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Beth Dins Behaving Badly

By ReligionJanuary, 2019January 19th, 20245 min read

Local Rabbis are again in the news for all the wrong reasons. This time, it’s the Rabbis of the Sydney Beth Din, as a result of their conduct in a commercial dispute, the latest instalment (and possibly not the last) being that they have been found in contempt of court over their actions in a civil case.

I know too many of the people involved, and not quite enough of the details of the case to either join the outraged social media scalps hunters, nor the faithful defenders. What draws me to comment is not this particular case involving this particular Beth Din, but another public examination of a halachic principle, and one which highlights a clash between two legal systems.

Several years ago, in the wake of revelations of child sexual abuse cases within the Australian Jewish community and a subsequent Royal Commission test case, the principle of mesirah (the prohibition against informing against another Jew to secular authorities) came under intense public scrutiny. Ostensibly an ‘excuse’ for dealing with allegations of abuse ‘internally’ (and still held to be the case in some Haredi communities), Rabbis in Australia and around the world confirmed unequivocally that mesirah does not apply to cases of sexual abuse, and that there is an obligation to report allegations to the police. We can only hope that action will follow words, and if a case came to light, Rabbis and other leaders would put the safety of children at the highest priority where it belongs.

The current Sydney Beth Din case explores another halachic principle – arka’ut: the notion that a (civil) dispute between two Jews should only be heard by a Jewish court. The Supreme Court of New South Wales ruled that the actions of the Beth Din to impose sanctions against one of the litigants for refusing a summons to Beth Din was illegal, and went further to declare the Dayanim in contempt of court, and fine them.

One might look at these two principles and see a common thread – both of them are underpinned by the notion that Jewish communities “handle things ourselves”. But that view is both simplistic and fallacious.

Mesirah is considered a relic of times when Jewish communities lived amongst corrupt and antisemitic regimes, so informing on another Jew would likely lead to unjust outcomes. The principle that a dispute between two Jews should not be handled by a secular court is because it carries an implicit Chillul Hashem – desecration of God’s name – and that applies equally now as it did in previous times.

There are situations where permission may be granted by a Beth Din to run a case in civil court. These relate to whether there is a permanent Beth Din in the city, and whether it has the appropriate powers to administer justice (for example, Beth Dins cannot impose injunctions or enforce fines).

In any event, the principle of arka’ut is meaningless unless the Beth Din has the teeth to impose sanctions for non-compliance. And that is the issue at the core of this current case, which has significant implications for religious self-determination. As it stands, the position of the Supreme Court is that the Sydney Beth Din (and by extension any Beth Din) cannot enforce its powers under Jewish law in a case between two Jews. This is quite astounding – the court’s position could theoretically restrict the ability of a Beth Din to apply pressure to a recalcitrant husband who refuses to give his wife a get.

This seems to have left some people caught between the specifics of this case and the wider ramifications of the precedent for all Beth Dins. It can be tricky to condemn on a micro level, and simultaneously support on a macro level. And sadly, this is not the first time local Dayanim have been called to account before the civil legal system and fallen short.

What this does highlight is that Beth Dins don’t exist in a vacuum – the Jewish legal system must work side-by-side with the laws of the land. In practice, this means that Dayanim need training not just in the intricacies of Jewish law, but also in the way those laws overlap and/or conflict with secular law. Locally, the intersection between law and community is the subject of ongoing research and study at the Sir Zelman Cowen Law Centre.

Dayanim and the institution of Beth Din used to hold the highest levels of respect and authority within Jewish communities. But this respect must be earned through strong governance, high standards in both Jewish law and its intersection with civil law, and transparent leadership. Clearly, we have a long way to go.

After judges from the Sydney Beth Din are found in contempt of court by the NSW Supreme Court, David considers the wider implications of this precedent, and how Beth Dins need to adapt to their role when embedded in secular society.

This was also posted at [Times of Israel and J-Wire].

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