Moed Katan 16

Due process.

A mishnah we encountered back on page 13 explained that people who could not cut their hair or do their laundry prior to a festival can do those things on hol hamoed so that their enjoyment of the festival is not attenuated. Why might you be unable to cut your hair before Passover or Sukkot? Perhaps you have recently come back from a trip overseas, or have just been released from prison, or your period of nazirite service has ended, or you have just reemerged from the social separation of being a leper or, critically for today’s page, perhaps you have just completed a term of ostracism.

Ostracism (niddui), as the rabbis describe it, is a kind of social isolation that is levied as punishment for a myriad of misdeeds from contempt of scholars and their courts to inhibiting others from performing mitzvot to selling land to a gentile who then harasses Jews. But most often it was used for scholars who did not accept majority opinions. Ostracism is less severe, and less permanent, than excommunication (herem) which was the ultimate form of dismembership from the community.

As the Shulchan Aruch (Yoreh Deah 334) explains, the rules are as follows: an outcast must keep a distance of four cubits from everyone except his immediate family; people do not eat with him, and he is not included in a minyan. In keeping with his social shaming, he also takes on certain practices that are similar to that of a mourner: He doesn’t cut his hair or fasten his sandal (which is why he might need that haircut in the middle of Sukkot). But unlike someone who is excommunicated, the outcast may still teach words of Torah and learn them from others, and he is still permitted to hire laborers or be hired as one. If he dies during his period of ostracism, he is brought back into the community for burial, but he is not eulogized and a stone is placed on his coffin. 

Ostracism is meant to be temporary with the hope of bringing the outcast back into the community. Thirty days is a standard term, though the period of ostracism can be cut short in the case of repentance, and doubled in the case of non-repentance. An individual may declare another person ostracized to them specifically, but the case of interest on today’s page is a declaration of niddui made by a rabbinic court. When a court decided to declare someone ostracized, they followed a set procedure:

Rava said: From where do we derive that a court agent is sent to summon the defendant to appear before the court (before he is ostracized)? As it is written: “And Moses sent to call Dathan and Abiram, the sons of Eliab.” (Numbers 16:12)

And from where do we derive that we summon the defendant, that he himself must appear before the court? As it is written: “And Moses said to Korah: Be you and all your congregation before the Lord, you and they, and Aaron, tomorrow.” (Numbers 16:16)

Ostracism is not done willy-nilly, and the person who is ostracized should not hear of it through the proverbial grapevine. Instead, a formal agent of the court must be sent to summon the defendant, and the defendant should hear the sentence in court. Procedures matter, as we read further:

From where is it derived that the defendant must be told that he is being summoned to appear before a great man? As it is written: “And Moses said to Korah: Be you and all your congregation before the Lord.” (Numbers 16:16)

From where is it derived that the summons must mention the names of both parties: You and so-and-so, the plaintiff? As it is written: “You, and they, and Aaron.” (Numbers 16:16)

From where is it derived that we set a date for the court proceedings? As it is written: “Tomorrow” (Numbers 16:16).

The accused has a right to know who the accuser is and to be informed of the date at which the proceedings will take place — they cannot do it behind his back. And he also has a duty to respect the agent of the court, who will report bad behavior:

And from where do we derive that if the summoned person behaves disrespectfully toward the agent of the court, and the agent comes back and reports his conduct, that this is not considered slander? As it is written: “Will you put out the eyes of these men?” (Numbers 16:14)

If you were paying careful attention to all these prooftexts, you might have noticed they all come from the 16th chapter of the Book of Numbers which tells of the story of Korah, who led a rebellion against Moses and Aaron in the wilderness. In that tragic account, Korah and his supporters questioned Moses’ authority, declaring: “You [Moses] have gone too far! For all the community are holy, all of them, and the LORD is in their midst. Why then do you raise yourselves above the Lord’s congregation?” (Numbers 16:3)

But beyond questioning Moses’ authority, they also refused to answer the summons to appear in court before Moses to address this rebellion. Through their actions, they declared themselves outside of the rule of law and disrespected the system. What happened to them? In a supernatural event, they were swallowed up by the earth. The repeated allusion to this story, constantly in the background of this discussion, underscores the seriousness with which the rabbis approached due process. The accused should have their day in court — and they should also show up. This is the only way that justice can be served.

Read all of Moed Katan 16 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on January 28th, 2022. If you are interested in receiving the newsletter, sign up here.

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