A highlight of Parshat Vayishlach is the tension and separation between Eisav and Yaakov. A separation between Jews and non-Jews mandated by Halacha is the prohibition against Jews adjudicating monetary disputes in civil court. In this essay we will begin to outline the sources, nature, and scope of this prohibition.
Source of the Prohibition
The Gemara (Gittin 88a) presents the following Drasha. The Torah (Shemot 21:1) relates !:9 ;:*. -51*%. &!-% %/:5)*., "and these are the laws that you shall present to them." Interpreting "you" to be referring to Am Yisrael and "them" to qualified Dayanim. The Gemara teaches that -51*%.-&-! -51* 3&"$* ,&,"*. &-! -51* %$*&)&;, "one must submit monetary disputes to qualified Dayanim and not non-Jews or unqualified Dayanim." The Gemara explains that even if the non-Jewish courts judge according to Halacha, we are still forbidden to submit our disputes to non-Jewish courts. The Tashbetz (4:6) rules that this rule applies even to those non-Jews who do not practice idolatry, such as Muslims.
The Ramban (to Shemot 21:1) explains that:
Even though Chazal have mentioned these two groups (unqualified dayanim and non-Jews) together, there is a difference between them - if the two litigants are willing to come before unqualified Jews for judgment, and accept them as judges, it is permissible to do so and these litigants must abide by the unqualified judges' decision. However, its is forbidden to be judged by non-Jewish judges under all circumstances, even if the non-Jewish statutes are identical to our laws.
This approach is accepted as normative Halacha (see Shulchan Aruch Choshen Mishpat 26:1).
Nature of the Prohibition
The Rambam (Hilchot Sanhedrin 26:7) and Shulchan Aruch (ibid) add a surprisingly harsh condemnation of those who adjudicate their disputes in non-Jewish courts. They write:
Whoever submits a suit for adjudication to gentile judges in their country...is a wicked man. It is though he reviled, blasphemed, and rebelled against the law of Moshe.
The question regarding these statements is obvious. Why do the Rambam and Shulchan Aruch include such sharp "sermonics" or "Mussar" in their books of Halacha? The answer appears to be that this strong language defines the character of the prohibition to be judged by non-Jewish courts. The fundamental prohibition is ,5*9%, rejecting the Torah in favor of a foreign legal system (see the analysis of Rav Yaakov Ariel B an important Halachic authority in Israel B Techumin 1: 322-325).
This analysis helps explain a curious Halacha. The Shulchan Aruch (C.M. 26:2 rules:
If the non-Jews' hands are powerful (i.e. Jews lack political sovereignty or at the very least communal autonomy) and his adversary is a difficult and violent person, and, he is unable to recover the money in Beit Din, the defendant should be first summoned to Beit Din. If the defendant refuses to come to Beit Din, the plaintiff is entitled to receive permission from the Beit Din to recover the money through the non-Jewish court system.
This is commonly referred to as a %*;9 39,!&; (permission to submit the claim to civil court).
The Klei Chemdah (in his first essay on Parshat Mishpatim) asks the obvious question: The Halacha requires that one sacrifice his entire wealth in order to avoid violating a negative prohibition. Hence, why is it permissible for Beit Din to issue a "Heter Arkaot" if recovering the money involves violating a Torah prohibition.
The answer is that the prohibition is not submitting a dispute to civil court per se, but rather the prohibition is on rejecting the Torah system of justice. Therefore, if one makes a genuine effort to adjudicate the matter in Beit Din but the other party is recalcitrant, he may press his claim in civil court (if he has received a "Heter Arkaot") because he is not thereby rejecting "Torat Moshe."
Scope of the Prohibition
The Halachic status of the State of Israel's civil courts has been a major issue since the establishment of Medinat Yisrael. These courts for the most part do not judge according to Halacha (with some notable exceptions). Rather they judge based on law codes which are a mixture of British, Turkish, Halacha, and modern Israeli law.
The Gemara (Sanhedrin 23a) describes 39,!&; :"2&9*! (Syrian Civil courts) which a Jew may attend. These are courts situated in a locale where there are no competent judges. The "judges" in this type of court judge based on life experiences and common sense. In fact, the Rema (C.H. 8:1) cites the Teshuvot Harashba that if no other viable alternative exists, a community may appoint three well respected people with sound judgment to act as "judges." Accordingly, the argument has been suggested that the Israeli civil courts enjoy the same status as 39,!&; :"2&9*!.
However, the Chazon Ish (Sanhedrin 16:4) emphatically asserts that the Israeli civil courts do not have the status of the permitted 39,!&; :"2&9*!, rather they have the status of forbidden courts. This is because 39,!&; :"2&9*! apply only to a court system that judges entirely based on common sense and not according to any established rules.
Since Israeli civil courts follow binding rules adopted from "foreign codes," they are considered to be non-Jewish courts, even though almost all of the judges are Jewish and the sovereign entity enforcing the courts' rulings are Jewish.
The Chazon Ish's assertion is agreed to by virtually all Poskim, be they "Religious Zionist" or "Charedi." The list of these authorities include Chief Rabbi Yitzchak Isaac Herzog (Hatorah Vehamedina 7:9-10), Rav Eliezer Waldenburg (Teshuvot Tzitz Eliezer 12:82), and Rav Zvi Pesach Frank (cited in Rav Waldenburg's responsum and Rav Ovadia Yosef Teshuvot Yechave Daat 4:65). In addition, see Professor Menachem Elon "Hamishpat Haivri" (p.22 note 80 and p.121 note 174).
Rav Yaakov Ariel (an important contemporary authority) writes the following (Techumin 1:219-320):
One of the most painful problems for those who believe that there is a place for Torah in the State of Israel is the law status accorded to Jewish civil law...Medinat Yisrael, the Jewish state, should have classic Jewish civil law as the law of the land. Just as it is inconceivable to have a Jewish state that does not speak Hebrew or follow the Jewish calendar, so too the State of Israel should not adopt foreign civil codes. No Jew, despite his identification with the positive aspects of the State of Israel, should tolerate the current situation regarding civil law. The love of the State of Israel should cause every Jew to long for the day when Halachic civil law will be returned to its original great status...Just as the religious Zionist community educates its community in state religious schools so too we must settle our monetary disputes in the state rabbinic courts.
Next week (God willing) we shall discuss under what circumstances Halacha does permit us to use secular courts.