Nezikin- the part of the Torah that we can change

The basis

Anyone who has learnt even a small part of Seder Nezikin (the part of gemara yeshivos tend to concentrate on the most) will have an idea of how intricate and detailed the Torah’s civil law is. The intellectual capabilities of Chazal, together with the huge amount written later to explain this part of the Torah, tend to make a deep impression on all those who put in the effort to understand them.

Something that is perhaps less well known is how limited the practical application of these laws is. Although it is obvious to all that cases of goring oxen and similar things are rare, we might like to think all financial disputes that come to Beis Din are resolved by rules derived from the cases in the gemara. While in principle this is true, and it does happen, in the vast majority of cases there is another major factor.

Legislation

Unlike other areas of the Torah, when it comes to civil law there are many mechanisms for making changes. Firstly, Batei Din have the right to confiscate assets.[1] Although for practical reasons this is rarely applied in new ways,[2] many of the existing laws in the gemara were made using this principle.¹

The more relevant point here is that even without Beis Din, any community has the power to make their own civil institutions.[3] How exactly this is applied is complicated, but the guiding principle is that all the rules can be fixed by the community and its representatives.[4] Many such new rules have been made historically, and were already incorporated into the Shulchan Aruch.[5]

Clearly there are limits to this. A community certainly cannot decide to rescind the prohibitions of taking interest or bribery. Since the underlying idea here is that mutual agreement can be extended to a communal level, rights that individuals cannot forgo also cannot be nullified by the public.

What defines what can or cannot be forgone by individuals or a community? I have not found anything written pinpointing this, but I think it makes sense to say that the limit is uprooting a commandment. Thus we cannot agree to interest payment, against the specific instructions of the Torah. But there is no commandment obligating Beis Din to apply specific rules of damages, property acquisition and similar things.[6]

How this is applied today

To the best of my knowledge, all batei din agree to the basic idea that I have described until now. Nevertheless, how widely it is applied differs from place to place. For example, all apply the rules of accepted practice in dealing with communal areas of buildings, but some stick to the Torah’s rules when it comes to things like damages. [7]

Probably the main (justifiable) reason for this is that different sectors of the community accept different areas of common law to different degrees. It is fair to assume that two Satmar Chasidim who start a business partnership do so under the understanding that Torah law, and not common law, will apply (I once heard from a judge that a secular court would also assume this, and act accordingly).

This aversion to common law is certainly not limited to Satmar Chasidim. With regard to some practices of the secular courts the consensus is that Torah law remains morally superior, and that there is no reason that the religious community should accept them.[8] Unlike the model Chazal describe, nowadays there is no body whose authority is clearly accepted by the entire religious community, which explains the different practices of batei din.[9]

The need for modernisation

If we want to facilitate the acceptance of the authority of the Torah by the wider community, it is imperative to change the common perception that batei din follow antiquated laws that are not capable of governing modern society. It is part of the job of the batei din to keep in touch with what is necessary for the times, and I will try to illustrate this with two examples.

The gemara tells us that one who causes damage indirectly is exempt from payment.[10] The logical basis for this may be the advantage of uniformity, due to the difficulty in pinpointing exactly when damage really was the result of human action.[11] The modern world simply cannot function under a system where the damaged has to bear losses like this, and the damager is not held accountable for his actions. Most batei din nowadays do in fact enforce payment in such cases.[12]

A major discussion amongst contemporary poskim is whether the Torah recognises the concepts of intellectual property and copyright.[13] It is very hard to find any basis for this in the classical sources. However, as I once heard from R’ Shlomo Fisher (who believes strongly that there is no halachic basis for this), it is imperative on the rabbis of communities worldwide to institute new decrees to forbid breaches of copyright law, and to punish violators where practical.

The difference between batei din and secular courts

The logical conclusion of all of this is that apart from the (significant) issue of who pays the legal bill, there should be little difference in practical outcome of most cases. Why then is it so important that people take their disputes to beis din?

Firstly, there is one important procedural difference. In secular courts, the main cases of both sides are presented by lawyers. The litigants themselves may not even say a word. Although most modern batei din also allow lawyers to speak, they will first hear the arguments of the litigants themselves. There is no ‘fifth amendment’, and the dayanim will always interrogate the litigants as well as other witnesses, in order to have the best chance of bringing out the truth.

Chazal frown upon the idea of a person advocating for another in court,[14] and they had not even seen the concept of someone who makes his entire living by doing this.[15] By now the amount of falsehood that the modern court system leads to is well known, and this advantage that batei din have should be clear to all.

There is also a deeper issue here, which would apply even if secular courts did away with their current system. The Rambam writes:

"כל הדן בדיני גוים ובערכאות שלהן, אף על פי שהיו דיניהם כדיני ישראל, הרי זה רשע וכאילו חרף וגדף והרים יד בתורת משה רבינו." (סנהדרין כו, ז)

“Anyone who litigates using the laws of non-Jews or in their courts, even if their laws were identical to Jewish laws, he is a rasha and it is as if he has blasphemed and raised his hand against the Torah of Moshe Rabeinu.” (Sanhedrin 26:7)

There are a few things that can be inferred from these words of the Rambam here. Firstly, the reason for this prohibition is nothing to do with the laws themselves. Based on what we have seen already, this should be clear. Secondly, the strong language indicates that we are dealing with a serious violation.

We can also understand the inherent logic behind this prohibition, and its severity. When we go to beis din, even if the rabbis have used their authority to legislate based on the needs of the generation, we demonstrate our subservience to Hashem and His Torah. One who decides to go elsewhere shows that he holds something else in higher regard than the Torah, chas v’shalom.[16]

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[1] See Gitin 36b. One important example is that although the Torah obligates a paid worker for any reasonably avoidable damage that he causes, Chazal instituted that barrel transporters who slip and break the barrel are exempt from payment after taking an oath that it was unintentional. This was necessary so that people would accept such jobs (Bava Metsia 82b-83a).

[2] Mainly because Batei Din usually do not have the power to do this under secular law.

[3] See Bava Basra 8b-9a. This principle should not be confused with the concept of ‘dina demalchusa’, which deals with rules imposed on the community by a non-Jewish ruler.

[4] The details of this can be seen in Choshen Mishpat 231:28. Although this kind of legislation is subject to the approval of the ‘distinguished person’ of the community, and some explain that Torah scholarship is a critical part of this distinction, where there is no such person no other approval is necessary. As our communities do not have one person like this appointed over all communal issues, this condition is largely irrelevant.

[5] For example, the Geonim instituted that debts can be collected even from the movable items inherited from the debtor. Although we explained in How does halacha work? that the authority of the Geonim was not absolute, this and other institutions eventually became universally accepted (although in the times of the Rambam this was not the case, see Hilchos Malve v’Loveh 11:11).

[6] Although Beis Din are instructed to judge these cases, the details of when and how the rules are applied are not mitzvos. See for example the Rambam’s list of positive mitzvos, 237-248.

[7] See this article (from T’chumin, in Hebrew) for a comparison of protocols of different batei din, together with further halachic analysis.

[8] For example, in secular courts the default position is that the losing party pays the expenses of the victor. In halacha this is only the case when the loser is guilty of improper conduct in the legal proceedings (see Choshen Mishpat 14:5). The feeling is that the Torah way is superior, as one who feels that they are right should not have to avoid clarifying this out of fear of financial loss. The loss of time is usually enough of a deterrent to needless claims, and in addition the practice of most batei din is in fact to award damages in the case of a needless claim.

[9] Although often the litigants in the same case are from different backgrounds, once they agree to coming to a particular beis din they accept to follow whatever rules that beis din has. In any event, for the decision of beis din to be enforceable it is necessary for both parties to sign an arbitration agreement which will include this acceptance.

[10] Bava Kamma 60a

[11] The explanation of R’ Zalman Nechemia Goldberg, based on a similar idea of the Rambam in Sefer Hamitzvos, Lo Sa’aseh 290.

[12] See this arbitration agreement, paragraph 6. The truth is that there is in fact a lot of room for enforcing payment for indirect damage even without the need for legislation. See Rambam Chovel u’Mazik 7:7, and Shach Choshen Mishpat 386:4 and 418:4.

[13] A discussion of this (in Hebrew) can be seen here. The bottom line is that it is almost unanimously agreed that practically we do enforce these laws.

[14] See Avos 1:8, Shevuos 31a, Bava Basra 174b and the commentaries thereon. There is also Biblical basis for this in Mishlei 26:17.

[15] I do not mean to imply that all lawyers are dishonest, just that the code that they work by creates huge temptations which are too much for most to resist.

[16] There are cases where it is permitted to go to a secular court, mainly when the other party refuses to come to beis din or when beis din do not have the power to enforce their ruling. See Choshen Mishpat siman 26. It is also important that one should choose his beis din carefully. Due to the lack of regulation of batei din, unfortunately some of them do not abide by basic standards required by the Torah, thus causing tremendous chilul Hashem. If the other side insists on going to such a place, this in itself may be grounds to allow going to a secular court.