Posts Tagged ‘arbitration’
- A UK Beis Din (rabbinic court) has just announced a new small claims service for claims between £500 and £5000 where both parties choose to use it; the guarantee is that they will “receive a brief, written, binding psak within 72 hours”.
- I must be missing something.
- It’s great that a Beis Din is promising a swift decision: one of the embarrassing features of the Beis Din system in this country is how long cases are sometimes allowed to drag on.
- But what’s that got to do with the value of the claim?
- Everybody knows that the complexity of a claim and its value do not necessarily correlate.
- In secular courts, there are a number of practical reasons why small claims are provided with a range of faster tracks.
- A Beis Din is meant to do one of two things: (a) determine a compromise; or (b) decide the truth of liability.
- There is no reason why either of those should be quicker with a “small” claim (and which part of the community is the Beis Din prioritising if it considers £5,000 a “small” claim?).
- The speed of the resolution should be determined by the complexity of the case, not its value.
- Instead of offering a service that equates complexity with value and thereby inevitably risks giving decisions that are poorly thought out in order to meet an artificial 72-hour deadline, all Botei Din should concentrate on treating all cases as urgent, and providing answers as quickly as is consistent with the search for Torah justice.
- If the parties don’t care whether a decision is right or wrong but just want it quickly because the claim isn’t big enough to matter much to either of them, they’d do better tossing a coin.
1. It seems to be being suggested with increasing frequency that Jewish people confronted with planning permission issues in relation to property owned by other Jews are not allowed to follow the planning permission procedures, but must arbitrate through a Beis Din.
2. This is nonsense (and, in so far as it is propounded by the Botei Din, distastefully self-serving nonsense).
3. The law of moiser (“informing”) has two aspects.
4. First, there is a Biblical requirement to litigate in the Jewish courts and not in the civil courts (technically, nothing to do with moiser, but often wrapped up in assertions of its application). That is a firm prohibition of Jewish law. It gives way only where the Jewish courts are not competent to deal with the matter. So in the diaspora, anything criminal or with a criminal aspect goes straight to the secular authorities and courts; while even a financial dispute will be sent to the secular courts by the Beis Din if a party refuses to accept Beis Din jurisdiction or to comply with their orders.
5. Secondly, there is the prohibition against handing Jews or their property over to wicked Romans or Cossacks – or the contemporary equivalent from time to time – for unjust treatment.
6. There is, however, another little matter that is sometimes conveniently forgotten – dino d’malchuso dino. Jews are obliged by Jewish law to obey the law of the land: and in so far as this cannot be enforced by the religious courts it can be enforced through the secular courts.
7. With this background in mind, planning permission can be analysed as follows.
8. It is the law of the UK that I may not build certain structures without the local authority’s planning permission. If I do, I have broken UK law and Jewish law. That is not a matter on which the Beis Din is competent in UK law: the Beis Din can arbitrate under the Arbitration Act, but that is appropriate for disputes about inter-personal liability, not for enforcement of breaches of the law. Since the Botei Din are not competent to deal with the matter, it is halachically permissible to use the secular courts.
9. As for moiser, the planning authorities are not wicked Cossacks arbitrarily pinching people’s property: they are a branch of law enforcement, enforcing the law that forms part of the social contract to comply with which Jewish residents are bound by UK and Jewish law.
10. So to tell the local authority about a breach of planning permission is not halachically problematic. Indeed, it is an obligation, because when so-called religious Jews flout the law of the land they create a chilul Hashem.
11. Equally, the idea that I may not participate in the statutory planning permission process by registering objections when asked by the local authority what I think about a neighbour’s plans is absurd.
12. Unhappily, this is another example of ways in which purportedly religious Jews are prepared to misuse and manipulate concepts of Jewish law to permit them to behave unlawfully and unethically and to line their own pockets at other people’s expense.
1. The Archbishop of Canterbury said today that it might be helpful in a number of ways to permit the application of Sharia law in the United Kingdom: “There’s a place for finding what would be a constructive accommodation with some aspects of Muslim law, as we already do with some other aspects of religious law”.
2. Jewish thought and practice has always believed that religious law can and must work alongside that of our host nations.
3. On the one hand, we have a concept of dina d’malchusso dina hi – the law of the land has status in Jewish law. The rule of secular law is vital for the wellbeing of all those who live in secular societies, since the religious communal institutions are (except in a country wholly governed by and in accordance with those institutions) unable both theoretically and practically to provide effective control over most aspects of human behaviour. The establishment of a just and fair system of secular law is one of the Noachide laws, an obligation on all non-Jewish states, and one which we who live in those states are therefore bound to support by compliance and respect.
4. On the other hand, there are some matters of communal law that can be enforced effectively only within the communal religious institutions. English secular law has long granted autonomy to the Jewish community in matters of kashrus and marriage, and with occasional forays into the secular legal institutions for the resolution of disputes the system appears to work to the satisfaction of all.
5. Between these two areas lies a wide range of civil matters where the secular institutions may well be able to handle them, but where there may be significant advantages in having them addressed by people who are able to empathise with the social, cultural and religious aspirations and values of the parties involved. One takes it that this is one of the areas to which the Archbishop is referring. Certainly Jewish law strongly supports the idea that a dispute between Jews should be handled by the Jewish courts wherever possible (Shemos 21:1 ; Gittin 88b). And in the United Kingdom for some years we have managed to put this into practice through the mechanism of the Arbitration Acts: Jews with a dispute on any commercial matter can go the Beis Din and sign an arbitration agreement, following which the matter proceeds as an arbitration and the Beis Din’s decision may be enforced if necessary through the secular courts, and can be challenged there only on limited, mostly procedural, grounds.
6. An important point about the latter process is that it does not involve imposing Jewish law on anyone who chooses not to be bound by it; it makes it possible for those who wish to have disputes determined in accordance with religious values that they share to go to their religious judges and have the matter treated accordingly (although, as I say above, that will often involve the importation of principles of local secular law, as a matter of dina d’malchusso dina hi).