Bet Din and Judges
Bet Din and Judges
BET DIN AND JUDGES
BET DIN AND JUDGES (Heb. בֵּית דִּין; lit. "house of judgment"). Bet din (pl. battei din) is the term, in rabbinic sources, for a Jewish court of law. In modern times it usually refers to an ecclesiastical court dealing with religious matters such as divorce, and supervision of the dietary laws, and acting, with the consent of all concerned, as a court of arbitration. In Israel the term has come to mean the rabbinic court (as opposed to the secular court known as the bet mishpat) which has, by act of the Knesset, jurisdiction in matters of personal status in addition to its normal religious function. This article deals with the general meaning as found in rabbinic sources.
In Jewish Law
The Bible records that Moses sat as a magistrate among the people (Ex. 18:13) and, either on the advice of Jethro, his father-in-law (Ex. 18:17–23), or on his own initiative (Deut. 1:9–14), he later delegated his judicial powers to appointed "chiefs of thousands, hundreds, fifties, and tens" (Ex. 18:21; Deut. 1:15) – reserving to himself jurisdiction in only the most difficult, major disputes (Ex. 18:22 and 26; Deut. 1:17). It is therefore probable that Israel was one of those civilizations in which the judicature preceded the law, and that some of the later, codified law may have originated in judicial precedents. The earliest reports of such legal decisions already indicate a high standard of judicial practice and qualifications. Judges had to be "able men, such as fear God, men of truth, hating unjust gain" (Ex. 18:21) and "wise men, and understanding and full of knowledge" (Deut. 1:13). They were charged to "hear the causes between your brethren and judge righteously between a man and his brother and the stranger," not be "partial in judgment," but to "hear the small and the great alike; fear no man, for judgment is God's" (Deut. 1:16–17). When the children of Israel settled in their land, the allocation of jurisdiction on a purely numerical basis ("thousands, hundreds, fifties, tens") was to be replaced by allocation on a local basis, i.e., that judges were to be appointed in every town within the various tribes (Deut. 16:18 and Sif. Deut. 144; Sanh. 16b). It is disputed whether this injunction to establish courts in every town applied only in the land of Israel or also in the Diaspora. Some hold that outside the land of Israel courts ought to be established in every district, but need not be established in every town (Mak. 7a); whereas others hold that the injunction applies only in Israel, viz. "in all the settlements that the Lord your God is giving you," but not "in foreign countries in which He has dispersed you" (Maim. Yad, Sanh. 1:2). However, later authorities regard as obligatory the establishment of a court in every community (cf., e.g., Arukh ha-ShulḥanḤm 1:18). In towns with less than 120 inhabitants, there was only a court of three judges – three being the minimum number – so that where opinions were divided, a majority could prevail (Sanh. 3b; Yad. Sanh. 1:4). In towns with 120 inhabitants or more, the court should have 23 judges and be designated as a "Sanhedrin Ketannah" (Sanh. 1:6; Yad, Sanh. 1:10). Courts of 23 judges also sat in the Temple precincts in Jerusalem (Sanh. 11:2; Yad. Sanh. 1:3). The highest court was the "Sanhedrin Gedolah" of 71 judges which sat in the Temple (Lishkat ha-Gazit) in Jerusalem (Mid. 5:4; Sanh. 11:2; Yad, Sanh. 1:3 and 14:12), corresponding to the 70 elders and officers who took their place with Moses to "share the burden of the people" (Num. 11:16–17).
The jurisdiction of the various courts was as follows.
(1) Courts of three judges exercised jurisdiction in civil matters generally (Sanh. 1:1), including those which might involve the imposition of *fines (Sanh. 1:1; Sanh. 3a). They also had jurisdiction in matters of divorce (Git. 5b) and ḥaliẓah (Yev. 12:1). A court of three judges was required for the conversion of non-Jews (Yev. 46b); for the absolution from vows (Ned. 78a; tj, Ḥag. 1:8, 76c and Ned. 10:10, 42b); for the circumvention of the law annulling debts in the Sabbatical year ("prosbul"; Shev. 10:4; Git. 32b); for the non-release of slaves after six years (Ex. 21:6; Mekh. Mishpatim 2; Yad, Avadim 3:9); for the enslavement of one who commits a theft and does not have the means to pay for the principal (Ex. 22:2; Yad, Sanhedrin 1:1; Genevah 3:11); and also for the taking of any evidence, even in noncontroversial cases (Yev. 87b; Resp. Ha-Meyuḥasot la-Ramban 113; Resp. Rashba vol. 1, no. 749). Compulsory orders in matters of ritual would also require the concurrence of three judges in order to be valid (Ket. 86a; Ḥul. 132b), as would the imposition of any sanction for disobedience (Mordekhai Git. 384).
(2) Courts of 23 judges exercised jurisdiction in criminal matters generally, including capital cases (Sanh. 1:4). They also exercised jurisdiction in quasi-criminal cases, in which the destruction of animals might be involved (e.g., Lev. 20:15–16; Ex. 21:28–29; Sanh. 1:4). Where a case was originally of a civil nature, such as slander, but might in due course give rise to criminal sanctions, such as slander of unchastity (Deut. 22:14), it was brought before a court of 23 (Sanh. 1:1); if the slander was found to be groundless, the matter would be referred to a court of three for civil judgment (Maim. Yad, Sanh. 5:3). According to one view, the imposition of the penalty of *flogging required a court of 23 (Sanh. 1:2), but the prevailing view is that a court of three is sufficient (Sanh. 1:2; Yad, Sanh. 5:4), as it is really a penalty that is not necessarily for criminal offenses (see *Contempt of Court), as well as being the accepted method of judicial admonition (makkot mardut).
(3) The court of 71 judges had practically unlimited judicial, legislative, and administrative powers but certain judicial and administrative functions were reserved to it alone. Thus, the high priest (Sanh. 1:5), the head of a tribe (Sanh. 16a), and presumably also the president of the Sanhedrin (nasi), could, if accused of a crime, only be tried by the court of 71. Certain crimes were also reserved to its jurisdiction, such as the uttering of false prophecy (Sanh. 1:5), rebellious teaching by an elder ("zaken mamre"; Sanh. 11:2; see *Majority Rule), and the subversion of a whole town or tribe (Sanh. 1:5); and certain death penalties had to be confirmed by it before being carried out (such as of the rebellious son, the enticer to idolatry, and false witnesses; Tosef., Sanh. 11:7). The *ordeal of a woman suspected of adultery took place in the Great Court at Jerusalem only (Sot. 1:4).
Among the administrative functions reserved to the Great Sanhedrin were the appointment of courts of 23 (Sanh. 1:5; Maim. Yad, Sanh. 5:1); the election of kings (Yad, loc. cit. and Melakhim 1:3) and of high priests (Yad, Kelei ha-Mikdash 4:15); the expansion of the limits of the city of Jerusalem and of the Temple precincts (Sanh. 1:5), and the partition of the country among the tribes (according to Ulla; Sanh. 16a); the declaration of war (Sanh. 1:5); the offering of a sacrifice for the sin of the whole community (Lev. 4:13–15; Sanh. 13b); and the appointment and control of priests serving in the Temple (Mid. 5:4; Tosef., Ḥag. 2:9). The legislative functions of the Great Sanhedrin cannot easily be enumerated. It has been authoritatively said that the Great Court of Jerusalem was the essential source of all Oral Law (Yad, Mamrim 1:1). The law as laid down (or as interpreted) by the Great Sanhedrin is binding on everybody, and any person contravening or repudiating it was liable to the death penalty (Deut. 17:12; Sif. Deut. 155; Yad, Mamrim 1:2), even where the law as laid down (or interpreted) by the court might appear misconceived: "even though they show you as right what in your eyes is left or as left what is right – you must obey them" (Sif. Deut. 155; but cf. Hor. 1:1 and tj, Hor. 1:1, 45d; and see *Rabbinical Authority). As a corollary of their legislative powers, the Great Sanhedrin also exercised advisory functions: wherever in any court any question of law was in doubt, the final and binding opinion of the Great Court at Jerusalem would have to be taken (Sanh. 88b; Yad, Sanh. 1:4). For the question of appeals see *Practice and Procedure.
(4) Apart from the regular courts mentioned above, there sat in the Temple a special court of priests charged with the supervision of the Temple ritual and with civil matters concerning the priests (cf. Ket. 1:5). Mention is also made of a special court of levites, presumably with similar functions (cf. Tosef., Sanh. 4:7). Originally, the priests performed general judicial functions: they were the sole competent interpreters (or diviners) of God's judgment (Ex. 28:15, 30, 43; Num. 27:21; Deut. 33:8–10); later, they adjudicated matters together or alternately with the judges (Deut. 17:9; 19:17; 21:5), and it seems that the litigants had the choice of applying to the priest for the dictum of God or to the judges for judgment according to law; eventually, the judicial functions of the priests were reduced to their simply being allotted some seats in the Great Sanhedrin (Sif. Deut. 153).
(5) While no regular court could consist of less than three judges (Sanh. 3b), recognized experts in the law ("mumḥeh larabbim") were already in talmudical times admitted as single judges (Sanh.5a), albeit in civil cases only and not without express reservations and disapproval – there being no true single judge other than God alone (Avot 4:8; Yad, Sanh. 2:11). No litigant could be compelled to submit to the jurisdiction of a single judge (Sh. Ar., Ḥm 3:2).
appointment of judges
The appointment of judges presupposed the "semikhah" ("laying of hands") by the appointer upon the appointee, as Moses laid his hands upon Joshua (Num. 27:23) thereby making him leader and supreme judge in succession to himself. The tradition is that throughout the ages judges received their authority from their immediate predecessors who "laid their hands" upon them; so it came about that in law the president of the Great Sanhedrin would be the authority conferring judicial powers on graduating judges (Sanh. 5a), in a formal procedure before a court of three in which he participated or which he appointed (Yad, Sanh. 4:5). But judges were also appointed by kings (e.g., ii Chron. 19:5–6), a power which appears to have eventually devolved on the *exilarch in Babylonia (Yad, Sanh. 4:13), but was superseded even there by the overriding authority of the heads of the academies (rashei yeshivot; cf. A. Harkavy (ed.), Zikhron… Kammah Ge'onim, 80f., no. 180). Courts need not be composed of authorized judges only: any duly authorized judge could form a court by co-opting to himself the necessary number of laymen (Yad, Sanh. 4:11).
The original practice of semikhah ceased about the middle of the fourth century and at the present time battei din exercise their judicial functions only as agents of, and by virtue of, an implied authority from the Ancients (Git. 88b; bk 84b; Yad, Sanh. 5:8). This "agency" does not extend to capital cases; even for cases involving fines nonauthorized judges would not be qualified (Sh. Ar., Ḥm 1:1). It is only because of force of circumstances that the scope of jurisdiction was in practice never restricted, but extended to whatever causes local conditions required (cf. Netivot ha-Mishpat, Mishpat ha-Urim, Ḥm 1:1; Nov. Ramban Yev. 46b).
One of the consequences of the cessation of the traditional authorization of judges was the adoption in many (mostly Western European) communities of a system of election of judges; in Spain, the judges were elected every year, along with all other officers of the community (cf. Resp. Ribash 207). The leading rabbinical authorities of the period were time and again consulted about election procedures (cf., e.g., Resp. Rashba vol. 3, nos. 417, 422–5; vol. 5, no. 284), so as to ensure that the best and most impartial candidates would be elected. It seems that, when elected, they could not refuse to serve, even though they had not put up their candidature (cf. RemaḤm 25:3; see Judicial *Autonomy; *Mishpat Ivri).
In the State of Israel today, the procedure for appointing rabbinical judges is similar to that for appointing secular judges (Dayyanim Act, 5715 – 1955), but while the qualifications of secular judges are laid down in the law, those of rabbinical judges are in each individual case to be attested to by the chief rabbis on the strength of examinations.
No authorization (semikhah) and no appointment of a judge will be valid where the appointee did not possess the necessary qualifications (Maim. Yad, Sanh. 4:15); and the sin of appointing unqualified judges is said to be tantamount to erecting an *asherah beside the altar of the Lord (Sanh. 7b); and where the man was appointed because he was rich, it was like making gods of silver or gods of gold (ibid.), not only causing miscarriages of justice but idolatry (Maim. loc. cit., 3:8); and it is reported that judges appointed because of their money were treated with open contempt (tj, Bik. 3:3, 65d). "The Sages have said that from the Great Court messengers were sent out all over the country of Israel, and they looked for judges who were wise and feared sin and were humble and clearsighted and of good appearance and good manners, and first they made them judges in their towns, and then they brought them to the gates of the Temple, and finally they would elevate them to the Great Court" (Maim. loc. cit., 2:8).
The judicial qualifications have been enumerated by Maimonides as follows: judges must be wise and sensible, learned in the law and full of knowledge, and also acquainted to some extent with other subjects such as medicine, arithmetic, astronomy and astrology, and the ways of sorcerers and magicians and the absurdities of idolatry and suchlike matters (so as to know how to judge them); a judge must not be too old, nor may he be a eunuch or a childless man; and as he must be pure in mind, so must he be pure from bodily defects, but as well a man of stature and imposing appearance; and he should be conversant in many languages so as not to stand in need of interpreters. The seven fundamental qualities of a judge are wisdom, humility, fear of God, disdain of money, love of truth, love of people, and a good reputation. A judge must have a good eye, a humble soul, must be pleasant in company, and speak kindly to people; he must be very strict with himself and conquer lustful impulses; he must have a courageous heart to save the oppressed from the oppressor's hate, cruelty, and persecution, and eschew wrong and injustice (Yad, Sanh. 2:1–7). Playing cards for money or other games of chance and lending money on interest also disqualify a person from judicial functions (Sanh. 3:3). A judge who is a relative of one of the litigants, or has any other personal relationship toward him ("loves him or hates him"), must disqualify himself from sitting in judgment over him (Sanh. 3:4–5). A judge should not engage in manual work, so as not to expose himself to popular contempt (Kid. 70a).
principles of judicial conduct
A judge must show patience, indulgence, humility, and respect for persons when sitting in court (Yad, Sanh. 25:1; Sh. Ar., Ḥm 7:2–5); he must always hear both parties to the case (Sanh. 7b; Shev. 31a; and Codes); he may not in any way discriminate between the parties (Lev. 19:15; Shev. 30a–31a; Yad, Sanh. 21:1–2; 20:5–7; Sh. Ar., Ḥm 17:1 and commentaries ad. loc.); nor may he act under the possible pressures of any undue influence, including *bribery by money or by words (Deut. 16:19; Sanh. 3:5; Shab. 119a; Ket. 105b; and Codes); he must, on the one hand, proceed with deliberation and care, and reconsider again and again before finally pronouncing his verdict (Avot 1:1; Sanh. 35a; Sif. Deut. 16 and Codes), but may not, on the other hand, unduly delay justice (Yad, Sanh. 14:10 and 20:6); and he must so conduct himself that justice is not only done but is also manifestly seen to be done (Yoma 38a; Shek. 3:2) and readily understood by the litigants (Ḥm 14:4). Before joining a court, a judge must satisfy himself that the judges sitting with him are properly qualified (Yad, Sanh. 2:14); and no judge should sit together with another judge whom he hates or despises (Sh. Ar., Ḥm 7:8). Nor may a judge – especially in criminal cases – instead of considering and deciding the issue before him on his own, rely on the opinion of greater judges in the court and try thus to disburden himself of his judicial responsibility (Tosef., Sanh. 3:8; Yad, Sanh. 10:1).
[Haim Hermann Cohn]
The rabbis ascribe the development of battei din to leading biblical personalities such as Shem, Moses, Gideon, Jephthah, Samuel, David, and Solomon (Mak. 23b; Av. Zar. 36b; rh 2:9; rh 25a). Historical evidence of the existence of a bet din in the time of Jehoshaphat is found in Deuteronomy Rabbah 19:8. However, the bet din belongs essentially to the period of the Second Temple, and its establishment is attributed to *Ezra. He decreed that a bet din, which was to sit on Mondays and Thursdays (bk 82a), be established in all populated centers. These were local courts, while the Great Sanhedrin of Jerusalem served as the supreme court (Deut. 17:8–13; Sot. 1:4: Sanh. 1:6). The Sanhedrin existed for the duration of the Second Temple. A decree against immoral behavior is ascribed to the bet din of the Hasmoneans (Av. Zar. 36b).
After the destruction of the Temple, *Johanan b. Zakkai established his bet din in Jabneh as the cultural and political center of the Jews, and it succeeded the previous Sanhedrin Gedolah. The Jabneh bet din was responsible for regulating the calendar and thereby became the religious and national center not only of Ereẓ Israel, but also of the Diaspora. In addition to this central bet din, local battei din continued to function, particularly in the vicinity of the academies. The Talmud speaks of the courts of R. Eliezer in Lydda, R. Joshua in Peki'in, R. Akiva in Bene-Berak, and R. Yose in Sepphoris (Sanh. 32b). Under R. Johanan's successor, *Gamaliel ii, the power and influence of the central bet din increased. The summit of its authority was reached under *Judah ha-Nasi i. His grandson, Judah Nesia, may be regarded as the last nasi under whose direction the bet din was still the actual center of the Jewish people. The Talmud therefore refers to Gamaliel and his bet din (Tosef., Ber. 2:6) and to Judah ha-Nasi and his bet din (Av. Zar. 2:6), thereby indicating the central civil and religious authority of the Jews.
Toward the middle of the third century, the bet din of the nasi gradually lost its importance due to the rise of Jewish scholarship in Babylonia and the increased oppression of Palestinian Jewry under Roman rule. Although the office of the nasi continued until the end of the fifth century, his bet din was no longer the center of the Jewish people. In Babylonia, no bet din ever achieved preeminent authority, even for Babylonia alone. This situation continued throughout the geonic period, as no central bet din could be established because of the rivalry between the two academies.
Medieval and Modern Period
The bet din became the stronghold of Jewish *autonomy in the Middle Ages, and continued with reduced powers into modern times. It experienced many changes in the various centers of Jewish life in the Diaspora, while retaining the continuity of the principles of talmudic law. A vast literature of rabbinic responsa grew out of the written judgments passed by the scholars of every age on actual cases, thus setting precedents and affording an orderly development of Jewish jurisprudence.
In some exceptional cases Jews resorted to non-Jewish courts. Such occurred in Egypt and Ereẓ Israel in the 11th and 12th centuries, following the decline of the gaonate, and in Spain, Majorca, Tunis, and Algeria in the 14th century. In Germany, Jewish and Christian judges met in the synagogue to adjudicate cases between Jews and Gentiles.
The general rule in the Middle Ages, however, was that Jews were strictly prohibited from taking litigation among themselves to gentile courts. This was achieved partly by the control exercised by the community over the individual and by the conception that "Judgment is God's" and hence that recourse to gentile courts meant "aggrandizing the honor of alien gods," as well as by the fairness, incorruptibility, and swiftness of Jewish justice in the majority of countries and most of the time.
In the first half of the geonic period local judges were appointed centrally in Babylonia by the *exilarchs. Later the country was divided into three domains: one was under the jurisdiction of the exilarch, and the other two under the academies in *Sura and *Pumbedita respectively. The local court usually consisted of three judges, one appointed by the exilarch or by the Gaon and two more local associates co-opted by him. In Egypt the nagid selected local judges.
In the absence of a central authority in the newly developing Jewish settlements in Europe the judiciary became part of the local government of each community. Either the elders themselves constituted a court of justice, or special dayyanim ("judges") were selected. In the days of *Gershom b. Judah (tenth century) these local courts were invested with full judicial authority to impose fines and exact penalties. They were mostly constituted of laymen, not necessarily versed in the law. Later, when communities began engaging rabbis, the lay judges were expected to consult them on talmudic law.
In Spain the bet din achieved its fullest growth and widest powers. The prerogatives of every alijama ("community council") were often defined by a royal charter. The bet din thus derived its authority from the king through the kahal. The king often appointed a chief rabbi for the realm who was a grandee not necessarily expert in Jewish law, the judiciary being included within his competence. He usually sought the advice and guidance of trained Jewish jurists. The authority of the bet din extended to all spheres of Jewish life, social as well as individual, its judgments resting on rabbinic law. It developed a rigorous system of punishments, some of which were far removed from the legacy of ancient Jewish jurisdiction. It assumed, for instance, the right to mete out flagellation, fines (which generally went to the royal treasury), excommunication, chains, imprisonment, exile, and even bodily mutilation, such as cutting off hands or the nose, or cutting out the tongue, as well as the death penalty for *informers (malshinim). Hence on the basis of temporary emergency legislation many local Christian legal mores were adopted by the Jewish bet din.
During the period when the *Councils of the Lands had jurisdiction over the communities in Poland and Lithuania these bodies included a supreme judiciary selected from among the talmudic scholars of the main communities. In general, appellate Jewish courts existed in many lands, including Spain, Italy, Moravia, Bohemia, Austria-Hungary, and Bulgaria.
Whereas the traditional bet din for civil cases consisted of three judges, there were other compositions of this court ranging from one person, usually the local rabbi, to the seven tovei ha-ir, the elders of the community. Large cities had more than one bet din. A court of arbitration whereby each litigant selected one judge and these two judges appointed the third was very common. Small rural settlements which were administratively allied with a neighboring kahal took their litigation to the bet din of that kahal. Associations within a community, mainly those of artisans, had their own bet din for their members by permission of the kahal. On the arrival of the Spanish exiles in Turkey after the Expulsion of 1492, each congregation established its own bet din.
In Russia the bet din was especially powerful until the latter part of the 19th century. Before the abolition of the kahal there in 1844 the bet din not only applied strict penalties to guilty individuals but also had jurisdiction over the kahal itself in claims of individuals against it. There is even a record of the imposition of capital punishment upon two informers in Novo-Ushitsa in 1836.
The distinguishing characteristic of the medieval bet din was that it served as an arm of the self-governing kahal which possessed powers of law enforcement. As emancipation of the Jew in the modern era dissolved the corporative structure, Jews tended increasingly to resort to the general courts. Wherever the bet din has survived to this day it enjoys the prerogatives only of a court of arbitration whose decisions are generally upheld by the law of the country. In many countries, in particular in England and its dominions, and to a lesser degree in France, the bet din system, headed by the bet din of the chief rabbi of the country, still plays a central role in Jewish life. In Ereẓ Israel, under the mandatory government, an elaborate network of bet din courts was established under the Supreme Rabbinical Court in Jerusalem. The State of Israel has taken over this system, giving the bet din exclusive jurisdiction over the Jewish population in matters of personal status.
In the State of Israel
A system of rabbinical courts operates in the State of Israel. In the legal system of the State, the rabbinical courts have jurisdiction over matters of marriage and divorce and additional matters related to family law. Furthermore, in an arbitration capacity they also preside over other issues in the area of civil and public law, when the both parties consent to their jurisdiction.
Already during the Ottoman rule in the Land of Israel the authorities conferred official recognition on the Jewish Rabbinical Courts, (at that time the regime was based on the capitulation system in which judicial jurisdiction was determined in accordance with religion or citizenship). The head of the Rabbinical Courts system was officially recognized by the Ottoman authorities.
After the Ereẓ Israel was conquered by the British, in 1922, the Kings Order in Council was enacted, conferring exclusive jurisdiction in family matter to the religious courts: Jewish, Islamic, and Christian. Jewish Rabbinical Courts were already in existence; they functioned for the duration of Jewish history. In the Ereẓ Israel the Rabbinical Courts system was established by Chief Rabbi Abraham Isaac ha-Kohen Kook of blessed memory in conjunction with the establishment of the Chief Rabbinate of the Land of Israel, established in 1921 (see remarks of Justice Z.A. Tal in hc 3269/95 Katz v. Regional Rabbinical Court, 50 (4) pd 590, 617, hereinafter Katz).
This arrangement remained in force during the first years of the State's existence, in accordance with the constitutional principle established on the day of the State's establishment. Accordingly, the Mandate Law, which had been in force in Mandate Palestine (the Land of Israel) from its conquest in 1917 and until the termination of the Mandate in 1948, would remain in force (see sec. 11 of the Law and Administration Ordinance, 5708 – 1948).
powers of the rabbinical court in accordance with the jurisdiction law
In 1953 the Knesset enacted the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713 – 1953 (hereinafter – "the Jurisdiction Law"). The substantive provision of section 2 provides: "Marriages and divorces of Jews shall be performed in Israel in accordance with Jewish religious law" (din torah). The term "Jewish religious law" includes biblical law, rabbinic law, and regulations according to the halakhah. Section 1 of the aforementioned law establishes the jurisdiction of the Rabbinical Courts: "Matters of marriage and divorce of Jews in Israel, being citizens or residents of the State, shall be under the exclusive jurisdiction of the rabbinical courts."
The term "matters of marriage and divorce" includes the validity of the marriage and divorce. Accordingly the rabbinical court is the only forum competent to adjudicate and decide the personal status of a Jew, i.e., whether he is married or unmarried. This jurisdiction is limited to cases in which both of the spouses are Jewish. Where one of the spouses is Jewish and the other belongs to another religion, the judicial forum with jurisdiction to dissolve the couple's marriage is determined by the President of the Supreme Court.
Both or either of the parties file an application to the President of the Supreme Court, and the latter exercises his power only after the Attorney General gives him the written opinions of the relevant religious courts. These religious courts give their opinions in each particular file regarding whether the religious court would give a divorce judgment, or dissolve the marriage, or declare the marriage void ab initio. After the President of the Supreme Court receives the opinions of the relevant religious courts (of both spouses, respectively) by way of the attorney general, he decides, at his own discretion, whether to refer the matter to one of the religious courts of the spouses or to the family court (see: Matters of Dissolution of Marriage (Jurisdiction in Special Cases) Law, 5729 – 1969; Regulations for Dissolution of Marriage (Special Cases) (Procedures) 5745 – 1984).
The Law further determines the substantive law to be applied by the family court in the event that it acquires jurisdiction pursuant to the decision of the President of the Supreme Court, under the aforementioned law (sec. 5 of the Law). Where a religious court acquires jurisdiction established pursuant to the decision of the President of the Supreme Court, it will then adjudicate the case in accordance with the religious law applicable in that court. Hence, where the rabbinical court acquires jurisdiction, it will decide the matter in accordance with the Jewish Law, i.e., the halakhah. For example, where the case concerns a mixed marriage of a Jew with a non-Jew, the halakhic position is that the marriage is not valid, and thus in terms of the halakhah, there is no need for an act of divorce – because the marriage was not valid in the first place.
In 2005 the legal position applying to mixed marriages changed (see: Matters of Dissolution of Marriage (Special Cases and International Jurisdiction) (Legislative Amendments), 5765 – 2005. Section 1 of this Law comprises all of the amendments to the Dissolution of Marriage Law, from 1969. Due to the tremendous volume of applications for dissolution of marriages filed with the President of the Supreme Court, it was decided that the family court would henceforth be empowered to decide which forum would adjudicate the matter, and that the family court would have residual jurisdiction over the matter, "unless in accordance with the provisions of this Law, the religious court has jurisdiction" (section 1 (a) of the 1969 Law, as amended in section 1 (2) of the law of 2005. The 2005 amendment did not affect the procedure for requesting the opinions of the respective religious courts, except that in accordance with the amendment, the application was made by the deputy president of the Family Court, who would apply directly to the head of the relevant religious courts. Accordingly, where one of the spouses is Jewish, an application is made to the president of the Rabbinical Court of Appeals (see section 3 (a) and section 3 (g)(1) of the 1969 Law, as amended in 2005). The purpose of the application for the head of the religious court was to determine "whether there is a need for a divorce under the religious law by which he adjudicates, even by reason of a doubt, so that the spouse to whom that religious law applies will be able to remarry" (section 3 (a)(1), concluding passage). If the head of the rabbinical court rules that a divorce is required under religious law, the family court will transfer the application for the dissolution of a marriage to that rabbinical court. On the other hand, the Law further emphasizes that in such a case the conferral of application does not as such confer the rabbinical court with jurisdiction over matters included in the divorce (section 3 (c) of the Law, in the concluding passage). In this regard the Law specifies that the general rules governing jurisdiction and inclusion will continue to apply. These rules will be explained below. Should the head of the rabbinical court rule that there is no need for divorce, or if he fails to respond within three months, then the family court has jurisdiction to adjudicate the matter of dissolution of the marriage (section 3 (d) of the Law). In this respect, the new law introduced a significant innovation, because until that time the rabbinical court had exclusive jurisdiction for the determination of marital status in matters concerning Jews, and according to the new law of 2005, in such cases, the family court has jurisdiction.
For the sake of efficiency, the Law allows the head of the religious court to give a general notification to the President of the Supreme Court, stating that under specific circumstances there is no need for divorce under the religious law by which he adjudicates, as a condition for the ability of the party subject to that law to remarry. This condition obviates the need for an application to the religious court in such cases in the future (section 3 (f)). This power can be exercised in the case of a marriage between a Jew and someone who is not Jewish, for as stated above, according to the halakhah, mixed marriages are prohibited and invalid (see *Mixed Marriege). In the 1969 Law, the President of the Supreme Court was conferred the power to avoid determining jurisdiction for spouses belonging to different religions, "if he deems that under the circumstances, it would not be appropriate to grant a remedy to the applicant" (sec. 3 of the 1969 Law). This section was repealed in the 2005 Law. Nonetheless, upon application of one of the litigants, or the Attorney General, the President of the Supreme Court can order that the jurisdiction to dissolve the marriage should be conferred to the family court or the religious court (including, naturally, the rabbinical court) if the President is convinced that it is justified under the circumstances (section 3 (e) of the Law, as amended in 2005.
An additional condition for the jurisdiction of the rabbinical court is that the parties are "Jews in Israel, being citizens or residents of the State" (sec. 2 of the Jurisdiction Law). According to the Supreme Court's ruling it is not sufficient that both spouses be Jewish; there is a need for an additional link connected them to the State of Israel, by force of their being (physically) in Israel, and by virtue of their personal link to Israel, by being residents or citizens of Israel (see, e.g., the decision of Justice Zamir, in ca 3868/95 Werber v. Werber, 52 (5) pd 817, 843); decision of Justice M. Cheshin in hc 1480/01 Hagag v. Rabbinical Court of Appeals, 55 (5) pd 214, 225–226). A decision recently given by the Supreme Court (hc 6751/04 Sabag v. Rabbinical Court of Appeals (not yet published) (hereinafter – Sabag), concerned a Jewish couple who were married in Monaco, in both a civil and a religious ceremony. They were divorced civilly, and the women petitioned to compel her husband to give her a get in accordance with religious Jewish law, because according to the halakhah, she was still married, and hence – an agunah. She turned to the Israeli rabbinical court. The majority view in the Supreme Court, sitting as the High Court of Justice, was that insofar as neither of the spouses had any connection to Israel, the rabbinical court lacked jurisdiction to rule on their case, both on the question of marriage and divorce, and on the question of maintenance (per Justices A. Proccaccia, concurred with by Justice Y. Adiel). The minority view was that in order to prevent the woman becoming from an agunah, the rabbinical court was authorized to adjudicate the issue of maintenance, which includes the maintenance awarded under the rule of "me'ukevet meḥamato le-hinaseh" (a woman prevented from marrying for reasons dependent on the husband). For the same reason the rabbinical court was also empowered to delay the husband's departure from Israel and to make his return to Monaco conditional upon him giving high financial securities (decision of Justice E.Rubinstein in Sabag). The minority viewed relied on the previous ruling in hc 1796/03 Cobani v. Rabbinical Court of Appeals (not yet published).
In 2005, a major change was introduced into the issue of the rabbinical court's jurisdiction over divorce, and its jurisdiction was extended so that it was no longer limited to spouses resident in Israel, but was also extended to six additional cases in which Jewish spouses had married under din torah (Jewish religious law) and in respect of which one of the following connections to the State of Israel sufficed for purposes of conferring jurisdiction to the rabbinical court, to adjudicate their divorce: (1) the defendant's place of residence is in Israel; (2) both of the spouses are Israeli citizens; (3) the plaintiff's place of residence is in Israel, provided that he/she lived there for at least one year immediately prior to the filing of the action; (4) the plaintiff's place of residence is in Israel, provided that the most recent spousal residence was in Israel; (5) the plaintiff is an Israeli citizen, and his place of residence is in Israel; (6) the plaintiff is an Israeli citizen, and lived in Israel for at least one of the two years immediately preceding the filing of the action (see section 4A (a) of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713 – 1953, which was added under section 2 of the Matters of Dissolution of Marriage (Special Cases and International Jurisdiction) (Legislative Amendments), 5765 – 2005). In addition, the Law stipulates that where a Jewish couple was married in accordance with din torah, and was already divorced under the laws of the external state, the rabbinical court has jurisdiction to adjudicate an action for divorce in accordance with din torah, and an action to remove an impediment to remarrying in accordance with din torah, even where only the plaintiff is an Israeli citizen (see section 4A (c) of the aforementioned law). A classic example of this kind of case is where the Jewish spouses were married outside Israel both civilly and in accordance with din torah, and the court of that country issued an order for civil divorce. In these cases the husband may regard himself as being at liberty to remarry who ever he wishes (under the law of that state) whereas, in the absence of a get, the woman continues to be a married women according to Jewish Law and therefore she prevented from remarrying, and any conjugal relations with another man will be deemed as an act of adultery, and any child born from such relations will be regarded as a *mamzer. In such a case the rabbinical court is empowered to adjudicate her divorce, provided that the wife is an Israeli citizen, even if her husband is not an Israeli citizen. This is in addition to the other six possibilities, any one of which suffices to confer jurisdiction to the rabbinical court to adjudicate the divorce action. It should further be noted and emphasized that the Law confers jurisdiction for religious divorces only. The rabbinical court is not empowered to adjudicate and rule on matters of civil divorce (section 4A (b) (2) of the aforementioned law), if an action for a civil divorce was filed in the foreign state prior to the delivery of the get.
Furthermore, the conferral of jurisdiction to the rabbinical court over matters of divorce is exclusively for purposes of solving the problem of aggunot, and accordingly the new law does not "confer the rabbinical court with jurisdiction over matters included in divorce" (section 4A (e) of the Law) such as maintenance, property, or child custody.
The jurisdiction conferred to the rabbinical court under the 2005 law is not only the jurisdiction over divorce, but also enables it to adopt measures prescribed by the Rabbinical Courts Law (Upholding Divorce Rulings) 5755 – 1995. These measures range from the authority to prevent the husband's exit from Israel to the authority to order imprisonment of a recalcitrant husband (see in detail in entry on *Divorce (Enforcement of Divorce in Israel). In this way the rabbinical court in Israel functions as the exclusive forum in the world that has jurisdiction to resolve the agunah problems of Jews who were married under din torah, by using the enforcement mechanism of the State of Israel including preventing exit from the State, and imprisonment.
Where the plaintiff is not in Israel, the rabbinical court still has jurisdiction to adjudicate divorce, if one of the conditions enumerated above exists. However, the Law provides that in such a case, the action must be served to the defendant outside Israel, together with a translation certified by a notary. Even where a judgment is issued due to the defendant's absence, he is permitted to apply for rehearing of the action (see section 4B of the aforementioned law).
The amendment of 2005 enables the Rabbinical Court of Appeals or one of its dayyanim to give a halakhic opinion regarding a get pitturin (divorce writ under Jewish Law) or a permit to marriage in a state abroad, provided that the rabbinical court receives a request for its halakhic opinion regarding one of these matters, and even if the Jewish spouses are not subject to the exclusive jurisdiction of the rabbinical court, but were married in accordance with din torah.
In order to resolve practical problems concerning aggunot, the law of 2005 provides that it will also apply to currently pending claims (section 3 (d) of the 2005 law). Conceivably, these could be regarded as retroactive application, but a reasonable interpretation of the law is that the issue concerns the conferral of jurisdiction in order to solve problems of agunot, and the impeding party has no vested right to continue impeding his /her spouse and there is therefore a moral and substantive reason for the immediate application of this Law, even with respect to currently pending actions.
The jurisdiction law also addresses additional matters pertaining to the rabbinical courts' jurisdiction:
(a) The divorce action can also include additional matters (such as maintenance and property), in which case the rabbinical court will have exclusive jurisdiction over those matters too (section 3 of the Jurisdiction Law). The case-law recognized two categories of inclusion (or attachment): (1) a matter which according to its nature and essence is included in the divorce action; (2) a matter which although not necessary a matter of personal status, but regarding which a decision is necessary for the efficient dissolution of the relations between the couple being divorced (decision of Justice M. Silberg in ca 8/59 Goldman v. Goldman, 13 pd 1085, 1091). Child custody is a matter which by its nature and essence is included in the divorce action, and therefore belongs to the first category, placing it under the jurisdiction of the rabbinical court, even if not expressly mentioned in the divorce action. (st 1/60 Winter v. Beeri, 15 pd. 1457. in the decision of Justice M.Silberg and dayyan (judge in rabbinical court), Rabbi Goldsmith). To the extent that it concerns the second category of inclusion, under case-law there is a need to explicitly include the particular matter (for example maintenance for the wife, or property) in the divorce action, and in addition, according to the interpretation of the Israeli Supreme Court, the rabbinical court's exclusive jurisdiction is dependent on the fulfillment of three cumulative conditions: (1) the divorce suit filed in the rabbinical court must be bona fide; (2) the inclusion of the woman's maintenance or of property must be lawful; (3) the inclusion must also be bona-fide. The burden of proof for the fulfillment of these three conditions lies with the litigant claiming that jurisdiction resides in the rabbinical court and not the family court, because in the view of the Supreme Court, that person is attempting to deny the general jurisdiction of the territorial courts of the State and transfer it to a particularistic religious court (see e.g., decision of Justice M. Shamgar in caGivoli v. Givoli 34 (4) pd 155). On the other hand, if the parties had already litigated the matter of maintenance and property in the rabbinical court, then the rabbinical court has jurisdiction, even if the three conditions were not fulfilled (see hc 5679/03 Anon. v. State of Israel, per President A. Barak with the concurring opinions of Y. Tirkel and Y. Adiel (not yet published). Notably, since the adoption of the principle of good faith in Israeli Law (see sec.39 of the Contracts (General Part) Law, 5733 – 1973), it has also been applied and implemented with regard to the jurisdiction of the rabbinical courts and the aforementioned criterion for inclusion (see, e.g., ca 700/81 Paz v. Paz, 38 (2) pd 736, 742 per Justice M. Elon).
(b) Section 4 of the Jurisdiction Law provides that when a woman files a claim for maintenance, unconnected to a divorce suit, or for maintenance from an estate, "the defendant's plea that the rabbinical court has no jurisdiction in the matter shall not be heard." The courts interpreted this section as meaning that the rabbinical court and the civil courts have parallel jurisdiction over the wife's maintenance when the case is unrelated to divorce. In these cases, the wife is entitled to apply to either court at her own discretion, and the forum that she turns to first acquires exclusive jurisdiction to adjudicate the matter of her maintenance. Having chosen either of these forums, she is no longer permitted to switch to another forum at a later stage.
(c) In matters of ḥaliẓa (levirate marriage, see *Levirate Marriage and Ḥaliẓa) and maintenance until the day of the haliẓa – the rabbinical court has exclusive jurisdiction (sec. 5 of Jurisdiction Law).
(d) The jurisdiction law enables consensual jurisdiction: In the specific matters of personal status over which the rabbinical court does not have exclusive jurisdiction under the Jurisdiction Law, the rabbinical court can acquire jurisdiction provided that all the parties concerned have expressed their consent to its jurisdiction (sec. 9 of the Jurisdiction Law).
The rabbinical court also has jurisdiction under other laws. For example, section 155 (a) of the Succession Law 5725 – 1965 provides that the rabbinical court is authorized to issue a succession order, a probate order, and to rule on maintenance from an estate, if all the parties concerned have given their written consent thereto (for the interpretation of this section, see also in decision of Justice M. Elon, ca 807/77 Sobol v. Goldman 33 (1) pd 789, 798 (hereinafter: Sobol). Similarly, the rabbinical court has exclusive jurisdiction in any matter relating to the creation or the internal management of a Wakf or a religious endowment that was established in accordance with Jewish Law (see sec. 53 (a) of the Kings Order in Council, 1922.)
the state's authorization for decisions of the rabbinical court
In all of the matters under rabbinical court jurisdiction, the decisions and orders of the rabbinical court are enforced by the executive authority of the State, the Police and the Execution (civil) framework pursuant to section 1 of the Execution Law, 5727 – 1967. The court decisions enforced and executed by the Execution Office include decisions of a religious tribunal (including the rabbinical court). The rabbinical courts system is also empowered to summon witnesses and litigants, to issue restraining orders against leaving the country, and to impose liens. All of these powers are conferred by Knesset legislation, which even imposes the sanctions under the Contempt of Court Ordinance for a person who refuses to comply with the orders of the rabbinical court. (See: Religious Courts (Summons) Law; sections 6 and 7 of the Contempt of Court Ordinance, which applies to the rabbinical court by force of section 7A of the aforementioned law.)
In 1995 the Knesset adopted a law empowering the rabbinical courts to impose a series of sanctions, extending to imprisonment, in order to enforce a divorce judgment. (see at length in the entry *Divorce (Enforcement of Divorce in Israel).
the law applying in the rabbinical courts
Since their establishment during the period of Ottoman rule, under the British Mandate, and even after the establishment of the State of Israel, the rabbinical courts have applied and implemented Jewish Law, i.e., the Jewish religious law, which rabbinical courts have applied since ancient times. Where it concerns laws of personal status and ritual law, this phenomenon is anchored in the very act of conferring jurisdiction to rabbis, the assumption being that they will operate in accordance with the dictates of their religious convictions and will not deviate from the dictates of the halakhah. Hence, in the case of Skornik v. Skornik (ca 191/51 8 pd 141, per Justice S. Agranat) the rabbinical courts did not apply the rules of private international law, exercising instead the evidentiary and procedural rules of the halakhah (traditional Jewish law).
Both the Mandate Legislature and the Israeli Legislature recognized the rabbinical court's subordination to the Jewish religious law, and consequently they significantly curtailed the number of laws directed at the rabbinical courts. In the isolated laws containing provisions directed at the rabbinical court, the rabbinical court had a monopoly over its interpretation Nonetheless, in 1994 the Supreme Court ruled that the rabbinical courts were obligated to apply the doctrine of joint matrimonial property, a doctrine based in Israeli common-law and not the provisions of Jewish law on the matter (hc 1000/92 Bavli v. Rabbinical Court of Apeals), 48 (2) pd 221). This signaled a new direction in High Court policy, curtailing the powers of the rabbinical court by compelling it to apply Israeli Law, and as such was criticized
civil law in the rabbinical courts and a writ of refusal
Apart from its powers in defined areas of personal status in which Israeli Law confers jurisdiction to the rabbinical courts, it must also be remembered that throughout Jewish history rabbinical courts have always adjudicated disputes brought before them by two Jews. Today too, the rabbinical courts continue to function in this format. In such cases, from the perspective of Israeli law, these cases have the status of arbitration cases, and following the confirmation of the civil courts, the decisions are enforceable. Absent an arbitration agreement, the rabbinical court has no jurisdiction (see hc 2174/94 Kahati v. Rabbinical Court of Appeals, 50 (2) pd 214). On the other hand, signing an arbitration agreement is not required under Jewish Law, and in the State of Israel this measure is only adopted as a means of making the rabbinical court's decision enforceable under the Arbitration Law, 5728 – 1968 (see decision of Dayyan, Harav Dickhovsky, File 14603/5743, as cited in the Weiss case, ibid., 619)
Throughout Jewish history, where people refused to litigate before the Jewish rabbinical courts, an excommunication order (ketav siruv) was issued against them, intended to compel the defiant litigant to appear before the rabbinical court and accept its jurisdiction over the case, owing to fear of the pain of excommunication should he refuse to do so. When a decision had already been given, the excommunication order was issued to enforce the compliance of the party against whom the decision was given. The ostracizing and excommunication components of the order meant that the order "served as an important sanction for the Jewish court, which while enjoying judicial autonomy all over the Jewish dispersion, nonetheless lacked the requisite coercive powers that are at the disposal of a sovereign state" (per Justice M. Elon, Sobol, ibid., p. 803).
Despite the fact that the issue of an excommunication order by a rabbinical court had always been an accepted measure under Jewish law for ensuring compliance with a rabbinical decision, the Israeli High Court was unwilling to recognize this practice. When the Israeli rabbinical court issued a writ of refusal, and a person regarded himself as aggrieved by the order, he applied to the High Court of Justice and the latter ruled by majority opinion that the rabbinical court was not empowered to issue such orders. The High Court ruled that the rabbinical court lacked the power to issue writs of refusal, because matters of that nature exceeded the powers of the rabbinical court, as a body established by the State and operating under its laws (the view of Justices Y. Zamir and Justice D. Dorner in the aforementioned Katz case).
On the other hand, in his minority opinion Justice Z. Tal demurred, noting that the ketav seruv had been issued by rabbinical courts throughout Jewish history and there was no reason for not maintaining the institution in the State of Israel. Concededly, recourse to the ketav seruv should be cautious and measured, but the litigants had been directed to the rabbinical court to adjudicate their case, and the High Court of Justice was therefore unable to prevent the rabbinical court from making the declaration and issuing the excommunication order.
high court supervision over the rabbinical courts
The Rabbinical Courts are part of the Israeli Judiciary. Section 1 (b)(1) of the Basic Law: Judiciary provides stipulates: "Judicial power is vested also in the following: …a religious court (bet din). Section 15 (d)(4) of the same Basic Law empowers the Supreme Court, sitting as the High Court of Justice, "to order religious courts to hear a particular matter within their jurisdiction or to refrain from hearing or from continuing to hear a particular matter not within their jurisdiction, provided that the court shall not entertain an application under this paragraph if the applicant did not raise the question of jurisdiction at the earliest opportunity."
In fact, the Supreme Court exercised its supervisory powers over the rabbinical courts system when the latter exceeded the limits of their jurisdiction (ultra vires). To cite a few examples: Rabbinical adjudication where one of the parties is not Jewish, or not an Israeli resident (see: Sabag, ibid.), or adjudication by an incomplete panel (hc 7/83 Biares v. Haifa Regional Rabbinical Court, 38 (1) pd 673, per Justice M. Bejsky; Katz, p. 626). Moreover, if the rabbinical court operates in defiance of the rules of natural justice, and does not give each party the opportunity of submitting evidence and pleading, or acts with bias, its ruling under such circumstances will be annulled by the High Court of Justice (see, e.g., hc 10/59 Levi v. Tel Aviv-Jaffa Regional Rabbinical Court, 13 pd 1182, per Justices M. Silberg and Y. Zussman; hc 323/81 Vilozni v. High Rabbinical Court of Appeal, 36 (2) pd 733, 739, per Justice M. Elon).
In addition to the High Court of Justice, every judicial forum has jurisdiction to decide whether or not it has jurisdiction over a particular matter. Thus, both the rabbinical courts and the family courts rule on the question of their jurisdiction when the question is raised before them. In a previous decision Supreme Court held that "where one judicial body has adjudicated and ruled in good faith on a particular matter, no other judicial body has the power to entertain another claim on the same matter – regardless of the formal jurisdiction" (ca 359/75 Yahalomi v. Yahalomi, 31(2) pd 25, 27, per Justice Chaim Cohn). The philosophical underpinning of this rule is "the principle of mutual respect that the civil courts and the religious courts must accord each other. This mutual respect is not a question of good manners and proper behavior alone; it is vital for the existence of a properly functioning legal system, especially in the sensitive legal area of matters of personal status, in which two judicial systems have parallel jurisdiction within the same legal system" (st 1/81 Nagar v. Nagar, 38(1) pd 365, 397–398, per Justice M. Elon). When one judicial forum rules on a jurisdictional question, it is not proper for another forum to consider the matter further, and it must abide by the decision of the first forum. Recently, the Supreme Court ruled in a majority opinion that only when there is a special reason (e.g., when there was no preliminary hearing regarding the question of jurisdiction or where the ruling of the first forum on the jurisdiction is illegal or deviates from the rules of natural justice), the other judicial forum has no jurisdiction to rule again on the question of jurisdiction (see hc 8497/00 Feig-Felman v. Felman, 57(2) pd 118, per Justice D. Beinisch, and concurring opinion of Justice T. Strassberg Cohen). The dissenting opinion was that even in these exceptional cases there was no place for conflicting rulings of the rabbinical and the family courts and that the proper procedure was to petition to the High Court of Justice it order for it to render a decision in the matter (see opinion of Justice D. Dorner, ibid., pp. 142–143).
When the question is whether a particular matter falls within the jurisdiction of the rabbinical court or of the civil court, Article 55 of the King's Order in Council, 1922 sets forth a mechanism for resolving the matter, i.e., the establishment of a special tribunal composed of two Supreme Court justices and one judge from the highest level of the Rabbinical Court of Appeals (see entry Special Tribunal (Bet Din Meyuḥad).
rabbinical courts – composition
The rabbinical courts comprise two levels: A regional court is located in each of the major cities in Israel. The regional court sits in panels of three judges, known as dayyanim (Section 8(e) of the Dayyanim Law). In matters that do not involve a dispute, and with regard to temporary orders, the law provides that the proceedings will be conducted before one dayyan only (Section 8(e), ibid and The Dayyanim Regulations (Matters that May Be Adjudicated Before a Single Dayyan), 5750 – 1990).
The Rabbinical Court of Appeals in Jerusalem serves as a court of appeals regarding decisions and judgments of the regional rabbinical courts. The Rabbinical Court sits in panels of no fewer than three dayyanim.
This structuring of trial and appellate courts is a result of the initiative of the Mandatory Government. There were those who opposed this system, citing the situation throughout all of the years of exile, in which there were rabbinical courts in every city, with no hierarchical system. Others found support for the establishment of a court of appeals in the commentary of Sforno regarding Jethro's suggestion to Moses that he appoint officers of thousands, officers of hundreds, officers of fifties and officers of tens (Exodus 18:21): "There should be four levels, each higher than the previous one: The lowest will judge first, and he who is dissatisfied with the ruling will complain to the one above him, and from the second to the third and from the third to the fourth. And thus there will be only a few who will come before you for a judgment."
During the period of the Mandatory government, an appellant argued before the Rabbinical Court that Jewish Law does not recognize a right of appeal, the Rabbinical Court ruled that the appellant had a right of appeal on the judgment "because the right of appeal was accepted as an enactment of the sages (takkanat ḥakhamim), and it has the same validity as our holy Torah, and one who accepts its adjudication is considered to be aware of this" (File 1/4/705, B. v. A. Collection of Rabbinical Judgments, Z. Wehrhaftig, ed., 1950, p. 71).
There was another approach in the rabbinical courts, whereby each dayan was entitled to maintain his independence, as part of his obligation to rule in accordance with Jewish law. Consequently, even when a judgment of that dayyan was overruled by the Rabbinical Court on appeal, he was of the opinion that he was not obligated to obey the Rabbinical Court of Appeals. A similar case came before the Supreme Court, and the Court expressed astonishment and reservation with respect to that opinion. The Supreme Court held that in establishing the Rabbinical Court of Appeals, a hierarchical structure was created in the rabbinical court system, under which a lower level court is not empowered to disobey the appellate level, and this was expressed in the procedural regulations of the rabbinical court (see ca 682/81 Fried v. Fried 36(2) pd 695, pp. 697–699 per Justice M. Landau).
appointment of dayanim
The Dayyanim Law, 1955, sets forth the manner of appointing dayyanim. The dayyanim are appointed by the President of the State (Section 5 of the Law), according to the recommendations of the Appointments Committee, whose composition is set forth in Section 6 of the Law, as follows: The two chief rabbis of Israel, two dayanim of the Rabbinical Court of Appeals, two ministers, two members of the Knesset, and two practicing advocates. The composition of this committee is very similar to the composition of the Committee for the Appointment of Judges in Israel. It is evident that the representatives of the rabbinical court system do not command a majority on the committee, and great weight attaches to the sovereign bodies of the State of Israel.
The Appointments Committee chooses dayyanim from among those who are qualified to serve as dayyanim. The first condition for qualification is Israeli citizenship (Section 3a of the Dayanim Law). In addition, the conditions for qualification include rabbinical ordination under the auspices of the Chief Rabbinate Council, and passing the examinations for dayyanut (see: Section 1 of the Dayanim Regulations (Conditions and Procedures for Rabbinical Ordination), 1955). The regulations even set forth the subjects of the examinations, including knowledge of Talmud and the Posekim, the Shulḥan Arukh, Even ha-Ezer and Ḥoshen Mishpat, drafting of a judgment in a hypothetical case and knowledge of the rules and procedures (Section 8 of the Regulations, ibid).
A person appointed to serve as a dayan by the Appointments Committee must make a declaration of allegiance before the President of the State, in the presence of the Chief Rabbis of Israel, as follows: "I pledge allegiance to the State of Israel, to dispense justice fairly, not to pervert the law and to show no favor" (Section 10 of the Dayanim Law).
In the State of Israel there are two chief rabbis, one Ashkenazi and one Sefaradi, who are chosen by an electoral assembly of the rabbis of the various cities and neighborhoods, mayors and public figures, as set forth in Sections 6–8 of the Chief Rabbinate of Israel Law, 1980. Pursuant to Section 16 of the law, Chief Rabbi serves for a term of 10 years, and Section 17 provides that for half of the term of office of the Chief Rabbis one of them serves as the President of the Council of the Chief Rabbinate and the other serves as the Head of the Rabbinical High Court, and in the second half of their term they exchange these positions.
status of the dayyanim
The dayyanim enjoy the same degree of independence as any one serving in a judicial capacity in the State of Israel. Section 12 of the Dayyanim Law provides that "The dayyan shall be subject to no authority other than that of the law according to which he judges" The dayyanim are also accorded salaries and other benefits and pension terms similar to those of judges; the decisions regarding their salaries are made by the Knesset Finance Committee, as is the case regarding judges (Section 17 of the Dayyanim Law).
In this context it should be pointed out that until 2003 the rabbinical courts were part of the Ministry of Religious Affairs. With the dissolution of this ministry in 2004, the rabbinical courts were transferred to the Justice Ministry, placing them, from an administrative perspective as well, in their natural and appropriate place, i.e., the Ministry of Justice, which is responsible for the courts in the State of Israel.
An additional example of the Israel legislature's treatment of the dayyanim as part of the judicial system of the State of Israel is in the Commissioner for Public Complaints Against Judges Law, 2002. This law also grants the Commissioner jurisdiction over matters concerning dayyanim in the rabbinical courts (see Section 1 (5), the definition of "judge"). It bears emphasis that following his investigation of a complaint filed against a person serving in a judicial capacity, the Commissioner is authorized to act in one of several ways. The most serious of these is the referral of the matter to the Committee for the Appointment of Judges, in order for it to decide whether to terminate the appointment of the judge (Section 22(e) of the aforementioned law). This authority exists with respect to dayyanim as well, as set forth in Section 33(2) of the law, which amended the Dayyanim Law in this respect (see Section 16a(a) of the Dayyanim Law).
When the question arose before the High Court of Justice regarding whether a dayyan in the Rabbinical Court of Appeals could concurrently take part in political activity, the High Court of Justice ruled that a dayyan, as a judge, is obligated to be impartial and to merit the confidence of the public at large. Political activity is deleterious to this status and it is therefore forbidden for one serving in a judicial capacity (including a dayyan in a rabbinical court) to fulfill a political position, and to proffer advice to political parties (H. Cdi 732/84 Tzaban v. The Minister of Religious Affairs, 40(4) pd 141, per Justice A. Barak).
Even before the establishment of the State, during the British Mandatory rule, in 1943, the Council of the Chief Rabbinate established procedural rules for the rabbinical courts in Ereẓ Israel. The preparation of these rules began when Rav *Kook and Rav Jacob *Meir were serving as chief rabbis. Most of these rules have their source in the Shulḥan Arukh and the other halakhic authorities, while others were set forth by the Council of the Chief Rabbinate for Ereẓ Israel for the purpose of organizing the proceedings and as takkanat ha-rabbim. These rules were replaced and amended in 1960. An updated version of the rules, including amendments and improvements, was enacted in 1993. The rules cover numerous matters related to procedure, including: local jurisdiction, the means of filing a claim and submitting a defense, provisions regarding courtroom procedures and hearing evidence, temporary orders and appeals.
In 2004, the Knesset enacted a law dealing with the disqualification of a judge. This law stipulates identical provisions for judges in the general court system in the State of Israel and dayyanim in the religious courts, including the rabbinical courts (see Section 19A of the Dayyanim Law as amended pursuant to the 2004 law).
The provisions of this law are unusual, inasmuch as until it was enacted, the starting point of all reference to the rabbinical courts was the autonomy of the rabbinical courts, both regarding application of the religious law and the promulgation of procedural rules. The civil courts also operated according to internal rules or rulings of the court itself with respect to the disqualification of a judge. However, when the Knesset decided to enact legislation dealing with the disqualification of judges in the civil courts, it did so with respect to the religious courts as well, using the same terms and nearly identical provisions for all of the judicial forums in Israel, in order to achieve uniformity regarding the subject of disqualification of judges.
judgments of the rabbinical courts
The rabbinical courts have handed down many judgments since the period of the Mandatory government. The early decisions did not include the reasons for the decision, but gradually the rabbinical courts, especially the Rabbinical Court of Appeals, began to provide the reasons for their decisions, even at length.
A collection of the rabbinical judgments during the Mandatory government was published by Z. Warhaftig in 1950. After the establishment of the State of Israel, the rabbinical judgments were published as official publications, under the auspices of the Ministry for Religious Affairs under the title Piskei Din Rabbaniyyim (pdr). Twenty volumes of the pdr have been published thus far. Since 1995, the judgments are published in Shurat ha-Din with eight volumes published to 2005. During the last year Rabbinical Court decisions have been published on the website: www.rbc.gov.il/judgment
A number of dayyanim publish their judgments in collections such as Teḥumim. There are dayyanim who write responsa including judgments that they gave while serving as dayyanim in the rabbinical courts (see, e.g., Ẓiẓ Eliezer (Rav. Eliezer Waldenburg), Binyan Av (Rav Eliyahu Bakshi Doron), Shema Shelomo (Rav. Shelomo Amar), Mishpateha le-Ya'akov (Rav Ẓevi Yehudah ben Ya'akov).
The dayyanim in the rabbinical courts in the State of Israel make up the high-quality human cadre that transmits the Jewish tradition and halakhah from generation to generation. In this context we will remark that two of the foremost scholars of the generation (gedolei ha-dor), Rabbi Ovadia Yosef and Rabbi Yosef Shalom Elyashiv, served for many years as dayyanim on the Rabbinical Court of Appeals and their judgments are included in the pdr.
The rabbinical courts constitute an important part of the judicial system in the State of Israel, and they deal primarily with issues of family law. As we pointed out, the status of the dayyanim of the rabbinical courts is very similar to that of Israel's judges, both with respect to their independence, as well as other symbols of their status.
In the framework of the overall picture, it must be remembered that aside from the rabbinical courts, which operate according to the law of the State, as explained above, there are many private rabbinical courts operating in Israel, some of them under the auspices of political or quasi political parties (such as the Beit Din Ẓedek of Agudath Israel; the Beit Din Ẓedek of Ha-Eidah ha-Ḥaredit), some under the auspices of the religious councils (the rabbinical court for civil matters under the auspices of the religious council in Jerusalem, which has even published numerous collections of its judgments), and some of which are rabbinical courts that have achieved renown because of the head of the court (such as the rabbinical court of Rabbi S. Wuzner and the rabbinical court of Rabbi Nissim Karlitz, both of them in Bnei Brak).
In conclusion, it may be stated that from many perspectives, the rabbinical courts in the State of Israel constitute a continuation of the Jewish judicial system that has existed throughout history. These rabbinical courts have exclusive jurisdiction in the area of marriage and divorce, and accordingly they are on the frontline regarding the need to solve practical modern problems according to halakhah. Even in instances in which they deal with civil matters and questions of public law, their contribution to Jewish law is great.
[Moshe Drori (2nd ed.)]
D. Hoffmann, Der Oberste Gerichtshof in der Stadt des Heiligthums (1878); J. Jelsky, Die innere Einrichtung des Grossen Synedrions zu Jerusalem und ihre Fortsetzung im spaeteren palaestinensischen Lehrhause… (1894); A. Buechler, Das Synedrion in Jerusalem und das Grosse Beth-Din in der Quaderkammer des Jerusalemischen Tempels (1902); Schuerer, Gesch, 4 (19114), index, s.v. Gerichtswesen; Gulak, Yesodei, 4 (1922), index; S. Assaf, Battei ha-Din ve-Sidreihem Aḥarei Ḥatimat ha-Talmud (1924); idem, in: Ha-Mishpat ha-Ivri, 1 (1925/26), 105–20; A. Feldman, in: Juridical Review, 41 (1929); D.M. Shohet, The Jewish Court in the Middle Ages (1931); A.A. Neuman, The Jews in Spain, 2 (1942), index, s.v. Courts, Jewish; Ḥ. Albeck, in: Zion, 8 (1942/43), 85–93; I. Levitats, Jewish Community in Russia 1772–1844 (1943), 198–217; A. Weiss, in: Sefer ha-Yovel… Ginzburg (1946), 189–216; Albright, in: A. Marx Jubilee Volume (1950), 61–82; Gershoni, in: Ha-Torah ve-ha-Medinah, 2 (1950), 72–75; et, 1 (19513), 117–9; 2 (1949), 253; 3 (1951), 150–74, 174–80, 181; 8 (1957), 510–2; S.B. Hoenig, The Great Sanhedrin (1953); H. Mantel, Studies in the History of the Sanhedrin (1961); Silberg, in: Molad, 23 (1965/66), 265–74; Baron, Social2, index, s.v. Courts, Jewish; Elon, Mafteaḥ, 12–16; J.S. Zuri, Mishpat ha-Talmud, 7 (1921), 1–12. add. bibliography: M. Elon, "Developments in the Rabbinic Judiciary of Israel," in: Dinei Israel, 5 (1974), lxxi; idem, Ha-Mishpat ha-Ivri (19883), 676–77; 1337–45, 1473–1536; idem Jewish Law (1994), 2:835–836, 4:1596–1606, 1752–1826); idem, Jewish Law (Mishpat Ivri): Cases and Materials, (Matthew Bender Casebook Series; 1999), 391–420 (See, e.g., M.Elon "These Statements Are Obiter Dicta… They Are Based on Error and It Is Appropriate Not To Follow Them": Critiques and Reflections on the Bavli and Lev cases); M: Mautner et al (ed.) Multiculturalism in the Democratic and Jewish State, the Ariel Rozen-Tzvi Memorial Book (1998), 361–407; M. Silberg, Ha-Ma'amad ha-Ishi be-Yisrael (1958); M. Silberg, P. Shifman, Ha-Ma'amad Ha'Ishi Be-Yisrael – Miluim ve-Hashlamot al pi ha-Pesika ha-Ḥadashah (1967); M. Shaveh, Ha-Din ha-Ishi Be-Yisrael (20014); P. Shifman, Dinei ha-Mishpaḥah be-Yisrael, vol. 1 (19952), esp. 11–135; A. Rosen Tzvi, Dinei ha-Mishpaḥah be-Yisrael – Bein Kodesh le-Ḥol (1990), esp. 25–188; B.Z. Sharshavski, Dinei Mishpaḥah (19944); A. Shochetman, Seder ha-Din le-Or Mekorot ha-Mishpat ha-Ivri, Takkanot ha-Din u-Pesikat Batei ha-Din ha-Rabbaniyyim be-Yisrael (1988); S. Dihovsky, "Samkhut Batei ha-Din ha-Rabbaniyyim Bi-Re'i Pesikat Batei ha-Din," Dinei Yisrael, 10–11 (1981–83), 9; idem, "Batei Din Rabbaniyyim-Mamlakhtiyyim: Be'ayotehem ve-Hesegeihem," Dinei Israel, 13–14 (1986–88), 7; idem, "Ma'amado shel Beit Din Rabbani ha-Dan be-Dinei Mamonot ke-Borer," Shenaton ha-Mishpat ha-Ivri, 16–17 (1990–1991), 527; Y. Cohen, "Shipput Rabbani ve-Shipput Ḥiloni," Dinei Israel, 7 (1976), 205 (see: M.Drori, "The Duty to Testify, in: Gilyon Parashat ha-Shavua, Parashat Vayikra (2001), www.daat.ac.il); idem, "Decision of the Rabbinical Court in Civil Matters and Their Ramifications for Israeli Law," in: Madai Yehadut, 39 (1999), 121–31); idem, "Who is Empowered to Interpret a Secular Law Directed at a Religious Court?" in: Tel Aviv Law Review, 3 (5734 – 1974), 941–46.