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."
***********************
This article is not a complete review of the
subject matter and, as such, the reader should not make
decisions on the basis of the above without consulting with an
attorney.
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Secular Courts in the State of Israel
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