This week we conclude our discussion as to when Halachah permits and forbids litigation in civil law.
Incorporating Civil Law in Contractual Agreements
Most engaged couples in today’s Orthodox community sign the Rabbinical Council of America’s prenuptial agreement to prevent situations of Igun. These agreements include a binding arbitration agreement that designates a specific Beit Din to adjudicate a divorce settlement, should the need unfortunately arise. Rav Zalman Nechemia Goldberg (Yeshurun 11:698) suggests that a couple could sign a prenuptial agreement that would empower the Beit Din to divide the property between husband and wife based on civil equitable distribution or community property laws. Rav J. David Bleich (Tradition 34:3 and BiNtivot HaHalachah 2:169-172; based on the Taz C.M. 26:3 and other sources) opposes this proposal, arguing that it violates the prohibition against using the civil legal system, because the Beit Din will thus replace Halachah with non-Torah laws. Even if the bride and groom wish to apply equitable distribution, Rav Bleich asserts that their desire is irrelevant, for they may not stipulate conditions that contravene Halachah (Matneh Al Mah SheKatuv BaTorah).
Rav Mordechai Willig (in an address to the Rabbinical Council of America) defended Rav Zalman Nechemia’s proposal, noting that in order to be considered a non-Torah system, the Beit Din would need to rule based on civil law as it is codified on the day of the Beit Din hearing. By contrast, the agreement authorizes the Beit Din to employ the equitable distribution or community property laws as of the signing of the agreement. Thus, the parties are not submitting their case to a non-Torah legal system, but are merely structuring a settlement in case of divorce. Rav Willig and Rav Zalman Nechemia understand that the Taz, cited by Rav Bleich, objects only to accepting whatever the civil laws will be at the time of adjudication, for that truly replaces Halachah with a new source of law. Here, however, where both sides spell out at the time of the agreement how they wish to divide their property, they have the right to make arrangements as they see fit (Davar SheBeMamon Kayam), as long as they do not blindly submit to the authority of the civil court or civil laws.
The Rabbinical Council of America’s Beth Din of America (Rules and Procedures 3(d) and 3(e)) follows Rav Willig and Rav Zalman Nechemia’s view:
“(d) In situations where the parties to a dispute explicitly adopt a ‘choice of law’ clause, either in the initial contract or in the arbitration agreement, the Beth Din will accept such a choice of law clause as providing the rules of decision governing the decision of the panel to the fullest extent permitted by Jewish Law.
(e) In situations where the parties to a dispute explicitly or implicitly accept the common commercial practices of any particular trade, profession, or community – whether it be by explicit incorporation of such standards into the initial contract or arbitration agreement or through the implicit adoption of such common commercial practices in this transaction – the Beth Din will accept such common commercial practices as providing the rules of decision governing the decision of the panel to the fullest extent permitted by Jewish Law.”
Rav Yonah Reiss notes (Shaarei Tzedek 4:295) that following their view encourages couples who might otherwise use the civil courts to adjudicate in Batei Din instead.
Suing a Non-Jew in Civil Court
Rav Menashe Klein believes a Jew should not sue even a non-Jew in civil court. Some Posekim share his position, but Posekim continue to debate this matter. See, for example, Dinei Mamonot (1:347) and Rav J. David Bleich’s essay in Tradition (pp. 80-83). One point that Rav Bleich addresses is suing a Jew with insurance coverage in civil court to collect payment from the insurance company. Rav Bleich concludes:
“Since it is readily perceived that the cause of action is really against a non-Jewish insurance company that will not appear before a Beit Din, it would appear that judicial proceedings in such circumstances do not constitute aggrandizement of a non-Halachic legal system and hence such suits are not forbidden.”
Serving as a Lawyer or Juror
Rav Ovadia Yosef (Teshuvot Yechaveh Da’at 4:65) distinguishes between representing the plaintiff in Israeli civil court, which he prohibits, and representing the defendant, which he sometimes permits. Rav Ovadia argues that the plaintiff’s attorney actively endorses a non-Torah legal system by helping a Jew utilize it, in violation of Halachah, to collect money. The defendant, on the other hand, does not necessarily wish to appear in secular court; he might prefer to follow the Halachic requirement to submit the dispute to a Beit Din. Rav Ovadia thus permits representing a defendant who sought to have a Beit Din adjudicate his case, equating such a situation with “saving a victim from his robber.”
Rav Klein (Teshuvot Mishneh Halachot 4:213) prohibits serving on a jury, especially when the case includes a Jewish litigant, because performing jury duty glorifies a non-Torah legal system.
Rav Hershel Schachter told Rav Ezra Frazer (oral communication) that he strongly disagrees with this ruling. He explained that the Halachah requires non-Jews to establish a legal system, so a Jew does nothing wrong by participating as a juror in civil courts, unless both litigants are Jewish (in which case facilitating their trial supports a sin). Regarding capital trials, Rav Schachter argues that every government has the right to punish criminals within reason. For example, if a Jew murdered, a non-Jewish government may legitimately execute him. Accordingly, Jewish jurors may vote to convict a Jewish defendant if solid evidence convinces them that he committed murder. Rav Yitzchak Isaac Liebes (Teshuvot Beit Avi 2:144) also permits Jews to perform jury duty in both civil and capital cases. It is also important that Jews not attempt to exempt themselves dishonestly from jury duty by fabricating excuses. This type of dishonest behavior can lead to public Chilul HaSheim (desecration of God’s name; see Teshuvot Melameid LeHo’il 1:42).
Chazal condemn Mesirah, turning a Jew over to non-Jewish authorities, as a terrible sin (see Rosh HaShanah 17a, Rashi s.v. VeHaMesurot and Gray Matter 4). Accordingly, we might expect Halachic authorities to disapprove of assisting the government in apprehending Jewish criminals. Nevertheless, many authorities distinguish between just and unjust situations. Following the same line of reasoning as his ruling on capital jury duty, Rav Hershel Schachter (The Journal of Halacha and Contemporary Society 1:118) explains:
“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, shelo min hadin, 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 where I consulted him. An Orthodox woman, who was serving as an assistant district attorney (ADA) in an American city, was assigned the task of prosecuting an Orthodox man accused of severe child abuse. She asked me if Halachah permitted her to do so, and I consulted Rav Schachter. Rav Schachter responded that she may prosecute him (based on Rashi (Gittin 9b s.v. Kesheirin and s.v. Chutz) and Teshuvot Maharam Shik C.M. 50), as Batei Din today lack any jurisdiction in criminal matters, so otherwise the accused would go unpunished and repeat his heinous crime. Indeed, Rav Yonah Reiss has told me that the Beth Din of America does not adjudicate criminal cases.
Rav Yitzchak Herzog (Techukah LeYisrael Al Pi HaTorah 1:173) notes that Rabbis in Israel similarly acknowledged their current inability to punish criminals, and they consequently chose to abdicate responsibility for criminal matters.
It is fundamentally prohibited for two Jewish litigants to present their case to a civil court for adjudication. Nevertheless, one should consult a competent Rav and lawyer in questionable situations, as this prohibition has many exceptions. In Israel, the prohibition against civil courts is further complicated by the fact that the judges are mostly Jewish and are thus themselves bound by Halachah. Rav Yaakov Ariel (Techumin 1:319-320) summarizes the present state of Israeli courts:
“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…. Israel, the Jewish state, should have traditional Jewish civil law as the law of the land. Just as it is inconceivable to have a Jewish state whose official language is not Hebrew or that does not 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 rabbinical courts.”
Recently, however, there has been increased use of Beit Din instead of civil courts for dispute resolution in both Israel and the United States. Batei Din are slowly regaining their proper place within the Jewish community. We hope that Jews resolve their differences by themselves or via mediation. In the unfortunate event that they not be able to do so, then the Halacha should be respected and the dispute should be presented to Beit Din for adjudication instead of burdening society by resolving the issue in civil court.