Rabbinical
arbitration has existed for two thousand years, but remains largely unknown.
After a long period of decline which lasted until the middle of the twentieth
century, it is now in widespread use, and is participating in a renaissance of confessional
arbitration throughout the world. Even though it applies fundamental mechanisms
which are familiar to us, it is singular in several respects, the most significant
being that rabbinical arbitration is not a form of alternative dispute
resolution. For members of a Jewish community, it is — or should be — the
principal mode of dispute resolution since, in principle, recourse to secular
courts is prohibited by Talmudic law. Our study will start with the very nature
and scope of this prohibition. Certain aspects of procedure before rabbinical
tribunals also merit close examination. After having explored arbitration from
an “internal” perspective, i.e. from Talmudic sources, we will examine this from
an “external” viewpoint, i.e. from that of the law of nations, in other words
the national legal system into which it must be inserted. Such insertion is not
straighforward, since even though Talmudic law and the law of nations diverge
in many respects by reason of their radically different nature (one is
revealed, the other is contingent), in other respects they appear to be on a
head-on collision course (witness evidence from women, inheritance rights in particular).
This therefore raises questions as to the recognition and enforcement of rabbinical
arbitral awards, and on the role of public policy in this respect.