Only in Israel: Rabbinic Arbitration Invalid
In America, the law is pretty straightforward: if you submit a financial dispute to binding arbitration, it really doesn’t matter who the arbitrators are. We can submit a dispute to Larry, Moe and Curly, and we are stuck with their decision.
As such, decisions in accordance with Halacha, Jewish Law, are both fully valid and fully protected. In the words of a lawyer friend specializing in U.S. business and civil litigation, decisions of Batei Din, Rabbinic Courts, are upheld “kol yom v’kol hayom,” every day and all day.
But such level-headed practices aren’t good enough for Israel, where Supreme Court President Aharon Barak’s quest for unlimited power continues unabated. Israel now distinguishes itself by considering arbitration made in a Bais Din in accordance with Halacha to be invalid ab initio (from the outset, or l’chatchila in Halachic parlance), even if the parties so agreed in advance. For those familiar with Barak’s decisions on religious matters, this unique level of hostility to the Jewish religion isn’t out of character.
From the earliest days of Zionism–from Theodor herzl himself–it was always the game plan of the Zionist leaders to solve the “problem” of anti-semitism by “normalizing” the Jewish people–integrating them into European society.
In the religious Europe of Herzl’s day, 100 years ago, the plan was to baprize the Jews and make them good Catholics. You might say that the founder of Zionism, Theodor Herzl, was the original Jew-for-J.
In today’s context, where Europe has turned largely secular-atheist, “normaliztion” means cutting all ties with religion, especiall “reactionary” Orthodox religion. This is a crusade, and therefore, it goes to extremes.
Rabbi Menken,
This decision on arbitration is the newest example of overreaching by Israel’s Supreme Court. The older examples are still with us. Certainly, new examples will crop up from time to time.
But without some practical focus, discussions about topics like this become unproductive. What practical solution do you propose that does not depend on a personal change of heart by Aharon Barak?
If I understand the issue correctly (and I’m not a lawyer, certainly not an Israeli lawyer), those decisions limited the power of state Rabbinical courts. That is, the power of Rabbinical courts summoned by the state of Israel for specific purposes. Three Orthodox Jewish men can still sit as a Beit Din with an arbitration agreement and get their rulings enforced.
If you and I have a dispute in the US and we go to a Beit Din here, that Beit Din functions only as a voluntary Beit Din. On the other hand, if a couple is getting a divorce in Israel, they have to go to the state Rabbinical court. If the man asks for Halachic arbitration and the woman wants to litigate money issues in the secular courts, that could influence the court’s opinions and eventual decision.
This Mar’it Ayin (= appearance) could be enough to cause a woman who would otherwise have gone for civil litigation to agree to Din Torah (= Torah law). Even though the court would appear to be voluntary, the decision to agree to its judgement could be influenced by the power granted to those courts by the state. Since the state gives the court power beyond the normal enforcement of contracts, the state has the right to regulate it.
Far be it from me to even appear to be supporting Barak in his missiion of self-hate.
I do wish to note, however, that in the US if you submit a dispute to Moe, Larry and Curly (to use your example) for arbitration, it would indeed be upheld, provided that the stooges adhered to certain basic rules of fairness, such as the right to be represented by an attorney, the right to call witnesses and to cross-examine witnesses of the other side.
Many arbitrations in the US (not just Batei Din) have been thrown out for failure to follow these procedural requirements.
I was involved in advising a local Bais Din on how they could structure their Piskei Din so that they would be respected by the secular courts as arbitrations. One thing that I learned from that experience was that Batei Din do not regularly include such procedural protections unless it is explained to them that they have to have it and why.
I’m guessing, because I did not see Barak’s decision, but I would be surprised if Israeli Batei Din include such things as the right to be represented by an attorney and that may have been the reason for throwing out the Psak.
To close the loop on the analogy, where those protections are not provided, an American court would also throw out a Psak by Bais Din. The law books are full of such instances.
I’ll have you know that in the episode “Mutts to You” (1938), Larry is disguised as a Chinese laundryman, and when questioned by a suspicious Irish cop, he answers “Ich bin ah bochur fun Slabodkeh.” Moe translates that as “He from China, east side!”
there are proposals to ban religious arbitration in canada too (im not sure what their current status is)
see eg this blog post
http://bloghd.blogspot.com/2005/09/multiculturalism-dying-death.html
I believe that batei din in the US have to fulfill a number of requirements in order to be recognized as an arbitration panel (e.g. allowing the use of lawyers). I may be confused, but I believe that the US does not recognize the division of marital assets in a divorce done by a beis din either.
It seems to me that this is an opportunity for the hareidi communities (or even dati-leumi) to strike a blow for raising the stature of Batei Din which are not subject to state politics and not appointed by electoral bodies which include non-religious people. Let those Batei Din do the arbitrating and show that they are making a greater Kiddush Hashem than the official state bodies.
“But without some practical focus, discussions about topics like this become unproductive”
I don’t find this any less productive than other shtochs on the medinah you find in the american charedi press
Gil, there is very little a bais din has to do to be accepted as a legitimate arbitration panel under US law. One of the few exceptions is in the area of family law, where the state retains an interest because of the children and the other esoteric interests the state has in this department.
You’re misrepresenting the content of the court’s decision. The court did not rule that Batei Din cannot serve as arbitrators. The ruling is on a purely technical matter – that the official Rabinical courts, which are created by statute and are official organs of the State cannot serve in a capacity that the law does not empower them. This is the same rule as regular civil courts – a regular civil court cannot serve as an arbitrator, since it is a creation of the law and the law does not empower it to serve in such a capacity.
Nothing in the ruling precludes two parties to a dispute from submitting their dispute to arbitration in a din torah and from having such arbitration being legally binding and upheld by the courts. It does preclude rabbinate batei din, which are official institutions created by law, to act beyond the authority granted to them by law in their capacity as rabbinate batei din.
If J.I. is correct (5:52 am comment today), could an “official” Rabbinate bet din today outsource an arbitration case to a non-Rabbinate bet Din acceptable to both parties?
Another interesting question: if there are Israelis who have committed themselves ideologically to using only Rabbinate batei din, has the Supreme Court’s ruling now cut them off from arbitration? Ways around this could be:
1. The Knesset could authorize Rabbinate batei din to do arbitration (would Aharon Barak find an argument to undo this, too?)
2. The Israelis in question could relax their ideological commitment
To Bob Miller:
The lack of “practical focus” is not a valid objection to this post, in my opinion.
The power of the press can be awesome. No “practical focus” can be achieved without accurate information.
Ask any military man, and he will tell you that, without reliable intelligence, he cannot succeed in his mission.
Ask any advertising man whether the written or spoken word has the power to change behavior.
The press is often described as the “Fourth Estate,”–and rightfully so!
I don’t like the Supreme Court in Israel any more then you do, but in this case you are simply misrepresenting the facts.
The fact is, that just like in the US you can submit a financial dispute to the binding arbitration of an independent Beis Din and the ruling will be upheld by the courts.
What the Supreme Court said is that since the Rabbanut Batei Din are creations of the state, the state has limited their power and they cannot serve as arbitrators. A regular court cannot serve as arbitrators either. There is no discrimination here, rather the Supreme Court is applying the existing law.
I can’t let Hillel’s unprovoked attack go unanswered. Herzl, true, had an idea that all European Jews would convert to Catholicism (and Middle Eastern ones to Islam, it should be pointed out: This wasn’t at all a religious thing for him). However, the Dreyfus case proved to him that Jews could try to assimilate as much as possible, and it wouldn’t work. He had a complete change of heart. (His pie-in-the-sky idealism and messianic idea that he could get all Jews to follow him, while certainly a great thing in some ways but impractical in others, stayed with him, however.)
To call him a “Jew for Jesus” in an absolutely unfounded insult. He was never into the idea religiously, as I’ve pointed out, and certainly did not keep this point of view. To call him “the original Jew for J” is just plain stupid, considering all the assimilated Jews of the 19th Century who converted, for starters- and, of course, considering that the “original Jew for J” was, well, “J” himself.
Hillel,
My idea of “practical focus” is:
If you describe a problem, offer one or more possible paths to its solution.
To Nachum:
You’re right. Hertzl had no interest in religion–Jewish or Christian.
Like his protege, Max Nordau, Hertzl was a totally assimilated secular atheist Jew.
In fact, Hertzl recommended that Nordau, who was married to a Protestant Chritian, succeed him as leader of the Zionist movement.
“Elah Elohecha Yisroel?”–Are these the GODs you worship, O Israel?
I think you missunderstand the issue in this case. The Israeli Supreme Court ruled that the official courts of the state of Israel (including rabbinical courts) may not engage in pesharah, but only din and can not have private agreements between parties that would not be permitted to official courts of Israel. Private batai din can, but not the official courts. To me, that is the type of rule that every nation probably has, and it certainly is the rule in the United States also.
The bigger issue is beyond my small mind, but I think you missed the
small target here.
Michael, US judges “engage in peshara” … all day long, and every day.
We, who are not familiar with the case, are now presented with two versions of what’s happenining.
One is that all religious arbitration in Israel is invalid. If so, that is anti-religious.
The other is that only religious arbitration by the Rabbinate, a state body, acting outside of its governmental mandate, is invalid. But that all other religius arbitrations, including of the type performed in the US, remain valid. If this is so, particularly given the recent actions of the Rabbinate, I fail to see why I should particularly care.
Ron – the issue is fairly simple. The Rabbanut courts do not have legal authority to rule in regular dinei mamonot. But they were acting as arbitrators in that field. That would be analagous to a family court acting as an arbitrator in a criminal case. It’s just not within its statutory authority.
“That would be analagous to a family court acting as an arbitrator in a criminal case. It’s just not within its statutory authority.”
No, the analogy would be acting as arbitrators in monetary cases — where the litigants’ consent empowers the arbitrators to act.
“US judges “engage in peshara” … all day long, and every day.”
Indeed. Some federal Courts REQUIRE each case, prior to trial, to go through some form of mediation. Often one choice of mediation is through the Magistrate Judge – a kind of adjunct to the district judge who deals with pre-trial matters in civil cases.
“What the Supreme Court said is that since the Rabbanut Batei Din are creations of the state, the state has limited their power and they cannot serve as arbitrators. A regular court cannot serve as arbitrators either. There is no discrimination here, rather the Supreme Court is applying the existing law”
This is oversimplifying the issue. The Rabbinic Courts in the State of Israel are empowered to deal with divorce (at least for Jews) and other family matters. Now anyone who knows anything about divorce or divorce courts knows that they are often a tangle of legal issues — including monetary disputes such as payment of the kesubah, alimony, sometimes claims for personal injury, etc. The typical “Family Court” or “Family Division” in the U.S. has jurisdiction to deal with all of these issues.
Now in Israel, the matter is more complex because you have two overlapping systems — the religious courts and the secular. Outside the strict parameters of the divorce, no one can be forced to have his/her case heard in the Religious Courts.
But one would think that, if the parties agree, and if it is within the general context of the divorce or the severing of the relationship, then at least upon consent the religious court should be empowered to hear the monetary side of the case. The Supreme Court case, as I understand it, dealt with a monetary claim within the context of
divorce.
Hillel, please read Melachim Beis, 14:23-29. I should also stress that I don’t worship people.
“That would be analagous to a family court acting as an arbitrator in a criminal case. It’s just not within its statutory authority.”
No, the analogy would be acting as arbitrators in monetary cases—where the litigants’ consent empowers the arbitrators to act.
That is simply not true. An official court cannot act in a capacity as an arbitrator, regardless of consent, whether in the US or in Israel.
Tal – you are mixing up two issues here:
1. Can Rabbanut courts act as courts in monetary matters related to family law matters.
2. Can Rabbanut courts act as arbitrators.
The answer to 2 is simple – no, they can only act within their statutory powers.
Your problem is with 1 – that the Israeli supreme court has ruled to interpret the law so as to limit the scope of the Rabbanut courts’ jurisdiction.
Yaakov Menken’s post is about 2, and in that question the answer is fairly straightforward.