|Beit din religous court 311.(Photo by: Marc Israel Sellem/The Jerusalem Post)|
Parshat Mishpatim: Courts and justice
By SHLOMO RISKIN
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
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
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).
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
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
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
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.
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.
shalom The writer is the founder and chancellor of Ohr Torah Stone Colleges and
Graduate Programs and chief rabbi of Efrat.