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
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:
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.
"The Shechina is with every proper Jewish Beth Din.
Therefore, the judges should sit with awe and
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.
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.
It is best to begin with the Braitha In Maseches
"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
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.
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.
"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
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
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
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,
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 -
The Rishonim state the prohibition. What is, however, the nature
of the prohibition?
"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
It is best to begin with a responsum of the Rashba quoted by the
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
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
"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
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:
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.
" ... 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
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
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
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
This may be the meaning of a seemingly strange equation posited
by R' Yosef B'khor Shor who says the following:
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.
"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