Q&A: The Claim of “Kim Li”
The Claim of “Kim Li”
Question
Hello Rabbi,
I wanted to ask what the Rabbi’s approach is to the legal doctrine of “kim li,” since he does not defer to great rabbinic authorities as binding, but sees them merely as a source of inspiration.
Answer
First, the whole matter of “kim li” is problematic and lacks a clear source.
Second, when a judge does not have a position of his own, he can rely on halakhic opinions and precedents. In such a case, there is room for a “kim li” claim as well. Especially since, simply speaking, the claim of “kim li” refers to the litigant and not to the judge, and the litigant by nature is not a Torah scholar, so it is reasonable for him to rely on the opinions of halakhic decisors. Beyond that, even when the judge has a position of his own, the litigant still has the right to rely on an existing opinion among the halakhic decisors and place the burden of proof on the other side. Therefore, even when the judge has a different position, there is still room to rule in accordance with “kim li.”
Discussion on Answer
I think that in principle yes, but the religious court has to be persuaded that this explanation is reasonable (even if they do not agree that it is correct). One should remember that the litigant is an ordinary citizen and not a Torah scholar, and he can say a lot of nonsense. Where he relies on the opinion of a leading halakhic decisor, that concern does not arise.
So, for example, can the litigant offer a creative explanation in the Talmud to exempt himself? If Jewish law is not subordinate to the halakhic decisors, then why rely on precedents?