Litigation In Secular Courts
With the establishment of Medinat Yisrael a new, and painful,
development occurred in the halacha of Arkhaoth. The question
arose as to the status of the secular court system in Israel
vis-a-vis the halacha of Arkhaoth.
The judicial system, as indeed the political system in Israel is a secular one. Israeli courts rule, hear litigation, adjudicate issues on the basis of laws passed in the Knesset, the Israeli parliament. Indeed the whole authority of the courts is derived from the Knesset - a secular institution. Though at times the civil law passed in the Knesset incorporates and makes reference to halachic precedent, the law itself is laic and secular in character. The state is, alas, a and not a . Hence,the issue arises whether litigants who voluntarily choose an Israeli secular court to settle an issue, before having gone to a Beth Din, transgress the prohibition against g oing to Arkhaoth.
Much of the question depends on the understanding of the system known as "Arkhaoth Shebsuryia" -- "the courts of Syria."36 The Gemara speaks of a system of Batei Din that are clearly not on par with others. Regarding the text in the Mishna which speaks of one judge disqualifying another, the Gemara asks how one can disqualify a Dayan. The Gemara answers that this refers to "Syrian courts" and in further discussion it becomes clear that these judges were appointed and accepted by the community. These courts, unlike other Batei Din, cannot impose their authority without prior acceptance by both parties. When both parties, however, do accept them, their decision is binding.
On what basis do "Arkhaoth Shebsuryia" make their decision? Rashi clearly states that they are not knowledgeable in Dinei Torah.37 Although not knowledgeable in Dinei Torah and, apparently basing their decision on common sense, common custom, and customary practice, these courts do not carry the stigma of Arkhaoth Shel Nochrim and the issur of Arkhaoth does not apply to them. Likewise, the argument is being put forward, the secular courts in Israel, though not based on Torah law, ought not be worse than the "Syrian courts."38
The Chazon Ish, however, points to one fundamental and important distinction.39
The "Arkhaoth Shebsuryia" argues the Chazon Ish, are comprised of people who are illiterate in Torah. Hence they judge not according to the rules of the halacha but rather according to what we call common sense, the prevailing norms of equity, fairness and justice. Indeed the halacha recognizes instances where, because of the dearth of qualified Dayanim, people who are not learned in Torah are appointed as Dayanim by the community. These non-qualified Dayanim, argues Chazon Ish, basing himself on a Rashba,40 are better than Arkhaoth. "Arkhaoth Shebsuryia" then, are non-qualified Dayanim, who, in the absence of people who know Torah law, judge by general standards of fairness and equity. But for the Jewish polity to rule, to legislate, to make "new" law that is not Torah law and for Jewish judges to interpret and adjudicate this law is something else. For the Jewish judicial system, for the political and legal system as such to leave aside the Torah law and make its own law is indeed the issur of Arkhaoth. Arkhaoth Shel Nochrim are prohibited because by going there we show their value and their worth. How? By contrast. We leave our own Dayanim and Dinim and follow the system practiced by others. That is the Chilul Hashem that both Rambam and Shulchan Aruch refer to in their strictures against going to Arkhaoth. In other words, when two Jews make a choice of Arkhaoth over a Beth Din, preferring the laws of others to the laws of Torah, then there is Chilul Hashem; halachically, that is expressed in the issur of Arkhaoth. Certainly, therefore, when the Jewish state judicial system rules and adjudicates formally and officially, without regard to halacha, the result is Chilul Hashem. Here too, the halachic response to this choice of other law above Torah law results In the issur of Arkhaoth.
Actually, all the points made by Rashba41 can easily be applied to the secular court system In Israel. The Rashba can be paraphrased: "Why do we need all the holy and sanctified Sefarim by Rebbi, Ravina and Rav Ashi? Let them teach their children the secular laws In Israel ... heaven forbid! This should not happen ..."
Actually, there is one opinion that defines the concept of Arkhaoth Shebsuryia somewhat differently. The Meiri states that Arkhaoth Shebsuryia 42a
In other words, they follow not only custom and common sense, but also positive law and legislation which is not Torah in character. Nevertheless, the issur of Arkhaoth does not apply. Why then would the issur of Ackhaoth apply to the Israeli secular court system?43 The difference seems to be quite simple. Arkhaoth Shebsuryia are not instituted for the people as a whole. When there is no recourse available but to judge by or , then, the Meiri states, the issur of having secular courts does not apply. But for the Jewish state to create institutions - legislative and judicial - that will, heaven forbid, lead to the atrophy and neglect of halachic institutions - that certainly would fall within the scope of the prohibition against Arkhaoth. If you will, it is analogous to the position of Tosafot 44 that Rabbis should not make regulations which, though in themselves may be justified, uproot mitzvot commanded by the Torah.
The Torah teaches: "And thou shalt not turn aside from any of the words which I command you this day (to the) right, or (to the) left, to go after gods to serve them."45
We can add another nuance to the issur of going to Arkhaoth:
Torah is otherwise. Torah law is total, whole and absolute. The punishment and the crime, the total outcome, all are fully and totally integrated. It is not a relative but an absolute truth.46 When we will reinstitute this absolute and totally true Torah law, the Ribbono Shel Olam will fulfill His promise in the words of the Midrash, "If you will judge without resorting to the nations of the world, I will build for you the Beth Hamikdash; and the Sanhedrin will sit in there as it is written, 'And I will return your judges as of yore ...' and further ... do justice and righteousness, for My salvation is soon in coming."47
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Copyright © 1997-2008 by Ira Kasdan.
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