A new bill may be aimed at sharia courts, but there are issues for our Batei Din too.
By Daniel Greenberg, August 11, 2011
THE JEWISH CHRONICLE ONLINE The use of religion as a tool of oppression of women is hardly a new concern. A cause of concern in the United Kingdom today is the use of religious courts to circumvent anti-discrimination legislation and to coerce women into waiving their civil rights.
The Arbitration Act 1996 allows for the legally-binding consensual resolution of disputes outside court; but people can be coerced by social or religious pressure into participating in arbitration in religious courts against their best interests and without their freely-given consent.
A Private Member's Bill has recently been introduced into the Lords by the crossbench peer, Baroness Cox, which aims to address three key issues: discrimination against women in religious courts, their use for criminal or family matters, and jurisdiction by coercion. The Arbitration and Mediation Services (Equality) Bill is primarily aimed at concerns that have been expressed about certain Islamic sharia tribunals, but the issues are also relevant to the Beth Din system.
On the question of jurisdiction by coercion, within the Orthodox community there is considerable halachic and social pressure not to litigate in the secular courts until the Beth Din route has been exhausted. It is an interesting question as to whether that pressure is sufficient to mean that a person's "consent" to arbitrate in a Beth Din is, in fact, not freely given.
A dissatisfied litigant emerging from a Beth Din, and seeking to overturn its decision on the grounds of having felt compelled to submit to its jurisdiction, could do great damage to the reputation of the Beth Din system; so this is an issue that could profitably be looked at with some care.
The question of "jurisdiction creep" also deserves examination. The Arbitration Act is about civil disputes; it was never intended to allow an alternative forum for the resolution of disputes which have a wider social interest, including crime, family matters or areas of law designed to regulate society (like planning or licensing).
Within some parts of the Orthodox community here, however, there is an increasing tendency to stretch the use of the Beth Din beyond its traditional limits. The result is that the Beth Din ends up assuming responsibility for cases which it does not have the tools to handle effectively, being particularly constrained as to what kinds of enforcement action it can take.
For example, a number of rabbis nowadays assert that it is contrary to halachah to take enforcement action in planning disputes without first submitting the matter to arbitration in a Beth Din. This view is based on the idea that it is not criminal to build without planning permission, and that it only becomes illegal if the local authority decide to take enforcement proceedings, until which time planning issues are merely civil disputes between two parties. This is a fundamental misunderstanding of the nature of the secular planning law.
Building without planning permission is against the law, and can make people liable to various penalties; the fact that local authorities may decide that it is not worth enforcing the law in particular
cases is a separate matter, and does not stop the issue being one of general social regulatory importance. Although misconceived, however, this view is gaining ground within the 0rthodox world, and it certainly has the potential to bring the Beth Din system into considerable disrepute. Submitting a question to arbitration over whether or not to connive at a breach of planning law, in exchange for a payment of money, is unattractive at best and unlawful at worst.
In criminal and family matters too, in a small but significant sector of the Orthodox community, pressure is sometimes brought on people to avoid making a complaint to the police or other authorities, and either to submit to some kind of Beth Din proceedings or to drop the matter altogether. This has the potential to encourage criminals to confine their criminal activity to the Orthodox community, in the knowledge that they can then commit their crimes with impunity.
On the third of the issues addressed by Baroness Cox's Bill, discrimination against women, the Beth Din system may actually have a fairly good story to tell. In particular - and contrary to popular belief - in the areas in which a Beth Din in this country has jurisdiction, halachah does not prohibit the reception of evidence of women.
Certainly, each Beth Din would do well to overhaul its procedure and practice to ensure that it is complying with the secular law on sex discrimination; but in doing so it should not find any insuperable halachic obstacles.
This is a private peer's bill which is most unlikely to pass into law. But unsuccessful private peers' or members' bills frequently increase pressure on the government to act, and are often followed by government legislation. In any event, although it might be tactically reasonable for the Jewish community to treat this as a bill not really aimed at us, and to ignore it, that would be a shame; there are issues within the bill that are relevant to us, and it would be as well to treat it as a timely opportunity to examine Beth Din practice and procedure.
Daniel Greenberg is a member of the parliamentary team in Berwin Leighton Paisner LLP
Topic: Jewish law also poses a threat to women's rights