Jews no longer live in autonomous communities in the Diaspora, as they did for many previous generations. Consequently, the temptation to bring court cases to civil courts has grown stronger. In this chapter, we discuss when the Halachah permits 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.1This prohibition applies even if both Jewish litigants wish to adjudicate in civil court. Rav Uri Dasberg (Techumin 24:49-50) offers an interesting suggestion as to why the Halachah prohibits litigating in civil courts, even in cases where civil law and Halachah coincide. He argues that the role of a beit din is not merely to rule on the disputed monies, but also to offer moral criticism. Beit din might recommend that a litigant pay more than the strict law requires, as an act of decency. Moreover, beit din demands of the litigants that they conduct themselves in an ethical manner, above and beyond the strict letter of the law (see our previous chapter). By contrast, a civil court judge has no mandate to demand more than the letter of the law. Thus, a Jew who adjudicates in civil court, even if the court rules just as a beit din would have ruled, rejects the value system that we strive to integrate into our legal system. The Tashbetz (vol. IV, Tur Hashelishi 6) rules that this prohibition even precludes 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, the Ramban (Shemot 21:1) notes a critical distinction between them (codified in Shulchan Aruch, Choshen Mishpat 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
The Rambam (Hilchot Sanhedrin 26:7) and Shulchan Aruch (ibid.) 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 the 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.2See the analysis of Rav Yaakov Ariel in (Techumin 1:322-325) and Rav J.David Bleich (Tradition 34:3:58-87). This analysis helps explain a curious law in the Shulchan Aruch (C.M. 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 heter erka’ot (permission to submit the claim to civil court).3Rav Yitzchak Yaakov Weisz (Teshuvot Minchat Yitzchak 9:155) and Rav Mordechai Willig (personal communication) note that a heter erka’ot is necessary even when suing a non-observant Jew. Also see Yeshurun (12:537-540), where Rav Chaim Kohn discusses whether a heter erka’ot is required in a place where no beit din exists, and Teshuvot Sheivet Halevi (10:263), where Rav Shmuel Wosner offers further parameters for when a heter erka’ot is necessary. 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 them to sue him in civil court should the beit din be unable to halt his activities.
The Klei Chemdah (in his first essay on Parshat Mishpatim) asks, if the Halachah requires sacrificing one’s entire wealth to avoid violating a negative prohibition (see Rama, Orach Chaim 656), why may beit din issue a heter 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.4For further elaboration on the Klei Chemdah’s comments, see Rav Michael Taubes’s The Practical Torah (pp. 144-145).
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 modern 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 rule based on life experiences and common sense. Similarly, the Rama (C.M. 8:1, citing the 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 Ha’ivri 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.5The Chazon Ish also suggests that perhaps the Syrian erka’ot attempted to rule by Torah law, but they made mistakes out of ignorance, whereas Israeli courts make no attempt to apply Torah law. 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.”6Israeli courts also differ from Syrian erka’ot in that the latter operated only in places where no halachic experts (mumchim) resided to function as a proper beit din. For further discussion of Syrian erka’ot, see Rav Shlomo Goren’s essay (printed in Techukah Leyisrael Al Pi Hatorah 1:149-152). 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.7See, 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 he is addressing the case of a Jewish judge in the American court system. Also see Rav Mordechai Eliyahu’s comments in Techumin 3:244.)
Virtually all authorities accept the Chazon Ish’s position.8Rav 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 Halevi 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. The Rambam (Hilchot Sanhedrin 26:7) and Shulchan Aruch (Choshen Mishpat 26:1) formulate the prohibition against using non-Jewish courts as a ban on being “judged” by a non-Jewish court.9See Rama (Teshuvot 52) who states “the Torah is concerned only with the judgment [of the non-Jewish courts].” Accordingly, utilizing civil courts for non-judiciary purposes would appear to be permitted.
Thus, Rav Moshe Feinstein (Teshuvot Igrot Moshe, Choshen Mishpat 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 judgement, seeking this order does not violate Halachah.10Not all authorities agree with Rav Moshe, though. See Teshuvot Sheivet Halevi (10:263:4), who completely disagrees with him, and Dinei Mamonot (1:347), who permits requesting an injunction only in cases of significant financial loss. 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 judgement is involved.11See Teshuvot Maharsham (2:252 and 3:195) who 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 Yonah 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. In addition, see Teshuvot Sheivet Halevi (10:263:2-3). 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.12For an extensive study of the halachic complexities surrounding bankruptcy see Rav Steven Resnicoff's essay in the Fall 1992 issue of The Journal of Halacha and Contemporary Society (24:5-54). Rav J. David Bleich (Tradition 34:3:74) 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 Rabbinical 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 Yonah 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,13Rav Akiva Eiger (gloss to C.M. 3:1) appears to support the Shach, as he does not specify that Jews must serve as the arbiters. Rav J. David Bleich (Tradition 34:3:71-74) limits the Aruch Hashulchan’s lenient ruling to arbitration carried out by laymen and entirely outside of the judicial arena. but Rav J. David Bleich (Bin’tivot 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. On the other hand, 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.14In reality, 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.
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.” 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.
Equitable Distribution
An increasing number of engaged couples in the Orthodox community today sign prenuptial agreements to prevent situations of igun.15In our first volume, we discuss the importance of these agreements as a means of preventing situations of igun (pp. 8-16). These agreements include a binding arbitration agreement that designates a specific beit din to adjudicate a divorce settlement, should the need unfortunately arise. Rav Zalman Nechemia Goldberg (Yeshurun 11:698) suggests that a couple could sign a prenuptial agreement that would empower the beit din to divide the property between husband and wife based on civil equitable distribution laws.16See Rav Willig’s essay in The Prenuptial Agreement (p. 33) and Beit Yitzchak (36:25-26). This agreement is not the first example of a financial arrangement to provide women with money that they would not otherwise receive according to Halachah. A better-known example relates to the laws of inheritance, where observant Jews have routinely used a document called a shtar chatzi zachar to arrange for daughters to inherit a portion of the estate even when the Halachah does not entitle them to this portion (see Rama, C.M. 281:7, Ketzot Hachoshen 33:3, and Rav Feivel Cohen’s Kuntres Midor L’dor). Indeed, Rav Shlomo Dichovsky (Techumin 18:30-31) writes that daughters have received a portion of the estate in every case of inheritance that he has ever encountered (as a dayan), including the daughters of prominent Torah scholars. Accordingly, Rav Dichovsky argues that one should not object to equitable distribution agreements on the grounds that they undermine Halachah, because the entire Orthodox world sanctions equitable inheritance agreements, which serve the same purpose. Rav J. David Bleich (Tradition 34:3 and Bin’tivot Hahalachah 2:169-172; based on the Taz, Choshen Mishpat 26:3, and other sources) opposes this proposal, arguing that it violates the prohibition against using the civil legal system, because the beit din will now replace Halachah with non-Torah laws. Even if the bride and groom wish to apply equitable distribution, Rav Bleich asserts that their desire is irrelevant, for they may not stipulate conditions that contravene Halachah (matneh al mah shekatuv batorah).
Rav Willig (in an address to the Rabbinical Council of America) defended Rav Zalman Nechemia’s proposal, noting that in order to be considered a non-Torah system, the beit din would need to rule based on civil law as it will be codified on the day of the beit din hearing. By contrast, the agreement authorizes the beit din to employ the equitable distribution laws as of the signing of the agreement. Thus, the parties are not submitting their case to a non-Torah legal system, but are merely structuring a settlement in case of divorce. Rav Willig and Rav Zalman Nechemia understand that the Taz, cited by Rav Bleich, objects only to accepting whatever the civil laws will be at the time of adjudication, for that truly replaces Halachah with a new source of law. Here, however, where both sides spell out at the time of the agreement how they wish to divide their property, they have the right to make arrangements as they see fit (kol tnai sheb'mammon kayam), as long as they do not blindly submit to the authority of the civil court or civil laws.17The Rabbinical Council of America’s Beth Din of America (Rules and Procedures 3(d) and 3(e)) follows Rav Willig and Rav Zalman Nechemia’s view:
(d) In situations where the parties to a dispute explicitly adopt a “choice of law” clause, either in the initial contract or in the arbitration agreement, the Beth Din will accept such a choice of law clause as providing the rules of decision governing the decision of the panel to the fullest extent permitted by Jewish Law.
(e) In situations where the parties to a dispute explicitly or implicitly accept the common commercial practices of any particular trade, profession, or community -- whether it be by explicit incorporation of such standards into the initial contract or arbitration agreement or through the implicit adoption of such common commercial practices in this transaction -- the Beth Din will accept such common commercial practices as providing the rules of decision governing the decision of the panel to the fullest extent permitted by Jewish Law.
Rav Yonah Reiss notes (Shaarei Tzedek 4:295) that following their view encourages couples who might otherwise use the civil courts to adjudicate in batei din instead. Rav Reiss also defends Rav Willig and Rav Zalman Nechemia’s approach based on Teshuvot Divrei Chaim (C.M. 30), Teshuvot Igrot Moshe (C.M. 1:72), and Teshuvot Minchat Yitzchak (9:112). Also see Rav Avraham Sherman and Rav Shlomo Dichovsky’s debate regarding the applicability of Israeli equitable distribution laws when a couple did not specifically agree to them (Techumin 18:18-40 and 19:205-220), and Rav Ronald Warburg’s analysis of their debate (Hadarom vol. 70-71 [5761] pp. 129-148).
Serving as a Lawyer or Juror
Rav Ovadia Yosef (Teshuvot Yechaveh Daat 4:65) distinguishes between representing the plaintiff in Israeli civil court, which he prohibits, and representing the defendant, which he sometimes permits. Rav Ovadia argues that the plaintiff’s attorney actively endorses a non-Torah legal system by helping a Jew utilize it, in violation of Halachah, to collect money.18Also see Teshuvot Shemesh Umagein (vol. 3 E.H. 44), where Rav Shalom Messas invalidates a wedding because one of the witnesses served as a judge in the Israeli civil court system. Although the witness was a practicing Orthodox Jew, Rav Messas claims that anyone who serves as a judge in civil court is considered a thief because he forces people to pay money even when the Halachah does not necessarily require the payment. In this brief responsum, Rav Messas does not address the fact that Orthodox judges generally believe that they are not violating any prohibition; rather, they presumably view themselves as following Justice Menachem Elon’s aforementioned opinion that Israeli civil courts do not share the status of non-Jewish courts. Although this opinion is not accepted by halachic authorities, we have discussed in our first volume (pp. 83-89) several cases where authorities accept a sinner as a valid witness because he does not perceive himself to be sinning (based on Sanhedrin 26b). One wonders how those authorities would rule in Rav Messas’s case. Furthermore, Rav Mordechai Eliyahu (Techumin 3:244) believes that under current circumstances, observant judges can make a positive contribution to the Israeli civil court system. Also see Teshuvot Beit Avi (2:144). The defendant, on the other hand, does not necessarily wish to appear in secular court. He might prefer to follow the Halachic requirement to submit the dispute to a beit din. Rav Ovadia thus permits representing a defendant who sought to have a beit din adjudicate his case, equating such a situation with “saving a victim from his robber.”
Rav Menashe Klein (Teshuvot Mishneh Halachot 4:213) prohibits serving on a jury, especially when the case includes a Jewish litigant, because performing jury duty glorifies a non-Torah legal system.19Rav Klein believes a Jew should not sue even a non-Jew in civil court. Some poskim share his position, but poskim continue to debate this matter. See, for example, Dinei Mamonot (1:347) and Rav J. David Bleich’s aforementioned essay in Tradition (pp. 80-83). One point that Rav Bleich addresses is suing a Jew with insurance coverage in civil court to collect payment from the insurance company. Rav Bleich concludes:
Since it is readily perceived that the cause of action is really against a non-Jewish insurance company that will not appear before a Beit Din, it would appear that judicial proceedings in such circumstances do not constitute aggrandizement of a non-halachic legal system and hence such suits are not forbidden.
Rav Hershel Schachter told Rav Ezra Frazer that he strongly disagrees with this ruling. He explained that the Halachah requires non-Jews to establish a legal system, so a Jew does nothing wrong by participating as a juror in civil courts, unless both litigants are Jewish (in which case facilitating their trial supports a sin).20Regarding the correlation between non-Jews’ obligation to establish a court system and the halachic weight of their governments’ legislation, see Even Ha’ezel (Hilchot Nizkei Mamon 8:5), based on Rashi (Gittin 9b s.v. K’sheirin and s.v. Chutz). Regarding capital trials, Rav Schachter argues that every government has the right to punish criminals within reason. For example, if a Jew murdered, a non-Jewish government may legitimately execute him. Accordingly, Jewish jurors may vote to convict a Jewish defendant if solid evidence convinces them that he committed murder.21Also see Teshuvot Yabia Omer (C.M. 10:7), where Rav Ovadia Yosef permits handing over a Jewish murderer to a non-Jewish government that will incarcerate him for life, but not to a government that will execute him. Rav Yitzchak Isaac Liebes (Teshuvot Beit Avi 2:144) also permits Jews to perform jury duty in both civil and capital cases.22It is also important that Jews not attempt to exempt themselves dishonestly from jury duty by fabricating excuses. This type of dishonest behavior can lead to public chilul Hashem (desecration of God’s name). See Teshuvot Melamed Leho’il (1:42).
Criminal Law
Chazal condemn mesirah, turning a Jew over to non-Jewish authorities, as a terrible sin (see Rosh Hashanah 17a and Rashi s.v. Vehamesurot).23For further discussion of the concept of mesirah, see Pitchei Choshen (vol. 5 Chapter 4) and Minchat Shmuel (2:143-155). Accordingly, we might expect halachic authorities to disapprove of assisting the government in apprehending Jewish criminals.24Regarding the permissibility of a Jew working for the IRS or another job that would similarly require him to routinely assist in the punishment of Jewish criminals, see Teshuvot Igrot Moshe (C.M. 192), Teshuvot Minchat Yitzchak (4:51), and Teshuvot Sheivet Halevi (2:58). Nevertheless, many authorities distinguish between just and unjust situations. Following the same line of reasoning as his ruling on capital jury duty, Rav Hershel Schachter (The Journal of Halacha and Contemporary Society 1:118) explains:
A “moser” is one who aides a pirate, a crooked government official, or a tyrant-king to obtain money illegally from his fellow Jew. Even if the Jew has actually done something wrong, but if the secular government or the ruler would exact a punishment far beyond that which the crime should require, then it is likewise forbidden to report him. If, however, the government is entitled to its taxes, or is permitted to punish criminals as offenders, there is no problem of mesirah in telling the government information needed for them to collect their taxes or to apprehend their man.25See, however, Teshuvot Vehanhagot 1:807. One critical point should however be added: There is no problem of mesirah in informing the government of a Jewish criminal, even if they penalize the criminal with a punishment more severe than the Torah requires, because even a non-Jewish government is authorized to punish and penalize above and beyond the law, shelo min hadin, for the purpose of maintaining law and order. However, this only applies in the situation when the Jewish offender or criminal has at least violated some Torah law. But if he did absolutely nothing wrong in the eyes of the Torah, then giving him over to the government would constitute a violation of mesirah.
Rav Schachter applied this approach in a case where I consulted him. An Orthodox woman, who was serving as an assistant district attorney (ADA) in an American city, was assigned the task of prosecuting an Orthodox man accused of severe child abuse. She asked me if Halachah permitted her to do so, and I consulted Rav Hershel Schachter. Rav Schachter responded that she may prosecute him,26This ruling was based on Rashi (Gittin 9b s.v. K’sheirin and s.v. Chutz) and Teshuvot Maraham Schick (C.M. 50). as batei din today lack any jurisdiction in criminal matters, so otherwise the accused would go unpunished and repeat his heinous crime.27Indeed, Rav Yonah Reiss has told me that the RCA Beth Din of America does not adjudicate criminal cases.
Rav Yitzchak Herzog (Techukah Leyisrael Al Pi Hatorah 1:173) notes that rabbis in Israel similarly acknowledged their inability to punish criminals, and they consequently chose to abdicate responsibility for criminal matters:
In a rabbinic convention held in Tel Aviv [immediately before the establishment of the State of Israel] the rabbis unanimously voiced their opinion that they wish to give up control of any jurisdiction over criminal matters. They noted that even in Eastern Europe, the rabbinate ceded jurisdiction on the matters to the non-rabbinic authorities, such as the famous Vaad Arba Aratzot [Council of Four Lands], who acted as the equivalent of the Talmudic shivah tovei ha’ir - seven recognized community leaders - and had exclusive control of imposition of taxes and punishing rebels.28Rabbeinu Nissim (Derashot Haran, Derosh 11) explains how the Torah’s ideal system for enforcing criminal law requires the king and the Sanhedrin to work in tandem. In the modern State of Israel, the batei din and the government do not enjoy a close enough relationship to facilitate this type of collaboration. Thus, the batei din could not uphold the Torah’s criminal legal system, so they relinquished their jurisdiction over criminal law (see Techumin 24:313 note 1).
Rav Itamar Warhaftig (Techumin 10:190) argues:
The rabbis themselves did not wish to deal with [criminal law], but rather were prepared for civil courts to adjudicate this area. Hence, it is unthinkable that rabbis should not recognize an arrangement that they [or their predecessors] themselves desired!
Accordingly, Rav Naftali Bar-Ilan (Techumin 10:190) permits testifying in civil court if one witnessed a fatal automobile accident.29Ordinarily, the Shulchan Aruch (C.M. 28:3) and Rama (Teshuvot 52) prohibit testifying in secular courts when all litigants are Jewish or in a case where the court will take money away from a Jew in violation of Halachah (such as being the lone witness to testify that a Jew owes money to a non-Jew, where the court might force the Jew to pay based on one witness’s testimony, whereas a beit din requires two witnesses). Also see Teshuvot Tzitz Eliezer (19:52), who appears to accept Rav Bar-Ilan’s position. He notes, however, that if monetary disputes arise from the accident, these should be submitted to a beit din.
Despite the above positions of many poskim to permit cooperation with the government in the just prosecution of Jewish criminals, one must always present an eminent Rav with practical questions of mesirah. Poskim do not necessarily agree on the definition of a just situation, so some poskim might prohibit notifying the authorities of cases where others believe that no problem of mesirah exists.30See Teshuvot Tzitz Eliezer (19:52), who, depending on the circumstances, permits informing the Israeli police of many situations in which Jews abused children physically and sexually, and Nishmat Avraham 4:210, who cites Rav Yosef Shalom Eliashiv as permitting the reporting of a sexually abusive teacher to the police (in both Israel and non-Jewish countries) if the school administration did not discipline him appropriately after hearing of the allegations against him. (When practical cases of this type arise, it is important to consult a competent attorney, in addition to an eminent rabbi, as one’s legal responsibility to notify the police about abuse might vary from state to state.) Also see Teshuvot Minchat Yitzchak (9:9:2) and Teshuvot Mishneh Halachot (7:285), who address cases where they do not permit reporting a Jewish criminal to the government; Techumin (24:306-313), where Rav Tzvi Yehudah Ben-Yaakov permits reporting Jewish burglars and violent criminals to the police; and Yeshurun (12:536-537), where Rav Avraham Weinfeld permits reporting a Jewish thief to the police in certain circumstances. Moreover, questions of mesirah often potentially involve questions of life-and-death.
Extradition From Israel
Rav Shaul Yisraeli (Chavat Binyamin 1:23) discusses, in a specific case, whether the State of Israel may extradite a Jew to a foreign country where he is wanted for murder. Rav Yisraeli notes that failure to extradite the alleged criminal would not leave him unpunished, for an Israeli court could try him. Furthermore, in that specific case Rav Yisraeli argues that there is concern that the judge abroad might harbor anti-Semitic views or be influenced by anti-Semitic terror organizations. (The case he addresses involved a Jew suspected of murdering an Arab in a European country with a large Arab population.) He adds that “the Halachah does not recognize international borders,” so Israel should not hesitate to punish her citizens for crimes committed abroad. Accordingly, Rav Yisraeli concludes that Israel should not extradite the Jewish individual in the specific case he addressed and he also urges the government to legislate that any Jew who deserves extradition will instead be tried in Israel.
On the other hand, Rav Chaim David Halevi31Rav Halevi addresses the propriety of Israel signing extradition treaties in general. (Teshuvot Mayim Chaim 67) argues that Israel fundamentally may sign extradition agreements with other countries and defends the extradition laws as they existed in his time (1991). Rav Halevi records that at that time, Israel would extradite a Jew only when he committed a crime with no religious or political connection, if the other country provided sufficient evidence to warrant a trial, if the Jew were not an Israeli citizen at the time of the crime, and if the Jew would not face the death penalty for a crime that is not a capital offense in Israel.
Conclusion
It is fundamentally prohibited for two Jewish litigants to present their case to a civil court for adjudication. Nevertheless, one should consult a competent Rav and lawyer in questionable situations, as this prohibition has many exceptions. In Israel, the prohibition against civil courts is further complicated by the fact that the judges are mostly Jewish and are thus themselves bound by Halachah. Rav Yaakov Ariel (Techumin 1:319-320) summarizes the present state of Israeli courts:
One of the most painful problems for those who believe that there is a place for Torah in the State of Israel is the law status accorded to Jewish civil law…. Israel, the Jewish state, should have traditional Jewish civil law as the law of the land. Just as it is inconceivable to have a Jewish state whose official language is not Hebrew or that does not follow the Jewish calendar, so too the State of Israel should not adopt foreign civil codes. No Jew, despite his identification with the positive aspects of the State of Israel, should tolerate the current situation regarding civil law. The love of the State of Israel should cause every Jew to long for the day when halachic civil law will be returned to its original great status…. Just as the Religious Zionist community educates its community in state religious schools, so too we must settle our monetary disputes in the state rabbinical courts.
Regrettably, batei din in both America and Israel handle a relatively low number of cases, apparently because many observant Jews are not fully sensitized to the severity of the prohibition against litigating in civil court. Rav Itamar Warhaftig told me (in 2004) that many qualified dayanim in Israel are not able to find work as dayanim due to the small number of monetary disputes that reach batei din. Similarly, Rav Yonah Reiss told me that (as of 2004) the Beth Din of America adjudicates approximately 100 monetary disputes a year, a small number considering how many Jews live in the New York area. However, both Rav Warhaftig and Rav Reiss did note that the number of cases in their respective countries’ batei din is growing each year, hopefully indicating that people are slowly learning about the importance of resolving their disputes in batei din.