Parashas Mishpatim includes many of the Torah’s civil laws. The first verse in the Parsha “And these are the laws you should set before them” is explained by Rashi through quoting words from the Talmud in Gittin (88b). The Gemara there explains that we are obligated to resolve our disputes in a Beis Din – a Jewish court of law. We are not permitted to take such disputes before non-Jewish courts. As Rashi goes on to explain, the reason for this is not only because the verdict would be out of synch with halacha. Even if the court’s decision and Torah law would be identical, it remains prohibited.
In his Mishneh Torah (Sanhedrin 26:7), Rambam harshly prohibits this , stating that one who takes a dispute to a secular court is considered wicked: “He is a blasphemer, and has raised his hand against the Torah of Moshe, our master.” A similarly worded prohibition is stated in Shulchan Aruch (Choshen Mishpat 26:1). One who brings a dispute before a civil court effectively states that civil justice is more just than that of the Torah. This is a heinous crime.
Shulchan Aruch continues to explain that there are times when it is permitted, after receiving permission from Beis Din, to take a dispute to a civil court. When one of the litigants is incompliant with Beis Din, the only way he can be dealt with is by referral to the secular courts. In such cases, Beis Din has the right, after careful contemplation, to permit the other litigant to turn to secular courts for judicial remedy. Other than this scenario, going to court remains a weighty prohibition.
Yet, we also find a ruling in Chazal whereby a person may, at times “takes the law into his own hands” (avid inish dina le’nafshei), even in ways that are not prescribed by Torah law. This raises a simple question: Seeing that a person can go beyond Torah law in executing justice for himself, why should he be prohibited from taking his dispute before secular courts? Is this not a similar form of taking the law into one’s own hands?
In order to explain the matter, we will first focus our attention on the actual principle. Following this, we will see how the principle is applied in the context of secular courts.
Self-Execution of Justice
The Talmud discusses a dispute between two people who shared a well. Their partnership arrangement was that each would have the right to draw the well’s waters on alternate days. One day, one of the partners came to the well to draw water, only to find that his partner was already there—on the wrong day—drawing water. After his request to leave the water alone was refused, the indignant man hit his partner with a hoe-handle.
Rav Nachman says that all authorities agree that the man who smote his partner is not liable for resulted damage. If the man would have left his partner alone while going to Beis Din, he would have consequently suffered irretrievable damage.. Rashi explains that the damage includes not knowing how much water was drawn (and thus how much could be claimed from the partner), and the fear that the well would be dried up, without the injured party having the ability to make up his loss.
The Gemara continues, citing a dispute between Rav Nachman and Rabbi Yehudah: Does one have legal permission to execute judgment on one’s own even when there is no loss involved besides the inconvenience of going to (a Torah) court? According to Rav Nachman’s position it is permitted. His stance is proved from various sources: Ben Bag Bag says: Do not enter your friend’s yard in order to take what’s yours without permission, for you may seem to him as a thief. Rather, smash his teeth, and tell him: ‘I am taking my own. Two other scenarios are described as proof: Pulling out one’s ox from beneath an attacking animal, at the expense of damaging the aggressor and forcefully banishing a freed slave from one’s property. In these cases, the Gemara states that taking the law into one’s hands is permissible.
Although the proofs are deferred, Rishonim write that the halachic ruling follows the opinion of Rav Nachman. This is subsequently ruled by Rambam (Sanhedrin 2:12) and by Shulchan Aruch (Choshen Mishpat 4:1): “A person has the right to execute judgment of his own accord, if he has the physical means of doing so. If he does that which is legally correct, he does not need to submit the case to Beis Din, even when no financial loss would be caused by the delay involved in doing so.”
Restrictions on Execution of Self-Justice
It is implausible that a person would be always permitted, to take the law into his own hands. Such a legal situation would inevitably bring about anarchy! Rather, rishonim mention a number of basic limitations to this halachah.
The Mordechai (Bava Kama 3:30) limits this ruling to cases which involve a concrete item of one’s own possession which has been taken, or is being threatened by someone else. When no concrete item is involved, but rather some other monetary matter, there is no permission to circumvent the procedure of going to Beis Din. The Mordechai quotes a similar ruling from Yere’im.
After stating the same position, Nimmukei Yosef (Bava Kama 12b) adds that a person is only permitted to execute his own judgment when he is able to bring unquestionable proof to his position; e.g. witnesses, or an admission of the other litigant. Only if Beis Din would clearly be convinced of the desired conclusion, one would be able to take matter into one’s own hands.
According to this stance, taking justice into one’s own hands effectively implies having become an agent of Beis Din, or a legal executioner. Therefore, if the proof one has would not be conclusive in Beis Din, it would not be permitted to execute justice of one’s own accord. Furthermore, it is only permitted to take back a concrete item, not to collect debts and other financial obligations. Such matters require a bona fide act of Beis Din.
Rambam, however, does not make these distinctions, but rather issues a “blanket ruling” permitting a person to perform his own justice. Similarly, Rosh (Bava Kama 3:3) writes that a person has the right to take the law into his own hands even for a non-concrete item, and even when Beis Din itself would not enforce judgment (e.g. in cases of levying fines). Nonetheless, he requires a person to have proof for his actions, and prohibits taking hold of items to act as collateral for debts. Rather than acting as an agent of Beis Din, it is possible that these authorities see a person as possessing the authority of Beis Din itself, thereby giving him a broader scope of enacting self-justice.
The Halachic Conclusion
These opinions are cited by Shulchan Aruch and Rema. Shulchan Aruch (Choshen Mishpat 4:1) rules that a person is permitted to execute self-justice, adding that this does not include the right to take a pledge against a loan. Doing so would involve a Torah prohibition. Aside from that, Shulchan Aruch does not limit the permission for executing self-judgment to a concrete item.
Rema, however, quotes the above-mentioned rulings of Mordechai and Nimmukei Yosef, who restricted the permission for self-judgment to cases of a concrete item alone. Yet, Rema adds (quoting from Maharik) that even for non-concrete items, for which one does not have permission to make use of physical force against the perpetrator , it is permitted to ‘snatch’ another’s property as payment for a financial debt (In a way which doesn’t collide with the prohibition of taking a pledge).
This position is contested by Ketzos Hachoshen (4:1, quoting from Maharshal), who writes that it is forbidden to snatch another’s property as payment of debt, yet concedes that when a person already has the other’s party’s possessions under his jurisdiction, he is permitted to hold on to the property as payment for the debt.
Aruch Hashulchan sums up the halachic conclusion:
There are times when a person is permitted to execute self-judgment, for instance when a person sees his item in the hands of somebody else, who stole it from him, or who wishes to steal it now…. In these circumstances, there is no requirement to bring the dispute before Beis Din. However, this refers to a concrete item, which is clearly his… but if the other party owes him money, on account of some past theft, deposit, rental agreement, and so on, he does not have permission to execute self-judgment and to snatch money or articles from him, but must rather bring the dispute to Beis Din.
Neutralizing Offensive Property
Another application of self-justice is demonstrated by the following case: The alarm system of a store went off, for an unknown reason, in the middle of the night. After the neighbors were unable to contact the owner of the store, one of the neighbors took matters into his own hands, and broke the alarm. The neighbors were able to sleep, but this caused the store owner no slight distress. He proceeded to file a claim against the neighbor for the cost of the alarm. Was the action of breaking the alarm justified, or must the neighbor foot the bill?It seems not.One of the cases mentioned in the above Gemara, of an ox that attacks another ox, seems to indicate that one has permission, where necessary, to take the appropriate measures to defend one’s own property, even at somebody else’s expense. Yet, Chavas Yair (165), addressing a case in which a farmer killed chickens who were eating his crop, writes that the farmer is obligated to pay for the damage, basing his ruling on a similar ruling of Shulchan Aruch (Choshen Mishpat 397:2). This indicates that when the owner does not cause intentional damage, the principle of executing self-justice does not apply.
In a lecture given at a conference on the subject, Rav Moshe Mordechai Farbestein makes a distinction between reasonable and (relatively) unreasonable damage. If the damage is reasonable, the act is considered an act of self-defense, and the perpetrator would therefore not be liable. Where the damage is unreasonable, however—for instance, damaging a car that blocked another car’s passage for only two minutes—the act is not considered self-defense, and the perpetrator would therefore be liable for the damage caused (see Alon Hamishpat, vol. 30).
Using the Court for Self-Justice
Based on the principles outlined above, Yam Shel Shlomo (Bava Kama 3:6; quoted in Shach 4:3) writes that only under very specific conditions would a person be able to turn to secular courts under the pretext of executing self-justice. These circumstances would involve a concrete item, which is being held by a thief (or the like), or to extract a pledge. Even if he has circumstantial evidence, (which isn’t accepted in Beis Din) one may not take the case to a secular court.
For cases other than concrete items or an uncooperative litigant, it would not be permitted to take the law suit to secular courts, and even if this would mean losing the suit, one remains obligated to take the case to a Torah court of law.
A more delicate halachic matter, however, is the question of turning in a Jewish criminal to the national law enforcement agency (police, and the like). On the one hand, the prohibition of moser, meaning handing a person over to the non-Jewish authorities, is recorded by the Talmud as being among the most severe of transgressions, for which a person is liable to lose his portion in the World to Come. Shulchan Aruch (388:9) rules that the prohibition applies “even if he is wicked, and a transgressor, and even if he causes others strife.”
Handing Criminals Over to the Police
On the other hand, there is a clear and urgent need to create a concrete deterrent for would-be criminals, and to punish those who stray so that they, too, will not return to their criminal activities. In times when the Beis Din lacks authority for effective punishing and sanctioning, the only way to maintain social order is by means of the respective agencies of law enforcement. What should be the balance between these two weighty considerations?
Iggros Moshe (Orach Chaim, vol. 5, no. 9) implies, based once again on the principles outlined above, that it is permitted to hand a thief over to the police when he threatens to steal one’s property. Just as one is permitted to cause the thief physical harm, it is likewise permitted to hand him over to the police. However, after the theft has already taken place, he writes that it would be forbidden to hand him over to the police, who would punish him with imprisonment—a form of punishment not sanctioned by the Torah.
Tzitz Eliezer (vol. 19, no. 52) explains further that the prohibition of handing over a wicked person to the authorities only applies when one hands him over on account of his very wickedness. When, however, he is handed over because of the threat he presents to potential victims, the prohibition would not apply. This principle is expressed by Rema (Choshen Mishpat 388:7), who states that when a person’s property is threatened, it is permitted to inform the authorities of the threat, and allow them to deal with it—even if this will lead to punishments that are not sanctioned by the Torah.
Kovetz Teshuvos (Rav Elyashiv shlita, vol. 1, no. 188) discusses the question of somebody who was suspected of stealing repeatedly from communal funds. Although the culprit was all-but unknown, the community leaders failed to extract an admission from him. They asked whether it would be permitted to turn him over to the police for investigation. Based on a responsum of Panim Me’iros (vol. 2, no. 155), Rav Elyashiv answered that the concern over turning a person in to the authorities is that “should he confess his crime, they might sentence him to death.” This concern does not apply today, and it is therefore permitted to use the authorities for purposes of investigating the accused criminal.
A similar idea is expressed in Aruch Hashulchan (388:7), who writes that the stringency of handing a person over to non-Jewish authorities applies primarily to decadent countries, and not to enlightened countries in which a person receives a fair hearing.
Based on the above, it emerges that the prohibition mentioned by Iggros Moshe of handing a thief over to the police applies only to somebody who no longer poses a tangible threat to the public. For a person, however, who presents a threat—whether in causing bodily or financial harm—it would certainly be permitted to hand him over to the police, and for most thieves, this would certainly be the correct course of action.
 This is somewhat implied by the wording of Rambam, who states that Beis Din does not undo his judgment.
 Ketzos Hachoshen adds, based on Zohar, that even this practice should preferably be avoided.
 Tzitz Eliezer relates specifically to difficult questions of child abuse.
 Rav Elyashiv adds that one must take other considerations into account, and leaves the final decision to the local rabbis.
 A similar stance was presented by Rav Menacham Mendel Shafran, in a lecture given at a conference on the topic. In a personal conversion with Rav Shmuel Fuerst of Chicago, the latter stated that under most circumstances, thieves, or others engaged in criminal activities, should be handed over to the authorities.