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Thursday, October 27, 2005


I just read an article on Arutz Sheva about a 16 year old girl who has sat in jail for over 60 days because she refuses to be tried in the secular Israeli court. She demands to only stand trial in a Torah-based Beit Din.

This is an area of Halacha that is often ignored. The Gemmara (גיטין פח ע"ב) says on the pasuk "ואלה המשפטים אשר תשים לפניהם" (These are the laws you shall bring before them):

"לפניהם - ולא לפני גויים, לפניהם - ולא לפני הדיוטות"

"Before THEM and not before gentile courts. Before THEM and not before the unlearned."

The implication is that barring extraordinary circumstances, a Jew must make an effort to use Jewish courts. More than that, a Jew must make an effort to find Jewish courts that apply Jewish Law.

The Mechaber counts the appointment of a judge who uses non-Torah standards as a violation of a negative prohibition. In Choshen Mispat (סי' ח, א):

"Anyone who appoints a judge who is unjust or who is not wise in Torah or who does not meet the proper qualifications (that a Dayan must meet), Even if this person is entirely pleasant and has many other good qualities. Nonetheless, the one who appointed him transgresses a negative commandment."

The Rema qualifies this ruling a bit:

"In towns where there are no sages who qualify as Dayanim or where the entire population are ignoramuses. If not establishing a court will lead people to go to Gentile courts, then the people select the most qualified members of the community. Even if these judges do not meet the standards of Dayanim, since the town folk accepted their judgment, no one is allowed to disqualify them."

The Mechaber finished the halacha with a statement that is not qualified by the Rema:

"Any judge who is appointed for profit. It is forbidden to stand before him. Further, it is a mitzvah to speak disparagingly of him."

Thus we have 3 categories of judges:

  1. A judge who judges according to Torah law.
  2. A judge who is ignorant of Torah law but the people accept his judgment as fair.
  3. A corrupt judge who has no real standing according to Torah law.

In the current situation in Israel, can we really say that the Rema's heter can apply? A judge of type 2 can only be legitimate, it seems, if there is no judge of type 1 to be found. Baruch Hashem, we have many great Torah scholars in Eretz Israel today. Further, even if we would make the argument that judge type 1 can not be found, then we still have to decide if the average secular judge in Israel falls into category 2 or 3. Since the Israeli courts systematically seem to favor Arab rights over Jewish rights, it is hard to argue that the Israeli court system is one that is accepted by most of the community it presides over.

This is in no way a complete treatment of the topic. Hopefully we will all have more kavanah when davening to Hashem to restore our Judges as they were before.