Going To Court

Joanne writes:

What I don’t get is why Jews can’t go to court???

Our response:

We could answer you simply: Because it says so in Shulchan Aruch Choshen Mishpat 26:1, but since your question touches on a fundamental of the Jewish religion, it deserves a more in-depth answer.

One of the most basic tenets of our belief is the fact that in the year 2448 from Creation, Hashem (God), in an event unparalleled in history, granted prophecy on a national scale to the progeny of His beloved Avrohom (Abraham). Yitzchak (Isaac) and Yaakov (Jacob) in order to establish them as His chosen people by virtue of their accepting His Torah. This covenant was bonded into eternity by a mutual oath between Him and His chosen people. (Devarim 26:17-18/Gittin 57b)

The authority of the Torah is in its totality and is for all time (Rambam, Hil. Yesode HaTorah 9:1). If someone denies the authenticity of even one single law of the Torah, even those derived by the Rabbinic Interpretation, he is categorized as a heretic. (Rambam, Hil. Teshuva 3:8)

With this foundation laid, we can understand the severity of the words of Chazal (Gittin 88b, Tanchuma Shmos 21:1, codified in Rambam, Hil. Sanhedrin 26:7, Choshen Misphat 26:1) that we are not only forbidden to utilize the non-Jewish courts for our monetary claims, but that one who does so is considered to have denied the very existence of Hashem and of the Torah, an epithet which is not pronounced over someone who simply decides as to the justice of his claims on his own and helps himself to his adversary’s assets.

It is because the latter recognizes the sovereignty of the Torah, he merely succumbed to the temptation to satisfy his greed. The former, however, seeking desperately to not merely satisfy, but to justify that greed, resorted to rejecting the laws of the Torah which we and our ancestors (Shmos Rabbah 28:6 ) accepted for eternity. He has repudiated that eternal bond which the Torah represents. The bond that we, the chosen people, have faithfully kept with the Creator of the Universe for the past 3322 years. Therefore any man or woman who summons to secular court an adversary willing to be heard in Bais Din, or any person regardless of his title who supports such action, is justifiably branded “in rebellion against the Torah of Moshe Rabbeinu”. (Shulchan Aruch ibid.)

– A Pushita Yid

Debbie Roberts writes:

Firstly, let me thank you for this very informative post, you are obviously very well informed in Jewish law. I was researching this topic because of a class our Rabbi gave on the topic of non-Jewish courts. His conclusion was quite different than yours. In short, he said that because in our times we do not have an “official court” (he used a Hebrew term that i don’t recall) it is always allowed to go to non-Jewish courts. He referred us to the following webpage to back up his reasoning.

Although I do not fully understand what it says, it seems to corroborate his conclusion. I was wondering if you could explain what it says on the above webpage and how it differs from what you posted here. I would appreciate it immensely since I am currently faced with a situation and I’m not sure what I should do.

(Also, are you a Rabbi?)

Our response:

We have reviewed the text of the webpage you mentioned, Since you say that you do not fully understand it, allow us to briefly summarize:

The Kli Chemdah (a commentary on the Chumash) quotes the same Halacha as did we, that it is forbidden for Jews to resort to gentile courts except for when one’s adversary refuses to submit to Bais Din, and even then only with the permission of a Bais Din that verified from both sides that such is the case. He proceeds to question why even then is it permissible, and he offers two answers: 1) In case of an intransigent adversary, one may even take the laws into his own hands. It follows that using a gentile court is no worse than using a club. The Kli Chemdah ultimately disproves this reasoning. 2) Since the basis for the prohibition of using gentile courts is the intrinsic recognition of a set of values other than the one presented to us by Hashem through Moshe Rabbenu (Moses), this recognition is not implied by someone who established in a Bais Din that he is being coerced by the actions of his adversary. This is his final answer.

As you can see, it fully corroborates what we stated. Furthermore, it makes no mention of any difference between times when there is an “official court” or any other times. If the term your rabbi used was “Sanhedrin”, then aside from our seeing no basis in that webpage for his position, it is contradicted by all the Rabbinic responsa and codes of the past millennium. They all work freely with the prohibition of gentile courts, in spite of their having lived long after the dissolution of the last Sanhedrin.

Actually this issue is not germane to the purpose of this website, as to our knowledge, Mrs. Ort never denied the general obligation to litigate in Bais Din; rather she excused herself on the grounds that she had no choice as she was left “penniless”. Therefore this website documents exactly how “penniless” she was.

We have addressed this matter out of an appreciation of your sincere desire to clarify this fundamental concept and as a public service to anyone else in need of such clarification.

Regarding your last question, “Are you a rabbi?”: This website is the combined efforts of many individuals – some are rabbis, some are laymen, some male, some female. We are all just trying to help a Jewish family the Jewish way.

– A Pushita Yid