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Secular Courts in the State of Israel
Rav Yaacov Ariel
Rosh Yeshiva -- Yamit

Secular Courts in the State of Israel
Rav Yaacov Ariel, Rosh Yeshiva -- Yamit

Reprinted with the permission of Zomet Institute (Alon Shvut -- Gush Etzion).
This article appears in Crossroads Volume II, published by the Zomet Institute.

A. The Problem
B. Non-Torah Judiciary
C. The Ideological Basis of the Prohibition
D. Rejection of Torah Authority
E. Non-Torah Judiciary Today
F. Strengthening the Authority of Torah Jurisprudence

A. The Problem

The deplorable state of Torah justice in the State of Israel is one of the most painful problems for religious Jews today. The established legal system of the State of Israel is either non-Jewish, or "Israeli", which is an amalgam of laws of various origins, including a scattering of articles based on the Shulchan Aruch, which were included primarily because of coalition pressure on the government. The general spirit of the system, as well as most of the judges, is alien to Jewish tradition. Most religious Jews, under the impression that the principle that the "law of the land is law" (dina d'malchuta dina) applies to this case, are unaware of the seriousness of the prohibition on litigating before secular Israeli courts. As a result, those Jews who are aware of the prohibition are characterized as extremists and anti-Zionists.

The source of the error in this case is an essentially valid premise. It is generally correct to identify the state with the system of justice. However, in this case, that is precisely the root of the problem. Since the State of Israel is the state of the Jewish people, it should be governed by authentic, traditional Jewish law. In the same way that it is inconceivable to have a Jewish state without a Jewish language as the official language, the Jewish calendar as the official calendar, and an explicit relationship with the Jewish people (the Law of Return), so too a Jewish state without Jewish law is inconceivable. As long as foreign law rules the state, a Jew who is cognizant of the importance of law is not able to identify with that component of the political structure, even though he accepts the other components of the political structure. Precisely because of his love for the State of Israel, every loyal Jew must aspire for the restoration of authentic Jewish law to the place in the State.

For instance were there to be no religious education available in the State educational system, would a religious Jew be obligated to accept the secular educational program and send his children to study in its institutions? Would he not remain a loyal citizen and even a good Zionist, by identifying with other components of the political structure? Most religious Jews do not understand that secular justice is like secular education, and both cannot be adopted by a religious Jew. Perhaps the political struggle to ensure religious education resulted in the neglect of the problem of religious justice.

A significant portion of the blame for the general indifference of the religious public to this problem can be attributed to religious jurists who, in contradiction to the unanimous opinion of Torah scholars in recent generations, developed the theory that the prohibition on non-Torah judiciaries does not apply to the Israeli court system. The present article is presented in order to correct this misconception and demonstrate the gravity of the prohibition on non-Torah judiciary in our times.

B. Non-Torah Judiciary

The source of the prohibition on non-Torah judiciary is the verse: "And these are the ordinances which you shall place before them" (Ex. 2l, l). The Talmud (Git. 88b) infers: "‘Before them' - and not before non-Jews; ‘before them' - and not before laymen." The prohibition clearly includes the adjudication of Jews who are unlearned and do not adjudicate on the basis of Torah law.

Contrarily, the Talmud (San. 23a) legitimizes the "courts of Syria", which consist of laymen who, having been accepted by the public, judge according to local law and common sense (Meiri, ad. loc.). What is the difference between the secular courts of the modern State of Israel and the Talmudic "courts of Syria"?

The Ran (San. 23a) explains that the latter consist of judges who are not qualified to judge according to Torah law, but are appointed in localities where there are no scholars. Their judgments are legally valid because they have been accepted by the community. The Ran asks: Why are their judgments valid, as a judge who is ignorant of the law is disqualified? Although a court of three laymen is acceptable (San. 3a), that is only if at least one of them, although not ordained, is learned and intelligent. If, however, they are all ignorant, their judgments are definitely invalidated. Furthermore, of what validity is the acceptance of the community, since it is prohibited to do so? (1) The Ran's answer is that the acceptance is legitimate and the judgments consequently valid because there are no Torah scholars in those localities.

This answer is not readily understandable. There are additional difficulties in this matter.

l. The Mishna (San. 24b) states: "(If one of the litigants says) I accept my father; I accept three cowherds - Chachamim say, he cannot retract (his acceptance)." What is the difference between acceptance by the litigants of three cowherds which is valid even in a locality where there are both scholars and a qualified court, and the acceptance by the community as a whole, which is effective only where there no scholars available?

2. What is the rational to suspend a Torah prohibition because there are no scholars available? Is it a case of mortal danger (pikuach nefesh), which suspends Torah prohibitions? Why should the litigants not have to travel to a distant city in order to present their case there?

3. The Ran (San. 2b) explicitly states that acceptance by the litigants is not sufficient to legitimize lay judges:

For the Torah has stated that it is prohibited to appear before laymen even if the litigants have accepted their judgment, in the same manner as it is prohibited to appear before non-Jews even if the litigants have accepted their judgment. Even though in both cases the judgment is invalidated according to the Torah, nonetheless, the Torah has (also) prohibited appearing before laymen; in order to prevent appearing in non-Jewish courts which renders honor to their gods and in order that laymen not invest themselves with the crown of scholars.

4. The statement quoted above (question 3) is cited by the Ran in the name of the Ramban. In his commentary to the Torah however, the Ramban writes: "Although the Sages refer to these two classes (non-Jews and laymen) together, there is a distinction between them. If the two litigants wish to appear before a Jewish layman, it is permitted; and if they accept him, his judgment is valid. But it is always forbidden to appear before a non-Jew to adjudicate for them." It appears that the Ramban, like the Ran, contradicts himself. (See Responsa Ran 73).

5. It is difficult to understand how the Sages could derive two different laws - the exclusion of laymen and the exclusion of non-Jews - from a single word, "lifneihem" ("before them"), especially according to the Ramban who differentiates between the two. (See Haamek She'eila, 8, 1.)

6. The Shulchan Aruch (ChM 26,1), when citing the exclusion of non-Jews, omits the law relating to laymen.

It is forbidden to litigate before non-Jewish judges or in their courts, even if they rule in accordance with Jewish law, and even if both litigants have agreed to litigate before them. (One who litigates before them is an evildoer, and it is as if he has blasphemed and rebelled against the Torah of Moshe our master, alav hashalom.

The Rambam, on the other hand, cites both exclusions, but in an inconsistent manner.

"One who litigates before non-Jewish judges, even though they rule in accordance with Jewish law, is an evildoer; and it is as if he has blasphemed and rebelled against the Torah of Moshe our master, as is written, 'These are the ordinances which you shall place before them' - before them and not before non-Jews; before them and not before laymen."

The formulation of the law refers only to non-Jews, while the source cited includes laymen as well. Why did the Rambam not include laymen in the formulation of the prohibition, and why did the Shulchan Aruch omit mention of them altogether?

7. Why is this prohibition not included in any of the traditional lists of the 613 mitzvot?

8. The formulation of the Rambam (cited above in question 6) implies that the prohibition is not essentially a divine decree based on the verse "These are the ordinances....", but is an instance of desecration of God's name and rebellion against the Torah. The verse, by specifying "before them", serves only to define who is a qualified judge. All others are ipso facto disqualified. This is even clearer in the Shulchan Aruch (above, question 6), who omits reference to the verse completely. In general, we must understand why this prohibition, as opposed to all others, is defined as blasphemy and rebellion.

C. The Ideological Basis of the Prohibition

It is necessary to preface a ideological explanation of this law, which will enable us to understand that the law is based solely on the fact that it constitutes denial of the Torah and of God, and is not an independent prohibition.

The source for this assertion is in the Midrash Tanchuma (Parshat Mishpatim): "Anyone who forsakes Jewish judges and appears before non-Jewish ones has firstly denied God and secondly denied the Torah, as is written, "For their rock is not as our Rock, and our enemies are judges" (Deut. 32,31). This verse teaches us that a preference of non-Jewish justice over Jewish justice is especially reprehensible. A certain measure of identification exists between the system of justice and the God of justice in Israel, and conversely, between the national systems of justice of other nations and their gods. Rashi (Ex. 21,1) explains, "When our enemies are (our) judges, it is testimony to the honor of their gods." This idea is implicit in the very word "elohim, which means both god (specifically the attribute of justice) and judges. The human judge derives his moral values, his legal reasoning, and his judicial authority from the supreme Judge, creator of the world, who created man in His image so that he might lead a lie of truth and justice. This is the basis for the importance of social behavior in the Torah, as expressed in the dictum of R. Akiva. " ‘You shall love your fellow as yourself ' is a supreme principle of the Torah" (Sifra, Parshat Kedoshim), and, even more extremely, in the advice of Hillel: "That which is hateful to you do not do onto your fellow - this is the Torah in its entirety. The rest is commentary; go and study" (Shab. 31a). The very first mitzvot after the giving of the Torah on Sinai were "And these are the ordinances..." - to emphasize that "just as the preceding (ten commandments) are from Sinai, so too are the following (social ordinances) from Sinai" (Mechilta, Parshat Mishpatim). Justice is not a product of mere human intelligence, designed only to facilitate social utility an-d efficiency . Jewish social existence possesses a divine purpose and reflects a divine order. It is the divine attribute of justice that in its ultimate wisdom sets the boundaries of the obligations and rights of every man, and decrees the appropriate punishment for those who overstep or violate those boundaries. Any deviation from the exact delineation of the divine wisdom constitutes robbery and theft, and threatens the existence of society. The verdict of the generation of the great flood "was sealed only because of theft" (San.108a, cited by Rashi, Gen. 6, 1 3). The Mishna (Avot, ch. 1) accordingly states that justice is one of the pillars of the world. "He who renders true judgment becomes a partner of God in the creation of the world" (Shab. l0a), as the purpose of creation was in order that truth and justice flourish. This is a very basic and profound principle.

Although prior agreement and consent is undoubtedly effective in monetary disputes, it is inconceivable that the entire system of justice be entrusted in principle to human agreement. This would make justice dependent on the vagaries of current modes of thought and intellectual fashion. Such a system, necessarily, relative and incomplete, could not possibly encompass all people in all times. Absolute justice must be atemporal and suprahuman. Only thus can a system of relative, temporal justice, which at times is necessary as a temporary measure, exist. The sovereign Jewish state must be especially careful not to deviate excessively from the absolute Torah standard of justice.

Furthermore, civil law occupies a considerable portion of Jewish law. The Talmud (BB 175b) states that one w ho wishes to achieve wisdom should study it, as it constitutes the wisdom of God. Is it possible that this major section of the Torah should be abandoned and adjudged irrelevant? The Rashba decries precisely this situation:

One who relies on this broken reed and does these things is throwing down the walls of the Torah.... I say that one who relies on this, saving that it is permissible because "the law of the land is law", is mistaken and committing theft... and is uprooting all the laws of the perfect Torah. Who would need the holy sanctified books written by R. Yehuda HaNassi and, after him, by Ravina and Rav Ashi? One could teach his children the laws of the idolaters and build patched cathedrals in their houses of study. God forbid! This shall not be in Israel, lest the Torah wear sackcloth for them (cited in the Beit Yosef, ChM 26).

D. Rejection of Torah Authority

This shocking statement of the Rashba is not an additional rationale for the prohibition of non-Torah judiciary, but expresses the source and the definition of the prohibition. That is why this prohibition is never listed as an independent mitzvah in the lists of the 613 mitzvot, as it is included in the prohibition to desecrate the name of God and the commandment to believe in God as the giver of the Torah (see Sefer Ha Chinuch, 25) and creator of man in His image. (This answers question 7.)

The derivation from "before them - and not before non-Jews and laymen" is not the source of the prohibition. It constitutes an injunction to entrust judicial authority to those proficient in the knowledge of divine justice, as only they are authorized to interpret and apply it. One who prefers other judges, whether non-Jews or laymen, who are not authorized to apply Torah law, even though they may have by chance concurred with a Torah lav, is thereby denying the Torah and its sages. (This answers question 8.)

It is now clear how one word can be used for two exclusions, both non-Jews and laymen. In actuality, there is only one exclusion - anyone not proficient in Torah law. (This answers question 5.) We shall see below how a distinction between these two groups can arise.

In light of this explanation, there will be a difference between the preference for a non-Jewish judge out of a fundamental acceptance of his authority in principle and a one-time acceptance of a non-Jew in a specific case. as in the case of the "three cowherds." The first is prohibited, while the latter is not. This distinction is found in the Shach (ChM 22,15):

Only where they agreed generally to adjudicate before non-Jewish judges (is it prohibited), but not in the case cited by the Mordechai, where they accepted a particular non-Jew. In this case. they are relying on this non-Jew who is acceptable to them. This is comparable to the acceptance of a relative or other disqualified judge. This distinction is absolutely correct.

A similar distinction is found in the Shulchan Aruch (OH 2Ol, 2): "A scholar, although not a kohen, should not give precedence to an ignorant kohen in order to recite the blessing before him as a matter of principle, but it is permitted to give him permission to recite the blessing first."

The same would appear to apply to lay judges. It is an act of denial and rebellion against Torah authority to appoint a layman as a permanent judge instead of a scholar. However, choosing laymen incidentally to arbitrate in a given dispute would not be considered rebellion. In this way, we can resolve the contradictions in the Ran. Permanent appointment of non-Torah judiciary is permitted only in a locality where no scholars are available. Incidental acceptance by the parties to the dispute, on the other hand. is always possible. (This answers question 3.)

We now understand the Ran's distinction between localities. Only the preference of non-Torah justice is forbidden, as this constitutes a denial of Torah authority. If no Torah scholars are available, and therefore the use of a non-Torah judiciary is unavoidable in order to ensure social justice and peace, this cannot be considered an act of rebellion. This is, in fact, implied by the language of the Tanchuma (quoted above, sec. C), "Anyone who forsakes Jewish judges and appears before non-Jewish ones has firstly denied God and secondly denied the Torah." (This answers question 2.)

E. Non-Torah Judiciary Today

The question before us now is: What is the status of non-Torah courts today?

It is possible to distinguish between Talmudic times, when the unbroken chain of ordination originating in Moshe Rabbenu was yet in existence, and therefore the preference of another legal system was in effect the denial of the authority of the Torah; and modern times, when Mosaic ordination is no longer in effect and therefore all judges are legally considered to be laymen, so that the preference for a secular court is not as complete a rejection of the Torah alternative. This question is perhaps dependent on the controversy whether the mitzvah to appoint judges applies in modern times. The Ramban (commentary to the Torah, Ex. 21 ) maintains that once ordination was no longer in practice, all Torah civil law is no longer in force. Torah courts today operate only as agents of the ancient court (Git. 88b) by virtue of a rabbinic enactment. The Torah mitzvah to appoint judges no longer applies. This is also the opinion of the Tur (ChM, 1). The Sefer HaChinuch (235), on the other hand, writes that although the mitzvah to appoint judges (Deut. 16,18) does not apply, since there are no fully qualified ordained scholars available; the mitzvah of "Judge your fellow righteously" (Lev. 19,1), which allows an ordained judge to sit individually (and not only in a panel of three, cf. San. 3a), remains in force. It would appear that according to the opinion that there is a mitzvah to judge according to Torah law today, there remains a corresponding prohibition to have recourse to secular courts; whereas according to the Ramban who denies that there is such a mitzvah, the prohibition is also not applicable.

However, this interdependency is not necessarily valid. Even according to the Sefer HaChinuch, since the judges are not ordained in a direct chain originating in Moshe Rabbenu, it is possible that recourse to a secular judicature does not constitute a repudiation of Mosaic law. On the other hand, it is possible that even according to the Ramban, since there are Torah scholars who rule in accordance with Torah law, the preference for other judges does constitute a denial of the authority of the Torah.

It seems to me that the prohibition of non-Torah courts is a relative one, dependent on the comparative relationship of the secular and Torah judicature. If the difference between them is merely quantitative, the prohibition is only of rabbinic status; but if there is an essential and qualitative difference, the prohibition has Torah status. Accordingly, three possibilities exist:

a. Ordained judges and lay courts. The difference in this case is qualitative. The former are the intended judges for Torah law; the latter are completely disqualified. Therefore, the prohibition is of Torah status (Git. 88a).

b. Unordained (Torah) judges and lay courts. This is the situation in the State of Israel today. The difference is quantitative - the former are knowledgeable and the latter are not. The prohibition is therefore only of rabbinic force.

c. Unordained (Torah) judges and non-Jewish courts. Here once again the difference is qualitative. While the former are indeed not ordained, the latter are not even Jewish. Therefore, the prohibition is apparently of Torah status.

This resolves the problem with the Rambam (above, question 6), who began his citation of this law by only mentioning non-Jewish courts and then added lay courts at the conclusion. His intention is to indicate that the former is a permanent unchanging prohibition which applies at all times. even when ordination is no longer practiced. The latter, however, even though it is derived from the same verse. is different. It depends on the status of Torah judges at that time. If there are ordained judges, the prohibition is of Torah status, but today when there no ordained judges, the prohibition is only rabbinic. Therefore, the Shulchan Aruch does not cite the latter prohibition at all. In a locality where Torah scholars are present, there will be at least a rabbinic prohibition; however, if there are no scholars, there is no prohibition whatsoever. Since the Shulchan Aruch only cites laws that are applicable today, this prohibition, whose application will depend on local conditions, is not cited.

Our conclusion is that since the prohibition of non-Torah courts consists essentially of denial of the Torah, it depends on the comparative relationship between the non-Torah court and the available Torah alternative. It is logical that the prohibition does not apply or is at least mitigated in a case where the lay court is constituted "for the sake of heaven" and the good of the community, existing only in the absence of Torah scholars or where the difference between them and the Torah scholars is not qualitatively significant. (In the latter case, there exists the need for the acquiescence of the Torah scholars, cf. Kli Yakar, Ex. 21). In this vein, the Chazon Ish (ChM 15,4) requires that the lay court judge by common sense and not according to a foreign legal system. The Meiri (San. 23a) explicitly mentions "laws and customs", but this probably means only that the court has adopted a set of legal procedures and not that they have consciously preferred a foreign legal system to the Torah.

Therefore, we can propose a fourth possibility, in which the prohibition will be of Torah status. If the laymen deliberately and systematically ignore Torah law, blatantly preferring non-Jewish law to the Torah, the prohibition is of Torah status. It is possible that no guilt should be assigned to the judges themselves, as they are "tinokot shenishbu" who were never educated to appreciate the light of Torah and may not even be aware of the existence of Torah law, and therefore cannot be considered to be rebelling against the Torah. An observant Jew, however, who is aware of the existence of Torah law and competent Torah scholars to apply it, but nonetheless prefers to be judged by these laymen, is surely guilty of blasphemy and rebellion against Torah law. This transgression constitutes desecration of the name of God, exactly as though he had gone before a non-Jewish court.

F. Strengthening the Authority of Torah Jurisprudence

There are those who believe that the introduction by the Knesset of laws based on the Shulchan Aruch into the secular law could serve to mitigate the prohibition. It is true that each such law which supplants one drawn from a non-Jewish source lessens to a certain extent the totality of the repudiation of Torah law inherent in the former situation, replacing it with at least a partial recognition. However, it must be noted that the effect of this step is apparent only at the onset, when the origin of these laws can still be recalled. As the law becomes part and parcel of the body of civil secular lav, modified and explicated by secular jurists who utilize the mental framework and conceptual world derived for the most part from non-Jewish sources, it gradually loses its Jewish character, and the situation reverts to one of total repudiation in principle.

In order to avert the desecration of the name of God and prevent the obliteration of Torah law in our society, there is no alternative to the strengthening of Torah jurisprudence, at least to a status equal to that of the foreign law. This must be done at two levels: at the legislative level, by equalizing the status of the rabbinical courts with that of the secular courts in terms of authority and power; and on the public level, by the exclusive utilization of the rabbinical court in all cases of financial disagreement by all who honor Torah. Let us take a lesson from the founders of the "court of peace" seventy odd years ago, who out of concern for national honor and the desire to preserve Jewish autonomy, as they understood it, preferred the Jewish Court of Peace to the Turkish court, although the latter was the recognized and authoritative venue. Only thus can we see the fulfillment of the verse:

I shall restore your judges as at the beginning, and your advisors as at the start;
Afterwards you shall be called the city of righteousness, a faithful city.
Zion shall be redeemed through justice,
And those that return to her with righteousness. (Is. l.,26)

Note (1) Cf. San. 26a, where it is stated that a majority political decision against the dictate of a prophet is not legally valid, as the "agreement of transgressors is not a legal decision."

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