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Parshat Mishpatim: Courts and justice
By SHLOMO RISKIN
02/07/2013
Is it permitted to go to a secular court to arbitrate a dispute or must one go to a religious court?
 
If two religiously observant Jews are engaged in a disagreement that has financial ramifications, are they permitted to go to a secular court to arbitrate their dispute or must they go to a religious court (beit din)? Is the law different in Israel, which has both religious and secular court systems, but where even the secular court judges are Jewish? And if, indeed, Jews are religiously ordained to go exclusively to religious courts, why is this so? After all, the nonreligious judicial system in Israel and the secular courts in America are certainly fair and equitable.

Our Torah portion this week provides interesting responses to these questions. It opens with the command: “These are the statutes which you [the Israelites] shall place before them [the religious judges]” (Exodus 21:1).

Rashi, the biblical commentator who lived in France from 1040 to 1105, cites the talmudic limitation (B.T.

Gittin 88): “Before the religious judges and not before gentile judges. And even if you know that regarding a particular case they [the gentile judges] would rule in the same way as the religious judges, you dare not bring a judgment before the secular courts. Israelites who appear before gentile judges desecrate the name of God and cause idols to be honored and praised.”

According to this passage, it would seem that the primary prohibition is from appearing before gentile judges who are likely to dedicate their legal decision to a specific idol or god; it is the religion of the judge and the idolatry involved, rather than the content of the judgment, which is paramount. From this perspective, one might conclude that Israeli secular courts – where most of the judges are Jewish – would not be prohibited, and this is the conclusion of Rabbi Prof. Yaakov Bazak. Secular courts in America – where there is a clear separation between religion and state in the judiciary – would likewise be permitted.

However, the great legalist and philosopher Maimonides (1135-1204) would seem to support another opinion. Although he begins his ruling “Anyone who brings a judgment before gentile judges and their judicial systems is a wicked individual” – emphasizing the religious or national status of the judge rather than the character of the judgment – he then concludes, “And it is as though he cursed and blasphemed [God], and lifted his hand against the laws of Moses” (Laws of the Sanhedrin 26, 7).

Apparently Maimonides takes umbrage with a religious Jew going outside the system of Torah law, thereby disparaging the unique assumptions and directions of the just and righteous laws of God.

In order for us to understand what is unique about the Jewish legal system, permit me to give an example of the distinctive axioms of Torah law from another passage in this week’s portion, the prohibition against charging or accepting interest on a loan.

“If you will lend money to my nation, to the poor person with you, you may not be to him as a creditor, you may not charge him interest; And if you accept from him your friend’s cloak as security for the loan, you must return the cloak to him before sunset.

Because it may be his only cloak and [without it], with what [cover] will he lie down? And if he cries out to Me, I shall hear because I am gracious.”

Maimonides believed very profoundly in the compassionate righteousness of Jewish law, a law derived from a God of love and compassion taking into account the necessity of ameliorating human suffering, hence he rules that anyone who trades our legal system for a secular one is “a wicked individual, cursing and blaspheming God, lifting his hand against the Laws of Moses.”

Indeed, in his Laws of Slaves, Maimonides clearly sets down a meta-halachic principle that must take precedence over biblical and talmudic laws such as permissibility to work a gentile slave with vigor: “Even though the law is such, the trait of piety and the path of wisdom insists that an individual be compassionate and a pursuer of righteousness, understanding that from one womb emanated both the master and slave, that one womb formed them both” (Job 31:15). And he concludes by insisting that we are commanded to emulate God’s traits and to be compassionate (as God is) toward all His creations. “And it is that principle of compassion which we must always express in executing our laws.”

As I study the Talmud, pore over our responsa literature throughout the generations and ponder the halachic decisions I heard from my master and teacher Rabbi J.B. Soloveitchik and from Rabbi Moshe Feinstein (with whom I was privileged to spend a year of Friday mornings discussing practical halachic issues), I could not agree more with Maimonides’s prohibition of eschewing rabbinical courts in favor of secular ones.

But when I study many of the recent responsa of the rabbinical courts of the Chief Rabbinate, when I see how many of the Israeli rabbinical judges rule in accordance with the stringencies of Rav Elyashiv and refuse to obligate recalcitrant husbands to grant divorces to their suffering wives, when I watch the emotional torture (yes, torture) many sincere converts must undergo at the hands of some insensitive judges blind to the biblical command of loving the stranger, my heart weeps to think that there might be more compassion on the part of the secular courts. I write these words with sighs and sobs; and I believe that God and the Torah are sighing and sobbing as well.

Shabbat shalom The writer is the founder and chancellor of Ohr Torah Stone Colleges and Graduate Programs and chief rabbi of Efrat.
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