One of the new appointees as judge of the highest Israeli court [בית משפט העליון] is a religious woman who is the granddaughter of HaGaon Rav Yitzchak Arieli [author of the עינים למשפט, Rosh Yeshiva in Mercaz HaRav and, last but not least, chavrusa of Rav Kook] and cousin of the great Gaon, HaRav Asher Arieli Shlita [who has, arguably, the most popular daily shiur in the world in the Mir. HUNDREDS of men].
Since this week is Parshas Mishpatim, when Chazal expound the words אלה המשפטים אשר תשים לפניהם to mean - לפניהם ולא לפני עכו"ם forbidding one to use civil litigation, it would be worthwhile to read the following. [Mechila if anyone is offended. That is not now or ever my intention:-)]
A Jew lives his life hoping to manage his business relationships without ever resorting to litigation. Someone involved in a "misunderstanding," should try to discuss the matter with the other party and if the matter remains unresolved, he should try discussing it with the guidance of a third party, possibly a Rav.
However, what happens if someone tried doing this and the problem remained unresolved? For such situations, the Torah commands us to establish batei din.
One may use either of two kinds of batei din. Either the parties can bring their litigation to an existent beis din or alternatively they can create an ad hoc beis din using a system called zabla. Zabla is an acronym for zeh borer lo echod, which means that each party chooses one of the dayanim who will judge the case, and then the two dayanim choose a third person to join them and form a beis din. In either system, the two parties agree that they will be bound by the decision of the beis din that they use.
The Gemara (Gittin 88b) teaches that a Jew may not submit litigation against a fellow Jew to a secular court. This violation exists even if both parties agree (Ramban, beginning of Parshas Mishpatim), and is known as the prohibition against using Arkaos, secular courts. Using court systems not sanctioned by the Torah creates chillul Hashem, a desecration of Hashem’s name by implying a denial of Hashem and His Torah (Midrash Tanchuma, Mishpatim #3). Because the Torah created a system of courts, someone who uses a non-Torah source of litigation acts as if he denies the authenticity of the Torah, chas vesholom, and the authority of He who commanded us to set up Torah courts.
In the words of the Rambam (Hilchos Sanhedrin 26:7), "Whoever has his case judged by non-Jewish laws or courts, even if their laws are the same (as the Torah), is a rosho. It is as if he blasphemed and raised his hand against the Torah of Moshe Rabbeinu". (See also Rashi’s comments on Shmos 21:1). Someone who brought litigation to a secular court without halachic permission (as described later) may not serve as chazan for Yomim Noraim (Mishneh Berurah 53:82). In addition, he will invariably end up with property that is not his according to halacha and transgress the violation of gezel, stealing!
What if the Other Party Refuses to Go to Beis Din?
This problem is unfortunately neither uncommon nor recent, and apparently occurred even at the time of the Gemara (see Bava Kamma 92b, as explained by Rosh). When such an unfortunate event happens, the aggrieved party follows the following procedure: The plaintiff files with a beis din, which now summons the defendant to appear in beis din. If the defendant fails to appear in beis din or indicates that he will not appear, the beis din authorizes the plaintiff to bring his suit to secular court (Choshen Mishpat 26:2).
Under these circumstances, the plaintiff has not violated the prohibition of going to civil courts since beis din authorized his suit. Rav Sherira Gaon notes that, in his community, the custom was to summons the defendant three times before authorizing the plaintiff to sue in secular court (cited by Beis Yosef and Sma to Choshen Mishpat, Chapter 26). This is the usual practice, although it is not required.
It should be noted that even someone who authorized to sue in secular court, is still not entitled to more than he would have been entitled according to halacha. Therefore, after winning his case in secular court, he should ask a posek how much of the award he may keep.
What Happens if I am Summoned To Beis Din?
The answer is very simple: Respond to the summons. A person who receives a notification summoning him to beis din, is halachically obligated to respond. In the vast majority of cases, he has the right to request that the case be heard in a different beis din where he may feel more comfortable. He may also request that the matter be decided via zabla.
Being summoned to beis din may be an unpleasant experience, but that gives a person no right to ignore the summons.
Question I have been Asked:
"Someone told me that the prohibition against secular courts is only if the judges are idolaters. Is there any basis to this?
No. The poskim explicitly rule that it is forbidden to go to any secular court and that there is chillul Hashem every time one goes to a court that does not recognize Torah as its law system. (See for example, Tashbeitz 2:290; Chazon Ish, Sanhedrin 15:4).
May I Go to A Secular Court If the Judge is Jewish?
To answer this question I will quote the Chazon Ish: "There is no difference in halacha between going to judges who are not Jewish and going to Jewish judges who use non-Torah laws. As a matter of fact, it is far worse to go to Jewish judges who have traded away a Torah system for a worthless, vain system. Even if the city residents have accepted this court’s system and authority, their agreement has no validity. To force someone to follow this system has the status of stealing from them and raising one’s hand against the Torah given to us by Moshe Rabbeinu" (Chazon Ish, Sanhedrin 15:4). The identical ruling was issued by Rav Pesach Frank and Rav Yitzchok Herzog (see Shu"t Tzitz Eliezer 12:82).
But I Thought that Dina Di’malchusa Dina means that the Civil Law Determines Halacha in Business Matters?
This is an incorrect understanding of Dina di’malchusa dina. Dina di’malchusa dina requires us to obey rules of the government such as paying taxes and obeying traffic and safety regulations, and prohibits us from smuggling and counterfeiting. Dina di’malchusa dina does not replace the civil laws of the Torah (the laws of Choshen Mishpat) that govern the relationships between Jews, nor does it supplant the responsibility incumbent upon the Jew to bring his litigation to a proper beis din.
Dina di’malchusa dina should not be confused with the following application. In some areas of halacha, particularly the contract law rules for buying and hiring, there is a concept of minhag hamakom - that normative business practice determines what is halachically accepted. For this reason, the halacha regarding sales and employee rights are often governed by what is accepted normal practice. Since normal practice is heavily influenced by secular law, the halachic practice in these areas is influenced by the secular law. This is not because halacha recognizes the secular law but because accepted business practice is influenced by secular law.
However, there will always be interpretations, questions of applicability, and various other halacha considerations that must be done via beis din. Beis din will take into account when and how to apply the rules of dina di’malchusa dina.
It should be noted that areas of halacha such as laws of inheritance are not affected by secular law at all (Shu"t Rashba quoted in Beis Yosef, Choshen Mishpat end of Chapter 26).
May a Lawyer File a Lawsuit in Civil Court on Behalf of a Jewish Client?
This is unfortunately very common. A Jewish lawyer represents a Jewish client who has litigation against another Jewish client. May the lawyer file a lawsuit in secular court? Rav Tzvi Pesach Frank ruled that it is absolutely prohibited for the lawyer to file suit in secular court, and that it is a tremendous chilul Hashem to do so.
However, this situation provides the lawyer with a tremendous opportunity to perform a kiddush Hashem. He can explain to his not-yet-observant client the advantages of going to beis din - that it is less expensive and usually far more efficient. (Most frum communities have batei din where a din torah can be arranged within days.) Of course, to an observant Jew, the only selling point necessary is that this is what Hashem wants us to do. Certainly, the reward for proceeding according to halacha is millions of times greater than anything gained by going against halacha. However, since the non-observant client may not appreciate these considerations, the lawyer may convince his client by pointing out advantages of going to beis din that the client understands.
If the defendant fails to respond to the summons of the din torah, then the beis din will authorize the plaintiff and his lawyer to take the case to secular court. This action will be permitted because it was authorized by the beis din, as I explained above.
What Can I Do if I think that the Defendant will not Obey the Ruling of Beis din?
Beis din proceedings can be made be binding on the parties using an "arbitration agreement" that is recognized in civil law. Once the parties agree to use beis din for their arbitration, if one party subsequently fails to honor the psak of the beis din, beis din will enforce its ruling through the use of secular authorities if necessary. This will be binding in secular court because the litigants accepted the authority of the beis din as binding arbitration.
May One Testify in Secular Court That a Case was Already Decided in Beis din?
Yes, it is permitted to do. Furthermore, it is even permitted and a mitzvah for the dayanim of the beis din themselves to testify in secular court regarding their adjudication. There is an interesting discussion in poskim whether it is a lack of kovod haTorah for the dayanim to testify as witnesses in a secular court. The Chasam Sofer permits it as long as the secular court is honest (Shu"t Chasam Sofer, Choshen Mishpat #3).
May A Lawyer Defend A Client in Secular Court?
If someone is sued in secular court, it is a mitzvah to defend his case to the best of one’s ability, since the suing party violated halacha by suing in civil court.
What Should I Do if the Defendant is Not Jewish?
A Jew is permitted to sue a non-Jew in secular court. Therefore, a lawyer can represent a Jew in his suit against the non-Jew.
What Happens If I Live Far Away from a Beis din?
The simplest solution is to have the representative of a beis din (usually called the mazkir beis din) contact the defendant to explain to him that he is required to have the matter adjudicated by a beis din. If the defendant refuses to accept the authority of beis din, then the beis din will authorize the plaintiff to submit his matter to a secular court.
Can I Submit the Matter to an Arbitration Board?
If beis din has authorized that the matter be brought before a secular court, then it is permitted to submit the matter to an arbitration board as well. (There is a dispute among poskim whether one may submit a case to a non-Jewish arbitration board without authorization from beis din. Shach 22:15 and Aruch HaShulchan 22:8 seem to permit this if the arbitrator bases his decision on common sense and fairness, rather than on a non-Jewish system of law; Nesivos HaMishpat prohibits even such a circumstance. However, a simpler solution to this issue is to summon the defendant to beis din, and get permission to adjudicate the matter through a secular court or arbitration board.)
Unfortunately, there are even frum people who sometimes assume that legal rights and responsibilities are governed by secular law. A Torah Jew must realize that Hashem’s Torah is all-encompassing, and that every aspect of his life is directed by Torah. The true believer in Hashem and His Torah understands that every aspect of his life is directed by Hashem and that the only procedures we follow in any part of our lives are those that the Torah sanctions.