¹⁹³ See (1967) 2 Is. L.R. 527 ff. on these institutions.

¹⁹⁴ See ibid. 544 ff.

¹⁹⁵ Avodah Zarah 36; Tosefta Sotah XV, 10.

¹⁹⁶ Y. Avodah Zarah II, 8.

¹⁹⁷ Hilchot Mamrim II, 5–7.

¹⁹⁸ Baer, Y., “Hahathalot VeHaYesodot Shel Irgun HaKehilot HaYehudiot Biyeme HaBenayim”; 15 Zion (1950) 1.Google Scholar

¹⁹⁹ Baba Meziah, XI, 23; also Baba Batra 8b.

²⁰⁰ On the nature and purpose of the takkanot hakahal, see more extensively Elon, , “LeMahutan” etc. 1–54Google Scholar. Here I dwell only upon the main features of this subject.

²⁰¹ Resp. Rashba IV, no. 185.

²⁰² Resp. Yachin VeBoaz (R. Zemach Duran, 15th century, N. Africa) II, no. 20.

²⁰³ Yevamot 89b; Gitin 36b; and see (1967) 2 Is. L.R. 546, n. 113.

²⁰⁴ Sanhedrin 46a; Yevamot 90b; and see (1967) 2 Is. L.R. 547, n. 114.

²⁰⁵ Resp. Rashba IV, no. 142.

²⁰⁶ Resp. Ribash (R. Yitzhak b'R. Sheshet Barfat, 14th century, Spain & N. Africa) no. 399. See also Elon, ibid. For the application of the principle “the bet din may impose flagellation” etc. see p. 110 below.

²⁰⁷ Elon, ibid. 10–16.

²⁰⁸ Resp. Rashba I, no. 617.

²⁰⁹ Elon, ibid. 17–19.

²¹⁰ Ibid. 19–22.

²¹¹ Tur and Shul. Ar. Ho. Mis. XXXIII.

²¹² Ibid. XXXVII.

²¹³ Baba Batra 43a; Ho. Mis. XXXVII, 18 ff.

²¹⁴ Resp. Rashba V, no. 286.

²¹⁵ See also (1967) 2 Is. L.R. 547 ff. Elsewhere on a similar question Rashba adds: “And there was never a community which objected to this matter.” For the innovation of the takkanot hakahal in the matter of the competence of witnesses, see Elon, ibid. 23, note 66.

²¹⁶ Resp. Rashba VI, no. 7. Cf. a geonic responsum cited in Otzar HaGeonim, Sanhedrin, ed. Taubes, H. Z. (1966) 171 and Resp. Ribash, no. 311.Google Scholar

²¹⁷ Responsa of Rashba HaMeuhasot leRamban, no. 65; Resp. Rashba II, no. 111.

²¹⁸ Ibid. IV, no. 260.

²¹⁹ Ibid. III, no. 406.

²²⁰ Elon, ibid. 28–31; see also Bazak, J., Hilchot Missim BiMkorot Haivriim (1964)Google Scholar. Cf. the instructive observations of R. Israel Isserlein (15th century, Germany) in Resp. Terumat Hadeshen, no. 342, in the name of R. Avraham Katz: “In matters of taxation custom nullifies the Halachah and the law of the talmudic sages, although there is warrant therefor in Scripture…and in all matters in which the public are associated, one must follow custom and the regulations they have made for themselves to serve their needs, since if you require them to follow the law of the Torah in all cases, they will never stop quarrelling. Therefore, at the outset they mutually waive the law of the Torah and firmly decide to follow their customary order.”

²²¹ Sanhedrin 46a.

²²² See e.g. the statement of R. Yehuda the son of Rosh (14th century, Spain): “It is well known that from the moment the Sanhedrin were expelled from the Temple precincts (Lishkat Hagazit) jurisdiction in capital offences was, in strict Jewish law abolished, but when exercised today it is in order to restrict contemporary breaches. Blessed is the Lord who has imbued the heart of the kings of this land to empower Jews to judge and remove evildoers. Were it not for this, Jews could not exist in this land…. Not all the laws which we apply in capital offences are according to the Torah”. Resp. Zichron Yehudah, no. 58.

²²³ See Y. Hagigah II, 2, in connection with hatraah and circumstantial evidences, Maimonides, , Hilchot Sanhedrin XXIV, 4–10Google Scholar. Tur and Shu. Ar. Ho. Mis. II; Assaf, Ha'Onshin etc.; Ginzburg, J. M., Mishpatim Lelsrael (1956)Google Scholar; Elon, , Hamaasar, etc., 171–201.Google Scholar

²²⁴ Maimonides, , Hilchot Sanhedrin XXIV, 4.Google Scholar

²²⁵ Tur and Shu. Ar. Ho. Mis. II.

²²⁶ Maimonides, ibid. 4.

²²⁷ See Baba Kama 84b.

²²⁸ Resp. Rashba III, no. 393.

²²⁹ Maimonides, ibid. 10.

²³⁰ See Resp. Ritba (R. Yomtov Ashvili, 14th century, Spain) no. 131, where he decides that a dayan who sits in criminal matters may receive evidence from witnesses who are relatives, that one should not insist on hatraah and other things. He says: “Regarding all these things it is not wrong for the dayan if he has convicted in this manner out of reverence for God and for the preservation of public order and putting up a fence around the Torah; but if he does this out of brutality and not for the sake of Heaven, God who sees our innermost thoughts will take amends from him and woe to his soul if he presumes to act evilly and to sin against his faith.”

²³¹ Resp. Maharam M. Rothenburg (Berlin) no. 220.

²³² Resp. Maharam M. Rothenburg (Prague) no. 383.

²³³ Resp. Rashba IV, no. 311.

²³⁴ See also Resp. Rashba HaMeyuhasot la'Ramban, no. 279: “He also replied—in a community that had appointed berurim (judges) to eradicate offences and it is stated in the takkanot that they may admonish and fine as they deem fit, [even] if they have evidence from witnesses who are related or which is hearsay and the like, they can judge and fine when they think the truth is established. There is no need for competent witnesses except for the application of the laws of the Torah as with the Sanhedrin, but whoever offends against public takkanot, it must be done as circumstances require. Otherwise, they would not impose fines… they would require hatraah.” The extent to which takkanot hakahal were endowed with power in the field of penal law may be gathered from Rosh: “If it is ascertained that there are permanent takkanot in the city with regard to defamation, these are to be followed and not the law of the Talmud”; Resp. Rosh. CI, no. 1.

²³⁵ Baba Batra 9a. Mention of the takkanot of other crafts union-workers in wool, dyers, bakers, ass-drivers, fishermen—is also made in Tosefta Baba Mezia XI, 24–26, but here nothing is said of the condition requiring approval of a distinguished personage. It appears that this need was introduced in the period of the Amoraim in the fourth century; see Elon, “LeMahutan” etc. 35, note 95.

²³⁶ Res. Ribash no. 399; his opinion is followed by some other scholars; see Elon, ibid. 35.

²³⁷ e.g. Resp. Rashba, I, no. 26 and IV, no. 185; Rosh on Baba Batra 9a.

²³⁸ Tur Ho. Mis. CCXXXI, 30; Shu. Ar. Ho. Mis. CCXXXI, 28; Rema, ad loc.

²³⁹ See Elon, ibid. 36.

²⁴⁰ Ibid. 36–38.

²⁴¹ Resp. Rashba I, no. 1206, IV, no. 185, V, no. 125 and VII, no. 108.

²⁴² Cited in Shitah Mekubezet, Baba Batra 9a, s.v. Hecha De'ika Adam Hashuv, and elsewhere.

²⁴³ Maimonides, , Hilkhot Mechirah XIV, 11.Google Scholar

²⁴⁴ Tur Ho. Mis. CCXXXI, 30.

²⁴⁵ Yad Remah (R. Meir Halevi Abulafia, 13th century, Spain) on Baba Batra 9a. Likewise Ritba, ad loc. and Magid Mishne (Rabbenu Vidal de Tolosa, 14th century, Spain) on Maimonides, ibid.

²⁴⁶ Elon, ibid. 39–51.

²⁴⁷ Resp. Rashba, II, no. 279.

²⁴⁸ Ibid. I, no. 788, and V, no. 178.

²⁴⁹ Resp. Maharam M. Rothenburg (Prague) no. 106.

²⁵⁰ Resp. Rema, no. 73.

²⁵¹ Novella of Ritba on Avodah Zarah 36b, s.v. “Bameerah”. See also Resp. Rashba V, no. 178.

²⁵² Resp. Ribash, no. 477.

²⁵³ See Elon, ibid. 51–53.

The takkanot were interpreted by the scholars by the same rules of interpretation which they employed in interpreting the Halachah itself, cf. on the interpretation of documents (1967) 2 Is. L.R. 544, n. 106. Another contribution by the public on the development of Jewish Law was made through the various legal documents, part of which were initiated by the public itself and which were interpreted by the scholars See also Elon, “Herut HaPrat” etc. 122.

²⁵⁴ Ho. Mis. XXXVII, 22. See Elon, , “LeMehutan” etc. 24–25Google Scholar, note 69, on how this became a rule accepted throughout the Diaspora, notwithstanding sharp divisions of opinion.

²⁵⁵ Ho. Mis. VII, 12.

²⁵⁶ Aruch Hashulchan, Ho. Mis. VII, 22.

²⁵⁷ See the concluding part of this article.

²⁵⁸ See Elon, M., Herut HaPrat BeDarche Gevyat Hov BaMishpat Ha'Ivri (1964).Google Scholar

²⁵⁹ Ex. XXII, 24–26: “If thou lend money to any of the people, even to the poor with thee, thou shalt not be to him as a creditor; neither shalt ye lay upon him interest. If thou at all take thy neighbour's garment to pledge, thou shalt restore it unto him by that the sun goeth down; for that is his only covering, it is his garment for his skin; wherein shall he sleep? and it shall come to pass, when he crieth unto Me, that I will hear; for I am gracious.” Likewise, Deut. XXIV, 6: “No man shall take the mill or the upper millstone to pledge; for he taketh a man's life to pledge.”

²⁶⁰ Ex. XXII, 2.

²⁶¹ Lev. XXV, 39.

²⁶² Philo, On the Commandments II, 81.

²⁶³ See 2 Kings IV, 1; Isaiah L, 1; Amos II, 6, VIII, 4–6; Micah II, 1–2; Nehemiah V, 1–13. See Elon, ibid. 8–10.

²⁶⁴ Elon, ibid. 1–8. A number of scholars, such as Michaelis, Saalschütz, Speiser, Driver and Miles, attribute to the Torah a recognition of debt bondage known to us in other ancient legal systems, but they have no proof thereof; Elon, ibid. 2, note 9. Most scholars, however, do not think that Biblical Law recognized this institution. This is the view of Mayer, Auerbach, Tschernau, Gulak, Korngreen, Boaz Cohen, Gutman, E. E. Urbach. Y. Kaufman comes to the same conclusion in his monumental Toledot HaEmunah HaIsraelit IV, Book I, 321, note 24. After citing the views of a number of Biblical scholars who find a legal basis for debt bondage in the Torah, Kaufman writes: “But in truth none of these passages are evidence. The Torah does not mention the debtor's bondage (cf. the Laws of Hammurabi, 113–19, 151–52). The laws of the Torah know of a person selling himself out of poverty but not for debt. So also a man may sell his daughter as a handmaid but it is not said that she is sold or placed in bondage for his debt. The sale of a son is not mentioned at all. The Torah knows of the secured loan but its laws of pledge are ideological-moral. It warns the creditor against doing anything to the impoverished debtor, for which he will cry unto God. (The Halachah delimits these laws and renders them more real.) The interdict of taking in pledge the mill and upper millstone (Deut. XXIV, 6) in fact includes the interdict of depriving the debtor of his minimal possessions upon which his livelihood depends (although the Halachah does not so explain it). There is no doubt that the ejectments and bondages described in Nehemiah V could not be based on the laws of the Torah.” See Elon, ibid.

²⁶⁵ Elon, ibid. 31–37.

²⁶⁶ Cited in Sefer HaTerumot of R. Shmuel HaSardi (beginning of 13th century, Sardinia) I, part 3, 2 and elsewhere.

²⁶⁷ Elon, ibid. 52–54.

²⁶⁸ Maimonides, , Hilchot Malveh VeLoveh II, 1–2.Google Scholar

²⁶⁹ i.e. for his minimum requirements of maintenance and employment.

²⁷⁰ Regarding this takkanah see Elon, ibid. 38–49.

²⁷¹ Maimonides, ibid. 2.

²⁷² Elon, ibid. 177 ff.

²⁷³ Cited in Tur Ho. Mis. XCVII, 26.

²⁷⁴ i.e. to discourage people from lending money to those in need, see e.g. Sanhedrin 3a and Rashi, ad loc.

²⁷⁵ Rosh, Baba Mezia, IX, 46.

²⁷⁶ So the Halachah was decided: see Tur Ho. Mis. XCVII, 28–29; Bet Yosef, ad loc. 28; Shu. Ar. Ho. Mis. XCVII, 15 and commentaries ad loc. See also Aruch HaShulhan, ad loc. 25: “In view of what has been explained, that a creditor may not enter the debtor's house to seize property and the court officer is also forbidden to enter…if so, where the debtor is a dishonest person and is careful not to leave any of his property outside his house, must the creditor lose his money…? Accordingly some of our rabbis have said”, and he continues by giving the views of Abulafia, Rabbenu Tam, Rosh and others, who found a solution to the problem.

²⁷⁷ Elon. ibid. 11–12.

²⁷⁸ Kohler, J., Shakespeare Vor dem Forum der Jurisprudenz (1919) 16.Google Scholar For the prison regulations which occupy considerable space in medieval legal and general literature, see Elon, ibid. 111.

²⁷⁹ On the attitude of Jewish Law to imprisonment in general, see Elon, , “HaMaasar” etc. 171–201.Google Scholar

²⁸⁰ Elon, “Herut HaPrat” etc. 13 ff and 112 ff. In the 11th century we learn from Rashi (Pesachim 91a) about imprisonment for non-payment of money, but the reference seems to be to a debt arising from non-payment of tax, in regard to which the attitude was very strict; see ibid. 113–14.

²⁸¹ Hilchot Malveh VeLoveh II, 1; see Elon, ibid. 114–18.

²⁸² Elon, Ibid. 119 ff.

²⁸³ See Gulak, A., Yesode HaMishpat Ha'Ivri II, 124–27.Google Scholar

²⁸⁴ A similar usage was also widespread in other legal systems; see Gierke, O., Schuld und Haftung im älteren deutschen Recht (1910) 72–74Google Scholar; J. Kohler, ibid. 136–60, about the Schuldklauseln.

²⁸⁵ It is proper to note here one error made by some authors with regard to the doubts of the Jewish scholars of medieval Norwich about the legality of debt imprisonment; see S. W. Baron, ibid, II, 227, which is based on a statement of Epstein, J. in Transactions of the Jewish Historical Society of England, XIV, 195Google Scholar, note 35, which in turn is based upon MS. Sassoon no. 534 which is a MS. of Mordechai (see the description in Ohel David I, 172–93). Epstein's reference is to a side note on this MS. (on Baba Mezia, chapter Hamekabel), which is clearly copied with slight linguistic changes from a response on Rosh, LXVIII, no. 10 (see Elon, ibid 127), where the sages are stated to be not of Norwich but of Burgos (which in Hebrew might be read as Norwich (=“Norgis”) by the confusion of “Nun” and “Bet”). On imprisonment for debt in Burgos, we have also evidence in the reply of Alfonso X to the Alcades of Burgos and the directions of Enrico II in the Cortes of Burgos (see Elon, ibid 132, 140). So far as I know, no records of any discussion of this question by halachic scholars in England have survived. Regarding the position under English law (see text below).

²⁸⁶ Sefer HaAgudah, Shabbat no. 150.

²⁸⁷ The term, meza'ara is frequent in talmudic literature in the sense of causing harm by words or deeds, without any reference to imprisonment; Elon ibid. 27, note 72, and 136.

²⁸⁸ Ibid, 134–36.

²⁸⁹ The documents are cited in a number of Responsa and by A. Gulak, Otzar HaShtarot, and F. Baer, Die Juden im Christlichen Spanien, Urkunden und Regesten; see Elon, ibid 138–40.

²⁹⁰ Resp. Ribash no. 484.

²⁹¹ The question came from the city of Huesca, in Aragon, where Jewish commercial and economic life was highly developed even in the 12th century. The community enjoyed a wide judicial autonomy; Baer, , A History of the Jews in Christian Spain, I, 82 ff, 205 ff.Google Scholar

²⁹² According to De Covarrubias, S., Tesoro de la Lengua Castellana Espanola, 1611Google Scholar (cd. M. de Riquer (1943) ), “alfarda” was a tax payable by Jews and Moslems to the Christian Kings for permission to reside in the latters' territory. The Real Academia Espanola, Diccionario de la Lengua Espanola (1956) gives it a further meaning, the water tax payable in Aragon; it is also the name of a tax found in Morocco. Those upon whom the tax fell were apparently dealt with more stringently than other debtors. A similar stringency with regard to tax is also found in Jewish Law; see n. 280, above.

²⁹³ Elon ibid. 141–43.

²⁹⁴ The economic life of the Jews of Saragossa was highly developed. They occupied important posts and enjoyed judicial autonomy; see Baer, ibid. and Index “Saragossa”.

²⁹⁵ This apparently means that the court must be satisfied with the persons standing surety.

^295a Elon, ibid. 138–39.

²⁹⁶ Ribash speaks of Saragossa as “this our city”, i.e. where he lived. He gave up rabbinical office there in 1385; see Baer, ibid.

²⁹⁷ Ketubot 86a.

²⁹⁸ Mo'ed Katan 16a.

²⁹⁹ For the abolition of flogging, see Elon, ibid. 208, 230.

³⁰⁰ Baba Mezia 75b.

³⁰¹ Elon, ibid. 148–72. These two different views were held in the 16th century by Karo and Isserlis in the Shulhan Aruch itself. (Ho. Mis. XCVII, 15). The former denied the possibility of imprisonment, even where the borrower is presumed to have means but had placed them out of reach. As against this, the latter decided that only a propertyless debtor could not be imprisoned, but if a debtor possessed property and refused to pay the court might imprison him.

³⁰² See Elon, , HaMaasar, etc. 179–85.Google Scholar

³⁰³ S. W. Baron, ibid. II, 226.

³⁰⁴ The takkanah is reproduced in Kerem Hamar by R. Avraham Ankavah, Part 2, No. 22, p. 4a. See Elon, , Herut Haprat, etc. 164–67.Google Scholar

³⁰⁵ Resp. Hikeke Lev, Part 2, Hoshen Mishpat no. 5.

³⁰⁶ Ibid., see Elon, ibid. 228–37.

³⁰⁷ Pinkas HaMedinah, ed. S. Dubnov (1925) no. 333, p. 70.

³⁰⁸ Other laws of the same period sometimes prescribe that the creditor must provide bread and water (Gierke, O., Schuld und Haftung (1910), 71Google Scholar; J. Kohler, ibid. 80) and sometimes that he need not provide anything, the debtor being left to his own resources or to rely on charity; certain people were required to collect money for this purpose (Kohler, ibid.).

³⁰⁹ On the reception in the State of Israel of the approach of Jewish Law relating to imprisonment for debt, see the concluding part of this article.

³¹⁰ Manby v. Scott, 86 E.R. 781, 786.

³¹¹ Holdsworth, W., A History of English Law (1956) VIII, 230–36, 245Google Scholar; XI, 595–600; XIII, 264–65, 377–78. It is very interesting that English law, so far as I am aware, is the only one apart from Jewish Law which originally did not know of imprisonment for debt at all, cf. Pollock, and Maitland, , The History of English Law (1923) 596Google Scholar and Holdsworth, VIII 230. Imprisonment was introduced in 1285 by way of legislation with regard to certain mercantile debts, and thereafter its use spread to all kinds of debt until “the result was that in practically every case, a creditor could take his debtor's body in execution” (Holdsworth, ibid. 231). In this regard, English law is parallel to Jewish law in its development, except that in the latter there was from the start a difference of treatment between the debtor who could not pay his debts and he who could. This distinction was only incorporated in English law in 1869. See Elon, ibid. 267, note 47.

³¹² In dealing below with Jewish Law in the State of Israel, further examples will be given of the method of research in the development of a number of Jewish legal institutions, such as limitation of actions and surety. At times Jewish Law has evolved solutions to new social and economic problems by extending the meaning of a legal principle beyond that which it originally included. An instructive instance is the concept hasagat gevul. Originally, in the Bible, it signified the prohibition on the moving of a landmark (Deut. XIX, 14) ; later it covered the protection of tenants against eviction, the prohibition in certain conditions on interference with another's business activities, and from the 16th century copyright: see Elon, , “Hasagat Gevul” XIV Encyclopaedia Hebraica (in Hebrew) 858–62.Google Scholar

³¹³ Kahana, Rabbi K., The Case for Jewish Civil Law in the Jewish State (1960)Google Scholar and Diamond's, A. S.review in (1962) 25 M.L.R. 499–500.Google Scholar

³¹⁴ Kahana, ibid. 91–92.

³¹⁵ Rabbi Kahana cites Karo, Shu. Ar. XCVII, 15, and Resp. Rosh. LXXVII (the principal source is LXVIII, no. 10), opposing imprisonment for debt, but he overlooks Baal HaAgudah, Ribash, Rashdam (Salonika, 16th century) Raanah, the takkanot of Fez of 1545, Isserlis, R. Shlomo Luria, R. Mordechai Yoffe and R. Yehoshua Katz, all of whom hold that a debtor with means may be imprisoned; see Elon, ibid. 136–72. Rabbi Kahana does not cite any rabbinical view of the 17th to the 18th centuries nor communal takkanot which provided for such imprisonment for a fixed short period even for impecunious debtors; see Klon, ibid. 172 ff.

³¹⁶ It should be added that most students of this topic in Jewish law have more or less reached incorrect conclusions because of incomplete research into the legal and historical material; see Elon, ibid. 265, note 45.

³¹⁷ A. S. Diamond, ibid. 500.

³¹⁸ See Baron, ibid. II, 351 etc.; Kaufman, Y., Golah VeNechar (1930) IIGoogle Scholar; Katz, J., Tradition and Crisis (1958) ch. 21 etc.Google Scholar; id., Exclusiveness and Tolerance (1961) ch. 14 etc.; Assaf, S., Bate Hadin etc. 5–6Google Scholar; Freiman, A. H., “Dine Israel BeEretz Israel” (1946), Luah HaAretz 111 ff.Google Scholar

³¹⁹ Kaufman, ibid. 38–39.

³²⁰ Ibid. 40.

³²¹ Ibid. 40–41.

³²² Derushe Hazlah VIII, 14 ad finem.

³²³ Ibid. XXII, 24.

³²⁴ Including Minsk, Vilkomir, Pinsk, Posen and the communities of Altona, Hamburg and Wansbeck. See Katzenelenbogen, E. L., Zecker Zaddik (1805) Part Ma'alele Ish, 4 ffGoogle Scholar; Kamelhar, Y. A., Dor De-ah (1953) 81–86.Google Scholar

³²⁵ See Zecker Zaddik, ibid. 7–8, 17 and elsewhere.

³²⁶ This sermon, called Zion BeMishpat, was delivered in the Spring of 1799 : see Zecker Zaddik, Drush Zion BeMishpat, 18a—b.

³²⁷ Ibid. 7b—8a. These words are not to be understood literally as if judicial autonomy had been totally lost at this time. R. Rafael Cohn himself, as appears later in the text, testified that in Altona such autonomy remained in his day. His remarks indicate the decisive turning point reached at this time, the result of which was the abolition of judicial autonomy.

³²⁸ lbid. 8b.

³²⁹ Ibid. 8a; 9a—b.

³³⁰ Zecker Zaddik, Drush Torat Hesed, 20 a—b. R. Rafael resigned from office in Altona for two reasons: because of his age (he was 79) he thought he would be unable properly to watch over the ordered effectiveness of the Jewish Court system; he wished to immigrate to the Holy Land (Zecker Zaddik, Part Ma'alele Ish, 17 a—b) but the Napoleonic wars, about which he speaks in the quotation given in the text, prevented this and he finally settled in Hamburg where he died. In those days, many anticipated the redemption of Israel and the rebuilding of the Temple. It is said of R. Rafael that he began to study the laws regarding sacrifices to prepare himself to act as a Cohen in the temple, see Zecker Zaddik, Kamelhar, op. cit. and Marcus, A., HaHasidut (1954) 94–95.Google Scholar

³³¹ Likewise Hebrew was replaced by the local tongue as the language in various areas of scholarship and literature and sometimes also of halachic exposition.

³³² Contrast the statement as to earlier periods: (1967) 2 Is.L.R. 526, note 39.

³³³ See, e.g. Kle Hemda (Mishpatim a) of R. Meir Dan Plotzki, head of the bet din in Ostrava, Poland, at the end of the 19th and beginning of the 20th century. After dealing extensively with the prohibition of resorting to the gentile courts, and even expressing surprise at the permission granted—as early as the Geonic period—for such procedure when the other party was a violent person and refused to appear before the Jewish court (see (1967) 2 Is.L.R. 526, note 40), he concludes, “there is no difference in point of law, because this rule [against resort to the gentile courts] does not apply to the [gentile] judges of our times who are not idol worshippers and [their courts] are not within the definition of gentile courts, and it is clear that one should actually litigate before them under the rule that the law of the State is the law.” See also the author's announcement following the preface to the second part of Resp. Ein Yizhak by R. Yizhak Elhanan Spector, rabbi of Kovno and one of the leading responsa writers of his day (1817–96): “If elsewhere [in the Responsa contained in this volume], civil law (dine mamonot) rules and an analysis thereof are set out, that applies to earlier times. Today, however, such matters are dealt with according to the law of the State alone and it is not for us to object to their basis and purpose. Nevertheless, the integrity of these rules remains as an intellectual undertaking for obtaining divine reward (and such study) is as the study of (other) halachic rules that are not applied today. Thus, other scholars have written…as is well known. Moreover, this (study) has its great usefulness for a number of rules relating to prohibitions and permissions which are practised at all times.” It would appear that due to censorship, such announcements were penned, but this itself demonstrates the lack of judicial autonomy and the absence of practical application of Jewish Law.

³³⁴ Freiman, , Seder Kiddushin VeNissuin (1945), 310 ffGoogle Scholar; Katz, , Exclusiveness and Tolerance (1961).Google Scholar

³³⁵ Dine Israel, etc. 113–14.

³³⁶ For judicial autonomy at this period in Eastern countries, see further Freiman, , Seder Kiddushin VeNissuin, 327 ff.Google Scholar; Gat, Ben Zion, HaYishuv HaYehudi BeEretz Israel Bishnot 1840–81, 76–77Google Scholar; Elon, , Herut HaPrat, etc. 225 ff.Google Scholar