Today, doctors, nurses, lawyers and even judges are encouraged to have professional liability insurance. If they are sued for malpractice, and found liable, this insurance covers the costs of damages and restitution.
When it came to judges, the rabbis of ancient Babylonia had an alternative way to exempt someone from payment for errors in judgment. We know it was an accepted alternative because Rav and Shmuel, famous rabbinic rivals, actually agree on it:
Rav says: One who wants to adjudicate a case and wants to be exempt if he errs must receive permission from the exilarch.
Similarly, Shmuel says: He must receive permission from the exilarch.
The exilarch — the political head of the exilic Babylonian Jewish community — was a hereditary position, passing from father to son. The family traced their lineage to King David himself. The exilarch was likely in charge of tax collection from the Jewish denizens of the empire, as well as liaising politically with the Sasanian shah or emperor.
In our journey through the daf, we’ve seen that the exilarch and his household often had a fraught relationship with the rabbis, which makes sense given that there was likely competition for religious and political authority between the Davidic dynasty and the rabbinic community.
But here we see something else: that the exilarch was empowered to credential judges and insulate them from personal financial liability in their professional roles. The Talmud goes on to explain that the credentials given by the exilarch had cross-border authority.
It is obvious that from here to here, and from there to there is effective. And from here to there is also effective since here is a scepter and there a staff. As it is taught in a beraita: “The scepter shall not depart from Judah” (Genesis 49:10) — these are the exilarchs in Babylonia, who subjugate the Jewish people with a scepter. “Nor the ruler’s staff from between his feet” (ibid.) — these are the grandchildren of Hillel who teach Torah in public.
The exilarch’s authorized judges were credentialed to judge in Babylonia. And similarly, the Talmud notes (elliptically, by mentioning the grandchildren of Hillel), those judges credentialed by the leader of the Palestinian rabbinic community — the nasi or patriarch — are authorized to judge in the land of Israel. The Talmud insists that judges credentialed by the exilarch could also legally judge in the land of Israel because the royal authority of the exilarch (the “scepter”) is greater than the power of nasi (who holds a less-royal staff).
The greatness of the exilarch’s power is reflected later on in the discussion when the Talmud insists that while “from here to there” is effective, “from there to here is not effective.” In other words, while the exilarch can credential a judge for the land of Israel, the nasi does not have authority to credential a judge for Babylonia. If the nasi’s judge travels to Babylonia and judges a case there, and errs, he is personally financially liable to pay whatever restitution and penalties are required. The power of the exilarch is thus greater than the power of the nasi.
But why? Perhaps the Babylonian rabbis see their own region and their own regional authorities as being more expert and more powerful. Instead of familiarity breeding contempt, perhaps it breeds local pride. Further, the exilarch and the nasi were political appointees in different empires, and their roles were structured differently in their own imperial contexts. While the position of the nasi seems to have declined in authority in the fourth century only to disappear in the fifth century, the exilarchate continued on for centuries past the closing of the Talmud. It is possibly just a fact that the exilarch actually did have more political power on an international scale than the nasi did. Whatever the reason, this power differential had a real financial impact on the professional liability of rabbinic judges, all the more important in the days before the invention of malpractice insurance.
Read all of Sanhedrin 5 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on December 22, 2024. If you are interested in receiving the newsletter, sign up here.
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