The Sceptic Blog

Random thoughts of a random chappy

Posts Tagged ‘Beis Din

Small Claims Beis Din

with one comment

  1. 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”.
  2. I must be missing something.
  3. 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.
  4. But what’s that got to do with the value of the claim?
  5. Everybody knows that the complexity of a claim and its value do not necessarily correlate.
  6. In secular courts, there are a number of practical reasons why small claims are provided with a range of faster tracks.
  7. A Beis Din is meant to do one of two things: (a) determine a compromise; or (b) decide the truth of liability.
  8. 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?).
  9. The speed of the resolution should be determined by the complexity of the case, not its value.
  10. 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.
  11. 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.

Written by Daniel Greenberg

January 7, 2017 at 10:04 pm

North Hendon Adath Yisroel – Time to Leave the Union of Orthodox Hebrew Congregations

with 3 comments

  1. Tomorrow morning iy’h the North Hendon Adath Yisroel Synagogue will hold an Extraordinary General Meeting to decide whether or not to leave the UOHC.
  2. I hope and pray that we do leave, if only for the selfish reason that then I will be able to return and daven in my local shul to which I have belonged for about 20 years.  For the last two weeks I have felt unable to set foot inside the building, and this post explains why.
  3. Abuse of the vulnerable is a natural human temptation, and it is therefore inevitable that in any community someone will sooner or later be abused by someone else.
  4. The test of a community is not whether it can prevent abuse, but how it handles abuse when it happens or is alleged.
  5.  Indian society today is having to take a long and painful look at itself to work out how it has allowed attitudes to women to deteriorate to such a degree that abusive and violent treatment of women had become so commonplace that the atrocity that occurred a few days ago was simply waiting to happen (or had already happened further from the public, and international, eye).
  6. Catholic society around the world has been having to take a long and painful look at itself for some time to work out how child abuse had become in effect tolerated and condoned by a religious institution.
  7. Until very recently, many orthodox Jews may have had our fears that perhaps abuse – which must inevitably occasionally happen in our community since we are as susceptible to human failings as any other community – may not have been being handled properly.  But I for one have not felt it necessary to confront these fears openly and investigate them – perhaps I should have done, but to look the other way is another strong human temptation.
  8. In the words of one of the most powerful activism songs of all time, “How many ears must one man have, before he can hear people cry? … How many times can a man turn his head, pretending he just doesn’t see?”.
  9. The crying is now too loud to pretend not to hear it; and to turn ones head in today’s situation makes one morally complicit in what is happening.
  10. The Torah law of sexual offences makes an important distinction.  Where a woman has an adulterous relationship in a populated area, she is unable in effect to plead that she was forced because the Torah asks why she did not cry out; in the countryside, however, the Torah plaintively notes “maybe she did cry out and there was nobody to hear”, and expands that maybe she did not cry out only because she knew there was nobody there.
  11. The women of India had almost given up crying out at the degrading treatment to which many of them are treated every day, because they feared that in one of the most densely populated areas of the world there was still nobody who cared to hear them: they have just found new voice, and one hopes and prays that the ears of all Indian society will listen.
  12. The vulnerable of the London orthodox Jewish community have apparently just cried out.  A number of specific allegations of abuse have been made against one of the most powerful and respected Rabbis of the community.  I am not required or able to pass judgment on whether these allegations are true or false: but as a member of the community I am morally obliged to satisfy myself that the cries of the vulnerable are listened to in an appropriate way.
  13. There is only one appropriate way to listen to allegations of abuse in our community.  Our botei din have no criminal jurisdiction; so in any matter of law that is not confined to a dispute between individuals about property matters that can be arbitrated under the Arbitration Act 1996, we are obliged both as a matter of halachah and as a matter of secular law to present evidence of any alleged crime to the police, and evidence of any other kind of abuse of the vulnerable to appropriate civil authorities (such as the social services).
  14. If we believe that perhaps an allegation of abuse may not amount to an allegation of a criminal offence, whether because the acts complained of may have been consensual or for any other reason, we need to leave it to the police and the prosecuting authorities to look at the evidence and make a decision.  It is not for us to decide, for example, whether apparent consent is vitiated by having been obtained through undue influence or through fraudulent misrepresentations as to the halachic position; those are matters on which we could only speculate but the prosecuting authorities first, and possibly later the courts, are equipped and obliged to decide.
  15. If we are to be a God-fearing community, our self-regulation must be efficient and effective, and it must know its limitations and engage with those outside people and authorities who are available to take over where self-regulation is no longer available.
  16. The only proper response to anyone who comes to a rabbi with an allegation of having been abused is “get in my car and I will take you to the police station, I will stay with you while you make a statement to the police, and I will support to my last breath your right and duty to have your allegation investigated by the authorities of the State, so that wrong-doers can be punished and deterred, and other vulnerable people can be protected”.
  17. Members of our self-absorbed and insular community will of course be very reluctant to go to the police.  It is never easy or pleasant for someone to make a complaint about a sexual offence.  But many women, children and men have found the courage to go through the traumas of the court procedures, at horrendous personal emotional cost, in order to make sense of what has happened to them by using it to prevent the same from happening to others.  Members of our community may have additional fears for themselves and their families: but outspoken support from the rabbis acting together can allay those fears, and if they do not provide that support then they do not deserve to be our rabbis.
  18. The fear of washing dirty linen in public is something I have never been able to understand.  Dirty linen smells: to pretend there is no dirty linen in the cupboard deceives nobody.  And why go through the charade of a pointless pretence anyway?  It is no disgrace for ones linen to get dirty: but it is a disgrace not to take it to the wash in the same way as everybody else.
  19. To encourage people not to take criminal allegations to the criminal authorities, or to encourage them to use alternative, necessarily ineffective methods of “resolving” potentially criminal matters, rests on a failure to understand the halachic implictions of the law of mesirah as it applies in the context of the political and legal structures of the United Kingdom today.   The Torah forbids recourse to the secular courts in matters where a Beis Din is competent; and it forbids recourse even in other matters to an arbitrary, unjust and inherently anti-semitic system.  There are no Cossacks in the UK today; and although the police and courts are not perfect, and miscarriages of justice will occur, there are mechanisms for righting even those; and they are not as inevitable to begin with as the injustice that is bound to occur when criminal allegations are dealt with in an informal manner by people who are neither trained nor appointed to assess them, nor have effective remedies to deal with them.
  20. “Leave the rabbis to sort this out – we can make the place too hot to hold any perpetrators”, as well as resting on this halachic misconception, can result only either in perverts being shunted from place to place to reoffend once people’s short memories have become confused with the passage of time, or in innocent people being driven from their homes and their livelihoods based on insufficiently tested evidence.  This behaviour is not only wilfully ineffective, but may, depending on the precise circumstances, amount to the criminal offence of conspiracy to pervert the course of justice.
  21. As for behaviour which after full analysis of the available evidence, and full cooperation from the community, the police or the Crown Prosecution Service decide is not criminal, or is not sufficiently evidenced to make a conviction likely, at that point the question of self-regulation arises again.  The rabbis need to have, as do the medical and other professions, a process for dealing with allegations of professional impropriety not involving (or not necessarily involving) criminality.  That procedure needs to be transparent and efficient, following due process in an accountable and public way (subject to such privacy as is justified in individual cases for publicly recorded reasons); and it needs to engage effective and proportionate remedies.
  22. I can happily belong to a community in which I am not the only imperfect human being; I cannot belong to a community in which my silence is part of the collective cowardice and institutional inertia that allows the cries of the vulnerable to go unheard.
  23. North Hendon has always been a remarkable community.  If nothing demogs like demography, in the same way few things geog like geography: as a result of being set a little apart physically from the rest of the orthodox Jewish community, we have always had a degree of objectivity.  Now is a time to put that objectivity, and its consequent clarity of vision, to good purpose, and to show the rest of the community the way: leaving the Union may be only a small gesture, and it may only be a start, but it is at least a start to putting our community back on the sound moral basis which is its only justification for existing in the first place.

Written by Daniel Greenberg

December 31, 2012 at 1:15 pm

Moiser and Planning Permission – An Ugly Myth

with 3 comments

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.

Written by Daniel Greenberg

June 6, 2010 at 9:10 am

Time for Action – Kosher Meat and Kosher Behaviour

with 4 comments

1.  There is a lovely family kosher butcher’s shop on Brent Street called Nissim.  They are fine upstanding people, who serve good quality food at reasonable prices, and whose behaviour is as kosher as the meat that they serve.

2.  And they are likely to be put out of business any month now.

3.  A chain of kosher butchers who already have branches in Golders Green and elsewhere are about to open up a new shop within a few yards of Nissims.  They have economy of scale advantages, and will doubtless dent or destroy the Nissim’s business.

4.  The Rabbis should prevent this, and could.  The Biblical precept of not disturbing your neighbours’ boundaries is given extensive ramifications in Jewish business ethics, and no Beth Din ought to grant a licence to a shop that is about to destroy someone else’s business, unless it is clearly shown that the existing business is exploiting its monopoly.

5. But the Rabbis won’t act.  Years ago a Rabbinic representative of the London Beth Din told me that they do not consider it practicable to apply or enforce the din of hasogas gvul (your neighbour’s borders), primarily because they are not the only Beth Din in London.  So people can always get licensed somewhere else.

6.  If the Rabbis are in disarray and unable to give practical expression to the values of the Torah, we must take matters into our own hands.  Let us see a customer boycott of any shop opening within a few yards of an existing business, and let’s all shop at Nissims harder than ever.

Written by Daniel Greenberg

February 5, 2010 at 1:04 pm

Sharia law in the United Kingdom

with one comment

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).

Written by Daniel Greenberg

February 7, 2008 at 4:29 pm