by Nachman Cohen / Varda Books
SANHEDRIN (“ Court”): Name of a treatise of the Mishnah, Tosefta, and both Talmudim. It stands fourth in the order Nezikin in most editions, and is divided into eleven chapters containing seventy-one paragraphs in all. It treats chiefly of courts and their powers, of qualifications for the office of judge, and of legal procedure and criminal law.
From Sanhedrin: Commentary and Study Guide
JUDGEMENT VERSUS MEDIATION
In the foregoing, we have discussed the ideal court system and the approach taken if there were no qualified judges. (6) points up the
tannaitic dispute as to whether, Biblically, judges who are not completely qualified [i.e., knowledgeable] may adjudicate. R. Yehoshua believes that they may adjudicate. The Torah wishes that cases come to trial promptly. This can be done only if non-working people, even those lacking the requisite knowledge, can act as judges.R. Eliezer haModa'i disagrees with this view. R. Yehoshua's position requires justification. If the whole idea of "din Torah" is for cases to be resolved on the basis of Torah law, then with what justification can one allow expediency to overweigh the strong possibility of a faulty decision? To be sure, R. Yehoshua's law is limited to monetary matters, nevertheless, it seems to undermine the total concept of a Jewish court system.
Furthermore, there is a completely different remedy available to litigants who wish to settle a dispute, namely, p'shara (mediation). (See I- [16]-[24].)
P'shara or bitzu'a is a system which has more flexibility than din.
Its major concern is settling disputes amicably. It is not bound by the law. In this system, truth and Torah law are secondary to a peaceful resolution of the dispute. How could the Torah, with its concern for truth, establish this alternate system of resolving disputes? Indeed, once these two systems exist, which route should the litigants seek out? Why, in fact, did the Torah establish two alternatives?
Tanna'im debate the first question. R. Eliezer b. R. Yosi haG'lili believes that it is prohibited to seek mediation. Tanna Kamma holds that it is permissible to go to mediation. R. Yehoshua b. Korcha maintains that it is a
mitzva to settle disputes through mediation.In understanding this dispute we must come to grips with the Torah's allowance of settling cases without concern for uncovering the truth, or of applying remedies which are contrary to the Torah's remedies. Insight can be gleaned from the
G'mara's presentation of the subject. free ebook Tractate Sanhedrin: Commentary and Study Guide