Abstract The general legal system often tends to prioritize formal procedural rules over the substantive rights of the parties, emphasizing both their right and obligation to comply with those rules. This position stems from the approach emphasizing, on the one hand, the importance of stability and certainty within judicial proceedings while placing system efficiency high on the scale of procedural values, and on the other, reluctance to grant broad judicial discretion to the judge. This approach is based in the attempt to avoid rulings discriminating between identical parties as a result of an argument between judges, resting solely on value judgments. These values are often assembled under the general definition of “procedural justice”, and manufacture strict compliance and enforcement of procedural rules. This trend is also expressed by legislative intervention, determining “efficiency-oriented” rules. At the same time however, substantive justice has not been neglected, as both legislation and case law (due in part to academic writing) have allowed increased flexibility towards procedural rules in many areas, and established the importance of displaying “adequate flexibility in the special circumstances of each case” as well as the ability to forgive a procedural violation, while in some cases the pursuit of truth has been placed at the top of the value pyramid. [As to the importance of substantive justice- there is no need to elaborate here. However, we must make it clear that the approach according to which justice lies within fair procedure and the attempt to attain absolute substantive justice is a hopeless venture, is presently the accepted jurisprudential approach. This paper examines the tension between attempting to defend the substantive rights of the parties on the one hand, and the attempt to create a clear framework within which they’re forced to operate, on the other. This is the tension between substance and procedure. On the one hand of the divide stand the foundational values, such as pursuit of truth and respecting the individual’s right to justice, while on the other hand stand essential values, among them the central principles of “procedural justice”: maintaining the stability of the set of norms, creating certainty and

security for the general public and the aspiration of reaching maximum efficiency of the legal system. The tension between these values has forever served as a platform for the ongoing conflict between two approaches: The first approach, requiring strict adherence to “the letter of the law” in order to maintain proper conduct between parties, and the second approach, calling to defend the substantive rights of the violator of procedural rules, so as not to obstruct his path to justice merely as a result of technical arguments. This paper suggests that modern legal systems have created a model in order to deal with this issue. This model can be called the “circumstantial model”, and dictates not to make a clear choice between the various values previously mentioned and not to prefer one value over the other (however the exact weight of each value will be determined according to the legal system). Accordingly, the treatment of the procedural offender will be derived from the special circumstances of the case and the offender. In the case in which the procedural violation reflects contempt of the courts and the legal proceedings or when the violation has created significant reliance of the other party, the legal system will tend to obstruct the violator’s right of access to the courts while preferring procedural justice over substantive justice. In contrast, where the violation doesn’t point to contempt, but rather reflects an isolated incident or other special circumstances, the system will tend to forgive the violation, instead requiring the violator to pay expenses to the harmed party and/or the state. In Jewish Law however, one can clearly outline the approach preferring substantive rules over procedural rules, while only in the rarest of cases will the court rule solely due to procedural flaws. The rabbinical courts excel in their flexibility and pursuit of legal truth. In this paper we show that Jewish Law displays more flexibility towards procedural rules and clearly reflects an anti-formalist trend. This is expressed both by the desire to avoid determining, ex-ante, strict procedural rules, as well as the forgiving attitude, ex-post, towards those who have violated the existing procedural rules. The central guideline in this approach is the granting of significant weight to the pursuit of ii

the truth with respect to all other values. In other words, if general law supplies a “circumstantial model” for examining the treatment of procedural offenders, one could argue that the model supplied in Jewish Law is the “pursuit of truth model” (excluding the rarest of cases in which the violating party acted explicitly against the pursuit of truth). This preference towards the pursuit of truth is expressed, among other things, by the fact that generations of poskim ignored principles of procedure commonly accepted today (or, at the very least reduced their validity) which usually result in locking the doors of “access to justice” due to procedural reasons, such as: the statute of limitations, Res Judicata (claim of preclusion) and others. Additionally, Jewish Law displays a forgiving attitude towards late submission of evidence, lack of defense, broadening the scope, expanding the relief claim and others. Indeed, despite this approach, the poskim have, over the years, discovered various mechanisms through which they attempted to defend values such as certainty and efficiency and values of procedural justice in general. Nevertheless, the protection of these values was always done while causing minimal harm to the pursuit of truth, as these procedural values are on a secondary level in the hierarchy of values. In this paper we also show that the rabbinical court displays an anti-formalist approach in its rulings, as the existing procedural rules are set to be flexible, not strict. Even when a clear violation of the rules is discovered, the court tends to forgive the violator, as the courts main agenda was- and has remained- the pursuit of truth. Further, this paper demonstrates the fact that many laws concerning legal proceedings in the court (raising arguments, summoning and questioning witnesses etc.) leave much power and independence in the hands of the court, and these laws stem from the desire to pursuit the truth. Beyond displaying this model as well as the existing approaches in research, this paper lists the reasons why Jewish Law maintains such procedural flexibility, to a degree that is especially noticeable considering the strict adherence and enforcement of general legal systems described above. We note, among others: The goal of the legal process in Jewish Law, the importance of iii

access to the courts, the desire to create a certain level of comfort for the parties, the idea that the law represents “the divine truth”, the concept that in any event “[for] the judgment is god’s” (Deuteronomy, 1:17), the desire to achieve peace between the parties, the judge’s fear of deciding the law and the central theme of the legal proceedings. Following these analyses, we present a model adopting the central principles of Jewish Law and its various themes, which can also serve civil law practiced around the world. However, we suggest that this model adapt those principles to modern procedural law, while using specific procedural tools through which to ensure the principles of procedural justice (among those tools, we suggest: hardening the burden of proof, reversing the burden of proof, imposing specific fees, imposing legal expenses, guarantee and collateral, changing the method of payment of interest and indexation and more). This toolbox is suggested for the convenience of the court and will assist the judge at his discretion, in accordance with the circumstances of the violation and its consequences towards the parties, and subject to the value judgment placing the pursuit of truth at the top of the scale of values. This model adopts a new perspective towards procedural issues that we have become accustomed to viewing in a certain light. It examines the considerations and arguments at the base of each procedural rule, and produces the direct solutions to fit those considerations and arguments. In this way, the courts can impose disciplinary sanctions towards procedural violators, without harming the pursuit of truth. This paper examines the effect of the suggested model towards Jewish Law, showing that defense through additional, alternative tools will not harm the ability to pursuit the truth (mainly in accordance with the value scale set by Halakha), but rather will impose significant sanctions towards those who violate or exploit procedural rules. This will enable assisting the pursuit of truth, while also creating great motivation to carefully observe the procedural rules and conduct oneself with maximum efficiency. It seems however, that some of the solutions we suggest will not be acceptable in the framework of the rabbinical courts, as they are prohibited by the iv

Halakha, while others can be fully adopted as they are. This paper also examines methods to apply certain solutions through court fines and/or targeted regulation. Finally, this paper considers the ability to adopt the suggested model to Israeli law. We show how accepting the system of values and principles held by Jewish Law in this domain, may help solve problems existing today within the Israeli legal system. An analysis of the underlying trends indicates that a shift to the suggested model is inevitable, as this model allows the court to fulfill its obligation of proportionality in the sanction it chooses to impose due to the procedural mishap, while the case itself will not be ruled upon due merely to procedural flaws. We also show that, in any case, this model reveals a certain degree of correlation to the changes and underlying trends, as well as specific legal rules, within Israeli law. These trends include, among others: the theory of balancing values, the shift from formalism to values, the trend shifting away from binary solutions and others. As for specific legal rules, these include: relative nullity of procedure, rules concerning the treatment of procedural mishaps, rulings nullifying provisions that prefer efficiency over the pursuit of truth as unconstitutional etc. This model shows that adopting the value system with a preference towards the pursuit of truth, will assist the judge in coming to terms, emotionally, with his ruling, and will also bolster vital social trends, among them strengthening weaker sectors of society. Specific examination also shows that the solutions and tools suggested by this model integrate well within these trends, and most of them can be applied immediately, as some of have already been applied in various cases. (However, adopting all of the solutions suggested in this model will require, regarding some of them- such as imposing targeted fees- amending the existing regulation).

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approach according to which justice lies within fair procedure and the attempt to attain absolute substantive justice is a hopeless venture, is presently the ...

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