Jewish Law - Articles ("Litigation In Secular Courts")

Jewish Law - Examining Halacha, Jewish Issues and Secular Law

Litigation In Secular Courts
Rabbi Simcha Krauss

The issur of

is at first instance an issur against initiating litigation at a court of gentiles. One may not give the Arkhaoth any value and worth by going to them to settle litigation. May a Jew however, testify before Arkhaoth? Two Jews brought their case to Arkhaoth. May a Jew be witness and testify before Arkhaoth in this case?

The Ramo in his Responsa says that it is forbidden.²⁹ His argument is that there is the rabbinic prohibition of helping a person commit a sin. The witnesses do, after all, support the plaintiff in his transgression of going to Arkhaoth, and therefore such testimony is forbidden.

The Shaar Hamishpat takes strong exception to this psak of the Ramo. First, he argues the issur of going to Arkhaoth consists of selecting the Arkhaoth for litigation, instead of going to Beth Din. By selecting Arkhaoth, the plaintiff and defendant give value to Arkhaoth, and the idolatry they represent. Once this selection has taken place, in what way do the witnesses who now testify aid in this issur of giving worth to Arkhaoth? That is already a fait accompli.

Second, argues Shaar Hamishpat, the issur of abetting a wrongdoer is a rabbinic issur. But to give testimony is a mitzvah from the Torah, which overrides a rabbinic ruling. Further, by testifying and returning money to its rightful owner, one fulfills the mitzvah of returning a loss, while by not testifying one helps to keep money from its rightful owner. For these reasons, Shaar Hamishpat takes issue with the Ramo and holds that it is permitted - or rather, it is an obligation - to testify in this case.³⁰ The position of Shaar Hamishpat is very difficult to sustain. He asserts that by testifying before Arkhaoth, witnesses perform the mitzvah of giving testimony. Of course, it is a mitzvah to testify. And one who knows testimony and neglects to testify transgresses (Leviticus 5:1). But this mitzvah applies to a halachic Beth Din.

The Rambam says: "It is a mitzvah to give testirnony in Beth Din."³¹

Do Arkhaoth have the status of Beth Din? Certainly not. The Mechilta states in Parshat Mishpatim:

"R' Eliezer Ben Azariah said; "Now then when heathen judges judged according to Jewish law would I think that their judgement stands? [Since it is written) 'And these are the laws that you shall set before them,' you may judge what is theirs but they may not judge what is yours."³²

Hence if they do not have the status of Beth Din, how can one argue that in testifying before the Arkhaoth one performs the mitzvah of giving testimony. The other contention of the Shaar Hamishpat, too, is tenuous. Of course, retuming a loss is a mitzvah. But this mitzvah cannot be performed in the face of issurim!³³ If it is prohibited to go to Arkhaoth, there is no permission to testify before the Arkhaoth even for the purpose of returning a loss.

This discussion is only a point of departure for the contemparary questions regarding Arkhaoth. For example - is it permissible to give an opinion as an expert to the Arkhaoth? In the course of litigation, the court needs an expert opinion; may one testify before Arkhaath in such a case?³⁴

For that matter, the whole status of practicing law - when both parties in litigation are Jews - would need re-examination.³⁵ We only mention these as some consequences of the halacha of Arkhaoth.

Page 3 of 4
1 | 2 | 3 | 4 | Notes

DISCLAIMER

Page 3 of 4