Religious questions come before Batei Din (religious courts) every week of the year.
One of their lesser known areas of activity is that of “Dinei Torah” – helping to solve disputes by means of arbitration and adjustment.
As well as calling upon Jewish law and ethical teaching in making its decision in cases of Dinei Torah, the Beth Din helps to contain disputes involving members of the Jewish community and to avoid recourse to the civil courts.
The procedure is as follows.
Upon the verbal or written application of the plaintiff, a summons (“Hazmanah”) is issued to the defendant by the Beth Din. A brief indication of the nature of the claim or grievance may be made to the Beth Din secretary for the information of the defendant, but no ex parte statement concerning the case may be made to any of the rabbis who will be called upon to adjudicate.
Before the hearing, the parties are required to sign a submission to arbitration, binding them to accept the award and determination of the Beth Din in the matter. The legal force of the civil law is thereby added to the moral sanction of the Torah, which enjoins respect for and obedience to the decision of a Beth Din.
No hearing with a view to a decision may take place in the absence of either of the parties. This is based on the Biblical injunction, “Hear between your brethren” (Deut. 1:16) and the rule that both parties to a controversy shall stand “before God” (Deut. 19:17); the Hebrew word used for God is understood as alluding also to judges, for a judge who adjudicates according to truth and justice is a partner with God in maintaining the moral foundation of the universe.
In former times a variety of methods could be employed in order to obtain the attendance of a defendant. There was the power of excommunication. There was the possibility of interrupting a synagogue service in order to arouse public indignation at the default of a defendant. The Beth Din could even issue a writ against the property of a recalcitrant defendant held by a third party.
These days, the main method available, apart from an appeal to the decency and conscience of the person concerned, is the moral persuasion that can be exercised by friends or the community.
Pleadings at the Beth Din are verbal, not written. In Biblical times written pleadings may have existed (e.g. Job 31:35). The Talmud, however, prefers verbal pleadings.
In the Middle Ages some communities allowed pleadings to be in writing; many authorities objected on practical grounds (such procedures, they said, involved great and expense), and also because written documents can conceal or manipulate the facts, whereas pleading in person enables a judge to penetrate the mind of the litigants.
Complete impartiality must be observed in the hearing of every case. One party must not be admitted into the court before another. A judge may not greet one litigant without extending the same courtesy to the other. One of them must not be allowed to proceed at length whilst the other is unduly hurried.
Only in rare instances is any preference given in hearing one case before another: the case of an orphan or widow must be heard first; a woman’s case is heard before a man’s; and the case of a Torah scholar takes precedence over that of an ordinary person so that he can carry on with his Torah study without undue disturbance.
Neither the parties or witnesses are sworn. It was considered wrong and unnecessary to require an oath over and above the constant ethical and religious duty to speak the truth without reservation.
In some instances Jewish law has provision for an oath but the Beth Din will endeavour to obviate this need by means of compromise between the parties.
The employment of legal advisers or representatives at the Beth Din is permitted but not encouraged as it tends to increase the cost of the action, prolong the proceedings and diminish the direct contact between the judges and the parties.
It should be explained that the parties are not expected to present legal argument to the Beth Din; the main object of the hearing is to establish the facts.
Witnesses cannot be compelled to attend, but the Biblical warning, “If he tell not, he will bear his iniquity”, has always been a powerful influence on potential witnesses.
Witnesses’ statements, like those of the litigants, are verbal and taken in the presence of the parties, though in case of emergency written statements from witnesses are admissible and may be received even in the absence of the parties.
The examination of the parties and witnesses is carried out by the rabbis who form the court. It is simple, direct and human. The rabbis must not act as advocates for the parties, but may help them, when necessary, in making their case articulate, in accordance with the injunction, “Open thy mouth for the dumb” (Prov. 31:8).
In their decisions the rabbis handling cases of Dinei Torah aim at equity. Jethro’s advice to Moses, “Thou shalt teach them the statutes and laws, and show them the way in which they shall walk and the work they shall do” (Ex. 18:20) implies, according to Jewish teaching, acting “lif’nim mishurat hadin”, “beyond the line of justice” or strict law, i.e. not taking full advantage of the letter of strict legality but leaving room for equity, compromise and compassion.
PERCEPTIONS & APPEARANCES.
Q. The law of “mar’it ayin” states that one should not do something permissible if people will get the wrong impression. Yet Pirkei Avot says, “Judge every person favourably” (Avot 1:6). If I am judging every person favourably, why do we need the law of “mar’it ayin”?
A. The example you give is of an orthodox Jew drinking water at McDonalds, which might give rise to the impression that the person has eaten a t’refah meal there.
A spectator needs to be helped to judge the situation favourably, and so it is best not to do anything which they might misunderstand. The Talmud says,
“Wherever the sages have forbidden a thing for appearance’s sake, one should not do it even in strictest privacy” (Betzah 9a, etc.; cf. Shulchan Aruch 301:45).