JUDAICA - Wisdom In Torah

et din and judges
ter shall not be heard.” The courts interpreted this section as
meaning that the rabbinical court and the civil courts have
parallel jurisdiction over the wife’s maintenance when the
case is unrelated to divorce. In these cases, the wife is entitled
to apply to either court at her own discretion, and the forum
that she turns to first acquires exclusive jurisdiction to adjudicate
the matter of her maintenance. Having chosen either of
these forums, she is no longer permitted to switch to another
forum at a later stage.
(c) In matters of ḥaliẓa (levirate marriage, see *Levirate
Marriage and Ḥaliẓa) and maintenance until the day of the
haliẓa – the rabbinical court has exclusive jurisdiction (sec. 5
of Jurisdiction Law).
(d) The jurisdiction law enables consensual jurisdiction:
In the specific matters of personal status over which the rabbinical
court does not have exclusive jurisdiction under the
Jurisdiction Law, the rabbinical court can acquire jurisdiction
provided that all the parties concerned have expressed their
consent to its jurisdiction (sec. 9 of the Jurisdiction Law).
The rabbinical court also has jurisdiction under other
laws. For example, section 155 (a) of the Succession Law
5725 – 1965 provides that the rabbinical court is authorized
to issue a succession order, a probate order, and to rule on
maintenance from an estate, if all the parties concerned have
given their written consent thereto (for the interpretation of
this section, see also in decision of Justice M. Elon, CA 807/77
Sobol v. Goldman 33 (1) PD 789, 798 (hereinafter: Sobol). Similarly,
the rabbinical court has exclusive jurisdiction in any
matter relating to the creation or the internal management of
a Wakf or a religious endowment that was established in accordance
with Jewish Law (see sec. 53 (a) of the Kings Order
in Council, 1922.)
THE STATE’S AUTHORIZATION FOR DECISIONS OF THE RAB-
BINICAL COURT. In all of the matters under rabbinical court
jurisdiction, the decisions and orders of the rabbinical court
are enforced by the executive authority of the State, the Police
and the Execution (civil) framework pursuant to section 1 of
the Execution Law, 5727 – 1967. The court decisions enforced
and executed by the Execution Office include decisions of a religious
tribunal (including the rabbinical court). The rabbinical
courts system is also empowered to summon witnesses and
litigants, to issue restraining orders against leaving the country,
and to impose liens. All of these powers are conferred by
Knesset legislation, which even imposes the sanctions under
the Contempt of Court Ordinance for a person who refuses to
comply with the orders of the rabbinical court. (See: Religious
Courts (Summons) Law; sections 6 and 7 of the Contempt of
Court Ordinance, which applies to the rabbinical court by
force of section 7A of the aforementioned law.)
In 1995 the Knesset adopted a law empowering the rabbinical
courts to impose a series of sanctions, extending to
imprisonment, in order to enforce a divorce judgment. (see
at length in the entry *Divorce (Enforcement of Divorce in
Israel).
THE LAW APPLYING IN THE RABBINICAL COURTS. Since
their establishment during the period of Ottoman rule, under
the British Mandate, and even after the establishment of the
State of Israel, the rabbinical courts have applied and implemented
Jewish Law, i.e., the Jewish religious law, which rabbinical
courts have applied since ancient times. Where it concerns
laws of personal status and ritual law, this phenomenon
is anchored in the very act of conferring jurisdiction to rabbis,
the assumption being that they will operate in accordance with
the dictates of their religious convictions and will not deviate
from the dictates of the halakhah. Hence, in the case of Skornik
v. Skornik (CA 191/51 8 PD 141, per Justice S. Agranat) the rabbinical
courts did not apply the rules of private international
law, exercising instead the evidentiary and procedural rules
of the halakhah (traditional Jewish law).
Both the Mandate Legislature and the Israeli Legislature
recognized the rabbinical court’s subordination to the Jewish
religious law, and consequently they significantly curtailed
the number of laws directed at the rabbinical courts. In the
isolated laws containing provisions directed at the rabbinical
court, the rabbinical court had a monopoly over its interpretation
Nonetheless, in 1994 the Supreme Court ruled that the
rabbinical courts were obligated to apply the doctrine of joint
matrimonial property, a doctrine based in Israeli commonlaw
and not the provisions of Jewish law on the matter (HC
1000/92 Bavli v. Rabbinical Court of Apeals), 48 (2) PD 221).
This signaled a new direction in High Court policy, curtailing
the powers of the rabbinical court by compelling it to apply
Israeli Law, and as such was criticized
CIVIL LAW IN THE RABBINICAL COURTS AND A WRIT OF
REFUSAL. Apart from its powers in defined areas of personal
status in which Israeli Law confers jurisdiction to the
rabbinical courts, it must also be remembered that throughout
Jewish history rabbinical courts have always adjudicated
disputes brought before them by two Jews. Today too, the
rabbinical courts continue to function in this format. In such
cases, from the perspective of Israeli law, these cases have the
status of arbitration cases, and following the confirmation of
the civil courts, the decisions are enforceable. Absent an arbitration
agreement, the rabbinical court has no jurisdiction
(see HC 2174/94 Kahati v. Rabbinical Court of Appeals, 50 (2)
PD 214). On the other hand, signing an arbitration agreement
is not required under Jewish Law, and in the State of Israel this
measure is only adopted as a means of making the rabbinical
court’s decision enforceable under the Arbitration Law,
5728 – 1968 (see decision of Dayyan, Harav Dickhovsky, File
14603/5743, as cited in the Weiss case, ibid., 619)
Throughout Jewish history, where people refused to litigate
before the Jewish rabbinical courts, an excommunication
order (ketav siruv) was issued against them, intended to compel
the defiant litigant to appear before the rabbinical court
and accept its jurisdiction over the case, owing to fear of the
pain of excommunication should he refuse to do so. When a
decision had already been given, the excommunication or-
520 ENCYCLOPAEDIA JUDAICA, Second Edition, Volume 3