The Talmud (Gittin 88b) derives from the opening verse of our parsha (Mishpatim) the prohibition of litigating in front of an idolatrous court. Rashi (based on a Midrash) understands that the problem with such litigation is endorsing a law system of idolaters. Rambam (Sanhedrin 26:7) views the prohibition as preventing the abandonment of our own system of laws. When one seeks justice outside of the halachic system he rebels against the Torah, incorrectly indicating that the Torah cannot satisfactorily settle his disputes.
While the Talmudic presentation references specifically idolatrous courts, the overwhelming consensus of rabbinic literature assumes that the prohibition applies to non-idolatrous or secular court systems as well (see, for example, R. Shimon ben Zemach Duran [Tashbetz 2:290], writing in turn-of-the-15th-century North Africa about the local Muslims). This applies both to adjudication in the civil court system in the United States, as well as in the State of Israel.
Rabbi Yaakov Ariel, currently chief rabbi of Ramat Gan, wrote some forty years ago (Tzomet Volume II, translated into English at www.jlaw.com/articles/secular courts.html):
The deplorable state of Torah justice in the State of Israel is one of the most painful problems for religious Jews today. The established legal system of the State of Israel is either non-Jewish, or “Israeli,” which is an amalgam of laws of various origins, including a scattering of articles based on the Shulchan Aruch, which were included primarily because of coalition pressure on the government. The general spirit of the system, as well as most of the judges, is alien to Jewish tradition. Most religious Jews, under the impression that the principle that the “law of the land is law” (dina d’malchuta dina) applies to this case, are unaware of the seriousness of the prohibition of litigating before secular Israeli courts. As a result, those Jews who are aware of the prohibition are characterized as extremists and anti-Zionists.
Ironically, due to a 2006 Israeli Supreme Court decision, the official State batei din may not adjudicate financial disputes even with the consent of both parties; their jurisdiction is mostly limited to matrimonial disputes, the issuance of gittin, personal status determinations and inheritance. If observant Jews wish to convene a din torah they must utilize an unofficial beit din.
At the Beth Din of America, prior to the convening of a din Torah, the parties enter into a binding arbitration agreement (shtar beirurin). The Beth Din follows the requirements of secular arbitration law, and its rulings are legally binding and enforceable in the secular court system.
Despite the seriousness of the prohibition against litigating in secular court, there are situations in which dispensations may be granted. The Talmud (Bava Kamma 92b) relates that if one calls his friend and receives no response he may throw a large wall at him. Rosh understands this passage to mean that if one Jew summons another to beit din and the defendant refuses to appear and cannot be compelled to do so, the aggrieved party may seek recourse in secular court. Rambam (Sanhedrin 26:7; Shulchan Aruch Choshen Mishpat 26:2) rules that in such a situation a formal dispensation must be granted by beit din. We refer to this dispensation as a heter arkaot (allowance to go to secular court). While later authorities provide various suggestions as to how the prohibition is obviated under these circumstances, the simplest explanation is that the party that refused to appear in front of beit din indeed violated the prohibition, but the party that was willing to appear does not endorse a foreign legal system or indicate the insufficient nature of the Torah by going to secular court as a last recourse.
Tashbetz (cited above) assumes that the prohibition against litigating in secular court even applies when one of the litigants is not Jewish (an assumption disputed by others). At the same time, he writes that since one may assume that the non-Jewish party will not be willing to appear in front of beit din, the Jewish party may avail himself of the secular court system without first obtaining a formal dispensation from beit din. While some apply the same line of reasoning to an observant Jew who wishes to adjudicate a dispute with a non-observant Jew, the more common position is to require permission from a beit din even in such a case. A beit din will summon the defendant to appear (through the formal process of issuing hazmanot, or summonses), and will only give permission to litigate in secular court if the defendant refuses to appear. It is not uncommon for even non-observant Jews to avail themselves of the services of beit din, which often prove more efficient and economical than secular court.
For a more expansive treatment of this topic please see R. Yaacov Feit, “The Prohibition Against Going to Secular Courts,” in Volume I of the Beth Din of America Journal, available at www.bethdin.org. For further information about the din Torah process at the Beth Din of America please see the same website.
Rabbi Michoel Zylberman serves as sgan menahel (associate director) of the Beth Din of America and as geirut (conversion) coordinator of the Rabbinical Council of America. Information about the beth din may be accessed at www.bethdin.org.
By Michoel Zylberman
