Shabbat Parashat Mishpatim | 5770
Parashat Hashavuah: “These Are the Laws You Shall Place Before Them”Harav Yosef Carmel
On the occasion of the parasha that spells out a large part of the laws of Jewish courts, we want to urge our readership to appreciate and frequent, when adjudication is necessary, batei din (rabbinical courts), such as the network we operate, Eretz Hemdah / Gazit.
Many ask: what is special about a beit din as opposed to secular courts, especially in light of the rule of dina d’malchuta dina (the law of the land is the law) and the fact that, practically, a beit din’s rulings are enforceable only through a secular law of arbitration?
In addition to the halacha that this is what is supposed to be done, there are several more satisfying answers, and we will concentrate on one of them. According to the style of adjudication that is practiced in Israeli secular courts, the interrogation and attempt to uncover the truth is done by the lawyers, who represent the two sides of litigants. Each one will do his best to prove to the court that the case he is presenting is true. The judge does not get involved and is not allowed to try to come to the truth by himself. He is to disregard that which he might have been able to uncover himself.
Let us mention just some of the drawbacks to this approach to adjudication. 1. The main weight of uncovering the truth falls on those who are interested in proving only their own side of the case. 2. There is a “disconnect” between the judges and the litigants. Since Chazal say that “the words of truth are recognizable” (Sota 9b) and we have discussed that the dayan should hear directly and not through a translator (Sanhedrin 21a), it is important that the dayanim should hear directly from the litigants and not through the “filters” the lawyers engender. 3. The litigants’ wealth goes far in determining the choice of a lawyer. The wealthier litigant is able to afford the most accomplished lawyer. Therefore, with the lawyers playing such a critical role, the poorer side is likely to lose even if he is correct. As the Rambam says, the mitzva to judge everyone equally includes equating the two litigants in every sphere.
In contrast, the rabbinical courts are totally different in these areas. Three fully objective judges are the ones who run the interrogations. They speak directly with the litigants and are able to gauge how truthful they are being. In this more direct manner of communication, the rule that a litigant is assumed to refrain from outright denying the truth in the face of the other party is more viable. If there is need and justification, the judges will raise a claim on behalf of a litigant. The rich and the poor have the same ability to express themselves before the judges. [We do allow lawyers to appear before beit din for certain elements of the proceedings, but this reluctant agreement is to a lesser degree, and usually the sides decide not to bring lawyers.]
We call on everyone to whom the Jewish character of the State of Israel is dear to strengthen the rabbinical courts for monetary matters, which we believe are a part of the blossoming of our redemption.
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Hemdat Yamim is dedicated to the memory of
This week’s Hemdat Yamim is dedicated in loving memory of