Parshat Mishpatim: Does Halakha Permit Recourse to Israeli Civil Courts?

In recent years, the relationship between segments of the religious community and Israel’s civil courts has been fraught with tension over rulings by the Supreme Court perceived by some as antagonistic to religious values or institutions. This friction stems partly from those in the judiciary who are determined to preserve the democratic nature of the state and those in the religious community whose sole interest lies in promoting Israel’s halakhic character. Those of us who wish to see a more concordant relationship between the “Jewish and democratic” nature of the State certainly recoil from unnecessary or artificial conflicts that are sometimes created by various protagonists in the Israeli public sphere. Nonetheless, it remains clear that there is a genuine tension which relates to the larger question of the recognition of non-halakhic legal systems within Jewish law.

The sages asserted that within God’s commandment to establish a judicial system, the Torah prohibited Jews from adjudicating their conflicts in non-Jewish courts. “And these are the statutes that you shall place before them,” the Torah proclaims at the beginning of Parashat Mishpatim (Shemot 21:1) – but not before gentile judges (Gittin 88b). This prohibition exists, according to the sages, even if non-Jewish law accords with halakha (Shu”t Ha-Ran 73), and notwithstanding the Noahide law that gentiles should establish their own legal systems. Medieval Jewish communities, which were regularly granted judicial autonomy by the local government, subsequently demanded full allegiance to their courts (batei din), even as their constituents sometimes turned to the civil legal system for financial or social gain.

As suggested by a parallel prohibition of adjudication before improperly trained Jewish judges (hedyotot), some sources indicate that the ban on non-Jewish courts (arkaot shel goyim) stems from a fear that gentile judges will not adjudicate the case properly (Y. Avoda Zara 2:7). Other sources suggest that foreign law will not reflect the spirit of Jewish culture (Tanhuma, Mishpatim 3). Most frequently, scholars regarded recourse to non-Jewish courts as an act of treason that denied the Torah’s wisdom and displayed mistrust of its legal system. This disloyalty was comparable to blasphemy (MT Laws of Courts 26:7). As such, the ban on non-Jewish courts applies even if their judges adjudicate in accordance with halakha (Shu”t Ha-Ran 73).

The Status of Israeli Courts

As Rabbi Yaakov Ariel has argued, the inverse situation in contemporary Israel is equally problematic, as Jewish judges adjudicate according to norms based on British, Turkish, and local laws, but not halakha (Tchumin 1). At best, this state of affairs might be analogous to a case in which judges lack training in Jewish law. Rabbis Avraham Karelitz (Hazon Ish HM Sanhedrin 15:4) and Ovadia Yosef (Yehaveh Daat 4:65) contended that the fact that the judges are Jewish only increased the gravity of employing an alternative legal system. Most decisors, however, agree that one may use civil courts even within Israel if (1) one’s interlocutor refuses adjudication in a beit din, (2) the threat of financial loss is imminent without civil intervention, or (3) the religious court is not empowered to enforce its decision.

With the founding of the State of Israel, Rabbi Shlomo Goren suggested that one might validate Israeli courts based on a historic model accepted by the sages (Tehuka LeYisrael Al Pi HaTorah 1, p. 146). In the Roman province of Syria, where no scholars were qualified to adjudicate according to Jewish law (Sanhedrin 23a), halakha recognized the decisions reached by ad hoc courts composed of distinguished citizens who ruled based on personal judgment (HM 8:1). Although supported by prominent Israeli jurists like Menachem Elon and Yaakov Bazak, this solution was rejected by Chief Rabbi Isaac Herzog and other decisors. They convincingly contended that an established legal system based on non-halakhic principles was not comparable to an ad hoc court based on personal discretion. Rabbi Herzog suggested instead that each Israeli tribunal include at least one judge with knowledge of Jewish law, although that proposal was never adopted (Tehuka LeYisrael Al Pi HaTorah 1, p. 163). That being the case, it remains clear that many areas of law require definitive halakhic rulings and many civil disputes are required to be adjudicated within a beit din. As such, those committed to halakha must consult with a rabbinic authority before proceeding with any monetary and civil adjudication outside of beit din.

Dina Demalkhuta Dina

It must be noted, however, that decisors have decidedly ruled that the principle of dina demalkhuta dina (“the law of the land is the law”) applies to the State of Israel. This principle comes from the Babylonian Talmud, which authoritatively quotes Shmuel, the prominent third-century Babylonian sage, as declaring, that “the law of the kingdom is the law.” Perhaps not surprisingly, this principle is cited most prominently in a discussion about tax collection (Bava Kamma 113a). The Talmud prohibits evasion of tax collectors, unless they collect unlawfully, without government mandate, or in a capricious, inequitable manner. Interestingly, the Jerusalem Talmud never mentions dina demalkhuta, leading some historians to speculate that the sages did not apply it in an era of suppression and tyranny. In a community with a just political system, however, most authorities believe this principle carries the force of biblical law (Avnei Miluim 28:2), and that tax evaders violate the biblical prohibition of theft (Shulhan Arukh HaRav, HM Gezela 15).

Israeli LawyerBeyond taxes, medieval authorities debated the scope of dina demalkhuta, reflecting in part, different perspectives on the rationale behind recognizing the law of the land. Some scholars asserted that a king’s right to enact laws stems from his ownership of the country’s territory. Just as an individual property owner may establish rules of entry into his land, a government may regulate the conditions of residence in its territory (Rosh, Nedarim 3:11). This rationale might even justify treating select groups of citizens (such as Jews) differently from everyone else (Maharik 194), though most authorities consider discriminatory regulations unjust and non-binding (BY HM 369).

More important, this explanation might limit dina demalkhuta to matters strictly related to land and territory, such as real estate regulations and taxes (Or Zarua Bava Kamma 3:447). Similarly, if this principle is based on territorial ownership, it might not apply to the Land of Israel, where all Jews are inherently entitled to dwell (Ran, Nedarim 28a). According to an extreme interpretation, dina demalkhuta would not apply in the State of Israel (though other halakhic principles might empower the Knesset’s authority). Many decisors, however, have contended that even according to this interpretation, basic matters of civil regulation would remain mandatory in the Land of Israel (Hatam Sofer HM 5:44).

In any case, the dominant position among talmudic commentators grounds dina demalkhuta in social contract theory. According to this approach, residents of the land (implicitly) consent to the regulations of the local authority in order to maintain order (Rashbam, Bava Batra 54b). As such, these laws would be equally binding in the Land of Israel and elsewhere, and would apply with no distinction between a Jewish and non-Jewish sovereigns (MT Laws of Theft 5:17–18).

Even within this approach, decisors debate the scope of dina demalkhuta. Maimonides, for example, seems to apply the rule only in cases of direct “benefit to the king,” although he does not delineate which laws would fall into that category. Some believe the principle covers only matters that directly impact the government’s financial interests. Other decisors, however, broaden dina demalkhuta to encompass most monetary and civil regulations (BY HM 369). Consequently, halakha mandates that one honor traffic laws and health regulations, as well as intellectual property rights, including copyrights.

Limitations to Dina Demalkhuta Dina

Two important limitations pertain to this principle. First, dina demalkhuta has no impact on ritual or on personal status. As such, government laws that ban ritual slaughter of animals (shehita) or circumcision would not be recognized. Orthodox decisors have similarly ruled, based on talmudic precedent (Gittin 10b), that a civil divorce has no effect on halakhic personal status. Second, civil monetary regulations (including matters of inheritance and moneylending) are not necessarily binding if they directly contradict Torah law (HM 369:11). However, when all parties accept the conventional contractual agreements made in the financial world, then these agreements may become enforceable (Shakh HM 73:39).

Thus this axiom mandates not only payment of taxes and observance of zoning and safety regulations, but also cooperation with the judicial bodies created to enforce those laws. A similar ruling applies to criminal law, which rabbinic decisors agreed should be enforced by government authorities. Yet as stated earlier, many areas of law must be adjudicated in a beit din.
The resulting tension is particularly acute for religious Zionists, who support building state institutions but maintain absolute fealty to halakha. As with many of this country’s internal disputes, this deeply rooted conflict will probably simmer for years to come. Yet it is the obligation of responsible leaders to do what remains possible to minimize this conflict while at the same time promoting halakha as a means of creating justice in our society.

rav-shlomo-brodyRabbi Shlomo M. Brody is the founding director of the Tikvah Overseas Seminars for Yeshiva and Midrasha Students and teaches at Yeshivat Hakotel. He is also a presidential doctoral fellow at Bar-Ilan University Law School, a junior research fellow at the Israel Democracy Institute, and the Ask the Rabbi columnist for the Jerusalem Post. This dvar torah is adapted from his book, A Guide to the Complex: Contemporary Halakhic Debates (Maggid), which was recently awarded a 2014 National Jewish Book Award.

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