Project Emesh 5 – What is a Din Torah [in Today’s World]?

In my opening post on this series, I wrote:

This is a project to educate readers about Beis Din. What it is and what it isn’t; how it works and how it should work; what every person should know before they call for a Din Torah or before they respond to being called; and how to avoid getting hurt.

Most people who haven't been to a Din Torah, even the most learned among us, don’t have a clue.

So, let’s get started. Go around your community and ask the following question: What is a Din Torah?

You will get two types of answers. Type 1 will come from consumers who are full of assumptions and misconceptions. Type 2 will come from those who have “been there”.

So what is the Type 1 answer?

A consumer will answer that a Din Torah is a court case that is presided by three Jewish judges and follows the laws of Judaism.

In other words, it’s the same thing as suing somebody in a secular court in front of a non-Jewish judge or jury, but this happens to be in front of a panel of Jewish judges and the laws being scrutinized are our Jewish ones instead of the national ones. In English, this process is called adjudication.

This sounds about right. In fact, this is what those of us who have gone to Yeshiva and learned Bava Kamma and Bava Metziah and Kesubos and Sanhedrin will think it is because this is what is described in the Talmud. Jewish court.

Well, these folks are behind the times. This is what a Din Torah used to be and what a Din Torah should be even today, but no longer. It doesn’t apply to today’s world. This is why we pray each day for השיבה שופטנו כבראשונה. 

We want Dinei Torah to be just like they used to be.

The Type 2s who have more experience will spell it out. In today’s day and age, a Din Torah is Halachic arbitration. It is not adjudication. You are not in court. You are in front of an arbitration panel. Binding arbitration. The three learned Jewish men with long beards that scowl at you are not judging the case. They are arbitrating a dispute. Legally, and to a certain extent even Halachically, they are not judges. They are arbitrators.

But we still call them dayanim. Hence, all the confusion.

What is the difference between adjudication and arbitration?

Before I answer this, we may as well throw into the mix a third method of settling disputes which is called mediation. In mediation, the dispute is not being judged and not being arbitrated. It is being mediated. 

So, what are these three methods? Let’s check some online definitions.

Adjudication - Adjudication refers to the legal process of resolving a dispute or deciding a case. When a claim is brought, courts identify the rights of the parties at that particular moment by analyzing what were, in law, the rights and wrongs of their actions when they occurred.

Arbitration - Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court.

Mediation - Mediation involves the intervention of a third person, or mediator, into a dispute to assist the parties in negotiating jointly acceptable resolution of issues in conflict. The parties do not reach a resolution unless all sides agree.

To briefly summarize, adjudication is a legal process of settling disputes according to the law. The defendant does not need to consent to adjudication. It can be carried out forcibly and the defendant can be summoned. Arbitration is not a legal process, although it has legal validity. It occurs when both sides mutually agree to abide by the ruling of the arbitrator(s). Once they consent to arbitration, the sides are bound to the ruling of the arbitrator. Mediation is also not a legal process and is not legally binding unless the sides forge a formal agreement which is then documented as a contracted agreement.

In the famous ground-breaking book on mediation – Getting to Yes by Roger Fisher and William Ury – the authors dramatize the difference as follows:

Suppose two siblings are fighting over the last orange in the refrigerator. Each one wants the entire orange for themselves and claims ownership – זה אומר כולה שלי וזה אומר כולה שלי.

The purpose of the judge is to decide which litigant’s claim is more valid by law. He will rule that either Party A gets the entire orange or Party B gets the entire orange.

The purpose of the arbitrator is to settle the dispute. He has a lot of flexibility. Even if he thinks that one person’s claim is somewhat stronger than the other’s, he may feel that the best thing to do is to divide the orange fifty-fifty. This will not necessarily satisfy the sides, especially the one with the stronger claim, but it does indeed settle the dispute. 

The purpose of the mediator is to see if there is a way to make both sides relatively satisfied. So, he may ask one sibling why he/she wants the orange. The response may be that he/she wants to drink a cup of orange juice. Then he will ask the other side the same question. Let’s say that the other sibling says that they want to bake a cake and the recipe calls for the rind of an orange grated up. 

In such a fortuitous situation, the mediator will suggest that the first sibling takes the orange to squeeze the juice and then gives the rinds to the second one for the cake. Even if they both want juice, maybe one side can be “bought off” with a dollar or a plate of ice cream or some other external compensation.

In any case, we see that adjudication (din) is the strictest method and follows the letter of the law. Typically, judges are very quick to suggest arbitration or mediation so that there can be mutual consent at some level, or they may even suggest compromises (settlements) on their own. But all too often, one or both sides will not hear of it. They know their case and they know the law and they do not want to open the door to settlements that will give them less than they think they deserve. 

As such, adjudication is the legal standard of settling disputes. So much so, that any normal human society has a court system where a claimant can summon a defendant for litigation whether the defendant wants to or not. In fact, this is one of the seven laws of Noach and is incumbent upon all human societies worldwide. Every normal society must and does have a functioning court system to settle disputes.

Except ours.

Don’t get me wrong. The Jewish court system described in Sanhedrin and Bava Kama and Bava Metziah and Choshen Mishpat are exactly that. And uninformed (consumer) Jews who have never been to Beis Din think that this is what it is today.

But, sadly, no longer. Our Batei Din for monetary disputes are all arbitration panels, not Jewish courts. Every one of them, whether in Israel or the galus. In Israel, the family courts have the authority of a legal court, so they have differences. But for monetary disputes, only arbitration.

Why is this?

The answer is that this is one of the travails of being in galus. Even here in Israel. 

We Jews are guests in other countries with other laws and procedures than we have. Generally, every country has government generated civil courts and legal systems and those systems are the only ones authorized to adjudicate disputes. Even here in Israel. Also, every legal system requires an umbrella of law enforcement – shoftim v’shotrim. Without being able to enforce court rulings, the courts are powerless. (See Rambam Hilchos Deos 4:23 – Every city must have a בית דין מכין וחובשין. This means a BD that can enforce its rulings.)

We Jews have no mechanism of enforcing court rulings. Probably, we would not obtain the legal authorization even if we had. As such, when a Jewish court issues a ruling, it must rely on the local law enforcement authorities to enforce the ruling. However, secular legal systems will only enforce rulings that are issued by their own system and comply with their own laws. The rulings of private courts as an adjudicated legal ruling is invalid. 

However, all normal societies recognize arbitration as a legal alternative to adjudication. This is as long as the litigants are following the host countries laws of arbitration. Generally, the laws say that two people can mutually agree to choose anybody they want to arbitrate their dispute, and they must sign a legal arbitration agreement. An arbitration agreement is like any contract between two (or three) parties. Thus, when they agree to binding arbitration and the arbitrator issues a ruling, the ruling can be presented to the court and certified as a legal court ruling. This is the same as when two parties in court do an out-of-court settlement. 

At that point, there is now a legal court ruling recognized by the State which is subject to enforcement by the State’s authorities. Only now can the ruling of Beis Din be enforced.

All this means that every monetary Din Torah that takes place is doing so with the full agreement of both parties. This alleviates a very dangerous hazard. If a Beis Din would act like a court and unilaterally summon a defendant to their court and issue a ruling against them, the defendant has the power by the law of the land to sue these unauthorized imposters for illegal theft and extortion and whatever else.  

Of course, this opens up the question: What if the defendant (nitva) refuses to sign up for this arbitration?

The answer is that Beis Din is relatively powerless. They cannot even issue a seiruv with any punitive clause for fear of getting sued in court. Whenever you hear of a seiruv, it is nothing more than an announcement that this person declined to show up in court. If it is punitive, threatening, or it damages the nitva in any way, they can get into big legal trouble. 

But what Beis Din can do is to issue a hetter erkaos. This is a permit for the claimant to take the case to the authorized secular court where it can be adjudicated against his will. But even this is not so simple. It may depend on why the nitva does not want to sign up.

If the reason is due to outright defiance of Beis Din, BD can issue the hetter with no qualms. But if the nitva does not like this Beis Din and wants a different one, or does not like the terms of the arbitration agreement, or has other objections, Beis Din needs to try to work them out before it can issue a hetter.

We will discuss these things in detail in future posts.

Similarly, there may be reasons that the claimant (toveah) would not want to take his claim to secular court. Perhaps, there will be more expenses and long delays or fears of corruption or antisemitism. Perhaps, he suspects that the nitvah, who would not have the audacity to lie in front of a Beis Din, would not hesitate to lie through his teeth in secular court.  Perhaps, this type of case is one where there is a stronger claim by Jewish law than by secular law.

In that case, either he bites the bullet and goes anyway to secular court or he walks away. He is stuck. We are in galus.

This is just one of the drawbacks of being required to go to arbitration instead of a legal court. But there are quite a few others that I did not discuss here. I intend to do so in an upcoming post.

With the drawbacks of arbitration that were mentioned here and the additional players to be named later, the biggest question of all pops up.

Q. I don’t want arbitration, I want judgement. I want din! How do I get it?

A. Not from any Jewish Beis Din.

Q. In that case, I prefer to take my case directly to a secular court. Can I do that?

A. If it’s the type of claim that a standard Beis Din can handle, no you cannot. If it is something that Batei Din do not handle at all, yes you can (we’ll elaborate on this later.) For anything in between, you will need to ask your local Orthodox Rabbi (I am happy to give you my opinion, but I am not any kind of Rabbi.)

To summarize, one of the primary reasons that our current Beis Din system is so flawed is because it is not adjudication but arbitration, and there is no way around this. The arbitration system is a very flawed system, and I intend to explain why in the upcoming posts. We have yet to see how bad it can get. We are in for a bumpy ride.

We are still in galus.