Owing to what many Orthodox Jews regard as a biblical prohibition against litigating their disputes in secular courts, there has developed over many centuries a system of rabbinical courts whereby dayanim (rabbinical judges) determine civil disputes.
By David Berkley KC, 3 Paper Buildings (3PB)
In every major community there is likely to be found at least one officially recognised Beth Din (house of law, plural Battei Din).
In England there are Battei Din established in London, Manchester and Gateshead. In addition, it is open to the parties to agree upon the appointment of an ad hoc tribunal of dayanim to hear a specific case.
Having spent more than 40 years appearing as an advocate before such tribunals, it might be instructive for me to share some observations about the process and my personal views of the advantages and disadvantages of the parties engaging in such forms of dispute resolution.
The wider context is also worth acknowledging. There is, as reflected in the Civil Procedure Rules 1998, a general interest in Alternative Dispute Resolution and the avoidance of costly and often protracted litigation. The Jewish community is a small but well-established minority. According to the 2021 census a total of 271,327 peoples identified themselves as Jews in England and Wales. The relative success of the Beth Din system might therefore be seen as a model for other communities. There are however some real challenges to be met when synthesising the procedures and rulings of a religious court within a modern civil justice system, a detailed examination of which is outside the scope of this article.
Here, by way of introduction are some basic principles for the general reader:-
- Although the Battei Din are religious courts, the disputes which they determine under their civil jurisdiction are not issues of ritual or theology or even moral obligation (each of which are important within Orthodox Judaism) but are likely to be contractual or commercial civil claims, ranging from minor boundary disputes to complex high value commercial cases, perhaps with an international element.
- Although the Beth Din may need to consider and apply English or other national Law, where it deems it necessary, primarily the dayanim will be using the Halakha (Jewish Law) as the applicable law.
- The Halakha itself is based on sources which were codified in the sixteenth century and to which has been added a rich body of responsa literature which continues to evolve, much in the manner of the English Common Law.
- The Beth Din in modern times has no powers of coercion. It derives its jurisdiction over the parties through their voluntary Invariably, this is achieved when the parties enter into a binding arbitration agreement.
- In the UK the status of the Beth Din is derived from the application of the Arbitration Act 1996 and the power of the High Court to enforce its awards in the event of non-compliance.
Apart from satisfying any religious imperative, there are some distinct advantages in using the Beth Din instead of litigation, many of which are common to arbitration generally. The parties get to choose their own tribunal. Proceedings are less formal and the process can operate efficiently and be cheaper and quicker.
The principal disadvantages are the absence in general of pleadings; the absence of any formal disclosure of documents or the advance production of witness statements; the lack of powers of immediate enforcement; the absence of an appellate tribunal, and a related question over the approach to finality.
There are however some misconceptions which, because they are not consistent with my personal experiences as an advocate, I would wish to dispel.
It is sometimes thought that:-
- The dayanim operate as mediators or moral custodians, so that their decisions might be seen as arbitrary, unpredictable, or even irrational. In fact, the dayanim adjudicate in accordance with the Halakha, as a fully-fledged system of law. Even the application of equitable principles is confined within a body of recognised
- The dayanim as unworldly or medievalists and so out of touch with modernity. As when similar criticisms are aimed at English judges, they are usually unjustified. In my experience the dayanim are likely to demonstrate open-mindedness and a keen acuity in their examination of the evidence; and are receptive to expert evidence when such assistance is required.
In Orthodox Judaism, the dayanim, like rabbis in general, are currently exclusively male. However, women are competent to appear as parties; witnesses and representatives. As in many conservative societies in Britain today, there is an increased awareness and a growing acknowledgment of the changing role of women in society; and the process of adaptation in this regard should to be seen as evolutionary, rather than radical.
There are some important specific points to consider when engaging in an arbitration before a Beth Din.
- In general, the party responding to the claim can control the choice of Beth Din but it is also common for the parties each to nominate one dayan and those nominees might then agree upon the identity of a third dayan to chair the ad hoc tribunal.
- The Dayanim are likely to be more interventionist than is common in the English common law tradition.
- Proceedings are generally less formal than Court hearings.
- Use of a specialist advocate familiar with Jewish Law and Beth Din procedure is usually advisable in all but the simplest cases.
The Beth Din is usually empowered to make interim directions but its powers are not as extensive or as coercive as those of the Court, particularly in respect of disclosure and injunctions.
As noted, ultimately enforcement relies upon the use of High Court, but the working assumption is that the parties, belonging to a religious community; and having voluntarily submitted to the forum; and having agreed to be bound by the Beth Din’s award; and given the general respect and high regard that the dayanim typically enjoy, such steps would not be necessary.
When there is a challenge to the Award it might come in the form of a demand for reconsideration within the framework of Jewish Law, following the promulgation of a reasoned award. Occasionally, the unsuccessful party might come forward with new arguments or evidence and there is perhaps greater flexibility to allow for reconsideration in those circumstances than is applicable under the CPR.
In the few reported cases that have come into the High Court, those resisting the enforcement of an Award have to face the challenges of meeting the statutory time limits and threshold requirements of the Arbitration Act 1996.
The application of the Halakha can have specific consequences for the parties’ claims. To provide just three examples.
- In general, most dayanim would not reject an otherwise meritorious claim, on the grounds of limitation.
- The dayanim will not generally award interest on debt.
- The rules relating to consequential loss are complex and perhaps more limited than might be the outcome in the secular court.
These are examples where, on the specific circumstances and facts of the case, English law might be regarded as antithetical to Jewish law.
However, it is important to stress that in broad terms, in most commercial cases, the starting point will be the terms of any written contract itself and (in the English context) a recognition that English law has an application, either to identify the parties’ intentions; or to construe the language; or to import, by way of commercial or trade practice and custom, rights and obligations which, whilst not in contravention of the Halakha, extend or modify the default position under Jewish law.
Demographic studies in the UK suggest that Charedi (ultra-Orthodox) Jews are the fastest growing sector of the UK Jewish population. Demand for the services of the Beth Din as a forum for dispute resolution is therefore likely to grow.
By David Berkley KC, 3 Paper Buildings (3PB)