Does Halacha permit recourse to the court system?

In recent years, relationship between certain segments of religious Jews, Israeli court system has been fraught with tension.

By SHLOMO BRODY
July 26, 2012 14:00
3 minute read.
Supreme Court's Dorit Beinisch, Asher Dan Grunis.

Supreme Court's Dorit Beinisch, Asher Dan Grunis 521. (photo credit: Alex Kolomwisky)

In recent years, the relationship between certain segments of the religious community and the Israeli court system has been fraught with tension over various rulings by the Supreme Court which are perceived by some as antagonistic to religious values or institutions. This tension, in part, stems from those in the judiciary who are determined to preserve the democratic nature of the state and those in the religious community whose sole interest lies in promoting its halachic character. This perceived clash, however, stems from a larger question regarding the recognition of non-halachic legal systems within Jewish law.

The Sages asserted that within God’s commandment to establish a judicial system, the Torah forbade Jews from adjudicating their conflicts within non-Jewish courts. “And these are the statues that you shall place before them,” Scriptures exclaim, but not in front of gentile judges (Exodus 21:1). This prohibition exists, according to the Sages, even if the non-Jewish law happens to be in agreement with Jewish norms and notwithstanding the general command within the Noahide laws that gentiles should establish their own legal systems.

Medieval Jewish communities, who were regularly granted judicial autonomy by the local rulers, subsequently demanded full allegiance to communal ecclesiastical courts (batei din), even as many sources indicate that they struggled with their members using gentile courts for financial or social reasons.

As suggested by a parallel prohibition forbidding adjudication before improperly trained Jewish judges (hedyotot), some sources indicate that the prohibition against non-Jewish courts (arka’ot shel goyim) stems from a fear the gentile judges will not adjudicate the case properly. Other sources believe that foreign law will not properly fit the spirit of Jewish culture. Most frequently, scholars deemed recourse to non-Jewish legal systems an act of betrayal to the Torah, analogous to the heretical denial of the Torah’s wisdom and trust in its legal system. This disloyalty was compared to an act of blasphemy and precluded using non-Jewish courts, even if one was fully confident that the judges would adjudicate in accordance with halachic norms.

As Rabbi Yaakov Ariel has argued, the inverse situation in contemporary Israel entails an equally problematic situation: Jewish judges adjudicating according to norms based on British, Turkish and local laws, but not Halacha.

At best, this might be deemed analogous to a case in which the judges are not properly trained in Jewish law. Rabbis Avraham Karelitz and Ovadia Yosef further contended that the fact that the judges are Jewish only increased the gravity of employing an alternative legal system.

Most decisors, however, agree that one may use civil courts when one’s interlocutor refuses to adjudicate in an ecclesiastical court, if there is a threat of financial loss without civil intervention, or if the religious court is not empowered to enforce its decision.

With the founding of the state, Rabbi Shlomo Goren tentatively suggested that one might validate Israeli courts based on a court model which the Sages recognized even though the judgment was reached outside of ecclesiastic courts. The Roman province of Syria did not have scholars qualified to adjudicate according to formal Jewish law. In that extreme circumstance, Halacha recognized the decisions reached by ad hoc courts comprised of distinguished citizens who adjudicated based on personal judgment.

Although supported by some prominent Orthodox Israeli jurists, this suggestion was roundly rejected by chief rabbi Isaac Herzog and other decisors. They convincingly contended that an established legal system based on non-halachic legal principles was not comparable to an ad hoc court whose decisions were based on personal discretion. Herzog suggested that perhaps the inclusion in each Israeli tribunal of at least one judge with knowledge of Jewish law would alleviate the situation, although that proposal was never adopted.

Further complicating this dispute is that decisors have repeatedly concluded that Halacha does respect many civil laws under the talmudic principle of dina de-malchuta dina (“the law of the land is the law”). This principle not only mandates paying taxes and observing zoning and safety regulations, but also cooperating with the judicial bodies created to enforce those laws. A similar ruling applies to criminal law, which rabbinic decisors agreed should be enforced by government authorities.

Yet other areas of law definitively require adjudication under halachic norms. This creates a particularly acute tension for religious Zionist figures who believe in supporting the state’s institutions even as they maintain absolute fealty to halachic requirements, as evidenced by Justice Minister Yaakov Neeman’s controversial declaration in 2009 that he hoped Torah law would ultimately become the standard of justice in Israel. As with many of this country’s internal disputes, this deeply-rooted conflict will most probably continue to simmer in the years to come.

The writer, online editor of Tradition, teaches at Yeshivat Hakotel.


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