguous language of the braisa. The above explanation is based on R. Reuven Margolis, Margolios HaYam, Sanhedrin 2a, 16b; Ramban, Devarim 16:18.
(9) See Sanhedrin 2b, 17b-18a.