סמכות רבנית כרך א, פתח דברRabbinic Authority I, Preface
א׳
1The present volume is intended as an introduction to a subject unfamiliar to many – rabbinic authority as reflected in our halakhic sources. Its subtitle – “The Vision and the Reality” – indicates the two perspectives from which we will approach this topic.
ב׳
2In discussing the halakhic “vision” of rabbinic authority, we will address a number of questions. How does Halakhah (Jewish law) envision rabbinic authority? What are the credentials for being a rabbinic authority? What is the difference between a rabbi who is “an authority” and one who is “in-authority”? What is the status of a congregational rabbi? How does a rabbi arrive at a halakhic decision? Is a rabbi bound to follow the opinions of his predecessors, or may he choose to render his own independent opinion? Under what conditions can he choose to issue his own judgment?
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3The author of Sefer Ha-Arukh, the first halakhic lexicon, defines Halakhah concisely:
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4Something that travels from the beginning of time until the end, or the path that the Jewish community walks.
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5Halakhah embodies the traditions transmitted throughout the generations; it is the path that the Jewish People have chosen to follow. But how wide is that path?
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6John Stuart Mill, the father of modern liberalism, famously claimed:
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7The only purpose for which power can be exercised over any member of a civilized community, against his will, is to prevent harm to others.1On Liberty, (NY: 1956) chap. 1, para. 9.
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8Does Halakhah endorse such a perspective, which would lead “socially harmless” matters to the individual conscience, even when it comes to business affairs?
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9This question leads us to many others. Are directors and employees in the corporate world halakhically and/or legally accountable for all their decisions? Should a halakhic arbiter or a civil court defer to a decision rendered by an employee or director, or should we scrutinize the propriety of their decision? To answer these questions, we will examine how two different legal systems – Halakhah and American law – approach the application of the business judgment rule in the profit and not-for-profit corporate world.
י׳
10The final component of my discussion of the “vision” of rabbinic authority is an attempt to solve a particularly vexing problem faced by the contemporary Jewish court in some cases of divorce – the problem of one spouse refusing to execute a get, a bill of Jewish divorce. Coercing a recalcitrant spouse to grant a get results in a get me’usah, a forced get, which is invalid. In this volume, I present a viable halakhic solution to this problem in an expanded version of an article that originally appeared in the Jewish Law Annual (vol. 18), entitled, “Recovery for Infliction of Emotional Distress: Toward Relief for the Agunah.” Our contribution is an attempt to invoke the halakhot of nezikin (monetary damages for injury caused) to reduce the problem of “chained spouses” in our community.
י״א
11The “reality” of rabbinic authority presented in this volume deals with one type of that authority – the Jewish court, or beit din. As members of our covenant-faith community, we are obligated to resolve our differences in a beit din rather than resorting to litigation in civil court.2Midrash Tanhuma, Mishpatim, piska 6; Gittin 88b; SA, HM 26:1–3. The parties who appear before a beit din sign a shtar borerut (arbitration agreement) that empowers the panel of dayanim to resolve the matter in contention according to the norms of Halakhah.3See Rema, Hoshen Mishpat (HM) 12:7; Sma, HM 12:18. Assuming the beit din process and its decision comply with the rules of secular arbitration law, the judgment will be enforceable in a competent civil jurisdiction in the United States.4See Uniform Arbitration Act, sec. 1. A dayan is responsible not only to render a judgment in accordance with Halakhah, but equally to ensure that the decision will be enforceable in civil court; see Hiddushei ha-Ritva, Mo’ed Katan 14b; Teshuvot ha-Rashba 1:18; Perush ha-Gra, Mishlei 31:9; Teshuvot Hatam Sofer, HM 177.
י״ב
12Interestingly, as central as the beit din system is in vision and reality, it is an institution whose workings and contributions to the “path of Halakhah” are largely unknown to most segments of the Jewish community. One of the primary reasons for unfamiliarity with the beit din can be traced back to a Mishnaic ruling:
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13Upon finishing their deliberations, they would bring the litigants back to the courtroom, and the senior member of the panel would state: Mr. X, you are acquitted, and Mr. X, you are liable.5Sanhedrin 3:7.
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14A review of relevant passages in the Talmud and rulings throughout the ages and until today demonstrates that Jewish courts generally took this Mishnaic ruling to heart, limiting their decisions to identifying the innocent and responsible parties, but not offering much in the way of reasoning.6Bava Metzia 84b; Shavuot 30b; Sanhedrin 6b; Shulhan Aruch (SA), HM 19:1. However, prior to a beit din’s psak din (final decision), a litigant may request that the panel provide a reasoned opinion if he is concerned that one or more of the judges are ignorant of a relevant halakhah or that they are biased in some way.7Tur, HM 14; SA and Rema, HM 14:1, 4; Sma, HM 14:25; SA, HM 12:2; Teshuvot Sha’ar Yehoshua 1–2. Cf. Teshuvot Hatam Sofer, HM 12. According to some authorities, this is true not only of a standing beit din that requires litigants to appear before them regarding a contentious matter, but also when the beit din is an ad hoc panel, known as zabla (“zeh borer lo ehad” – “one chooses one”).8In the absence of a standing beit din or when one or more of the litigants do not want to appear in front of a standing beit din, each party may choose one dayan, and the two dayanim (arbitrators) choose a third; see SA, HM 13:1–2.
ט״ו
15Maharah Or Zarua and Havot Ya’ir are of the opinion that each and every dayan should provide the grounds for his decision.9Maharah Or Zarua 13; Teshuvot Havot Ya’ir 165. In our day especially, many litigants question a dayan’s credibility, halakhic expertise, and/or business acumen; therefore, if at all possible, a reasoned opinion should be forthcoming.10R. Tzvi Yehuda ben Ya’akov, “The Obligation of Giving a Reasoned Psak Din” [Hebrew], 19 Tehumin (5759), 223, 234.
ט״ז
16Due to the fact that halakhic court procedure does not mandate the issuance of a reasoned opinion, however, contemporary dayanim have generally refrained from submitting reasoned judgments. Nevertheless, certain dayanim who sit on the Beth Din of America in New York City and others who serve in the Israeli beit din networks under the aegis of Israel’s Chief Rabbinate and Eretz Hemdah-Gazit have done so.
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17During the last thirteen years, I have served as a dayan on the Beth Din of America and appeared on various zabla panels as well as a single arbitrator for the Hassidic, Modern Orthodox, Sephardic, and yeshiva communities in the New York-New Jersey metropolitan area. In numerous instances, I have rendered reasoned opinions in commercial matters and domestic relations. Among other matters, these decisions touch on issues of employment termination and severance awards, partnership dissolution, the validity of minhag ha-soherim (commercial practice), civil law, contractual agreements and preliminary agreements, the interpretation of contracts, the principle of indemnity in insurance law, recovery of economic loss of funds, consequential damages, lease, construction, and loan agreements, self-dealing in non-profit organizations, and copyright infringement. In addressing family matters, I have dealt with the grounds for issuing a divorce judgment, dividing up marital assets upon divorce, spousal support, child support and placement, filial obligations to one’s parents, and yerushah (inheritance) issues, such as guidelines for drafting a halakhic will and the validity of a civil will and a trust agreement.
י״ח
18The cases chosen for this volume cover the range of subjects characteristic of all modern legal systems – dinei mamonot (civil matters), public and administrative law, family law, and philosophy of law. Given that Halakhah is a religious legal system, the impact of issur ve-heter (ritual law) upon the monetary issues under investigation is equally dealt with in our judgments.
י״ט
19In this volume, I have included ten presentations inspired by reasoned opinions handed down as a member of a beit din panel. Two of these, dealing with drafting a halakhic will and labor relations, are expanded versions of my decisions that have recently appeared in the journal Hakirah (vols. 10 and 12). In each presentation, I offer a rendition of the facts of the case, followed by the claims of the Tove’a (plaintiff), the reply of the Nitva (defendant), and any counterclaims. Subsequently, there is a discussion of the halakhic issues emerging from the parties’ respective claims and counterclaims, followed by a decision rendered by the beit din panel. To preserve the confidentiality of the parties involved in these cases, all names have been changed, and some facts have been changed and/or deleted.
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20It is my hope that this collection will educate our community to the parameters and scope of rabbinic authority in general and the institution of the beit din in particular.
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21My appreciation to the publisher of Urim Publications, Tzvi Mauer. I offer my best wishes that the passion and sense of mission he brings to his calling to disseminate Torah scholarship will continue to be crowned with great success.
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22My thanks is given to Michal Alatin and Batsheva Pomerantz of Urim Publications for their expertise and technical skill in preparing my book for publication.
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23A. Yehuda (Ronnie) Warburg
כ״ד
2420 Tevet 5773
כ״ה
25January 2, 2013
