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Shabbat Parashat Ki Tisa 5779

Ask the Rabbi: Is Partial Compliance to Choshen Mishpat Helpful?

Rav Daniel Mann

Question: If a court case is being tried in the secular court system in Israel (against Halacha), is there an advantage if some laws of Choshen Mishpat (section of Shulchan Aruch dealing with monetary law) are followed, or is it all-or-nothing? [Upon inquiry as to what specifically the querier was referring to, he mentioned a matter of public interest. We fielded that matter privately; publicly, we will discuss the principle.]

 

Answer: [Some of the basics of the matter of adjudication in secular court are discussed in, among other places, Living the Halachic Process V:I-2.]

The poskim identify two complementary problems with going to secular court instead of beit din: 1. If the ruling of the court is different from that which beit din would render, then one of the sides is extracting or withholding money rightfully belonging to the other side. 2. Preferring a judicial system based on something other than Torah is damagingly insulting to the primacy of the Torah (see Shulchan Aruch, Choshen Mishpat 26:1, based on the Rashba). (Incorporating specific Israeli laws based on dina d’malchuta dina (the law of the land), as our beit din often does, is not following a non-Jewish system. It is even halachically permissible to legislate takanot based on contemporary societal needs. Basing the system as a whole on Ottoman and British law is not proper.)

There are practical differences (some certain, some possible) between these elements, with each one applying to cases the other might not. The matter of taking money in an unauthorized manner might not apply when: 1. Both sides prefer the secular courts and thereby authorize the other side to receive the “fruits” of their ruling. 2. The side that won checked responsibly with halachic experts (including by telling all of the arguments the other side could raise) that he deserves the court’s award. The matter of preferring another judicial system may not apply if: 1. There is no beit din available to adjudicate (see Living the Halachic Process V:I-2). 2. From the perspective of one litigant, he had no choice because the other litigant refused to go to beit din.

If one has already received a favorable ruling from a secular court, is he allowed to accept the award without further investigation? The matter of disgracing the Torah has already occurred – in some cases he or both sides were at fault; in other cases, the other side forced him. The question is, in each of the scenarios, what to do about the money which he might have or might not have been awarded in beit din. See opinions on the matter in Techumin vol. XXV, p. 249-253 and Eretz Hemdah’s position paper from 5774.

Would it make a difference if the specific matter is something in which the secular courts follow Choshen Mishpat? As long as the system is based on a different judicial authority, the problem of disgrace remains. The Shulchan Aruch (CM 26:1) rules that one is not allowed to go to a non-Jewish court even regarding a topic in which their laws are identical to Halacha. The Tzitz Eliezer (XII:82), in expounding on a letter by Rav Tzvi Pesach Frank, says that the situation is not better and is, in some ways, worse regarding Jewish courts that adopt a non-Jewish system. In such cases, the matter of taking money not coming to the litigant is less likely to be a problem. On the other hand, those who are not trained in Halacha cannot be trusted to implement its rules correctly. Rav Yaakov Ariel (Techumin vol. I, p. 319-328) argues that accepting certain rulings based on halachic sources (what Israeli academia calls Mishpat Ivri) does not remove the halachic and philosophical problems of going to a secular court. On the other hand, purposely and increasingly adopting elements of Choshen Mishpat would (if it occurred) lessen the sting of rejecting Torah-based justice.

In summary, there are small gains when secular law adopts halachic laws and principles, but it does not remove or dramatically alter the halachic and philosophical problems of adjudicating before their courts.  

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