Halacha for Sunday 5 Adar 5779 February 10 2019              

Halacha Date: 5 Adar 5779 February 10 2019

Category: General


Civil Courts

The Baraita in Masechet Gittin (88b) states: “Rabbi Tarfon says: Wherever non-Jewish secular courts are found, although their laws may be similar to Jewish law, one may not go before them to be judged, for the Torah states, ‘These are the laws that you shall place before them’- before them and not before non-Jews.” This means that there is a Torah prohibition for one to have a dispute adjudicated by non-Jews; even if the non-Jews rule correctly in accordance with our holy Torah, the prohibition still stands.

The Rambam (Chapter 26 of Hilchot Sanhedrin, Halacha 7) writes: “Whoever goes to be judged by non-Jews in their courts, although their laws may be based on Jewish law, is considered wicked and it is though he blasphemed and rebelled the Torah of Moshe Rabbeinu, as the Torah states, ‘These are the laws that you shall place before them’- before them and not before non-Jews.” The Tur and Maran Ha’Shulchan Aruch (Choshen Mishpat, Chapter 26) rule likewise.

The Rabbeinu Shmuel di Modena and the Rabbeinu Yitzchak Adarbi write that the greatest sages of that generation (approximately four-hundred years ago) including the rabbis of Tzefat, Istanbul, and Salonika cursed any Jew who dared go before a non-Jewish court to be judged with all of the curses written in the Torah. The Rashbetz writes that this is clearly a grave Torah prohibition based on the words of Rashi in the beginning of Parashat Mishpatim that even when we know that they rule on certain matters in accordance with our holy Torah, one may still not come before them to be judged; whoever does so desecrates the name of Hashem and glorifies the name of the idols that the non-Jews worship (by showing that the laws of the non-Jews which are based on their religion are more correct than those of our holy Torah, G-d-forbid, since one is veering away from the laws of the Torah and following the laws of the non-Jews) as the verse states, “Our enemies are judges,” meaning that when our enemies judge us, this portrays the superiority of their laws over ours. Therefore, even if both litigants have agreed to bring their case before a civil court, they may not do so. This applies even when the non-Jews rule based on Torah law (for if they do not, one who goes before them to be judged is clearly a thief, for one is taking money that does not belong to him according to Halacha; one becomes invalidated to serve as a witness and is considered to have blasphemed and rebelled against the Torah of Moshe Rabbeinu, as per the words of the Rambam). The Rif writes in one of his responses that one who wishes to be judged in a secular court should be excommunicated.

We can therefore understand the severity of being judged in civil courts, a matter which, unfortunately, many people take lightly and do not pay attention to. In the following Halachot we shall, G-d-willing, discuss the status of the secular court system in the State of Israel and how one should behave if one is compelled to appear before a civil court.

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