Cowen, Chaim (2025) Facilitating a functional commercial Beth Din operating within the Australian legal context by advancing greater accommodation between Jewish and Australian law. PhD thesis, Victoria University.

Abstract

This thesis explores the integration and accommodation of Jewish law within the Australian legal context, focusing on the establishment and operation of a commercial Beth Din (Jewish court) that adheres to both Jewish and Australian legal principles. The research employs a comparative law methodology, legal research methodologies, and a pragmatic methodology towards the empirical data gathered from interviews with dayanim (Jewish law judges) and other stakeholders in the USA and Israel. The study begins by examining the jurisprudential underpinnings of Jewish law, distinguishing between issura (ritual law) and mamona (commercial law), and their interaction with secular law. It then delves into the historical and contemporary context of religious arbitration, legal pluralism, and multiculturalism, highlighting the challenges and methods of accommodating religious arbitration within secular legal frameworks. The thesis analyses best practice from Battei Din (Jewish courts) in the USA and Israel, focusing on their structure, processes, and integration with secular law. Key areas of potential conflict between Jewish and Australian law are identified, including the suitability of the zabla method (where litigants take part in selecting dayanim), the principle of dina demalkhuta dina (the law of the land is law) and the requirement for reasoned judgments. The research proposes methods of accommodation to ensure compliance with Australian arbitration law whilst maintaining the integrity of Jewish law. The historical background of the Melbourne Beth Din is also explored, tracing 150 years of operation, including the loss in communal confidence due to a half century of mismanagement followed by its corporate restructure and the installation of a board of governance. The thesis concludes with a proposed working model for a commercial Beth Din in Australia, aiming to build communal confidence and ensure the enforceability of its awards by secular courts. Recommendations include the adoption of transparent procedural rules, the inclusion of subject-matter experts, and the establishment of an internal appeals process.

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