Beth Dins behaving badly
Local Rabbis are again in the news for all the wrong reasons…writes David Werdiger.
David Wordier
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 thisparticular 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 thiscase 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.
This article was also published at The Times of Israel.
David is wrong on three points:
1) He opines that this judgment cripples the beth din’s ability in general to conduct dinei Torah. In truth, this case does not prevent the Beth Din from serving the religious needs of willing participants; it only prevents it from forcing a religious observance upon an unwilling participant. And it does not even preclude that from occurring in all circumstances; it only precludes it from occurring in circumstances where that would violate a right that common law confers on Jews in common with all Australians – the right to free and unhindered access to the civil courts. In cases where the unwilling participant does not intend to use that right, the Beth Din is free to compel compliance with its orders by threatening (as it did in this case) sanctions that have the potential to damage a person’s livelihood, reputation, social status and the practice of his religion. Is that a good thing? The Australian Parliament is prevented by the religious freedom section of the Constitution from imposing any religious observance on anyone. Should we be happy that a beth din is able to do what even our national Parliament (a body of elected representatives that we can vote out of office at the next election) is forbidden to do?
2) David also says that the issue at the core of this case is the question of what powers a beth din has to enforce its rulings, and the implications of that for religious self-determination. But the court was neither asked that question, nor did it consider it. The real core of this case was the two issues that were put to it, which occupied the entirety of Justice Sackar’s judgment:
(a) The main issue was what the rabbis were charged with – contempt of court by interfering with the administration of justice. The court is not concerned to interfere with religious self-determination, but no right, even the right to freedom of religion, is absolute and unfettered. I have autonomy over my own body. But my right to extend my arm in any direction stops when my fist is about to hit your nose. This case was about protecting Mr Barukh’s common-law right to free and unhindered access to the civil courts – a right that the courts are duty bound to defend. The rabbis interfered with that right by pressuring a potential litigant to abandon that right and instead submit to a din Torah as the only way of resolving the underlying commercial dispute that the Beth Din was preparing to hear.
(b) There was also the issue of procedural fairness, which was called into question by the rabbis’ conduct, which the judge found gave strong grounds for a finding of apprehension of bias. He did not rule on that issue because he held that the court had no jurisdiction on that matter, since the Beth Din was a private body, but he left no doubt that if the court had had a foot in the door, he would have barred the Beth Din from hearing the case. The appeal judges clarified that he was mistaken in holding that to be not justiciable. This is now the third time in recent Australian judicial history that a beth din’s conduct has been found wanting in the same manner, which suggests it is high time that we ask why our dayanim seem to be so jurisprudentially incompetent. Their conduct in this respect should be on a par with the standards that apply to civil judges, especially since the Sydney Beth Din has a policy of conducting its dinei Torah as commercial arbitrations under the NSW Commercial Arbitration Act or the (Cwth) International Arbitration Act.
3) David claims that this case could restrict a beth din from dealing effectually with cases of gett refusal. The SBD rabbis were not convicted of contempt for merely threatening to impose religious sanctions on Mr Barukh, but for doing so with a view to forcing him to submit to a din Torah over a commercial dispute and for persisting in this course even after Barukh had informed them that the dispute was of a nature that caused him to take the view that the Supreme Court and not a beth din was the appropriate forum for settling such a dispute. Those elements cannot be replicated in gett proceedings, which, unlike a commercial dispute, are of a purely religious nature, in which no civil court is going to get involved, especially after a civil divorce has been granted, which, in Australia, either party can initiate. Therefore this judgment does not restrict the BD’s ability to deal with gett refusal. The reasons I have given for this conclusion are based on my own understanding of this case, arrived at after careful reading of both judgments, but the conclusion, at least, is supported by expert legal opinion, even if not necessarily arrived at by the same reasoning. It should be noted that in the original case, the plaintiff stipulated that the Beth Din had jurisdiction over matters purely religious in nature, such as administration of Jewish divorces, and this was not contradicted by the court.
But in relation to the issue of gett refusal, neither David nor anyone else making this spurious claim about the effect on it of this court decision has noticed the elephant in the room where we are discussing this.
The biggest problem in relation to gett refusal and agunah confronting batei din everywhere (even in Israel, where the rabbis have a jurisdictional monopoly on (Jewish) marriage and divorce) is not the “law of the land” nor anything a civil court has done or may do, but Jewish law, which allows only the husband to initiate a gett and requires that he do so voluntarily. And it’s not as if there are no halachic ways around that; it’s more a case of rabbis not being willing to stick their necks out, because, as my father once said to me, “For every rabbi willing to stick his neck out, there are a hundred others in the wings waiting to chop it off.” In this case, sticking their necks out means making use of loopholes in Jewish law which, although they are halachically valid and could alleviate many cases of agunah, they are controversial, so many rabbis are reluctant to use them. I am speaking of a rabbinical annulment of a marriage, a remedy which can be used in some circumstances, which bypasses the need for a gett. It has been used by Israeli batei din, but I believe more so in the past than in recent times. (I hope I am wrong about that belief.)
Some very valid points in this article. But I just find it ironic to whinge about the Beth Din’s restricted powers to ‘assist’ in resolving Get situations – the legal system that created the Aguna problem in the first place is the very system being called into question by the Supreme Court ruling! If an institution needs to resort to subversive techniques to uphold its law, then this is a red flag that the system might be a little bit broken. Ideally we should be able to work this out ourselves and make the necessary adjustments, but if not, then others will do it for us. For better or for worse, that is part of living in a secular democratic society. The Supreme Court ruling should be taken as a call for serious self-reflection, even if it means confronting some uncomfortable truths. That is what it is to operate with true integrity.
Batei Din do not have the authority to operate in this way. It does not stop them from breaching the law and creating massive distress in the community. At what point does one have to reach, before there is an understanding this is not working ? Not at all. Further education is not the answer, if they dont understand that you protect innocent children, geirim, people going through traumatic relationship breakups, no amount of education can save it. We have long reached the point of no return. These abominations need to be shut down, those running them stripped of communal power, which they lost the respect of the majority long ago. Of course, if this is continually ignored, its only a matter of time before their repeated breaches poison the community for everyone. Time to act.
This article dances around the edges, but touches on the matter of governance at the end. Countless times the Beit Din model has failed the Australian Jewish community simply because it is accountable only to itself. If it is a self appointed body, and remains so even when the pretence of administration is separated, then it will not be compatible with corporate structures in Australia. Yet the Beit Din wishes to be an entity with an ABN. There is absolutely a way for a private court to operate under a commercial structure for the community, so long as it has real corporate governance, and its jurisdiction is imposed only on those who seek to accept it.