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Litigation In Secular Courts
Rabbi Simcha Krauss

Litigation In Secular Courts
Rabbi Simcha Krauss

The Shmona Esrai, which a Jew says three times a day, contains our innermost and most profound prayers. In it we express and articulate our most basic needs - we pray for national liberation, the rebuilding of Jerusalem and the redemption brought by Mashiach. And in practically the same breath, we pray "restore our judges as of yore."

The juxtaposition of the rebuilding of our people and the restoration of our judges is not haphazard, but expresses rather an important concept: we believe that the sanctity of Jerusalem and the Beth Mikdash derive from the Shechina, the Presence of the Almighty which dwells therein eternally.1 Now there exists another institution of which we also say that the Shechina is there - that institution is the Court of Jewish Law, the Beth Din.

Rambam states so openly:

"The Shechina is with every proper Jewish Beth Din. Therefore, the judges should sit with awe and fear,.."2.

We may actually draw the analogy between the sanctuary and the Beth Din further. Of Batei Din too it can be said that, "even though they are desolate, the Shechina is there." It is true that Batei Din and Dayanim with full, complete, total and absolute authority In all areas of Jewish life ceased to exist with the end of the traditional Semicha3. Still, throughout history Batei Din judged, adjudicated, heard litigation and decided In accord with Torah law. Dayanim, though their area of jurisdiction was circumscribed and limited, still saw themselves as, and indeed were, carrying out the "shlichus" - the commission of the original Sanhedrin4. Wherever a Beth Din judges In accord with the canons of the halacha, wherever halacha comes to life, wherever you have a "proper Beth Din", there you have the Shechina.

This may be the underlying motif for the extreme stringency with which the Halacha views going to a non-Jewish court, generally called Arkhaoth Shel Nochrim, to settle litigation.

We shall explore here the question of whether, or to what extent, it is permitted for jews to sue other Jews In the secular courts maintained by the countries In which they live. Ancillary questions are whether a Jew may practice law In such courts, or act as a witness therein.

It is best to begin with the Braitha In Maseches Gitin5 "R. Tarfon used to say: 'In any place where you find gentile courts, even though their law is the same as the Israelite law, you must not resort to them since it says, "These are the judgments which thou shalt set before them." (Ex. 21:1) this is to say, "before them" and not before gentiles. Another explanation, however, is that it means, "before them" (i.e. judges) and not before laymen"6

This Braitha actually contains two prohibitions. First there is the issur against resorting to gentile courts. Second, there is an issur against resorting to Beth Din Shel Hedyotes (laymen). The Braitha itself, however, does not spell out the severity of going to gentile courts.

Rashi spells out the severity of this prohibition. "... for he who brings Jewish law to be adjudicated before gentiles desecrates G'd's name and makes dear (or gives value) to idols, for it is written 'For their rock is not our Rock, even our enemies are judges.' When our enemies are judges, it is a testimony to the superiority of their idol."7.

This stringency is also expressed In the codes of the halacha. Rambam states:

"Whoever submits a suit for adjudication to gentile judges In their courts, even if the judgement rendered by them is In accord with Jewish law, is a wicked man. It is as though he reviled, blasphemed and rebelled against the law of Moses, our teacher, for it is said, 'Now these are the ordinances which thou shall set before them.' (Exod. 21:1) - 'before them', not before heathens, and not before laymen."8.

The Shulchan Aruch too, reiterates and quotes Rambam's strong words that one who brings suit before gentile judges "blasphemes" and "rebels" against the Torah of Moshe Rabbeinu. But the Shulchan Aruch goes even further. The prohibition according to the Shulchan Aruch exists even if "both have agreed (to settle) before the gentile courts."9 The halacha against going to Arkhaoth is clear cut.

However, there are many difficulties that exist In living with the practical implications of this issur. Does the law forbid employing non-Jewish courts even if no Jewish court exists, or even if the government does not sanction the settlement of litigation by Jewish courts? Is there no redress then for a Jew In the absence of a Jewish court? And what if one of the parties will not accept the discipline of the Beth Din? These and other difficulties need to be cleared up as to the nature and character of the issur.

We know of the generally accepted principle that Dina Demalchusa Dina - the law of the land is the law.10 Jews are subject to the laws of the country In which they reside. Of course, Dina Demalchusa Dina11 is limited and, obviously, issues of issur v'heter do not fall under the aegis of Dina Demalchusa Dina. But going to court, litigation with another Jew regarding dinei mammonoth (monetary issues) should be permitted. Why is going to gentile courts, where both Jews, i.e. the plaintiff and defendant, agree to abide by the decision of the court, an issur of such magnitude?

Still another question:In money matters we know of another operative principle that a condition can be made even against Torah law and such condition is valid.12 Why then may two Jews not elect to decide that their differences In this commercial transaction should be derided by the gentile court?

And yet a third question: Does not the prohibition of going to Arkhaoth contradict the Mishna In Maseches Sanhedrin which states that one may accept as judges people who are otherwise unfit? Does not the Mishna state that one may accept upon himself "three cowherds" and that having accepted these he may not renege on this?13

Every one of these questions was, In one way or another, anticipated by Rishonim. Let us see how they solve this problem. Let us begin with this last question. Rambam says,

"Even though the Sages have mentioned these two groups (the layman and the Canaanite) together, there is a difference between them, in that if the two litigants are willing to come before an Israelite who is a layman, and accept him upon themselves, it 'ss permissible for them to do so, and they must abide by his decision. But to come before the Canaanites to act as judges between them is forbidden under all circumstances, even if the Canaanite laws are In that particular case the same as our laws."14

The same position is taken by the Ran In the beginning of Maseches Sanhedrin, where he states that the prohibition of Arkhaoth exists even after accepting them - being mekabel - on themselves.15 The Rishonim state the prohibition. What is, however, the nature of the prohibition?

It is best to begin with a responsum of the Rashba quoted by the Beth Yosef:

"Know that the principle of Dina Demalchusa Dina is said only in matters ... relating to the laws of the kingdom. For just as we have our laws of kingdom ... other gentile nations have ... laws for kings and on these we say Dina Demalchusa Dina. But other laws that are adjudicated In the courts ... are not the laws of the kingdom, but the courts judge on their own as they find In the book of judges ... Otherwise you are nullifying (heaven forbid) the laws of Israel."16

Actually the Ramo follows this ruling. We say Dina Demalchusa Dina only in cases where the law is for "Takanas Hamedinah" (institutions and laws of State) but not, "that they should judge by gentile laws. For if so, then all Jewish laws will be nullified."17 What we see here is, I believe, the beginning of a pattern. The prohibition of going to non-Jewish courts is rooted in the fear that Torah laws will become forgotten and hence, for practical purposes, nullified.

Yet another responsum of the Rashba gives a more precise definition of how this "nullification" of Jewish law takes place. Rashba was asked about one whose daughter had died, and the father sued his son-In-law in Arkhaoth for return of the dowry. Halachically, the husband inherits his wife's property. In that particular area, however, the custom was to follow the "laws of the gentiles" and to return the dowry to the father. Hence, it was agreed, any marriage taking place there has within it an implicit contract to that effect; as we mentioned earlier, in money matters a contract contrary to the Torah is valid. Rashba, in disallowing the claim of the father, answers:

" ... A condition In money matters (contrary to the Torah) is valid. And In truth such a condition would have been sustained. But to rule that way because this is the law of the gentiles ... is forbidden ... and that is what the Torah warned us about 'before them and not before (the courts of) the gentiles,' even though both want it and it is a matter of money. For the Torah did not allow the people that is its inheritance (the Jews) to give worth to the laws of the gentiles and to stand In judgment before them even when their laws are like ours ... And to learn ... to go In the ways of the gentiles and their laws, heaven forfend for a holy people to behave thus ... And I further say whoever relies on this because of Dina Demalchusa Dina is mistaken and is a thief. And even if he returns (the money robbed) he is still a Rasha (wicked person) and In general uproots all the laws of the whole complete Torah. And why do we need all the holy and sanctified Sefarim written for us by Rebbi and after him, Ravina and Rav Ashi? Let them teach their children the laws of the gentile ...In the academies of the gentiles! Heaven Forbid, this shall not be In Israel ..."18

As the Rashba clearly states, neither Dina Demalchusa Dina nor Matneh Al Mah Shekatuv BaTorah (agreeing on a condition to supersede the Torah) will make a difference in this rase. It is one thing for two individuals to stipulate a condition (in money matters) that contravenes halacha. To do so individually, on an ad hoc basis where the act of and by itself is not tantamount to any public declaration of policy, is one thing. It is quite another thing to institutionalize the "law of the gentiles", to give it force and worth. The halacha of "before them and not before the courts of the gentiles" tell us not to give credence, stature and credibility to the laws and courts of gentiles. To go to Arkhaoth and, hence, give them recognition and worth, accept them as a bona fide institution, will thus lead to Torah being forgotten and nullified.

This last idea will become clearer from another source.

The Shulchan Aruch says that one may accept upon oneself (one may be mekabel) a gentile as witness just as one may accept upon oneself any other person technically barred from being a witness (pasul l'edut). Still one may not accept an akkum (gentile) as judge.19 The Shach immediately qualifies this halacha. There is a difference, says the Shach, between accepting to be judged by a gentile court, where acceptance is of no effect, and agreeing to be judged by a particular individual akkum (gentile), which is no different than the acceptance of any unqualified person.20

In other words, what one may not be mekabel (accept) and indeed kabala does not help, is the institution of Arkhaoth. The institution of gentile courts, the institution of gentile law, the acceptance of the gentile judicial system is something we cannot accept. The acceptance of the system of Arkhaoth is pure issur, and hence making a condition to contravene the Torah will be of no avail, because with issurim, obviously, his condition has no validity.21

This may be the meaning of a seemingly strange equation posited by R' Yosef B'khor Shor who says the following:

"Our Rabbis interpreted be judged 'before them' and not 'before the judges of the gentiles.' For just as it is written 'from amongst your brothers you shall appoint to yourself a King,' (Deut. 17:15) likewise the Torah warns not to appoint a gentile judge on Israel."22

In other words, the halacha puts the stress on not accepting the institution of nochrim (non-Jews). Whether we deal with political institutions or judicial institutions - Arkhaoth - it is the institution of Nochrim that we may not accept upon ourselves.

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