Any kind of
court is not a place most of us should want to end up in (at least not as a
litigant). However, the reality is that humans tend to get into arguments and
are not always able to settle their differences independently. Furthermore,
those who are victims of (or witnesses to) criminal activity will sometimes
need to report this to the relevant authorities if justice is to be carried
out.
The Torah has
much to say about these situations, although sadly there is a great deal of
ignorance about this even among observant Jews. This ignorance has two
extremes- some are not aware of any prohibition of litigating in non-Jewish
courts, whereas some think that this is forbidden under almost any
circumstances. As always, in order to achieve clarity it is necessary to
understand the source of the laws involved, together with their rationale.
The
prohibition
The gemara quotes a statement of R' Tarfon:
"Wherever one finds courts of non-Jews, even if their laws are
identical to Jewish law, you are not permitted to make use of them. As it
says, "These are the laws that you shall place in front of them (the
dayanim)"[1]- in
front of them and not in front of non-Jews."[2]
The underlined
phrase indicates that the main problem with non-Jewish courts is not the worry
that justice will not be carried out (although depending on the circumstances
this may well also be an issue). The reason for this injunction is explained by
the Rambam:
"Anyone who
litigates under non-Jewish laws or in their courts, even if their laws are identical
to Jewish law, is a rasha. It is as if he has blasphemed, insulted and
raised his hand against the Torah of Moshe Rabeinu."[3]
This strong
language drives home a point. One who prefers a non-Jewish court over a Beis
Din indicates that he prefers (sometimes subconsciously) an alternative legal
system over that of the Torah. He thus rejects the laws of the Torah, at least
when it comes to monetary issues. Even if the person involved davens regularly
and keeps other mitzvos, he shows that he does not believe in the authority of
the Torah over the more 'mundane' parts of our lives.[4]
I will go on to
demonstrate that there are circumstances where going to non-Jewish courts does
not indicate a rejection of this part of the Torah and thus is not prohibited.
However, first I would like to point out one potential excuse given which is
not acceptable.
A claim which is
often heard implicitly is that while the Torah is perfect and a person would
want to follow Torah law, rabbinical system has become antiquated and Batei Din
nowadays are not worldly or experienced enough to deal with modern disputes.
While in many cases this claim is not baseless, it does not suffice. From
personal knowledge, there certainly are Batei Din around whose dayanim are well
versed in the intricacies of modern business.[5]
[6]
Clear
exceptions
The most
explicit dispensation given for going to a secular court is when the defendant
refuses to come to Beis Din (if he is not Jewish this refusal can usually be
taken as a given). In an ideal situation this refusal would not be possible, as
the Sanhedrin and its delegates would have the power to force the issue.
Nowadays, there is no country in the world where this is the case.
Clearly, the
Torah does not expect a person to forgo his claim just because it is impossible
to enforce Torah law. The accuser must put forward his claim to Beis Din, who
will advise him that under these circumstances it is permissible to sue in a
secular court.[7] Since
he has clearly indicated his preference for Torah law, using an alternative out
of lack of choice does not constitute an attack on the Torah.
Criminal
cases and mesirah
Based on all of
this, it should be obvious that whenever it is clear that there is no practical
way to have a case heard by Beis Din, the prohibition of going to a non-Jewish
court does not apply. Thus currently it is permitted to report any crime to the
civil authorities, unless there is a possibility that the offender will be
punished in a way that is forbidden by the Torah.
For most of our
history, this last concern was a very real one. One who handed over his fellow
Jew to the non-Jewish authorities (a moser), even if he was a criminal,
was liable to the death penalty as a rodef (literally a pursuer, but
including anyone causing a danger to someone else's life).[8]
Even if he only gave information aiding non-Jews to take someone's possessions,
this could eventually lead to the person being put to death in attempt to
extract more from him.[9]
In more
civilised societies where this fear does not exist, a moser is clearly not
equivalent to a rodef. However, if damages caused are beyond what the Torah
allows for, it is still forbidden to aid the authorities in any way. One
example is testifying in a court that will rely on just one witness to enforce
payment, contrary to Torah law. One who provides such testimony may be
excommunicated.[10]
R' Moshe Feinstein
extrapolates from here that since according to the Torah the only punishment
that a thief gets is returning what he stole and in some cases paying double, one
may not report his actions to the police if this may lead to imprisonment.
At the end of
the teshuva, R' Moshe mentions the case of R' Elazar bar R' Shimon and R'
Yishmael bar R' Yosi who caught thieves on behalf of the authorities and
punished them by death.[11]
Although they were criticised for this, it appears that according to the letter
of the law their actions were not forbidden (and they certainly were not
considered murderers). Quoting the Beis Yosef in the name of the Rashba, R'
Moshe answers that as they were appointed by the authorities to do this job,
their situation was different.[12]
This answer is difficult
to understand. If it is forbidden to report a thief to the non-Jewish
authorities because their punishments are illegitimate, how can it be permitted
to be the one carrying out the same illegitimate punishments?[13]
The conclusion must be that such retribution is in fact permitted by the Torah,
as we will explain.[14]
Law and order
The Torah sets
out standard punishments for different transgressions, which fall into three
categories. The severest crimes are punishable by death (for technical reasons
this very rarely happened), most non-monetary sinners receive lashes and those
who damage others usually have to pay. However, these standards are not
sufficient. Every generation and every community has its own areas that require
strengthening. In order to preserve law and order, there must be a person or
body with the power to impose extra punishments.
In general, the
person that the Torah gives this authority to is the king.[15]
He has the right (and obligation) to punish and make institutions according to
the needs of the time.[16]
When there is no king but there is Jewish autonomy, the Ran explains that this
authority is given to the Sanhedrin.[17]
Thus the gemara tells us that Beis Din also have the right to administer
special punishments at times of need.[18]
It goes without
saying that non-Jewish sovereign powers also have this authority.[19]
For much of Jewish history, these two systems acted concurrently. The Jewish
community had some degree of independent autonomy, although the non-Jewish
authorities stepped in when they decided to. In such a situation, reporting
crimes to the non-Jewish authorities or in any way aiding this process was a
severe transgression for someone acting in private capacity, although it was
not strictly forbidden for a Jew employed by them to act as an agent of a
legitimate law-enforcing body.[20]
When there is
only one body with any power to punish and 'make institutions according to the
needs of the time,' as long as they act within reason[21]
it is absolutely in order to report crimes to them. While we yearn for the time
that Hashem will 'restore our judges like in former times,'[22]
until this happens we cannot allow a situation where 'each man swallows up his
fellow.'[23]
[1] Shemos 21:1
[2] Gitin 88b
[3] Hilchos Sanhedrin 26:7
[4] It should be clear that this holds even if the judges are Jewish,
if the laws they are following are not the laws of the Torah.
[5] One only needs to look at some of the publications of institutions
like Machon Keter and Mishpetei Eretz to see this.
[6] Sometimes a claimant may be concerned about the accepted practice of
the defendant having the right to choose which Beis Din to go to. As there is
very little control over who has the authority to start a Beis Din, a dishonest
defendant may choose a place whose credentials are less than impressive.
However, the truth is that even this concern should not deter a person from
going to the Beis Din of his choice and registering his complaint about the
defendant's choice. If this Beis Din feels that the complaint is valid, they
can decide to authorise taking the case to a secular court.
[7] The details of this can be found in Shulchan Aruch, Choshen Mishpat
26:2. It may be necessary to demonstrate to Beis Din that at least according to
his version of events, he has a financial claim according to Torah law.
[9] Rosh, Bava Kama 10:27
[11] Bava Metsia 83b
[12] Igros Moseh, Orach Chaim 5:9. Although part of his reasoning is the
administering of physical punishment by the authorities, I believe that all he
is referring to is standard prison conditions in a Western country. The teshuva
was written in 5740 (1980) long after R' Moshe left Russia, to a dayan in
Manchester.
[13] See also Chashukei Chemed (R' Yitzchak Zilberstein shlita) Bava
Kama 27b, who says that R' Moshe could only have been talking about a case
where there is no concern that the thief will re-offend. He quotes a teshuva of
R' Avraham
Rappaport (Levov, 1584-1651) who writes that efforts made to redeem thieves
imprisoned by the non-Jews are a chilul Hashem (Shu"t Eitan HaEzrachi, siman
18). It also should be noted that the Rashba that R' Moshe is quoting does not
make any distinction between those representing the authorities and those
reporting to them (see Beis Yosef, Choshen Mishpat siman 388).
[14] I have already covered some of this in Capital
Punishment.
[15] The Rishonim debate whether or not the monarchy is an ideal or only
a response to an improper request of the people, but either way it is the
default position.
[16] Rambam Hilchos Melachim 3:10
[17] Drashos HaRan, Drush 11.
[18] Sanhedrin 46a
[19] The Torah describes the appointment of a Jewish king as being 'like
all the other nations' (Devarim 17:14).
[20] Civil courts in Israel do not have this legitimacy, as these cases should
come to Beis Din. Thus at first sight, it is hard to justify acting as a judge
in these courts. However, the power held by the justice system in this country
is such that judges who are loyal to the Torah can greatly influence national
issues in a positive way (and conversely, if there were no religious judges
this would severely limit the Torah's influence on the country). Thus the
interest to find a leniency for this is considerable (see Minchas Osher, Devarim
siman 3 who does allow it. See also this article
by Professor Eliav Shochetman at length). In my mind, the question that needs
to be examined is whether or not it is permissible to act as an agent for an
illegitimate legal system when carrying out damage limitation (it is often possible
to cite Torah law as a source in legal rulings). My inclination is that this is
indeed the case, although this needs to be sourced.
[21] See The
right to resist abuse of power about the limits of this.
[22] Yeshaya 1:26
