Tag Archives: Litigation

Parshat Mishpatim (2013)


Exodus 21 – 24

Jewish Justice: Does the Torah forbid us from taking cases to civil courts?

Torah and LawIn this week’s parsha we come in to this discussion just one chapter after the giving of the Ten Commandments. After the giving of these first ten the people became overwhelmed by the sights, sounds, smoke, and trembling that came as G-d spoke on Har Sinai. They asked for Moses to speak with G-d for them, they will give heed but they prefer for him to address the voice of G-d, to which Moses agrees and he draws closer into the thickness of G-d’s presence. (see Exodus 20:14-17) Immediately we find that G-d continues to give commandments to Moses, that they are not to worship with idols made of precious metals but instead they are to make simple, burnt offerings upon altars of unhewn stones. Neither are they worship through naked ritual on that altar. These are the core commandments of Mishkan (Tabernacle) and Temple worship. (Exodus 20:18-22)

Then our parsha begins with the following words:

“And these are the ordinances

which you must set before them.”

| Ve’eleh hamishpatim

| asher tasim lifneihem.

Exodus 21:1

What we need to keep in mind is that the revelation of Sinai is still taking place, Moses has not yet descended from the mountain. Moses continues to hear the commandments of G-d spoken to him. The giving of commandments doesn’t just end at this point, no it continues.

Interestingly this section’s chumash commentary is going to begin by giving us the basis of the Lishkat haGazit – the House of Hewn Stones, the Supreme Court known as the Sanhedrin, the house of law that stood opposite and distinct from that of the ritual complex and it’s altar.

Rashi immediately begins to set up for this point in his commentary that their laws they administer are from Sinai, they are to adjudicated the commandments held herein. He makes this point while noting that even in the Torah we clearly see that G-d did not just give ten commandments alone, he gave additional ones as noted with the words “ve’eleh / and these are…” They were only spoken directly to Moses as an audience as we see here in this scene. We are taught that there is a reason for the juxtaposition of these laws relating ot the altar and the establishing of ordinances of Torah, it is not by accident. G-d is not merely giving ritual direction to this new society, He is also advises them how to administer civil law as well in this Torah. Hashem speaks all these things to Moses.

Rashi focuses heavily on the latter clause of the verse, upon the words “asher tasim lifneihem / that you shall set before them.” The sages tell us that G-d did not instruct Moses to just refer to the oral instructions two or three times, so that they familiarize themselves with it well enough. No, one in leadership is not free of the responsibility to enable people to understand it and to explain it to those who turn to them. The judges are to set the Torah before people, not just throw the book at them. It’s not to be tossed at someone quickly. The Torah is to be placed before someone like a place setting at a table, set before one like a set table (kshulchan aruch) placed before someone so that they can eat (and thus nourish themselves) from it. (see Talmud Bavli, Eruvin 54b)

Notice that we have only barely come out of Egypt and already we have touched on the topic of law and order. In Parshat Yitro we see that Moses is given advice on appointing judges because surely he will not be able to continue to hear all the Israelite’s cases, his father-in-law contends. (see Parshat Yitro 2012) They were a true society, with real people, problems, disputes and crimes. Moses up until then had heard all their disputes and grievances. Here we see the type of issues of law that came in to play in their society being summarized for us in these next few chapters. Thus this parsha is named Mishpatim – meaning ordinances, laws, or judgments.

If one examines the types of law that the Israelites are commanded by G-d, we see that the law spoken about here is more than just civil law, relating to contracts and damages. It extends all the way to criminal and capital cases as well. But what makes this system of Torah justice unique is that it does not just take into consideration civic responsibility, it also takes moral and religious concerns into consideration as well. Within the context of Israelite sovereignty and in the shadow of the altar this system was to administer all justice for the people.

The rabbis saw themselves as continuing on the role of the elders and judges, administering this law for the Jewish people. Even after the fall of the Sanheidrin during the Roman occupation the rabbis continued to administer law to the best of their ability in tribunals known as a beit din – literally a house of law, a law building; or simply, a court. Even if these courts were makeshift. Though they did not live in sovereignty and thus there were many elements of law that had to be set aside under foreign rule, nonetheless as members of a minority that was not considered a true citizenry they were left without a working judicial infrastructure and Jews often naturally continued to rely upon their local rabbis to summon a religious court for them.

As the Jewish people began to pioneer out across the world during the dark-ages to follow they often found themselves settling in areas where there was no system of law. It is for this reason that our sages stress among one of the Seven Commandments given to the sons of Noah, the seventh and very distinct one from the Ten Commandments of Moses; the command to establish courts of justice. (see Talmud Bavli, Sanheidrin 56a) In their distant enclaves they continued to engage themselves in Jewish law in ways not so distant from their autonomous past and encouraged law and order among their neighbors.

As the Christian and later the Muslim conquests followed and their rulers became more deep-seated they did establish their own courts of law, but much of the Jewish population was not integrated into that society. Jews still continued to live in enclaves, most notoriously in forced settlements and closed towns known as ghettos in Europe. In the absence of a judicial system that concerned itself with their needs Jews needed to rely heavily on the rabbinic courts to settle disputes.

Even though today we are greatly integrated into the larger society many religious Jews still depend on the rabbinic courts to settle issues for us. Though these days most of us live in countries with established civil courts, often times the issues that most concern the lives of religious Jews cannot be taken into consideration by the civil code of the land. People turn to a beit din to settled these issues. These concerns and disputes can extend beyond just religious issues, concerning themselves with more than just hearing case relating to ketubot and kashrut. In an old-world culture where people often make agreements on a handshake and a promise, or making unique business agreements for optimal religious benefit of the parties, people put a lot of faith into the ability of community rabbis to settle issue between them.

Everyone can bring their issues to a beit din, even a non-Jew in dispute with a Jew is able to bring a case before a rabbinic court of three rabbis. Historically this often made a lot of sense to pursue because non-Jews have traditionally wanted to avoid the complications arising from lack of integration (that a Jew doesn’t have standing to be heard in a gentile court) and also because of the reality that Jews would be more likely to give heed to the ruling of their own community. A ruling by the community rabbis would come with the weight of communal authority, compelling the community to have to respond, thus a person living in that community could not live comfortably until the issue was settled.

As the rabbis even hear the complicated moral issues at hand in a case, the use of this type of litigation is sometimes still favored by parties and utilized as a form of civil arbitration. The only thing that is required of each party is that they agree to the ruling of the tribunal of rabbis as binding for settlement. And I want to stress this aspect of this type of adjudication, this is the final closure of this dispute and therefore one is not able to go to another court later to settle the issue again. If you don’t like the ruling you are not able to dismiss it and shop around for another set of rabbis that will agree with your claim. Because this is the case, the raising of a legal dispute by another court after being heard by the rabbis was considered anathema.

Most often people who could not get a ruling that satisfied them would therefore lastly turn to the non-Jewish authorities, to courts headed by local nobles or bishops; something considered an avoidance of justice already rendered, and furthermore an act of informing against Jews for spectacle trials during an age of inquisition. For this reason our rabbinic law from this age and context states, as in the Shulchan Aruch, that one is forbidden from bringing cases before the non-Jewish courts (see Shulchan Aruch, Chosen Mishpat, Siman 26).

We must keep all of this in mind as we read the next section of Rashi, or we might be lead to the wrong conclusion. The commentary for the last word of Exodus 21:1 reads as follows:

Before them: But not before gentiles,

even if you know that they will judge

something the same as the laws of Israel,

you shall not bring it to their courts,

for one who brings Israelite lawsuits

before gentiles

profanes the [Divine] Name

and honors the names of idols

to ascribe importance to them.

As it is said:

‘For not like our Rock [G-d] is their rock,

but [yet] our enemies judge [us]’ (Deut. 32:31).

When [we let] our enemies judge [us]

this is testimony to [our] esteem of their deity.”

לפניהם: ולא לפני גוים, |

ואפילו ידעת בדין |

אחד שהם דנין אותו כדיני ישראל, |

אל תביאהו בערכאות שלהם, |

שהמביא דיני ישראל |

לפני גוים |

מחלל את השם |

ומיקר שם עבודה זרה |

להחשיבה, |

שנאמר: |

כי לא כצורנו צורם |

ואויבינו פלילים, |

כשאויבינו פלילים זהו |

עדות לעלוי יראתם: |

Rashi for Exodus 21:1 (from Tanchumah 3)

This section of the Torah is one that I didn’t necessarily think much upon in previous years. This whole section relating to lawsuits is something that we don’t often discuss, even though a great swath of the Torah and Talmud is about settling disputes. I have never been part of a legal proceeding myself, and I can honestly say I have never had an instance of conflict that I felt needed to be brought before a court aside from administrative issues, be it a civil court or a rabbinic court. Thus I have rarely had to consider the idea of whether or not I would ideally bring an issue before a rabbinic court or a civil court. But our halacha is clear, and for sensible reasons, we are to settle cases among ourselves to the best of our ability and to extent the law allows us.

We should not have to bring cases before non-Jewish courts, because when we do so it shames our faith and shows deference to heathen ethics. Simply put, to petition outside courts says we can’t follow our own laws and religion so we need foreigners (indeed, idolaters) to set us straight.

Now as we look at the above Rashi for this text, I want us to first concern ourselves with what it initially states. It’s reason for us not turning to gentile courts to settle our issues is not so much out of fear of making a chilul Hashem (a desecration of the Name of G-d), but namely because our primary concern is that the non-Jewish courts will not rule to the same height of moral standard as the Torah demands.

This week as I began to read the commentary for this I began to become troubled as I considered the English translations offered for the Rashi in most volumes. Because here was the first verse of this weeks parsha commentary seemingly offering fuel for a serious moral debate in the Jewish community. In the past few years several sexual abuse cases have rocked the Jewish community worldwide. In recent weeks the internet has been buzzing with articles revealing previously unknown sexual abuse and rape cases. The disturbing nature of it has intensified after the release of several statements by prominent rabbis suggesting that sexual abuse cases not be taken to the authorities first, but instead reported to the rabbis.

There does not appear to be a mass cover-up anything close to the crisis rocking the Catholic church this week, where Cardinals were known to have intentionally buried sexual abuse claim. (see The Los Angeles Times) However, our reaction to our crisis is just as anguishing. As we see that the Jewish community is experiencing exponential growth its institutions seem to lack a sophisticated understanding of sexual abuse and mechanism for dealing with abuse cases. In a lot of ways what seems to make the atmosphere similar in both cases is that it appears to victims that the religious institutions are showing more regard for their embarrassment, instead of first concerning themselves with championing their superior ethics. The finger-pointing by lot of Jews had towards Catholics amidst their fall from grace is being turned inward now.

The truth is that we should be harshly denouncing and uprooting sexual abusers from within our communities. We should be using the religious courts and bodies to punish abusers, not just looking at cold statutes like the secular legal system but instead hold each abuser accountable to a higher authority found in Torah. People should be called to account for their injustices by our Batei Din (rabbinic courts).

However, this does not mean that we are not to report these cases to the police and cooperate with civil prosecution. Our rabbis are limited in authority, only really being able to hand out moral censure and award settlements for damages that only personal honor would compel one to comply with. Just as a beit din does not have autonomous rule to administer capital or corporal punishment, it does not have the ability to administer criminal law either. Neither is it legal for us to imprison someone, that is only allowed by civil authorities. Those who insist that we are not allowed by our sages to bring cases to the civil authorities based on this text ignore the obvious meaning of the words “dinei Yisrael / Israelite (Jewish) lawsuits” of our commentary; our rabbis can hear lawsuits but cannot enforce punishment for crimes. Their legal authority is incomplete, it is inappropriate that it end there.

The fact is that living in a secular, civil society we are required to live according to the law of the land. Our tradition clearly states to us Dina deMalchutah Dina – that the law of the land is the law, even for the Jews. (see Talmud Bavli, Bava Batra 54b, Nedarim 28a, Gittin 10b, Bava Kama 113a, and Bava Batra 55a)

We cannot break the law, wherever we live we are required to respect their laws. Sexual abuse is a crime that is punishable by the criminal courts, it is not merely a civil case which is settled by a lawsuit and monetary judgment. When a crime is committed a person is accountable for their crimes against the people of that land according to their laws. Furthermore, in most states and countries one is required by law to report suspicion of physical or sexual abuse to the authorities. When the seriousness of ones crimes goes beyond the scope of “din Yisael / the law of Israel” then it must be rightfully settled in the courts of the land, who are authorized to hear such cases.

In a society where there is a degradation of moral and civil responsibility we need to use all the appropriate levels of justice to adjudicated law and order. By assisting justice on both religious and civil grounds can we live up to our motto, “Tzedek, tzedek tirdof / Justice, justice shall you persue.” (Deut. 16:20)


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