Halacha Date: 6 Adar 5779 February 11 2019
In the previous Halacha we have explained that there is a very grave prohibition for one to have a dispute adjudicated before non-Jewish courts. This is true even when their judges rule based on the laws of the Torah. This is also true even when both litigants agree to go to civil court. One who does so is called a wicked person and is considered to have blasphemed and rebelled against the Torah of Moshe Rabbeinu. The source of this law is based on the verse, “These are the laws which you shall place before them”- before them and not before non-Jews.
In the State of Israel, the judges in the secular court system are indeed Jews but these judges generally do not rule in accordance with the laws of the Torah and in any event, they are not at all well-versed in the vast and detailed laws of the Torah (much more than the material necessary to master secular Hebrew law; indeed, even a bright Kollel man must spend approximately ten years poring over the Talmud and halachic literature in order to reach the level of a rabbinical judge). It therefore seems that there is no difference between Jewish or non-Jewish judges regarding this matter.
Indeed, Maran Rabbeinu Ovadia Yosef zt”l writes that the fact that these judges are Jewish is a reason for stringency, for the Jewish nation is bound by the oath that they took at Mount Sinai to judge based on the laws of the Torah and these Jewish judges have forsaken the true path of Torah by judging based on non-Jewish laws and their precedents and tomes. This is much worse than being judged by a non-Jew who was never commanded to judge based on the laws of our Torah, for although non-Jews were commanded to establish a court system for themselves (as the Rambam rules at the end of Chapter 9 of Hilchot Melachim), they may nevertheless judge based on human logic and the facts that are present before them and they are not obligated to judge based on the laws of the Torah. Nevertheless, it is still a serious sin to go before them to be judged; how much more so is it prohibited to go before such Jewish judges who are commanded to judge in accordance with the Torah’s laws and have turned their backs on their heritage by judging based on anything else but the Torah’s laws. By judging based on laws derived from the Ottoman Empire, British Mandate, and the like, they glorify the laws of the non-Jews and insult our holy Torah.
Similarly, in a letter to a religious attorney who was astounded how the Chief Rabbi of Jerusalem could equate the Israeli secular court system with a non-Jewish, civil court system, Hagaon Harav Tzvi Pesach Frank zt”l writes: “When considering the reason the prohibition to go before a non-Jewish court to be judged, which is because by doing so, one glorifies their laws, as the verse states, ‘And our enemies judge us,’ meaning that when our enemies judge us, this attests to the superiority of their deities, as Rashi explains in the beginning of Parashat Mishpatim (as we have quoted in the previous Halacha), thus, one who goes before them in order to be judged is a wicked individual, as per the words of the Rambam and Maran Ha’Shulchan Aruch. For the same reason, a Jew who judges based on their laws is much worse than a non-Jew doing so, for a non-Jew is not commanded to judge based on Jewish law but a Jew who is commanded to rule based on the laws of the Torah and alienates himself from it by ruling in accordance with Ottoman codes of law and the like, about whom the verse states, ‘They band together to do away with the righteous and they condemn the innocent to death,’ is wicked and has rebelled against the Torah of Moshe Rabbeinu. The Rashba writes that such a person destroys the walls of our religion and eradicates all of its roots and branches. The Torah shall surely seek revenge from such a person. The same applies to anyone who goes before such judges to be judged. It is deeply disheartening that these laws were ratified by the government and the Knesset (parliament) as the basis for law in the State of Israel. Woe unto such people for the shame of the Torah.” Hagaon Chazon Ish and Hagaon Harav Yitzchak Eizik Ha’Levi Herzog, the late Chief Rabbi of Israel, write likewise.
Besides for all of the above reasons, there is another very obvious reason to prohibit going to be judged before such secular court systems, for our Sages taught, “These are the laws which you shall place before them”- before them and not before non-Jews, before them and not before simpletons. This means that a simple person who has not been ordained by the generation’s leading Torah scholars should not judge others. This would certainly apply to judges in the Israeli secular court system, for they are completely invalid to judge as they transgress Torah prohibitions knowingly and publicly; they are thus certainly worse than regular, simple individuals who are likewise invalid to serve as judges. This is likewise the opinion of all of the leading Poskim of the generation. Indeed, the Gemara (Shabbat 139a) tells us, “If suffering befalls the Jewish people, go out and scrutinize the judges of Israel.” We hope and pray that Hashem return our righteous judges like in the days of old, for “Zion shall be redeemed through justice and its captives with righteousness.” In the following Halacha we shall discuss some practical applications related to these laws.