Why rab­bis should put their courts in or­der

A new bill may be aimed at sharia courts, but there are is­sues for our Batei Din too, says Daniel Green­berg

The Jewish Chronicle - - Judaism - Daniel Green­berg is a mem­ber of the par­lia­men­tary team in Ber­win Leighton Pais­ner LLP

THE USE of re­li­gion as a tool of op­pres­sion of women is hardly a new concern. A cause of concern in the United King­dom to­day is the use of re­li­gious courts to cir­cum­vent anti-dis­crim­i­na­tion leg­is­la­tion and to co­erce women into waiv­ing their civil rights. The Ar­bi­tra­tion Act 1996 al­lows for the legally-bind­ing con­sen­sual res­o­lu­tion of dis­putes out­side court; but peo­ple can be co­erced by so­cial or re­li­gious pres­sure into par­tic­i­pat­ing in ar­bi­tra­tion in re­li­gious courts against their best in­ter­ests and with­out their freely-given con­sent.

A Pri­vate Mem­ber’s Bill has re­cently been in­tro­duced into the Lords by the cross­bench peer, Baroness Cox, which aims to ad­dress three key is­sues: dis­crim­i­na­tion against women in re­li­gious courts, their use for crim­i­nal or fam­ily mat­ters, and ju­ris­dic­tion by co­er­cion. The Ar­bi­tra­tion and Me­di­a­tion Ser­vices (Equal­ity) Bill is pri­mar­ily aimed at con­cerns that have been ex­pressed about cer­tain Is­lamic sharia tri­bunals, but the is­sues are also rel­e­vant to the Beth Din sys­tem.

On the ques­tion of ju­ris­dic­tion by co­er­cion, within the Ortho­dox com­mu­nity there is con­sid­er­able halachic and so­cial pres­sure not to lit­i­gate in the sec­u­lar courts un­til the Beth Din route has been ex­hausted. It is an in­ter­est­ing ques­tion as to whether that pres­sure is suf­fi­cient to mean that a per­son’s “con­sent” to ar­bi­trate in a Beth Din is, in fact, not freely given.

A dis­sat­is­fied lit­i­gant emerg­ing from a Beth Din, and seek­ing to over­turn its de­ci­sion on the grounds of hav­ing felt com­pelled to sub­mit to its ju­ris­dic­tion, could do great dam­age to the rep­u­ta­tion of the Beth Din sys­tem; so this is an is­sue that could prof­itably be looked at with some care.

The ques­tion of “ju­ris­dic­tion creep” also de­serves ex­am­i­na­tion. The Ar­bi­tra­tion Act is about civil dis­putes; it was never in­tended to al­low an al­ter­na­tive fo­rum for the res­o­lu­tion of dis­putes which have a wider so­cial in­ter­est, in­clud­ing crime, fam­ily mat­ters or ar­eas of law de­signed to reg­u­late so­ci­ety (like plan­ning or li­cens­ing).

Within some parts of the Ortho­dox com­mu­nity here, how­ever, there is an in­creas­ing ten­dency to stretch the use of the Beth Din be­yond its tra­di­tional lim­its. The re­sult is that the Beth Din ends up as­sum­ing re­spon­si­bil­ity for cases which it does not have the tools to han­dle ef­fec­tively, be­ing par­tic­u­larly con­strained as to what kinds of en­force­ment ac­tion it can take.

For ex­am­ple, a num­ber of rab­bis nowa­days as­sert that it is con­trary to ha­lachah to take en­force­ment ac­tion in plan­ning dis­putes with­out first sub­mit­ting the mat­ter to ar­bi­tra­tion in a Beth Din. This view is based on the idea that it is not crim­i­nal to build with­out plan­ning per­mis­sion, and that it only be­comes il­le­gal if the lo­cal au­thor­ity de­cide to take en­force­ment pro­ceed­ings, un­til which time plan­ning is­sues are merely civil dis­putes be­tween two par­ties. This is a fun­da­men­tal mis­un­der­stand­ing of the na­ture of the sec­u­lar plan­ning law.

Build­ing with­out plan­ning per­mis­sion is against the law, and can make peo­ple li­able to var­i­ous penal­ties; the fact that lo­cal authorities may de­cide that it is not worth en­forc­ing the law in par­tic­u­lar cases is a sep­a­rate mat­ter, and does not stop the is­sue be­ing one of gen­eral so­cial reg­u­la­tory im­por­tance. Al­though mis­con­ceived, how­ever, this view is gain­ing ground within the 0rtho­dox world, and it cer­tainly has the po­ten­tial to bring the Beth Din sys­tem into con­sid­er­able dis­re­pute. Sub­mit­ting a ques­tion to ar­bi­tra­tion over whether or not to con­nive at a breach of plan­ning law, in ex­change for a pay­ment of money, is unattrac­tive at best and un­law­ful at worst.

In crim­i­nal and fam­ily mat­ters too, in a small but sig­nif­i­cant sec­tor of the Ortho­dox com­mu­nity, pres­sure is some­times brought on peo­ple to avoid mak­ing a com­plaint to the po­lice or other authorities, and ei­ther to sub­mit to some kind of Beth Din pro­ceed­ings or to drop the mat­ter al­to­gether. This has the po­ten­tial to en­cour­age crim­i­nals to con­fine their crim­i­nal ac­tiv­ity to the Ortho­dox com­mu­nity, in the knowl­edge that they can then com­mit their crimes with im­punity.

On the third of the is­sues ad­dressed by Baroness Cox’s Bill, dis­crim­i­na­tion against women, the Beth Din sys­tem may ac­tu­ally have a fairly good story to tell. In par­tic­u­lar — and con­trary to pop­u­lar be­lief — in the ar­eas in which a Beth Din in this coun­try has ju­ris­dic­tion, ha­lachah does not pro­hibit the re­cep­tion of ev­i­dence of women.

Cer­tainly, each Beth Din would do well to over­haul its pro­ce­dure and prac­tice to en­sure that it is com­ply­ing with the sec­u­lar law on sex dis­crim­i­na­tion; but in do­ing so it should not find any in­su­per­a­ble halachic ob­sta­cles.

This is a pri­vate peer’s bill which is most un­likely to pass into law. But un­suc­cess­ful pri­vate peers’ or mem­bers’ bills fre­quently in­crease pres­sure on the gov­ern­ment to act, and are of­ten fol­lowed by gov­ern­ment leg­is­la­tion. In any event, al­though it might be tac­ti­cally rea­son­able for the Jewish com­mu­nity to treat this as a bill not re­ally aimed at us, and to ig­nore it, that would be a shame; there are is­sues within the bill that are rel­e­vant to us, and it would be as well to treat it as a timely op­por­tu­nity to ex­am­ine Beth Din prac­tice and pro­ce­dure.


Rab­binic jus­tice: a Beth Din in Lon­don in 1933

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