(2012/5773)
In response to numerous requests for up-to-date information regarding using Beit Din for dispute resolution, we begin this week a series of essays which seeks to educate the community about the Beit Din process. We begin with a discussion of the prohibition to initiate litigation in civil courts.
Jews no longer live in autonomous communities in the Diaspora, as they did in many previous generations. Consequently, the temptation to bring court cases to civil courts has grown stronger. This week, we discuss when the Halachah permits and does not permit using the civil court system.
Source of the Prohibition
The Torah (Shemot 21:1), in introducing monetary laws, commands, “And these are the laws that you shall present to them.” The Gemara (Gittin 88b) interprets “them” as referring to ordained Dayanim (rabbinical judges), whereas one may not approach “non-Jews or unqualified Jews” to adjudicate a case against a fellow Jew. The Gemara adds that even if the non-Jewish courts judge according to Halachah, we nevertheless may not submit our internal disputes to them. The Tashbetz (4, Tur HaShelishi 6) rules that this prohibition precludes even the use of non-Jewish judges who do not practice idolatry, such as Muslims.
Although the Gemara names two groups of unacceptable judges, non-Jews and uncertified Jews, in the same sentence, Ramban (Shemot 21:1) notes a critical distinction between them (codified in Shulchan Aruch C.M. 26:1): “Even though Chazal have mentioned these two groups together, there is a difference between them. If the two litigants consent to come before unqualified Jews for [monetary] judgment and accept them as judges, it is permissible to do so and these litigants must abide by the unqualified judges’ decision. It is forbidden, however, to be judged by non-Jewish judges under all circumstances, even if the non-Jewish statutes are identical to our laws.”
Nature of the Prohibition
Rambam (Hilchot Sanhedrin 26:7) and Shulchan Aruch (C.M. 26:1) add a surprisingly harsh condemnation of those who adjudicate their disputes in non-Jewish courts: “Whoever submits a suit for adjudication to non-Jewish judges...is a wicked man. It is as though he reviled, blasphemed, and rebelled against the Torah of Moshe.”
Why do Rambam and Shulchan Aruch include such a sharp exhortation in their legal codes? Apparently, this strong language defines the character of the prohibition against being judged by non-Jewish courts – the litigants implicitly reject the Torah in favor of a foreign legal system. This analysis helps explain a curious law in the Shulchan Aruch (26:2): “If the non-Jews’ hands are powerful (i.e., if Jews lack political sovereignty or, at the very least, communal autonomy) and [a Jewish plaintiff’s] adversary is a difficult and violent person, such that [the plaintiff] is unable to recover the money in Beit Din, the defendant should first be summoned to Beit Din. If the defendant refuses to come to Beit Din, the plaintiff receives permission from the Beit Din to recover the money through the non-Jewish court system.”
Permission of this type is commonly referred to as a Heteir Erka’ot (permission to submit the claim to civil court). For example, Rav Moshe Feinstein (Teshuvot Igrot Moshe, C.M. 1:8) discusses how to deal with a dishonest merchant who sold non-kosher meat with forged Kashrut certification. Rav Moshe writes that the community should initially sue this merchant in a Beit Din (as opposed to a civil court), but the Beit Din may permit the community to sue him in civil court should the Beit Din be unable to halt his activities.
The Kelei Chemdah (in his first essay on Parashat Mishpatim) asks, if the Halachah requires sacrificing one’s entire wealth to avoid violating a negative prohibition (see Rama, O.C. 656), why may Beit Din issue a Heteir Erka’ot? He answers that submitting a dispute to a non-Jewish court does not transgress anything unless it demonstrates a rejection of the Torah system of justice. If one makes a genuine effort, therefore, to adjudicate the matter in Beit Din, but the other party resists, Beit Din may authorize one to press charges in non-Jewish court.
Israeli Courts
The Halachic status of the State of Israel’s civil courts has generated extensive discussion since the establishment of the State. These courts seldom judge according to Halachah (with some notable exceptions); instead, they base their rulings primarily on a mixture of British, Turkish, and secular Israeli laws.
The Gemara (Sanhedrin 23a) permits litigation in Syrian Erka’ot (civil courts) because no competent judges resided there. The judges in this type of court ruled based on life experiences and common sense. Similarly, Rama (C.M. 8:1, citing Rashba) rules that if no viable alternative exists, a community may appoint three well-respected people with sound judgment to serve as judges. Accordingly, former Israeli Supreme Court Justice Menachem Elon (HaMishpat HaIvri 1:22 note 80 and 1:122 note 174) suggests that the Israeli civil courts enjoy the same status as these Syrian Erka’ot and their later parallels.
The Chazon Ish (Sanhedrin 15:4), however, emphatically forbids litigation in Israeli civil courts, asserting that they do not share the status of Syrian Erka’ot. He explains that Syrian Erka’ot judged entirely based on common sense, whereas Israeli courts implement an organized non-Torah legal system. Thus, Israeli civil courts attain the status of a non-Jewish court system, despite the fact that the judges and law enforcement officials are mostly Jewish. Moreover, the Chazon Ish adds that Israeli courts are worse than non-Jewish courts, for we expect non-Jews to judge by their own laws, whereas we disapprove of Jews “who have abandoned the laws of the Torah for laws of nonsense.” Indeed, Rav Ovadia Yosef (Teshuvot Yechaveh Da’at 4:65) rules that one who presents a case to a secular Israeli court violates both the prohibition against using non-Jewish courts and the prohibition against causing another Jew to sin (Lifnei Iveir), because the case provides Jewish judges with an opportunity to apply secular laws[1].
Virtually all authorities accept the Chazon Ish’s position. These Posekim include Rav Yitzchak Herzog (HaTorah VeHaMedinah 7:9-10), Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 12:82), Rav Ovadia Yosef (Teshuvot Yechaveh Da’at 4:65), Rav Tzvi Pesach Frank (cited by Rav Waldenberg and Rav Ovadia), Rav Shmuel Wosner (Teshuvot Sheivet HaLeivi 10:263), and Rav Moshe Shternbuch (Teshuvot VeHanhagot 1:795). Thus, one may not present a civil case against another Jew to Israeli civil courts for adjudication.
Preliminary Injunctions, Collections, and Filing for Bankruptcy
Despite the severity of the prohibition against using the civil court system, several cases exist where a Jew may possibly use the civil court system. Rambam (Hilchot Sanhedrin 26:7) and Shulchan Aruch (C.M. 26:1) formulate the prohibition against using non-Jewish courts as a ban on being “judged” by a non-Jewish court. Accordingly, utilizing civil courts for non-judiciary purposes would appear to be permitted.
Thus, Rav Moshe Feinstein (Teshuvot Igrot Moshe, C.M. 2:11) permits requesting that a civil judge issue a preliminary injunction, an order to freeze the status quo of property until verifying its owner. Since a preliminary injunction does not entail judgment, seeking this order does not violate Halachah. Similarly, Rav Mordechai Eliyahu (Techumin 3:244) rules that one may utilize civil courts to collect an undisputed debt. Once again, no prohibition exists when no judgment is involved. Teshuvot Maharsham (2:252 and 3:195) cites Rav Avraham David Wahrmann as permitting the use of civil courts to collect an undisputed debt in places where Batei Din have no legal authority. Rav Yona Reiss (personal communication) comments that Batei Din sometimes take this position into account, but he notes that it is rare for debts to be undisputed. Rav Hershel Schachter (in a lecture delivered at the Fifth Avenue Synagogue) ruled that one may file for bankruptcy in civil bankruptcy court, equating it conceptually with filing for a civil marriage license. Rav J. David Bleich (Tradition 34:3 p. 74) permits probate of an undisputed will in civil court, and Rav Ezra Basri (Dinei Mamonot 1:348) rules that Halachah recognizes a monetary custodian appointed by a civil court.
Arbitration Panels
At least two prominent authorities permit individuals to submit disputes to an arbitration panel for resolution. They reason that the arbiters base their rulings on common sense, as opposed to non-Jewish codes of law, so these forums are not considered non-Jewish courts. Thus, the Rabbinic Court of Ashdod (Piskei Din Batei Din HaRabaniyim 13:330-335), then headed by Rav Shlomo Dichovsky, ruled that one may submit a dispute to the Israel Union of Engineers and Architects. Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 11:93) also permits bringing disputes to professional arbitration panels, such as the arbiters of the Association of Israel Cooperative Apartments. Rav Yona Reiss pointed out to me that Rav Waldenberg’s ruling has added significance because it includes panels that the Israeli government requires (thus making them closer to actual civil courts).
The above authorities address arbitration in Israel, where the arbiters are mostly Jewish. Outside of Israel, the issue may be somewhat more complex. The Shach (C.M. 22:15, as understood by the Aruch HaShulchan) permits submitting a dispute to an arbitration panel consisting of non-Jews provided that they are not bound by non-Jewish laws. However, the Netivot (C.M. 22:14) disagrees with the Shach and forbids submitting a dispute to an arbitration panel consisting of non-Jewish members. The Aruch HaShulchan (C.M. 22:8) rules in accordance with his interpretation of the Shach, but Rav J. David Bleich (BeNetivot HaHalachah 2:169) and Rav Hershel Schachter (personal communication) think that the strict opinion of the Netivot should be followed (see Halachah Pesukah Al Choshen Mishpat 22:2).
Moreover, some have questioned whether arbitration panels are merely less formal courts or truly panels that are not bound by secular law. Rav Dr. Dov Bressler (The Journal of Halacha and Contemporary Society 9:115-116) cites the following statement from the Committee on Arbitration of the Association of the Bar of the City of New York (emphasis added): “The arbitrator need not apply substantive principles of law. The arbitrator is not bound by evidentiary rules; he need not give reasons to support his ultimate determination and his award is not subject to judicial review for errors of law or fact. The arbitrator, free from rules of law, may decide solely on the equities of the case.”
Accordingly, Rav Bressler concludes, “Individuals who may ordinarily tend to ignore rabbinical courts should therefore be counseled into selecting arbitration rather than a strict judicial hearing.” However, Alan Blumenfeld, Esq., of Brooklyn, NY, has informed me that the relationship between law and arbitration depends on the place and context, such that arbitration will not necessarily be completely detached from law. Someone who faces this issue should consult both his rabbi and his attorney for competent guidance. Rules and practices are subject to change and variation from one locale to another, so a Rav must conduct a careful investigation of the facts before determining the Halachah in a particular situation.
Conclusion
Next week we conclude our discussion of when Halachah permits and forbids litigating in civil courts.
[1] . See, however, Teshuvot Beit Avi (2:144), who questions whether a Jewish civil judge violates any prohibition when he adjudicates a case involving Jewish litigants. Unlike Rav Ovadia, Rav Liebes did not live in Israel, so his Teshuvah is addressing the case of a Jewish judge in the American court system. Also see Rav Mordechai Eliyahu (Techumin 3:244) who sees Orthodox judges serving in secular court system as potentially serving very positive purposes