by Rav Elyakim Dvorkes
Raising His Hand Against Toras Moshe! Aspects of the
Prohibition Against Going to Court
Note: The first posuk in this week's parsha
is one of the main sources for the prohibition against going
to non-Torah courts. This two-part article discusses this
Gentile Courts and Gentile Laws
The Shulchan Oruch (Choshen Mishpat siman 26) rules:
"It is forbidden to put a case before gentile judges or [to
bring a case] to their courts, even when the case concerns an
area where they rule the same way as the laws of Yisroel, and
even when both parties consent. Whoever takes a case before
them is a rosho and is tantamount to having blasphemed
and having raised his hand against the Torah of Moshe
Rabbenu, a'h." The Rambam (Hilchos Sanhedrin
26:7) also rules this way.
The Chazon Ish (Sanhedrin 16:4) clarifies that there
is no difference between putting a case to gentiles and
putting it to a Jew who will judge according to gentile laws
(such as the secular courts of the State of Israel). "In
fact," he writes, "it's even more shameful that Jewish judges
have exchanged Hashem's laws and His Torah for the worthless
laws of the gentiles."
Even if an entire community agrees to take a case to court or
to a Jewish judge who will decide according to gentile law,
their consensus has no weight, "and their law is corruption,
extortion and robbery and they are raising their hand against
Rashi quotes the source for this prohibition on the
posuk's words, "And these are the judgments that you
shall set before them" (Shemos 21:1), adding that
"whoever brings Jewish disputes before gentiles profanes
Hashem and gives prestige to the idols, lending them
distinction. A beraissa in Gittin (88) states,
"Rabbi Tarfon used to say, `Wherever you find gatherings of
gentiles, even though their laws are the same as the laws of
Yisroel you may not avail yourselves of them, as the
posuk says . . .' "
He Won't Repent!
From the expressions used by Chazal and in the Shulchan
Oruch, it is apparent that going to a gentile court
involves several misdemeanors. The first of these is the
above-quoted prohibition learned from the posuk, which
the poskim write has the force of a Torah prohibition
(see ShuT Radvaz, vol. I, siman 172). In
addition, it implies denial of Hashem and denial of the Torah
— for the petitioning a gentile court reveals a lack of
trust in the justice of the Torah's laws. And finally, it
delays the final Redemption.
ShuT Tzitz Eliezer (vol. II, siman 82) and
ShuT Mishneh Halochos (vol. IX, siman 354)
quote HaRav Tzvi Pesach Frank zt'l's scathing
comments. "A Jew who judges according to gentile laws is
certainly worse than a gentile. Gentiles were not commanded
to judge solely according to the law of Yisroel, while this
Jew — who is commanded to judge according to the
Torah — turns his back on it and judges according to
the laws of the gentile nations. He is raising his hand
against Toras Moshe Rabbenu a'h, razing the stronghold
of the law and uprooting it, root and branch. The Torah will
seek redress from him. This is the worst possible disgrace to
Torah and its standard bearers!"
ShuT HoRadvaz (vol. IV, siman 1,190-120),
writes that the punishment incurred for taking a case to
gentile courts is worse than that of robbery, stealing and
extortion. It is possible that a robber will eventually
repent because he knows that he has robbed. The party that
wins a case in a gentile court however, is under the
impression that what he has been awarded is lawfully his
— while in fact he has no right to it. "This is similar
to the twenty-four things that prevent [a person from doing]
teshuvoh. Besides this, he degrades and breaks down
our Torah's wall and dims the light of our religion when our
enemies who judge say that our Torah's laws are false, since
they are the opposite of theirs. They will reach the
conclusion that we have exchanged the Torah and its laws or
that it has been annulled and has been replaced. In this way,
Heaven's Name is profaned.
"Moreover, he causes the Shechinah to remove itself
from Yisroel. Whoever extracts money [from a fellow Jew]
according to their laws but not according to ours, is placed
under a ban until he returns what he took and we persecute
him . . . If beis din have the power they beat him to
within an inch of his life until he fulfills the mitzvah to
`return the theft that he stole.' "
A Mistaken Assumption
In monetary affairs, the Torah rules that "the law of the
land is binding." This applies to drawing up documents,
paying municipal taxes and the like. Can this be extended to
include taking a case to a gentile court?
It seems obvious that it cannot, because the halochoh
forbidding going to court applies even in civilized countries
that have their own laws. These countries have no law
obliging citizens to turn exclusively to their courts. They
merely oblige the parties who have chosen to turn to their
courts to fulfill the verdict that they hand down, forcing
the loser to give in. This must not chas vesholom be
taken as license to approach them to begin with.
This argument for permitting going to court was voiced as far
back as the time of the Rashba (as quoted by the Beis Yosef).
In response, the Rashba wrote, "I say that whoever relies on
this, saying that it's allowed because of `the law of the
land' is mistaken and is a robber. Even if he returns the
theft he'll still be called a rosho . . . and in
general he is uprooting all the laws of our comprehensive
Torah. Why do we need the holiest of holy seforim that
Rabbi and after him, Ravina and Rav Ashi wrote for us? Let
them teach their sons the gentiles' laws and build them . . .
in the gentiles' schools of learning. Choliloh that
this should happen in Yisroel, chas vesholom, the
Torah might gird sackcloth over them . . ."
The Shulchan Oruch (369, Rema se'if 11) thus
rules that "the law of the land is binding" only in matters
that are of some benefit to the ruler, or that are enacted
for the good of the general population. It doesn't enable
Jews to turn to gentile courts, for otherwise the Torah's
laws would be null and void.
A Voice Like a Snake's
The Mishnah Berurah (Orach Chaim siman 581) quotes
ShuT Toras Emes by Mahara Sasson (siman 188)
who rules that a person who went to court should not be
allowed to act as shaliach tzibbur on Rosh Hashonoh
and Yom Kippur, "because he did not want to appear before
Jewish dayanim. Whoever relies upon the law of the
land and the like is a robber and even if he returns the
theft is [still] called a rosho. This man's sin is too
heavy to bear . . . and kal vochomer, his voice will
travel like a snake's to call in name of other gods. There is
thus no place for the . . . question . . . for he certainly
may not go up to pray. The Mordechai writes in the first
perek of Taanis that . . . during the Yomim
Noraim he may not go up . . . even without prior
arrangement . . . and that he really deserves to be heavily
punished . . . that he is virtually not counted among . . .
the community of Yisroel and that he should be distanced. All
this certainly holds true if he persists in his rebellion but
if he returns to Hashem and regrets his evil deeds then
without any doubt, he may be called upon to conduct anything
By Mutual Agreement
The Shulchan Oruch states clearly that prohibition applies
"even when both parties agree to go . . ."
Later (in se'if 3) we find, "Someone who binds himself
with an act of kinyan to go with his friend before
gentiles, it is nothing and it is still forbidden to take a
case to them. If he undertook to donate a certain sum to the
poor if he fails to take a case to them, he [still] must not
And in se'if 4 we find, "A document that states that
[the creditor] may claim from him according to the gentile
laws, he may [still] not claim from him before them." All
these rulings clearly indicate that there are no grounds for
permitting taking any case to court.
The Sema however (Ibid. se'if kotton 10), derives from
the wording of a teshuvoh of the Rosh which is quoted
in the Tur that if the debtor wrote explicitly that he
undertakes to take the case to them, this is binding insofar
as it places a lien upon his property, if the creditor has
any right in their laws.
The Taz disagrees and considers this "making a condition to
override what is written in the Torah" and rules that even a
beis din may not enforce such a condition. "As to the
Sema's understanding that a kinyan will help to go
before them, it is impossible and I am amazed at the holy
lips of the author of Sema . . ."
The reason this is still forbidden even when both parties
agree is because going to court involves denial of
Hakodosh Boruch Hu and of the Torah. Even if one side
obligates himself to go and places a lien upon his property
if they decide against him, he is still scorning the Torah's
laws for he shows that he identifies with gentile laws.
Although in other monetary affairs the Torah allows a person
to make himself liable to whatever extent he wishes —
to his benefit or to his detriment — so long as the
opposite party agrees, in doing so here, he is doing
something forbidden and is thus powerless to make himself
Wherever it's possible to go to Jewish dayanim there
are absolutely no grounds for permitting going to a gentile
court or to a court that rules according to gentile laws,
even with a kinyan, for it is ineffectual where the
undertaking itself is forbidden.
End of Part I
All material on this site is copyrighted and its use is restricted.
Click here for conditions of use.