Le Corti di diritto ebraico in Inghilterra e la cooperazione tra autorità civili e religiose in materia di divorzio

Abstract

Rules and principles that are specific to different legal systems coexist with rules and other parallel values of religious,

cultural, and traditional nature, which can play a significant role in the lives and behaviors of many individuals. Indeed,

every believer, besides being a citizen subject to the laws of his country, is also part of a religious community and is

obliged to follow the precepts and rules of his faith. However, in a multicultural society like today’s, where different

minorities coexist, but not all recognize the clear separation between religion and law historically affirmed in Europe,

this is not without implications.

The various minorities that make up modern society, even if fully integrated into the context of the states hosting them,

maintain their identity and tend to apply their own rules internally. Just think of the social organization of Hindu

communities or the Muslim or Jewish precepts, which go beyond the personal sphere and affect areas normally regulated

by law, such as family relationships, but also contractual ones.

The simultaneous belonging of an individual to two parallel systems, legal and religious, is a phenomenon as delicate

and complex as the risk of an overlap of identities and competences, and facing this phenomenon requires a balance

between the freedom recognized to each person to profess their faith and follow its precepts, with the guarantee of equality

of every individual before the law and the general validity of fundamental principles, regardless of each person’s creed.

In this sense, the English approach appears particularly interesting, based on the idea that in a mixed and multicultural

society, national law cannot aim to impose its absolute supremacy over other rules, as this would instead lead to its

rejection. The suggested remedy is rather to allow the application of different rules, provided it’s within specific welldefined

areas and ensuring that this does not result in a conflict with the rights and fundamental principles of the legal

system, which are always guaranteed to every individual regardless of their faith and culture.

A practical application of this theory is the recognition of the members of certain religious minorities’ faculty to devolve

disputes arising among them to the jurisdiction of their religious bodies, which are attributed an alternative judicial role.

This happens in specific areas, typically those related to the personal sphere and the traditions and beliefs of each

individual, such as family relationships.

A widely debated case is that of Sharia Courts, the Islamic legal tribunals, but a less known yet equally relevant role

is that of the Jewish legal courts, traditionally called Batei Din.

In England, the oldest and most famous Jewish court is the Beth Din of London, dating back to the 18th century,

which represents the majority of British Jews. It serves two main functions: on one hand, it is a religious authority,

dealing with personal and faith matters and assisting the faithful by mediating between them or providing decisions,

called dayanim; on the other hand, the Beth Din has been expressly recognized as a ritual arbitration body by the

Arbitration Act of 1996 and can issue arbitral awards in civil matters, legally binding and enforceable if approved by

a civil court.

Even though the Beth Din cannot issue arbitral decisions in family matters under the Arbitration Act, it still plays a

role in divorce proceedings, which is relevant not only from a formal but also a substantive point of view.

The Jewish religious tribunal, therefore, although less known than other religious courts operating in England, has a

particularly significant role in the alternative resolution of disputes in the family sphere and is a clear example of

cooperation between civil and religious authorities.

The aim of this work is to analyze the dual role of the Jewish Beth Din in the English legal system with reference to

divorce proceedings, which fall within its competence as a religious authority.