Emancipation and individual freedom - destroyed the viability of Beis Din

Justice Menachem Elon (Mishpat Ivri Chapter 41): THE PERIOD OF THE EMANCIPATION

A. Internal-Spiritual and External-Political Changes

A fundamental change in the historic course of Jewish law took place in the eighteenth century with the advent of the Emancipation and the abro­gation of Jewish autonomy. The story of the termination of Jewish auton­omy in general, and of Jewish juridical autonomy in particular, has been widely documented in recent historical studies and need not be repeated here. 1 As already noted.2 two factors supported and explain the persistence of a living and functioning Jewish legal system not withstanding the lack of political sovereignty and of a territorial center. The first factor was the integr­al discipline of traditional Jewish society, which, rooted in religious and national imperatives. felt bound to govern its everyday life by Jewish law. The second factor was the existence of the corporative state; by virtue of its political structure, the state allowed autonomous bodies possessed of jurid­ical authority to exist within its boundaries and, indeed, for various reasons already discussed. even had a positive interest in promoting the existence of such autonomy.

In the eighteenth century, however, both these factors underwent a radical change. From the political perspective, as a result of the movement toward equality before the law for all citizens, including Jews, the European countries, in quick succession, withdrew from their Jewish communities the power, even in civil litigation, to compel Jews to submit to adjudication before Jewish courts. The use of the ban, as well as other methods of en­forcing the judgments of Jewish courts, was also prohibited. Important as the political factor was, however, the primary cause of the progressive dis­use of Jewish law in practical life was the change wrought by the Emanci­pation in the social and spiritual life of the Jewish people, and the conse­quent erosion of the internal discipline that had been largely responsible for the vitality of Jewish law in the everyday life of the community. Up to that time, the Jewish community had regarded Jewish law as the supreme value by which all activities were to be measured; but the Emancipation split the community-some still followed the tradition, but others felt no obligation to do so.

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I. See S.w. Baron, The Jewish Community, II, pp. 35 Iff.; Y. Kaufmann, Golah ve-Nekhar [Exile and Estrangement). II, 1930; J. Katz, Tradition and Crisis, eh. XX, pp. 2 I 3ff.; Assaf. Battei ha-Din, pp. 5-6; A.H. Freimann, "Dinei Yisrael be-Erez Yisra'el" [Jewish Law in the Land of Israel). Luah ha-Arez, 1946, pp. I l Off.: S. Ettinger, "Toledol Yisra'el ba-Et ha-Had­ashah" [History of the Jews 'in the Modern Period). in H.H. Ben-Sasson. Toledot Am Yis'ra 'el [History of the Jewish People]. vol. 3, 1970, pp. 17-137.

2. Supra pp. 3-39.