Q&A: Position Paper of the Eretz Hemdah Legal Institute on Deciding Disputes
Position Paper of the Eretz Hemdah Legal Institute on Deciding Disputes
Question
Attached, summary below
We would be happy to hear comments
A. Summary
- Since the abolition of the Sanhedrin, there has been no institution authorized to decide disputes for the entire Jewish people.
- The Shakh ruled that in a case of dispute, it is impossible to extract money from the current holder of the property or funds (“kim li”), even if most halakhic decisors held that the money can be taken from him.[1] The Shakh’s opinion was accepted by most halakhic decisors, albeit with certain limitations.[2]
- The leading sages of Israel wrote that efforts should be made to expand the possibility of deciding disputes for the sake of maintaining and implementing Torah law.[3]
- The parties can authorize the religious court to decide disputes,[4] and this is what should properly be written in the arbitration agreement.
- Based on the parties’ agreement, it is proper to apply one body of Jewish law to all litigants appearing before the court, regardless of their background or communal affiliation.[5]
- On the basis of this agreement, the religious court can decide disputes according to its discretion,[6] and within that framework it may consider ruling according to the following principles:
A. Ruling according to the majority view among the halakhic decisors.[7]
B. Ruling according to the customary practice of the religious courts.[8]
C. Ruling according to the custom of the country.[9]
D. Ruling according to state law when it corresponds to one of the opinions in Jewish law.[10]
[1] Shakh, Tokfo Kohen booklet.
[2] For example, the commentators on Tokfo Kohen: Urim VeTummim and Netivot HaMishpat; also Knesset HaGedolah, glosses to Beit Yosef, Choshen Mishpat 25, rules of “kim li”; Cheshek Shlomo, rules of “kim li”; Orach Mishpat (Hazan), 25, rules of “kim li”; and others.
[3] Urim VeTummim on Tokfo Kohen, sections 123–224; responsa Halakhot Ketanot 1:182; Rabbi Isaac Herzog, A Constitution for Israel According to the Torah, vol. 2, pp. 137–138. By contrast, Rabbi Ovadia Yosef (responsa Yabia Omer 1, opening remarks, letter 11) held that the rule of “kim li” should be applied in the broadest possible way.
[4] Responsa Darkhei Noam, Choshen Mishpat, 15.
[5] Rabbi Ratzon Arusi, “Taking the Claim of ‘Kim Li’ into Account in Monetary Religious Courts,” Emunat Itecha 122, p. 96.
[6] Rema, Choshen Mishpat 25:2.
[7] Responsa Radbaz 4:116 (1187).
[8] Responsa Darkhei Noam, Choshen Mishpat 15; Cheshek Shlomo, rules of “kim li,” letter 94.
[9] Shakh, Choshen Mishpat 60:12.
[10] Responsa Maharsham 5:45. Mishpat Shalom, 194, s.v. “klal”; Rabbi Isaac Herzog, A Constitution for Israel According to the Torah, vol. 2, p. 72.
Answer
Hello,
More power to you. These are necessary and important points. I went over the material quickly, and one fundamental point bothered me.
There is not enough emphasis here—it is mentioned only in passing—on the most basic and logical mechanism, one that depends on nothing and requires no agreement or anything else. The obvious solution is to follow the view of the judges actually sitting on the case. In your discussion, you move immediately to the laws of doubt and ask how one should act. But if the judges have their own position, then the laws of doubt do not apply to them, and they must rule according to what seems correct to them. The laws of doubt apply only when we are actually in doubt, and then one has to examine whether to follow custom, majority, the laws of doubt, “kim li,” and so on. Like that well-known story about Rabbi Jonathan Eybeschutz and the priest: when I know the truth, there is no rule requiring me to follow the majority. In my view this is a distortion, though of course a very common one. The statements about “kim li” and about a judge not being allowed to do whatever he wants also mean whatever he wants—not what he thinks is true, assuming he is competent. And the words of Tosafot on Bava Batra 62b and elsewhere are well known, and the matter is longstanding. For this you do not need customs, acceptance by the parties, or anything else.
Of course, in the background there is the concern about judges who are unfit—as is customary in our places and times—and then, as the Rema wrote, they have no authority to decide. But this is a chronic evil. A judge who believes he is unfit should not sit in judgment. If he was chosen as a judge, he is supposed to be fit to decide according to his own understanding. Without this distorted concern—misplaced modesty, which creates the whole problem being discussed here—the principled question this document is coming to address almost does not exist.
Needless to say, this suggestion, if that is what it is, obviously leads to lack of uniformity and legal certainty, because each panel acts according to its own view. But most of the solutions offered here, especially acceptance by the parties, do the same. So my comments are made on the assumption that we will not achieve that kind of uniformity, because there is no supreme and authoritative institution, and so on.
This is my humble opinion.