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24 Shevat 5766 - February 22, 2006 | Mordecai Plaut, director Published Weekly










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Opinion & Comment
Raising His Hand Against Toras Moshe! Aspects of the Prohibition Against Going to Court

by Rav Elyakim Dvorkes

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 important halochoh.

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 Toras Moshe."

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 holy."

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 go."

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 liable.

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

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