Shabbat Parashat Shoftim 5775
Parashat Hashavua: Courts Throughout Your CountryHarav Yosef Carmel
As usual for Parashat Shoftim, we will discuss something connected to our Eretz Hemdah-Gazit batei din, which are spread throughout the country (from Sderot to the Golan), with Hashem’s help. We will focus this time on the Law of Arbitration, which the Israeli Knesset legislated, and its impact on the operation of our batei din.
The ability to enforce rulings is a fundamental element of any court system. Going through the process of opening a file, holding hearings, accepting written submissions, studying the case’s halachic/legal background, and writing a comprehensive ruling without knowing it can be enforced, turns the matter into a farce. It risks a great waste of time and money and can cause significant chillul Hashem.
In a closed society where refusing to follow a beit din’s ruling is unheard of due to societal pressure, the possibility of governmental enforcement may not be necessary. However, even in such surroundings, in litigation on the most significant matters (e.g., control of leading Torah institutions), parties have been known to solve their problems in secular courts, where there is enforcement.
Even the rulings of the government-financed Rabbanut courts on purely monetary matters have only been enforceable by means of the Law of Arbitration, as they have jurisdiction only for personal status and family matters, especially divorce. After the landmark Amir case ruling of Supreme Court Justice Procaccia, it became illegal for the Rabbanut courts to hear cases outside the areas of their jurisdiction. Many dayanim in those courts refused to use arbitration law, claiming that their authority comes and must come only from the authority of the Torah, without the need for the permission of the Knesset or Supreme Court.
Before we clarify our position on the matter, we will briefly explain the working of the Law of Arbitration. Opening litigation to arbitration courts makes the process faster and lessens the backlog of cases that fall upon the tired governmental courts. Most countries have adopted such laws, which are incorporated into international law. The law sets certain basic requirements for the arbitrators’ rulings to be fit to be upheld:
1. The rulings are binding only if a valid arbitration agreement has been signed.
2. The arbitration must remain within the boundaries of the dispute to which the sides agreed.
3. The litigants were given a fair opportunity to present their claims and proofs.
4. The content of the ruling does not run against the public interest.
5. The ruling is written, signed, and dated by the arbitrators.
6. The Regional courts will uphold the ruling and thereby enable its enforcement after they check that the basic rules of justice were followed.
Since the rules that are expected of arbitration courts are required by halacha as well, we are happy to be subject to them. The substantive law that we use is Torah law. The Law of Arbitration, which is a fair law, upholds the right of every set of litigants to adjudicate according to their beliefs, while ensuring that they will abide by the rulings.
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