An inherent aspect of the human condition is the need for a system that defines appropriate behavior so that civil society can be maintained. Written law meets that need: it defines as crimes certain actions that are inimical to a healthy society and is used to keep society stable.
In order for the lawmakers to fulfill their legislative and judicial duty, they have to conform to contemporary values. As the historian Tacitus observed, “Corruptissima republicae, plurimae leges”: the worse the state, the more laws it has. Clearly such laws are not objectively correct; rather, they are subjectively suitable.
The power of the written law to protect individuals from one another, and against the awesome power of the state, is reflected in an inscription at Harvard Law School: “Non sub homine sed sub des et lege”: It is not by men, but by G-d and the law that we are governed. Ironically, this phrase more accurately describes an entirely different system of civil and criminal law, one based on divine, objective truth—Torah law.
While gentiles should formulate laws that are pragmatic and relevant to present needs, Jewish statute and case law reaches into the past trying to determine the Mosaic Law given at Sinai. Civil and criminal law were given by Hashem to Moshe together with the Ten Statements, not as a practical solution but as the absolute truth.
The primary function of halochos requiring payment of damages or debts is not to compensate for a loss, but to elicit divine influence, just as one does when offering a sacrifice. This is indicated by the room in which the Sanhedrin convened: the Chamber of Cut Stones, built in the wall of the Beis Hamikdosh, half inside the sanctuary and half outside. This location gave the judges divine influence.
Keeping order is only a secondary objective of Torah Law. Therefore it is entirely possible for a man-made law to deal more effectively with a civil action or criminal case than a Torah ruling does. In fact, many Torah laws relating to interpersonal claims are as incomprehensible as the laws of milk and meat.
In order to resolve this “deficiency,” the king is put in charge of another arm of justice. His responsibilities include maintaining civility and order. He is supposed to complement the objective law by making it socially correct. For example, the king may execute a murderer who escaped punishment in the beis din through a legal loophole. But Hashem was displeased with the Jews’ request for a king. He realized that what they really wanted was to have only the subjective, royal style of justice: practical and effective. They were rejecting absolute law.
A contemporary illustration of this issue is the question of whether to resolve disputes in a beis din or in a secular court of law. When the monarchy ended, both arms of justice fell into the hands of the beis din. The judges have the authority to maintain order; hence the many bylaws throughout history until recent times.
Today, since they recognize their own shortcomings, even the greatest halachic authorities do not enact any new legislation binding on the Jewish people. (That leaves us with the objective law; and with the laws instituted by the halachic authorities in previous generations.) This puts some Jews to the test, torn between the Western and Torah concepts of law. Some Jews will opt for man-made, effective legislation over objective Torah law. For others, it is inconceivable to prefer a man-made law, no matter how effective, over Hashem’s choice. They feel the objective Torah law is quite fair and they are satisfied, knowing that the judges’ rulings are based on authentic values. Any suggestion of elevating a man-made law over divine law is viewed as a direct affront to Hashem.
The appropriate attitude one should have is to recognize that despite the lack of a monarch in our times to restore the original balance of justice, it is still unacceptable to seek out the missing element in the secular court system. Some people act with indifference towards this transgression, but in fact, parties who agree to resolve a dispute in a secular court are committing a serious chillul Hashem. We must make do with that which the modern beis din can offer.
With the arrival of Moshiach, the judicial system and Davidic monarchy will be reinstated and the balance of justice will be completely restored.