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Halachic Basis of Operation
of the Beis Din
for Matters Concerning Bnei Noah
This
statement is part of a series of twenty requests for piskei din (legal
rulings) that have been submitted to the Beis Din by those who follow
its rulings. While full piskei
din (legal rulings) are in preparation, a brief summary is presented.
The summary below is
not meant to be used as a source for deriving any practical
consequences. It will
be replaced at a later date with a formal ruling.
On the 6th of Tevet, the Beis Din for Bnei Noah was asked:
Q. What is the halachic basis of operation of the Beis Din
of Bnei Noah?
How will the Beis Din function? How will it come to determination
among diverse sets of rulings given by diverse sets of legal systems.
(Rambam, Beis Yosef, Sefardic, Ashkenazic, etc)
Answer.
[The court will function as a traditional Rabbinical Court.] This is
not the first case of a Beis Din having to respond differently to
different people. A great many of the current decisors do this
regularly.
Of course in so doing one has to take into consideration the culture,
traditions and the nature of the person or community to whose need the
Beis Din has to respond.
The following is a standard description of the function of a
Beis Din. This material is not part of the Beis Din reply above,
but is presented to add context the response:
The process of deciding halakha
The boundaries of Jewish law are determined through the halakhic
process, a religious-ethical system of legal reasoning. A rabbinical
court generally bases its opinions on reviewing and determining the
concensus of 1) the primary sources of halakha, 2) precedent
set by previous rabbinic opinions. 3) expert testimony and
witnesses. Each of the above sources is weighted according to
authority and scope of the material as traditionally determined in the halakhic process.
The major sources and genre of halakha consulted include:
- The foundational
Talmudic literature (especially the Mishna and the Babylonian Talmud)
with commentaries;
- The post-Talmudic
codificatory literature, such as Maimonides' Mishneh Torah and the
Shulchan Aruch with commentaries;
- Regulations and other
"legislative" enactments promulgated by rabbis and communal bodies:
- Gezeirah:
"preventative legislation" of the Rabbis, intended to prevent
violations of the commandments
- Takkanah: "positive
legislation", practices instituted by the Rabbis not based (directly)
on the commandments
- Minhag: Customs,
community practices, and customary law, as well as the exemplary deeds
of prominent (or local) rabbis;
- The she'eloth
u-teshuvoth (responsa, literally "questions and answers") literature.
- Dina d'malchuta dina
("the law of the land is law"): an additional source of halakha,
being the principle recognizing non-Jewish laws and non-Jewish legal
jurisdiction as binding on Jewish citizens, provided that they are not
contrary to any laws of Judaism. This principle applies especially iny
areas of commercial, civil and criminal law.
In addition
a Chaver Beth/Beis Din (חבר בית דין Friend of the Court, Amicus curiae)
or other professional may be brought as an internal adviser to the
court. They may bring specialised expertise to the beth din. Often a
chaver will be a dayan with training in secular law or science, who can
share his experience and perspectives with the court. For example some
battei din that deal with issues of shechiṭṭah, may have a chaver who
is knowledgeable about veterinary medicine or meat science to assist
the court, as an expert witness.
Jurisdiction and Binding Authority of the Rabbinical Court
In antiquity, the Sanhedrin functioned essentially as the Supreme Court
and legislature for Judaism, and had the power to administer binding
law, including both received law and its own Rabbinic decrees, on all
Jews - rulings of the Sanhedrin became halakha. That court
ceased to function in its full mode in 40 C.E., and is currently only
in the very initial stages of reformation. Today, the authoritative
application of Jewish law is left to the community rabbi, and the
community rabbinical courts, with applicability only within that
community.
A ruling becomes authoritative outside a single community by
a process where halakhic
arguments
are effectively, yet unofficially, peer-reviewed. When a rabbinic posek
("decisor") proposes a new interpretation of a law, that interpretation
may be considered binding for the posek's questioner or immediate
community. Depending on the stature of the posek and the quality of the
decision, an interpretation may also be gradually accepted by rabbis
and members of similar Jewish communities.
Under this system, there is a tension between the relevance of earlier
and later authorities in constraining halakhic interpretation and
innovation. On the one hand, there is a principle in halakha not
to overrule a specific law from an earlier era, unless based on an
earlier authority. On the other hand, another principle recognizes the
responsibility and authority of later authorities, and especially the
posek handling a concurrent question. In addition, the halakha embodies
a wide range of principles that permit judicial discretion and
deviation. Generally speaking, a rabbi in any one period will not
overrule specific laws from an earlier era, unless supported by a
relevant earlier precedent. There are important exceptions to this
principle, which empower the posek (decisor) or beth din (court)
responsible for a given opinion.
However today, there have developed parallel legal systems which differ
in minor points. The Beis Din will take into account the culture,
traditions and the nature of the person to whose need the
Beis Din has to respond, and if required will respond according to the
legal system of which that person belongs.
Flexibility within the Halakha
Notwithstanding
the potential for innovation, rabbis and Jewish communities differ
greatly on how they make changes in Halakha. Notably, poskim frequently
extend the application of a law to new situations, but do not consider
such applications as constituting a "change" in Halakha. For example,
many rulings concerning electricity are derived from rulings concerning
fire, due to its physical similarity with that other form of
human-managed energy.
Throughout
history, halakha has, within limits, been a flexible system, despite
its internal rigidity, addressing issues on the basis of circumstance
and precedent. The classical approach has permitted new rulings
incorporating regarding modern technology. These rulings guide the
observant about the proper use of electricity on the Sabbath and
holidays within the parameters of halakhah. (Many scholarly tomes have
been published and are constantly being reviewed ensuring the maximum
coordination between electrical appliances and technology with the
needs of the religiously observant Jew, with a great range of
opinions.) Often, as to the applicability of the law in any given
situation, the proviso is: "consult your local rabbi or posek."
Attempting to Approximate Divine Law
Jews hold that, unlike secular precedent-based systems, halakha is
also a religious system, whose core represents the revealed will of
G-d, either directly, or as close to directly as possible. Although
Judaism acknowledges that rabbis made many additions to and
interpretations of Jewish Law, at its core is a body of law
representing the literal word of G-d revealed to Moses on Mount Sinai
through both a written Torah and an Oral Law. Judaism believes that
subsequent interpretations have been derived using principles and a
process which was divinely revealed, and implemented by previous
generations with the utmost accuracy and care. As such, one must be
extremely conservative changing or adapting Jewish law. There have,
nevertheless, been many changes including both rabbinic ordinances over
centuries, and the recent application of halakha to modern
technology.
Click here for the
original
Hebrew decision
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