Appeal:

By: Marcus Jastrow , David Werner Amram

"The carrying of a cause from a lower to a higher tribunal for a rehearing on the merits" is practically unknown to Jewish law. In the statute constituting courts of justice and setting forth the duty of the judges (Deut. xvi. 18-xvii. 13) is found a paragraph that has given rise to the belief that processes of Appeal were known in Biblical times (see Deut. xvii. 8-13). But this paragraph is simply an instruction to the judges, directing them, in case they have doubts as to the law in the case, to refer the matter to the High Court at Jerusalem, submitting to it a statement of the case, and taking its opinion. This course is also taken in cases where a judge dissents (Sanh. xi. 2, 88 b ). The opinion thus rendered by the High Court is binding upon the court that submitted the case, and judgment must be rendered in accordance with it. This is not strictly an Appeal, by either of the parties to the litigation, from the judgment of the court before which the case was heard in the first instance.

Indeed, the principle of the Biblical law is opposed to the idea of appealing from a judgment of a lawfully constituted court, because the judgment is of God; hence every final judgment pronounced in court is conclusive.

Courts were not subordinated to each other, as might be supposed from the use of the terms "higher and lower courts" or "great and lesser Sanhedrins." The rank of the court was not determined by its power to review the judgment of another court, but by the nature and character of the subject-matter falling within its jurisdiction.

The most important matters could be tried only by the Great Sanhedrin at Jerusalem, consisting of seventy-one judges; matters of less importance by the lesser Sanhedrin (provincial court) in the various towns of Palestine, consisting of twenty-three judges; and petty matters by local tribunals of three judges, or, in some cases, by a single judge.

According to the Talmudic civil law, the court of the domicil of the plaintiff had jurisdiction of the case, but the plaintiff was entitled to commence his action in the High Court at Jerusalem, whereas the defendant had no right to remove the cause against the will of the plaintiff (Sanh. 31 b ).

According to the later law, the parties were entitled to an opinion from the judge, giving his findings of fact and decision. An execution could issue immediately upon the judgment; and the losing party was obliged to satisfy it at once, without, however, losing his right to have the judgment reviewed thereafter, before the same court, on the ground of new evidence (ShulḦan 'Aruk, Ḥoshen Mishpaṭ, 14. 4, gloss). If, however, the judgment was that of the Great Sanhedrin, it was not necessary for the judges to give a written opinion, for such decision could not be set aside.