Civil Courts and Jewish Law Part II by Rabbi Howard Jachter

1997/5758

              Last week we spoke of the severe prohibition on submitting monetary disputes to civil courts, commonly referred to as !*2&9 39,!&;.  This week we will speak of situations in which it is permissible to utilize civil courts without running afoul of the prohibition of !*2&9 39,!&;.

Preliminary Injunctions, Collections, and Filing for Bankruptcy

              The Rambam (Hilchot Sanhedrin 26:7) and Shulchan Aruch (Choshen Mishpat 26:1) frame the prohibition of!*2&9 39,!&; as a prohibition to be "judged" by a civil court.   Accordingly, as long as one is not judged by the39,!&; , it would appear that utilizing civil courts would be permissible. 

              Thus, it is not surprising to find Rav Moshe Feinstein (Teshuvot Igrot Moshe Choshen Mishpat 2:11) ruling that one may go to civil court to request that the judge issue a preliminary injunction.  A preliminary injunction is an order to freeze the status quo of a property, so that the owner of the property may be verified.  Since a preliminary injunction does not involve judgement, seeking this order does not violate the  !*2&9 39,!&; interdict.

              Similarly, we find Rav Mordechai Eliyahu (the former Sephardic Chief Rabbi of Israel) ruling (Techumin 3:243) that one may avail oneself of the civil courts to collect an undisputed debt.  Once again, since no judgement is involved the prohibition of!*2&9 39,!&;  is not violated.

              Rav Hershel Schachter (in a lecture delivered at The Fifth Avenue Synagogue) ruled that one may file for bankruptcy in civil court.  He argued that this is conceptually identical to filing for a marriage license in civil courts. 

              (For an extensive study of the complexities regarding bankruptcy see Rabbi Steven Resnicoff's essay in the Journal of Halacha and Contemporary Society, Fall 1992 pp. 5-54.)

Arbitration Panels

              At least three responses have been written permitting individuals to submit disputes to an arbitration panel for resolution.  These Poskim reasoned that since the arbiters issue rulings based on common sense and are not bound by non-Jewish codes of law, these types of forums are not considered to be 39,!&; :- 1,9*..  Thus, the Rabbinic Court of Ashdod (Piskei Din Rabaniyim B collection of decisions of Israeli State Rabbinic Courts B 13:331) ruled that it is permissible to submit a dispute to the Israel Union of Engineers and Architects.  Similarly, Rav Eliezer Waldenburg (Teshuvot Tzitz Eliezer 11:93) permits the submission of a dispute to the various professional arbitration panels such as the arbiters of the Association of Israel Cooperative Apartments.  He reasons that since such a "court" is not bound by non-Jewish laws, but issues its rulings based on experience and common sense, the prohibition to be judged by a court which follows non-Jewish statutes is not violated.  Teshuvot Vayaan Avraham (C.M. I:I) permits availing oneself of the arbitration panel of the Israel Renters Association (also see Rav Avraham Sherman's essay in Techumin 14:159-164).

              Outside of Israel the issue may be somewhat more complex.  First, the Shach (C.M. 22:15) permits submitting a dispute to an arbitration panel consisting of non-Jews provided that they are not bound by non-Jewish laws.  However, the Netivot (C.M. 22:14) disagrees with the Shach and forbids submitting a dispute to an arbitration panel composed of a non-Jewish member.  The Aruch Hashulchan (C.M. 22:8) rules in accordance with the lenient view of the Shach, but Rav Hershel Schachter told this author that he thought that the strict opinion of the Netivot should be followed (see Halacha Pesuka Al Choshen Mishpat 22:2).

              Moreover, people question whether or not arbitration panels are merely less formal courts on panels that are not bound by secular law.  Rabbi Dr. Dov Bressler (Journal of Halacha and Contemporary Society, Spring 1985, pp. 115-116) cites the following statement from the Committee on Arbitration of the Association of the Bar of the City of New York:

              The arbitrator need not apply substantive principles of law.   The arbitrator is not bound by evidentiary rules; he need not give reasons to support his ultimate determination and his award is not subject to judicial review for errors of law on fact.   The arbitrator, free from rules of law may decide solely on the equities of the case.

Accordingly, Rabbi Bressler concludes his essay stating that:

              Individuals who may ordinarily tend to ignore rabbinical courts should therefore be counseled into selecting arbitration rather than a strict judicial hearing.

              If one is faced with this issue he should consult both his Halachic advisor and his attorney for competent guidance.   Rules and practices are subject to change and variation from one locale to another and thus a careful investigation of the facts is necessary for a proper Halachic determination.

Lawyers and Judges

              Rabbi Menashe Klein (a contemporary Posek who resides in Brooklyn) rules (Teshuvot Mishneh Halachot 3:214 and 7:255) that one who serves as an attorney in a civil court also violates the !*2&9 39,!&; prohibition.   Rabbi Michael Broyde (The Pursuit of Justice and Jewish Law p.50) explains Rabbi Klein's opinion as follows: In the common law tradition the client remains in the background and is typically invisible in court, so the prohibition of litigating in civil court applies primarily to lawyers."

              Rabbi Klein seems to constitute the lone authority who adopts this approach.  Rabbi Broyde soundly demonstrates that since the lawyers are not being "judged," the lawyer is not in violation of the!*2&9 39,!&; .  Indeed, Rav Mordechai Eliyahu (Techumin 3:244) that "in today's environment there is great importance and purpose that an Orthodox lawyer, judge, and journalist can serve in raising the voice of Torah in all areas of life.  It is especially important for the media to hear Orthodox voices to represent and explain Torah laws and perspectives."  The issue of serving as a judge is a more complex issue, see Professor Eliav Schochetman's discussion of this question (Techumin 13:360-363).

Criminal Law

              The issue of participating in criminal cases in civil law is a particularly sensitive area of Halacha.  We will cite some cogent and particularly relevant comments of Rav Hershel Schachter and Chief Rabbi Yitzchak Herzog.

              Rav Schachter writes (Journal of Halacha and Contemporary Society, Spring 1981 p.118) concerning the issue of /2*9%, which Halacha considers to be a terrible sin:

              A "Moser" is one who aides a pirate, a crooked government official, or a tyrant-king to obtain money illegally from his fellow Jew.  Even if the Jew has actually done something wrong, but if the secular government or the ruler would exact a punishment far beyond that which the crime should require, then it is likewise forbidden to report him.  If, however, the government is entitled to its taxes, or is permitted to punish criminals as offenders, there is no problem of Mesirah in telling the government information needed for them to collect their taxes or to apprehend their man.   One critical point should however be added:  There is no problem of Mesirah in informing the government of a Jewish criminal, even if they penalize the criminal with a punishment more severe than the Torah requires, because even a non-Jewish government is authorized to punish and penalize above and beyond the law, :-! /0 %$*0, for the purpose of maintaining law and order.  However, this only applies in the situation when the Jewish offender or criminal has at least violated some Torah law.  But if he did absolutely nothing wrong in the eyes of the Torah, then giving him over to the government would constitute a violation of Mesirah.

              Rav Schachter applied this approach in a case which this author requested him to render a Halachic decision.  An Orthodox woman who was serving as an assistant district attorney (ADA), was given the task of prosecuting an Orthodox man accused of serious child abuse.  She asked me if Halacha permits her to do so.  Rav Schachter responded that it is permissible since "Batei Din" today have absolutely no jurisdiction in criminal matters and otherwise the accused would go unpunished and repeat his heinous crime.

              Rav Herzog (Techuka Liyisrael Al Pi Hatorah I pg. 173, Which is his monumental work in which he discusses how the modern State of Israel can be run according to Halacha) takes this point even further.  He records:

              In a rabbinic convention held in Tel Aviv [immediately before the establishment of the State of Israel] the rabbis unanimously voiced their opinion that they wish to give up control of any jurisdiction over criminal matters.  They mentioned that even in Eastern Europe, the rabbinate ceded jurisdiction on the matters to the non-rabbinic authorities such as the famous Vaad Arba Aratzot [Council of Four Lands] who acted as the equivalent off the Talmudic :"3% )&"* %3*9 - seven recognized leaders, and had exclusive control of imposition of taxed and punished rebels.

              Dr. Itamar Warhaftig (Techumin 10:190) cogently  notes:

              If the rabbis themselves chose to relinquish any potential jurisdiction over criminal law, can anyone possibly reason that observant Jews should not recognize the authority of the criminal courts of the State of Israel over criminal matters.

              Accordingly, Rav Naftali Bar-Ilan (Techumin 10:190) rules that one may testify in civil court if he was a witness to a fatal automobile accident.  However, he notes, if monetary disputes arise from the accident these should be submitted to a Beit Din adjudication.

Exchanging Land for Peace - Part I by Rabbi Howard Jachter

Civil Courts and Jewish Law - Part I by Rabbi Howard Jachter