[Avodah] Democracy and the Beit Din

[Michael Makovi]

> This certainly gives license for l'mashal BD X to retroactively reject
> conversions of BD Y - if/when BD X deems BD Y's methods as inauthentic.
>
> RRW

Indeed. If one BD determines that the eidim of another BD were invalid
eidim, or that the mikvah was not kosher, or that the milah was not
kosher, etc. etc., then indeed, the giyur may be revoked. But if the
second BD is basing itself on fallacious readings of the Gemara, such
as by ignoring the sugya (or baraita? - I forget) about the ger who
rises from the mikvah and immediately joins a passing troupe of
idolaters, and yet whose giyur is valid - then this second BD's
revocation is valueless and irrelevant. If the second BD is ignoring
how many poseqim were willing to convert the non-observant (Rabbi
Benzion Uziel, Rabbi D. Z. Hoffman, Rabbi Isser Yehuda Unterman), and
pretending that these poseqim didn't exist, then that second BD's
revocation is nothing. Or as Rabbi Henkin's article in Hakirah showed,
the laws of Hoshen Mishpat do not in any way permit Rabbi Sherman's
conclusion that Rabbi Drukman is an invalid dayan; IIRC, Rabbi Henkin
concluded that even if Rabbi Drukman's opinions are all wrong, he
would still be a valid dayan according to Hoshen Mishpat. But if the
second BD has real basis for annulling the conversion, such as by
saying that the eidim were not shomrei shabbat, then this revocation
is valid.

> Suppose a community wants to DEFY the Torah and - as a result - the
> Beth Din then imposes tyrannical methods to enforce the Torah - Who
>wins? Who trumps?
>
> RRW

Indeed, to enforce the Torah against one's will is perfectly valid,
just as one may enforce the prohibition against murder, no matter how
much the murderer protests. This is logical; why on earth should the
protests of the sinner mean anything? Of course the sinner protests!!!

Then again, none other than Hazal were willing to use creative methods
to effectively nullify the laws of mamzerut and the death penalty. Lo
bashamayim hi, and if G-d wants the Torah's penalties upheld, then let
Him enforce them. If G-d wants sinners dead, then let Him kill them.
Also, all punishments require warnings by eidim, which means the
sinner must be b'meizid. If, however, the sinner is a tinoq
she-nishba, then he is b'shogeg, and he cannot be punished for his
violation of Shabbat or kashrut, etc. The Torah itself is aware that
coercion is valid only when the basic fabric of society takes
observance for granted, or when the sinner himself is aware of his
sin. But when the society does not take this for granted (cf. the
Hazon Ish on tinoq she-nishba), or when the sinner in question is
unaware of his sin (cf. Rambam on Karaites), the the Torah itself
realizes we cannot exercise coercion.

A Torah-based theocracy in Israel today would NOT entail coercion or
punishment of the non-observant, because the Torah itself commands us
not to exercise such coercion. If any frum Jew (or sect of frum Jews)
advocates coercion of the non-observant, perhaps he isn't really frum.

> Given Any BD that fails to follow Torah has gone beyond its mandate.
> Just who is the arbiter that a given BD has failed to live up to Torah's
> dictates? [As with the giyyur controversy above]
>
> RRW

Every Jew who has learned the Torah is an arbiter. Unfortunately,
machlokets have proliferated, and we have two batei din in one city,
as it were, etc. This is a tragedy, and there's little we can do about
it, until we somehow reunify the Jewish people. But the principle
remains that (to borrow the title of the book by Scottish Calvinist
preacher Samuel Rutherford) lex rex ("The law is king"), and not rex
lex ("The king is law"). Or as Thomas Paine says in "Common Sense",
"But where says some is the king of America? I'll tell you Friend, he
reigns above, and doth not make havoc of mankind like the Royal of
Britain. Yet that we may not appear to be defective even in earthly
honors, let a day be solemnly set apart for proclaiming the charter;
let it be brought forth placed on the divine law, the word of God; let
a crown be placed thereon, by which the world may know, that so far as
we approve of monarchy, that in America the law is king. For as in
absolute governments the king is law, so in free countries the law
ought to be king; and there ought to be no other. But lest any ill use
should afterwards arise, let the crown at the conclusion of the
ceremony be demolished, and scattered among the people whose right it
is."

Michael Makovi