Parashas Mishpatim begins with the words: “And these are the ordinances that you shall set before them” (Shemos 21:1). Based on the Pasuk, the Gemara (Gittin 88b) cites the following teaching: “R. Tarfon said: Wherever you find gentile courts, even if their law is the same as Jewish law, you must not turn to them, as it says, ‘These are the ordinances that you shall set before them’—before them, and not before gentiles.”
This is the basic source of the well-known prohibition against going to non-Torah courts. As the Rambam writes (Sanhedrin 26:7), this is a severe transgression: “When a person has a judgment adjudicated by gentile judges and their courts, he is considered a wicked person. It is as if he disgraced, blasphemed and raised his hand against the Torah of Moses our teacher.”
What is the nature of this prohibition? Does it apply even when the litigants accept upon themselves the authority of the secular court? What are the ramifications when a plaintiff takes his case to court? And what is the status of secular courts of law in Israel today?
These questions, among others, are discussed below.
The Basic Prohibition
As noted above, the Gemara cites an unequivocal prohibition against adjudicating one’s legal disputes in a non-Torah court of law.
The Talmudic ruling mentions specifically the courts of idolaters. Rashi explains that bringing a dispute before idolaters, “desecrates the Name of Hashem and values idolatry, as it is written, ‘For their rock is not our Rock, even our enemies are judges’—when our enemies are judges, it is a testimony to the superiority of their idol.” This raises the possibility that the prohibition applies only to idolaters, and not to non-Torah courts of those who are not idolaters.
However, the unanimous consensus of halachic authorities is that the prohibition applies in full force even to non-idolatrous gentiles. This is ruled explicitly by the Tashbatz (Vol. 2, no. 290), in reference to Muslims, and the same ruling is echoed by the Beis Yosef (Choshen Mishpat 26:3) citing the Rif (see also Kenesses Hagedola, Choshen Mishpat 26:1; Shut Minchas Yitzchak Vol. 4, no. 52).
The Tashbatz understands that the prohibition is a Torah mitzvah, and this is also the position of many additional authorities (see Ran, Sanhedrin 2b; Ramban, Sanhedrin 23a; Shut Radvaz Vol. 1, no. 172; among others). However, some authorities understand that the prohibition is certainly from the Torah since it involves chillul Hashem and rebellion against the Torah. Nevertheless, since the prohibition is not explicit in the pasuk and there is no specific pasuk which states the issur, it is not counted as one of the six hundred thirteen mitzvos.
Accepting the Ruling of Courts
Are Jewish parties allowed to agree to adjudicate their case in front of non-Jewish courts?
In addition to the prohibition against going to non-Jewish courts, Chazal mention a parallel prohibition against adjudicating a case before laymen—individuals who are not qualified to serve as decisors of Jewish law.
The Ramban (Commentary to Torah, Shemos 21:1) distinguishes between the two prohibitions: “Although the Sages mention these two groups together, there is a difference between them. If litigants are willing to adjudicate their case before a Jewish layman, and accept him upon themselves, it is permitted for them to do so, and they must abide by his decision. But to come before non-Jews to act as judges between them is forbidden under all circumstances, even if their laws for that particular case correspond to ours.” A similar position is adopted by the Ran (Chiddushei HaRan, beginning of Sanhedrin).
The reason for this is that even when done willingly, and even though the general rule is that two parties are allowed to stipulate not according to Torah law in monetary matters, adjudicating before a non-Jewish court remains forbidden. It gives recognition and value to a non-Jewish system and thus involves a desecration of Torah law.
For example, in a case of inheritance law that was taken before non-Jewish courts, the Rashba (cited by the Beis Yosef, Choshen Mishpat 26) rules that the ruling of the court is invalid (even though it followed the Jewish custom of the place) and relying on the ruling “uproots the entire Torah.” The Rashba emphasizes that neither the concept of dina demalchusa (law of the land), nor the principle whereby it is permitted to stipulate not according to Torah law, can circumvent this prohibition.
The Shulchan Aruch (Choshen Mishpat 22:2) rules that although one may accept a non-Jew as a valid witness in his case, one may not accept a non-Jew as a judge, and “it is forbidden to adjudicate before him.” The Shach (22:15) disagrees with this ruling: he writes that the prohibition refers specifically to a non-Jewish court and legal system. However, if the parties accept upon themselves the judgment of an individual non-Jew, who rules by his own understanding rather than by a non-Jewish legal system, the acceptance is valid and permitted.
The prohibition against adjudication before non-Jewish courts applies even when the judge is Jewish. As noted above, the identity of the judge is not the main consideration, but rather the system by which he is adjudicating the case. An acceptance of a non-Torah law system is considered a repudiation of Jewish law, and therefore prohibited whether the judge is Jewish or not.
A similar argument applies to the secular courts of law in the State of Israel. We find in the Gemara (Sanhedrin 23a) a judicial tribunal called Arka’os Shebe’Suryia—“Syrian Courts.” These courts were manned by judges who were not knowledgeable in Torah law, and they ruled based on common sense and the common custom (see Rashi). While they cannot impose their authority on litigants, when both parties accept their authority, their decision is binding. Can Israeli courts be considered like the Talmudic precedent of Syrian Courts?
The Chazon Ish explains that this is not the case. The Syrian Courts were comprised of judges who were illiterate in Torah. They could not judge by Torah law, and therefore ruled by common sense—what we might call equity. Based on the Rashba (cited in Beis Yosef, Choshen Mishpat 8), he explains that such non-qualified judges do not involve the prohibition of non-Jewish courts. By contrast, since the Jewish state rejects Torah law in favor of an alternative system, by which it legislates and adjudicates, accepting them is again giving value to an alternative system and thus repudiating Torah law.
The Chazon Ish writes that, “Even when there is no judge who can rule by Torah law, and they must appoint a wise person who will adjudicate by human morals, it is forbidden to accept non-Jewish laws or to legislate them. Rather they should adjudicate each case as someone sees fit. This is included in pesharah, and it does not denote an abandonment of the living waters in favor of broken pits.”
He adds that in the case of Jewish judges and the Jewish State, the case is still more severe than the regular prohibition of non-Jewish courts, since, “they replaced Torah laws with laws of emptiness. If the inhabitants of a city agree upon themselves [such laws] the agreement is invalid, and if they enforce them this is a law of theft, and they raise their hand against the Law of Moshe” (Chazon Ish, Sanhedrin 15:14).
Rabbi Herzog, the first Chief Rabbi of Israel, reiterates this position, writing, “When the Jewish people in their land adjudicates by foreign laws it is a thousand times worse than the case of a Jewish individual or community that goes before non-Jewish courts.” He adds that although there is no claim of an alternative religious source for modern law, its adaptation remains “a rejection of the Divine Torah as received and interpreted by the prophets and by our rabbis and authorities, from Moshe Rabbeinu until today” (Hatorah Vehamedina, Vol. 7, pp. 9-10).
Ramifications of Going to Court
The Rema rules that if a person brings a case to secular courts of law and loses the case against his litigant, he loses his right to later bring the case to a Jewish court of law (Choshen Mishpat 26:1).
Nesivos Hamishpat (26:2) offers two explanations as to why this is so. One explanation is that since the relevant litigant accepted the authority of the court upon himself, he cannot reverse his prior acceptance. A second explanation is that this is a penalty: although the ruling of the court is not binding (as explained above), the law penalizes the litigant who chose to adjudicate his case in court and beis din refuses to re-adjudicate the case.
The Nesivos writes that a practical difference between the two explanations arises in a case when the judge was bribed. Under such circumstances, his ruling is surely not binding, so that according to the first explanation, Beis Din will accept the case. However, according to the second explanation, the penalty imposed by Beis Din will still apply. Since we do not find authorities who raise this and similar distinctions, the Nesivos concludes that the penalty theory is the more correct explanation (see also Biur HaGra 26:4).
Some authorities discuss the possibility of applying the penalty theory for somebody who begins to adjudicate his case in court, even if a decision has not yet been given (see Shut Imrei Yosher no. 36; Shut Lev Aryeh no. 51). They note that the simple reading of the Rema implies that the halacha relates specifically to instances in which the decision was given, and the Nesivos, who does not mention this simple difference between his two explanations, also implies that it will apply only after the decision was given.
Some authorities note that we wish to provide the respective litigant with an opportunity to repent, by leaving court and turning to Beis Din (see Imrei Yosher; Erech Shai, Choshen Mishpat 26;). Teshuvas Vehanhogos (Vol.3, no. 441) explains that taking a case to secular court is not a one-time violation, but rather one violates the prohibition the entire time his case is in secular court. Therefore, we wish to cease his violation of Torah law. The Imrei Yosher offers a similar explanation, that when the verdict is given the litigant again violates the prohibition. The Imrei Yosher adds that even before the final decision is given there are instances where we will not accept the case. For example, if the defendant was made to swear by the secular court and then the plaintiff asked to go to beis din, his request should be denied
Shut Divrei Chaim (Vol. 2, no. 1) rules that if the plaintiff who initially turned to court, now wishes to return to Beis Din, the defendant must follow suit, provided the plaintiff reimburses him for expenses incurred in his defense in court.
However, the custom of the Edah Charedis, as noted in Shut Teshuvos Vehanhagos (3:443), is not to hear any case previously brought to secular court, even if no decision was given. He explains that although the strict ruling of the Rema may not apply, this customary practice aims to enforce the prohibition against going to secular court.
We have not discussed exceptions to the rule. Under which circumstances is it permitted to go to secular courts? What must a person do when awarded compensation by a secular court that exceeds the amount by Torah law? What should a person do if threatened with imminent loss? We will please G-d discuss these issues in next week’s article.