by R. Gil Student
The Neki’ei Ha-Da’as of Jerusalem appear a few places in rabbinic literature, always with strict practices that seem to have become normative over time. Who were they and how binding are their stringencies?
I. Who Were They?
Literally, Neki’ei Ha-Da’as means those with clean or pure or clear thoughts, or perhaps pure character traits (like dei’os sometimes means views and sometimes character traits). Rashi (Chagigah 22b sv. neki’ei) says that the phrase means picky or particular (istenis). Perhaps he means that they are very precise in their behavior, taking great care to do things in the best possible way. In the standard edition, the Rambam (Commentary to the Mishnah, Gittin 9:7) explains that the Neki’ei Ha-Da’as were wise. In that specific case, which we will discuss shortly, they minimized their words (Rashi, Gittin 87b sv. neki’ei), which seems both wise and precise. However, Rav Yosef Kafach (ad loc.) has the Rambam’s edition saying Beki’ei Ha-Da’as, experts (see his note 16).
Rav Yehudah Shaviv (in an article titled “Mi-Nekiyus Ha-Da’as Le-Halakhah Ravachas,” n. 11) quotes a debate among historians about the meaning of the term “Neki’ei Ha-Da’as.” Gedaliah Alon (Mechkarim Be-Toledos Yisrael, vol. 2 p. 26) follows the Rambam and explains the term as referring to wisdom and knowledge of life. Alon disapprovingly quotes Shmuel Klein, who thinks the term refers to the nobility of Jerusalem.
Rav Moshe Chaim Luzzatto (Mesilas Yesharim, ch. 10) distinguishes between someone who is nizhar and someone who is naki in the following way: Someone who is nizhar does not commit any obvious sin. However, he is engaged in a constant battle. A naki (which he explicitly connects to the Neki’ei Ha-Da’as in Jerusalem) has completely overcome his desire to sin and therefore has clear spiritual sight.
II. Their Practices
The Mishnah (Gittin 87b) says that while many people, when signing as a witness on a legal document, add after their name that they are a witness, the Neki’ei Ha-Da’as of Jerusalem omitted that apparently superfluous information.
The Gemara (Sanhedrin 23a) says that the Neki’ei Ha-Da’as of Jerusalem would not:
- Sign their name to a document unless they knew who else was signing
- Sit as a judge on a court until they knew who else would serve on the court
- Sit at a meal until they knew who else would sit with them
The Gemara (Sanhedrin 30a) says that the Neki’ei Ha-Da’as of Jerusalem, when serving as judges, had a very orderly process. They insisted that the litigants would each present their cases, then the witnesses would enter and testify, then everyone but the judges would leave while the judges deliberated.
Masekhes Soferim (14:14) teaches that when the Torah was removed from the ark in synagogue, theNeki’ei Ha-Da’as of Jerusalem would walk with the prayer leader holding the Torah, so that the Torah and its holder would not proceed alone.
The Mekhilta (Mishpatim 20 on Ex. 23:1) says that the Neki’ei Ha-Da’as of Jerusalem would not enter a saloon until they knew with whom they would be drinking and would not sign as a witness to a get until they know who else would be signing.
III. Stringencies or Law?
The Rosh (Responsa, 59:1) writes that the practice of the Neki’ei Ha-Da’as of Jerusalem to only sign as a witness to a document after knowing who else will sign is only good advice, not a binding rule (eitzah tovah ka mashma lan). The Chiddushei Ha-Ran (Sanhedrin 23a sv. a”r yehudah) similarly concludes that this is a stringency for those who reach the level of Neki’ei Ha-Da’as, not for everyone.
The Rambam (Mishneh Torah, Hilkhos Sanhedrin 2:14) writes that a judge is forbidden to sit on a court until he knows with whom he will be sitting. This implies that the practice of the Neki’ei Ha-Da’as of Jerusalem is binding as law. However, later (ibid., 22:9-10) he rules that it is forbidden to sit on a court with a wicked judge and quotes the practices of the Neki’ei Ha-Da’as of Jerusalem, as if they are stringencies rather than law. From here, it sounds like a judge may sit with someone he doesn’t know, as long as he does not know with certainty that other judge isn’t wicked. The Tur and Shulchan Arukh(Choshen Mishpat (3:4, 7:10) quote these two apparently contradictory rulings. (Note that Shulchan Arukh,Orach Chaim 170:20 seems to quote as a stringency–and not law–the practices of the Neki’ei Ha-Da’asregarding knowing with whom one will eat.)
The Perishah (ad loc., 10) explains that the practice of the Neki’ei Ha-Da’as of Jerusalem is a stringency. When the Tur and Shulchan Arukh write that a judge is forbidden to sit with someone he doesn’t know, they do not mean it as an actual prohibition. The Arukh Ha-Shulchan (Choshen Mishpat 3:7) writes similarly. TheBach (ad loc., 7) rules that this is a law for a great scholar but only a stringency for everyone else.
IV. Contemporary Practice
This became an urgent question in 1948 Egypt, when Rav Ovadiah Yosef was a rabbi in Cairo. The government passed a law that Jewish courts must include lawyers as judges. Since there were no lawyers who were knowledgeable in Torah, the religious court would have to include two rabbinic judges and one Jewishly ignorant lawyer (or 3 rabbinic judges and 2 lawyers). According to the Perishah this court could function because a judge is only advised to refrain, not forbidden, from sitting on a court with someone improper. However, according to the Bach, this is prohibited to a great scholar.
The Pischei Teshuvah (7:23) quotes other explanations of the Shulchan Arukh‘s apparent contradiction. Rav Yonasan Eybeschutz (Tumim, ad loc.) explains that before a case begins, a judge should make sure that he is comfortable with his fellow judges. However, once a case begins, if a judge learns more about his fellow judges, he only must recuse himself from the case if he discovers that another judge is outright wicked (rasha). For anything else, it is only a stringency to drop off the case.
According to Rav Ya’akov Reischer (Shevus Ya’akov 1:137), the law only applies to a judge who does not know any of the other judges. However, if two of the judges know each other as upstanding men, that is sufficient for the rule. It is a stringency to investigate the third judge when the majority of the court will be acceptable.
In Rav Ovadiah Yosef’s case, he felt that it was so clear that the lawyers were not religious that it was forbidden for judges to sit with them on a court, even two Torah scholars who know each with a lawyer as the third member. This was not a matter of Neki’ei Ha-Da’as but the basic law that a judge may not sit on a court with someone non-religious.
In summary, it seems that the practices of the Neki’ei Ha-Da’as are not binding as halakhah, but are stringencies for the pious. They merit consideration because they are important enough to be mentioned explicitly in the Shulchan Arukh.