[Avodah] Democracy and the Beit Din

[Micha Berger]

On Mon, Mar 22, 2010 at 04:55:51PM -0400, Michael Makovi wrote:
: A taqana or gezera is valid only if the people accept it and turn it
: into minhag ha-maqom, and so no dayan or beit din has the power to
: foist unpopular laws on the people. Also, if a layman promulgates a
: new minhag and the people accept it, then it is a binding minhag
: ha-maqom, even though no dayan promulgated it...

Although the Rambam in Mamrim 2 says that beis din hagadol creates
minhagim. I suggested that the rabbinate needs to ratify a grass roots
hanhagah in order for it to become a full minhag.

...
: A beit din is a community institution, and presumably, just as the
: parnasim are appointed by the people, so too the dayanim...

Presumably, HQBH and Moshe chose the 70 Zeqeinim, and the court once
established selected their own new members.

This avoids RRW's concern about the masses running away with a Reform
Judaism. I've phrased this concern in terms of Schechter's "Catholic
Israel". It leaves to a pair of circularly defined terms.

Halakhah: that which is accepted by Catholic Israel Catholic Israel:
the community of Jews that observes halakhah

To show the absurdity, post that R Jewish worship should be considered
"halachic".

To support this assumption, note that it is the form of worship accepted
by a large number of Catholic Israel. What makes them part of Catholic
Israel? Well, notice they're following this ersatz "halakhah"!

Schechter's formulation doesn't allow for a "constitutional law",
matters that aren't up to democratic vote.

We need a body that is capable of determining with some reliability what
is and what isn't divrei E-lokim Chaim. The masses have some say in
which becomes halakhah, but even that is limited. But without divorcing
the two, the court would have a conflict of interest between appealing
to their constituents and an pure pursuit of the legal system.

In the US, the Supreme Court is appointed, not elected. I wonder if
there was a similar line of reasoning.

...
: If this is not federal ( = Latin for "covenant") Locke-ian democracy,
: then there is no such thing as democracy on earth.

Latin aside, Locke didn't posit a partnership that has its own goals. A
federation is not a beris. His legal philosophy is contractual, the goals
to be met are those of the people who enter the federation. I give up
things that mean less to me in order to get your cooperation in things
that are more important. Rather than let's join together to accomplish
something new.

Tir'u baTov!
-Micha

-- 
Micha Berger             "The most prevalent illness of our generation is
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