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Litigation In Secular Courts
Rabbi Simcha Krauss

  1. Rambam, Hilchos Beis HaB'bhira, 6, 16.
  2. Rambam, Hilchos Snahedrin, 3,7.
  3. See Gittin 88b.
  4. Gittin 88b.
  5. The term used In the Braitha is "courts of Akkum" or "ovdei Kochavim." I have translated it as the broader "gentiles"' because the halacha is not restricted to idol worshipers alone. See the Tshuvat Hatashbetz, chelek 4, siman 6,where he says that the halacha applies to Muslims too.

    We have taken the position In this paper that the issur of Arkhoath Shel Nochrim is not limited to idol worshipers alone but to all "goyim." We also would like to point out that the issur of Arkhoath is not limited to those "goyim" who take bribes. Rather, the issur of going to Arkhoath Shel Nochrim is an all encompassing, general issur embracing all and any "goyim."

    We have referred to the Tashbatz that the issur includes not only idol worshipers but that it is - that is, members of the Islamic faith. The Tashbatz, In another tshuva, chelek 2, siman 220, also has an additional source for the issur, the verse of (Psalms 147). This passuk is, obviously, all-inclusive and not limited to idol worshipers or, for that matter, corrupt judicial systems.

    Indeed, the very of , cannot be limited to heathens alone. For the passuk excludes from Dayanus anyone who is not included in . The truth, of course, is that even Hedyotos (laymen) are excluded by this verse. Certainly then, the goyim that are excluded are all goyim.

    This, however, creates a problem. Why is it that kabala of hedyotos is valid and the kabala of goyim is not? If the issur is derived from the same verse how can we say that the halacha of kabala is different with regard to goyim ?

    The explanation of the Netziv (Haamek Sheala, Mishpatim siman 101) follows, in approximate terms:

    The passuk of is also used in another sense --- the -- the halacha has to be set before them, prepared for them like a set table ready to eat (Sanhedrin 6b). Moshe Rabbeinu was told that the Dayanim have to be taught Torah in such a manner that they should be so absolutely clear in their decision that when asked they should be prepared to defend their decision without hesitation. In other words, at the first instance, the passuk speaks of teaching the Dayanim Torah. On this comes now the of for goyim may not be taught Torah. There is an issur to teach Torah to goyim because of . Obviously, there is no issur to teach Torah to hedyotos. On the contrary, let us teach them, and let them learn. Of necessity then, imbedded In the passuk itself, we find the difference between hedyotos and goyim. And that is why kabala helps for hedyotos and not for goyim.

    lf the issur of is related to the issur of teaching them Torah it goes without saying that in this issur there is no distinction between idol-worshipers or any other gentile, between corrupt judicial systems or ethical ones.

    One can go even further. The Or Zarua (in Bav Kama siman 3) holds, as opposed to the Shulchan Aruch, that when both parties accept the Arkhaoth, their judgment is valid. His argument is based on the fact that since Bnei Noah are commanded in Dinim, their Din is valid even for two Jews. The point I would like to make is that even the Or Zarua speaks only about the validity of such going to Arkhaoth. But he also admits that in having chosen these Arkhaoth the parties have transgressed the issur of . Were the Or Zarua speaking only of a corrupt system, it is hard to say that he would grant such a system any validity.

  6. Shmos 21,1.
  7. Rambam, Hilchos Sanhedrin, 26,7.

    Some versions have it as , instead of . The Halacha applies to both. See note 6.

  8. Shulchan Aruch, Choshen Mishpat siman 60, s'eif 1.

  9. This is the [saying] of Shmuel in, among others, Bava Kama 113 and Gittin 10.

  10. For discussion of the parameters of Dina Demalchusa Dina see article by Rabbi Herschel Schacter - Journal of Halacha and Contemporary Society, Vol. 1, no. 1.
  11. Bava M'Tziah 94a, Bava Kama 126, Tosefta Kiddushin perek 3.

  12. Sanhedrin 24.
  13. Ramban (commentary on the Torah, Chevel ed.) 21, 1.
  14. Beis Yosef, Choshen Mishpat siman 26.
  15. Rama, Choshen Mishpat siman 369, seif 11.
  16. Beis Yosef, Choshen Mishpat siman 26.
  17. Shulchan Aruch, Choshen Mishpat siman 22 seif 2.
  18. Shach, Choshen Mishpat siman 22, siman katan 15.
  19. See the explanation of the Gra on Choshen Mishpat siman 22, siman katan 15.
  20. Quoted In Torah Shleimah by Rav Menachem Kasher, Volume 17, pages 9-10.
  21. Rambam, Hilchos Sanhedrin 26, 7. Shulchan Aruch, Choshen Mishpat siman 26, seif 2.
  22. Rosh, Bava Kama perek 8, siman 17.
  23. See Kli Chemdah on Parashat Mishpatim pasuk 1.

    25a. A negative command derived from a positive one. The issur of Arkhaoth is not couched explicitly In negative language, i.e. Thou shalt not ... It is implied In, and derived from, the positive mitzvah of going only to Jewish courts. The status of such a halacha is that of a "lav," a negative commandment.

  24. Tshuvas HaRamban, siman 63 (Chevel ed.).
  25. It is interesting to note that Ramban uses a different source tor going to Arkhaoth when no other recourse is available. He uses the Sugya in Bava Kama 276 - Avid Inish Dinah L'Nafshei - not the source used by Rosh. Kli Chemdah - without alluding to this Ramban - also contends that the Bava Kama 276 is a better source.
  26. Rambam, Hilchos Sanhedrin 26,7.
  27. Sheilos u'tshuvos Rama siman 52 (Zin ed.).
  28. Shaar HaMishpat, Chosen Mishpat siman 26, siman katan 1.
  29. Rambam, Hilchos Eidus 1,1.
  30. Mechilta D'Rabi Yishmael Mishpatim Parasha 1.
  31. This is evidenced by the text in Bava Metzia 3la that [Hebrew in original omitted] there are times when one can look away from seeing an Aveidah - for example - a Kohen in a cemetery or .
  32. See Noam vol. 9 - Article by Rav C.D. Kaplin.
  33. See Mishne Halachot by Rav Menashe Kiein, vol. V. See also Rav Ovadiah Yosef, "YeCchveh Daas" vol. IV #64 in footnote.
  34. Sanhedrin 23a.
  35. Id., [on the words] "b'archaos sheb'suryah."
  36. For a powerful and eloquent statement of this position see: Menachem Alon Hamishpat Haivri, and in particular page 22, note 80 and page 121-122 note 174.
  37. Cahzon Ish, Sanhedrin siman 16, siman katan 4.
  38. Brought down in Beis Yosef, Choshen Mishpat siman 8.
  39. See the quotes in section I of this article.
  40. Rav Ovadiah Yosef In Yechave Daas, op.cit., quotes the opinion of Harav Herzog and Harav T.P. Frank as holding too, that the secular courts in Israel are Arkhaoth. For another interpretation, though, of Rav Herzog's position see Alon, op.cit.

    42a. See Meiri on Snahedrin 23a (Sofer ed.).

  41. Alon op.cit.
  42. Tosfos Gittin 36a (words beginning) "Maiecah."
  43. Deuteronomy 28:14.
  44. See L'Torah Ulmoadim, by Rav S.I. Zevin P' Vayishlach.
  45. Midrash Tanchuma, Mishpatim, quoted by Torah Sheleimah, op.cit.
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