- Parashat Hashavua
As is our practice for Parashat Mishpatim, this week we will discuss some element of justice on which we put emphasis in our batei din, "Eretz Hemdah-Gazit."
The Rambam (Mamrim 1:4) discusses the process by which the rabbinical courts were used to receive rulings on all sorts of matters and the halachic unity that emerged from the system. We will see segments from this unusually long paragraph: "When the Beit Din Hagadol existed, there was no [halachic] disagreement within Israel. Rather, any law about which there was a doubt in Israel, one asked the court in his city … if they did not know, they would go up to Yerushalayim … if [the lower courts in Yerushalayim] did not know they would go to the Lishkat Hagazit (a section of the Temple Mount) to the Beit Din Hagadol and ask. If the matter was known to the Beit Din Hagadol, whether based on tradition or based on the system of halachic analysis, they would say right away. If the matter was not clear to them, they would deal with the issue and discuss it until they all agreed or they would come to a vote and follow the majority … Once the Beit Din Hagadol was discontinued, halachic disagreement increased in Israel: this one says it is impure and gives a reason for his ruling, and this one says it is pure and gives a reason for his ruling; this one forbids something, and this one permits it."
In contrast to this, in the contemporary central authority of the Chief Rabbinate’s Rabbinical Courts, which also contains a High Court, they decided not to create a system whereby decisions that are made are binding in all courts. While many important rulings (prominent among which are those of leading dayanim including our mentor, Harav Shaul Yisraeli) were compiled into several volumes of published rulings, these were not intended to serve as binding precedents. This is in contrast to the secular Court System of Israel, in which there are clear rules of precedent. Therefore, in the secular system, it is easier for lawyers to advise their clients and plan their legal strategy.
In practice, the great majority of the Jewish population of Israel does not come to batei din for adjudication, and we do not have space in this forum to seriously discuss all the reasons. However, it seems that one of the (many) reasons is the situation by which there are not set precedents, which makes it relatively difficult to predict the approach a beit din will take regarding a certain manner.
Our parasha starts with the words: "These are the statutes (implying, monetary laws) that you will place before them" (Shemot 21:1). This teaches us two things. 1) The first thing to be done after the giving of the Torah, turning Bnei Yisrael into a spiritually special nation, is to ensure a judicial system with set rules of behavior. Without this, the nation’s moral fiber will deteriorate. 2) "Placing before them" implies that it is not enough to just inform the people, but it is necessary to explain the laws to the people until it is like food that is well prepared and presented to be eaten at the table (see Rashi ad loc. in the name of Chazal).
It is crucial for our rabbinical courts to work with a proper level of transparency. Therefore at the Eretz Hemdah-Gazit courts, we have taken upon ourselves to develop consensuses on certain important matters and to present them before the public. On the Beit Din website, there are explanations of our policies regarding numerous important common issues including compromise, indirect damages, and use of hotza’ah lapo’al. We hope that such action will help return the rabbinical courts to regular use in our Jewish State.