When Should A Religious Jew Go To Secular Court?

Yehuda emails: Background: Rabbi Norman Lamm Is no ultra-orthodox isolationist or fanatic but someone who very much believes very strongly in gaining secular education and knowledge and being part of secular culture. His views are so “moderate” that he has frequently been condemned by members of the ultra-orthodox Agudath Yisroel’s Counsel of Greatest Sages.

Yet even his ruling regarding someone who goes to secular court, especially if the Plaintiff is demanding money is unequivocal – it is prohibited and the party must be punished with excommunication. Please see below his full response on this matter which unfortunately has become common practice even in the ultra-orthodox world, especially in regards to women who go to secular court instead of Rabbinic Court to settle marital disputes.

RABBI LAMM WRITES:

One rabbi in (of) an important community turned to me regarding a very painful question: 2 people, important friends in an orthodox (Jewish) community very upstanding philanthropists and performers of kindness and who support the synagogue very generously, are partners in almost all their possessions. And behold a fight/ disagreement full of jealousy and hatred broke out between Ruevein (A) and Shimon (B) and they are unable to speak in peace between each other. And when the fire of the argument between them got stronger, A served papers in secular court (arko’oys) against B, and the fight has descended (reached) to open hatred (between parties) without limits. B got upset and said that if the gabbai of the synagogue awarded any form of honor to A, B would resign from the synagogue and would no longer be counted as a donor even for a penny. B put pressure on the rabbi to excommunicate A that he commenced proceedings in secular court. When I interviewed A and informed him that his punishment would be very great (for being in secular court or arko’oys), he answered that he did not know the law (ignorance of law as a defense?) and the prohibition of going to secular court is not well known amongst those who pray in the synagogue. When I dug deeper, as part of the lengthy investigation in the courts, I found out that one point in time as part of this very heated (stormy) argument between them (was raging), that B said to A, let us go to Rabbinic court so that they will be the ones to find compromise between us. A refused and the matter has perpetuated on more. The rabbi finds himself in a frightening situation, that his community and his livelihood are in danger, and he turned to me for my opinion.
The seriousness of going to arko’oys (secular court) is explained in many places: Tractate Gittin (Divorce) 88: Said Rabbi Tarfon: Any place that you find secular court, even (in the event of) if their laws are identical to (Biblical and Talmudic) Jewish law, you may not use them, as it says (in the bible) “and these are the laws put before them” and the rabbis learned before them and not before non-Jewish law. And it says in the Medrash (written by the authors of the Mishnah and Talmud) anyone who leaves Jewish judges and goes before gentile judges is denying the Torah/ Bible as it says “because their rocks (referring to their idols) is not like ours (referring to the Almighty) and our enemies are sinners”.
As a matter of law, it is brought down in 2 places in the Code of Jewish Law (Shulchan Oruch) in Choshen Mishpat 26, “It is prohibited to litigate before non-Jewish Judges and in their courts (a permanent place for ministers (judges) to judge), even regarding a law that they judge (identically) to Jewish law and even if both parties to the litigation agree, it is (nonetheless) prohibited, and anyone who comes to obtain judgment through them is a wicked person, and it is as if he blasphemes against and raises his hand against the holy Torah/ Bible of Moses and the Rema there (adds) “And it is within the spower of the Rabbinic court to put him in (2 forms of) excommunication until he removes the hand of the non-Jew upon his friend (party he is litigating against). And furthermore we excommunicate the one who strengthens the hand of the party who goes to nonJewish (court)… And even if the litigant doesn’t go to secular court for judgment, but only goes to non-Jews to enforce the other party to litigate in Jewish rabbinic court, he needs to protest this.”
And in (the Code of Jewish Law (Shulchan Oruch) in Yoreh Deah chapter 334, section 43, it is stated, “on 24 matters, we excommunicate a person and these are them (i.e. below is a list)…
9. Someone who testifies on (against) a Jew in non-Jewish court and he extracted from him money against the (Jewish) law, we excommunicate him until he repays (it back). And the Rema adds in the name of the Maharik “and we do not require regarding the excommunication (full) testimony and a full-proof proof, however according to the evaluation of the mind through the veracity of the matters that the claimant claims for certain and then even a woman or even a child are believed if one’s knowledge gives (appears) that the matter is true.” At first glance, it would appear that the code of Jewish law rules that the prohibition of (going to) secular court and the punishment of excommunication only apply if there has been a monetary loss, but if there is no side of monetary loss, there is no prohibition or at a minimum (even if there is a prohibition) we do not excommunicate over this matter.
However the matter is not so straightforward, (that in our case) A claims that the request (litigation) that he served before the court (its) purpose was only to force B to reveal to him (A) all his (B’s) assets and his businesses that he has in partnership with A. According to his claims, B refused to do this, and therefore he brought the matter before the government court. And despite a cursory glance at A ‘s documents which supports his (A’s) claims, but an investigation that is not thorough leaves the matter in doubt, because within the document A states that the purpose of his request to obtain a record of the assets in partnership is so that he will not leave no assets to his relatives, and the style of the matter is that there is in fact over here a monetary claim, and so it would appear from the style of the claim.
However, if we assume that there is not (contained) within the document a monetary damages, we are still left opposite (with) the question of if going to secular court for a legal matter that is not monetary is against Jewish law or not.
As stated from the words of the code of Jewish law in Yoreh Deah, it appears that only if there is monetary side (aspect) to the claim, is one liable for excommunication. But in the Code of Jewish Law Choshen Mishpat, (chapter 26) section 3 it is slightly inferable that even without monetary claims, it is prohibited from going to secular court, and so wrote the codifier “if a gentile claims against a Jew and a Jew has testimony in favor of the gentile against the other Jew and there is no other witness in favor of the gentile except the Jew and the gentile makes claims for the Jew to testify in a place where they rely only on a single witness (unlike the Torah which requires 2 witnesses) it is prohibited for the Jew to testify in favor of the gentile and if he does testify we are to put him in excommunication.” And in the Rema “but he does not have to pay the Jew back because he can claim I testified to the truth but if one can verify that he lied then he is obligated to pay it back but if the (Jewish) defendant admits that he is liable, then we do not excommunicate the Jew. And if in the beginning the gentile got the Jew to testify, there is an element of desecration of the Almighty’s name if he does not testify on his behalf (subsequently).” And perhaps one can infer that even without a monetary aspect, there is a desecration of the Almighty’s name by going to secular court. And look into the Sema and Rabi Akiva Eiger, and the truth is there are sides to here and to here in understanding the codifier and the Rema and the matter is not sufficiently clear to reach any conclusions in the law.
And besides for the opinions of the rulers of Jewish law, it is worthwhile in examining thoroughly this matter and the nature of the prohibition of going to secular court according to the Rishonim (scholars during the Middle Ages). And it appears there are 2 ways in explaining the prohibition of going to secular court. 1) There is no trustworthiness to secular court judges that they will judge righteously and behold one who goes to them and not to Jewish judges is suspected with the suspicion of theft. 2. Even if we assume that gentile judges will judge righteously the very turning to secular courts when there are Jewish courts is a very serious sin, a desecration of the Almighty’s name, that the prohibition is in the turning to the secular courts without consideration of whether they judge righteously or not.
And Rashi which we referred to earlier says that even if you know with one law that they are judging like Jewish judges do not bring it to their courts because one who bring a matter for Jewish judges before Aramites is desecrating the L-rd and is making valuable idolatry to praise them etc. It is clear that the opinion of Rashi is that the prohibition of going to secular court is actually relying on secular court and not out of the suspicion of injustice.
And even from the words of Maimonides the prohibition of going to secular court is because of the blemish of the secular court and not because of any other reason and these are his words in chapter 26 of the laws of the Sanhedrin (courts, judges) anyone who judges (goes for judgment to) in secular judges and their courts even if they use Jewish law he is wicked person, and it is as if he blasphemes against and raises his hand against the holy Torah/ Bible of Moses as it says “and these are the laws you shall place before them and not before non-Jews, before them and not before non-experts in law (albeit Jewish)”. If the hand of the non-Jews is strong and his litigant is blind (i.e. refusing to come to Jewish court) and he is unable to extract from his litigant in Jewish Rabbinic court, he should first summons him to Jewish Rabbinic court, if opposing party will not come to rabbinic court, he obtains permission from Rabbinic court and he saves in the hands of secular court from his opposing litigant. It is clear from his (Maimonides) words that secular court is blemished from their mere existence.
And similarly is alluded to from the words of Nachmanides from his explanation of that verse, and these are his words “and therefore it says over here that these laws you shall not place them “not before gentiles and not before someone who will not judge them according to the laws of the Torah (bible), and he is not an expert in this (religious law)”, that it is prohibited to come before just as it is prohibited to come before a gentile and even if the non-expert knows the line of the law and will judge it appropriately … and even though the rabbis lumped together these two categories, there is a difference, that if the two parties both agree to go before the non expert it is permissible and since they accept him upon themselves his judgment is judgment, but before the gentile (courts), it is always prohibited to go before them (even if both parties agree) and even if their (gentiles) law is the same as the Jewish Law in this matter.
And against this, in the response of the Ran, he brings the words of the person requesting an answer from him “it would appear that if both parties agree to be judged before gentiles it is permissible, because non-experts are given equivalence to gentiles as it says “not before gentiles and not before non experts” and perhaps if both parties accept upon themselves non-experts to judge then it can be permissible, then so too can gentiles be permissible so that it should be believed like my father (Sanhedrin 24). And the Ran himself pushes away his own words and relies on (the ruling of) Nachmanidies. Nonetheless, there is room to say that if both parties is acceptable to both litigants, it is permissible, like the one who submitted the question to the Ran, and therefore the prohibition of going to secular court is not concerning their actual existence and only regarding the trustworthiness of the secular courts and if both parties agree, there is no prohibition in going there.
And both of these opinions are included in the words of the Mordechai (Tractate Divorce 10) and seconded in the Hagoas (addendum) Ashri (Tractate Divorce 12) all documents that “go up” in secular court even though their signatures are non-Jews, they are kosher (valid according to jewish law) (and Shmuel explains that is because of the principle the law of the land is the law)., and non-Jews are only prohibited according to the Torah because they are thieves and that is because we know their souls are not bitter from this (theft) (from the Book of Wisdom). And my teacher, the Rabbenu Yakir said that non Jews who have are known not to be liars they are kosher (valid) to be witnesses like it says over here but Moses and Aharon (together) are prohibited from being witness (together) because they are relatives. But it is not correct to me to make valid non-Jews as witnesses as they are not included in “your brothers”, and they are no better than a slave (who cannot be a witness). And over here that it the decree of the rabbis that they decreed that documents that “go up” in the courts that they are kosher is because the gentiles are particular that the documents if they are not valid.” Until here is the quote of the Mordechai. If so, according to the 1st opinion (Book of Wisdom and Rabbenu Yakir), the prohibition of secular court is because of the worry/ concern is about lies and theft and not because they are inherently invalid. Whereas according to Rashi, Maimonides, Nachmanides, Ran, Mordechai, Hagoas Ashri that was brought the invalidation is due to the actual (existence of ) the court.
And if like the words of those who hold that the prohibition of the secular courts is because of the lies and theft, on a case where there is no monetary matter, there is no prohibition to go to secular court because there is no monetary matter here at all. But if it like the opinion of those who the prohibition stems from actually just going to secular court then it is immaterial if there is or isn’t material loss, it is certainly prohibited to go before them. And from these words it appears that the majority of the greatest Rishonim hold that the prohibition is in the actual courts and not just in the concern of theft.
And after I wrote this, my dear son-in-law Rabbi mark the son of Tzvi Dratch showed me the book “ The Words of Justice” and in it is a response from the Gaon (genius) thee Rabbi Ben-Tzion the Levite Vosner (volume 3, pages 195-197) that accepts as a simple (straightforward) matter like the Codifier of the Code of Jewish law and like the Rema that the very going to secular court is prohibited and we excommunicate him. And according to me, the matter is not so certain, but my conclusion is like his conclusion in practice (namely that the very going to secular court is prohibited and we excommunicate him).
And we return to the question we asked. If my words are correct, then A who went to secular court did incorrectly and whether he demanded monetary compensation or not, and therefore the rabbi is obligated to excommunicate him/ put him in cheirem for the time and obligate upon him (A) to at the minimum to appease B and ask forgiveness from the members of the synagogue. And even if you wish to rule like the minority that he (A) is not ruled to be excommunicated unless there is a monetary claim against B, and A did not intend to use secular court to extract money from B, nonetheless the end proves on the beginning that when B suggested that they both turn to Rabbinic Court, A refused, and there is absolutely no justification for this. So it appears to according to my knowledge.

About Luke Ford

I've written five books (see Amazon.com). My work has been followed by the New York Times, the Los Angeles Times, and 60 Minutes. I teach Alexander Technique in Beverly Hills (Alexander90210.com).
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