Among students of Jewish history, the Premier of Ontario's recent decision to abolish all of the province's religion-based courts evoked feelings of déjà vu. Ever since Jews were first offered civic equality in European society, in the context of the Enlightenment and the French Revolution, the argument was put forth that we cannot claim the rights of citizenship as long aw we are still clinging to our own separate system for administering civil law. This principle was accepted even by liberal advocates of Jewish rights, such as C. W. von Dohm in his treatise On the Civil Improvement of the Jews (1781). The premise was acknowledged wholeheartedly by many Jewish thinkers and communal leaders.
The pioneer of Jewish Emancipation, Moses Mendelssohn of Dessau, was especially zealous in his quest to abolish the institution of herem, the ban of excommunication and social ostracism that served as the Jewish community's main instrument for enforcing its decisions.
For Mendelssohn, this was not merely a tactical question of accommodating the demands of the gentile authorities, or even of maintaining a consistent separation of church and state. He was convinced that coercion was utterly antithetical to any legitimate form of religion; and that Judaism, as an enlightened faith, must allow its adherents to make free moral and theological choices, guided by their God-given intellects and proper moral instruction. Mendelssohn regarded the herem and other forms of religious coercion as vestiges of medieval obscurantism, copied from the ecclesiastical controls exercised by the Catholic church.
In 1806, when the Emperor Napoleon solemnly convened his Assembly of Jewish Notables, he confronted the delegates with discomforting questions about whether the rabbis wielded police jurisdiction or judicial force over their flocks. The respondents, including the foremost religious and communal leaders of the French and Italian Jewish communities, were quick to reassure the Emperor that the existence of rabbinic courts was not essential to the Jewish religion; and that where such tribunals did exist, it was purely by customary usage, and only with the approval of the gentile government. In support of their claim, they pointed out how rabbinic courts had been completely suppressed in France and Italy since the French Revolution, and that the Jews of Napoleon's empire were perfectly content to confine the roles of their rabbis to clerical, educational and ritual activities.
I do not know how sincere these Jewish delegates intended to be in their declarations, but the historical record paints a decidedly different picture of judicial autonomy in Jewish tradition. The sages of the Talmud were resolute about forbidding Jews from taking their civil cases to gentile courts, even in matters where their laws were identical to those of the halakhah. The rabbis derived this prohibition from the words of Scripture (Exodus 21:1): Now these are the ordinances which thou shalt set before them which was read in the sense of 'before them'--but not before the gentiles.
This principle was formulated at a time when the Roman government was determined to prohibit the operation of an independent Jewish judiciary. Some midrashic sources went so far as to equate recourse to non-Jewish courts with treason and apostasy: One who forsakes the Jewish judges to go before the gentiles--has firstly renounced the Holy One, and afterwards renounced the Torah...
Among the medieval authorities, there was only one situation in which recourse to foreign courts was seriously contemplated--in cases where a litigant refused to acknowledge the authority of the rabbinical court. Rav Paltoi Ga'on, the ninth-century head of the Babylonian academy, ruled that in such circumstances, the other litigant was entitled to seek redress in a gentile court with greater powers of enforcement.
Even this concession was too much for most Jewish authorities. Rabbi Moses Nahmanides doubted whether a true Ga'on could have issued such a decision, and declared that it was permissible, at most, to appeal to non-Jewish authorities in order to enforce a decision by the Jewish court--but not to have cases adjudicated by them in the first place.
In both Christian and Islamic lands during the Middle Ages, Jewish communities were usually given the right to administer their affairs according to the halakhah, which covered most areas of civil law. This privilege included the power to enforce the courts' decisions by means of coercive measures such as lashes and the herem.
As the emancipation spread through Europe, the decline of the Jewish civil court system occurred almost instantaneously, in spite of impassioned protests of some leading rabbis. Some authorities found theoretical justifications for the new situation.
As in our current situation, it was common to cite the talmudic maxim the law of the land is the land. In its original context, however, that rule had a relatively narrow scope, mainly for purposes of recognizing the validity of transactions that were conducted according to gentile law. Until modern times, it was never invoked to justify recourse to gentile tribunals.
Some authorities, such as Rabbi Isaac Elhanan Spektor of Kovno, proposed a historical justification for permitting the use of gentile courts. He argued that the original prohibition had been decreed in ancient times, when all foreigners were idolaters. Clearly, this was no longer the case. In our own days all these matters should be adjudicated according to the laws of the state, and we should not, God forbid, question their reasons or motives.
Although no modern nation-state allowed its Jewish communities the degree of legal autonomy that had prevailed in medieval times, it was widely accepted that those few Jews who preferred to avail themselves of rabbinical courts could do so in the form of arbitration tribunals, provided that all the parties agreed to be bound by their verdicts. In some circumstances, notably when there was a need to compel recalcitrant husbands to issue religious divorces, or pay alimony and child support, arrangements were put in place in some localities so that the state would enforce compliance with the decisions of the Jewish judges.
This transformation of the status of Jewish law is startlingly apparent in the literature of the responsa, the questions that were addressed to halakhic authorities on matters of Jewish law. If one looks at collections of responsa that were composed prior to the Emancipation, it is clear that the overwhelming majority of queries dealt with matters of civil and family law, and only a tiny proportion with rituals, liturgy and the like. After the Emancipation, the proportions quickly reverse themselves, reflecting the degree to which Jewish law has been evicted from the court and marketplace, to be confined to the home and synagogue.
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