The harm caused to the Jewish identity, security, and settlement of the Land of Israel is the result of the neglect of Torah law * As long as we fail to develop a Jewish legal system suitable for a modern state, don’t blame the secular system * Torah laws must be learned together with an understanding of the times, similar to Torah scholars throughout the generations who did not deliberate matters in a detached and theoretical way * An observant person may be appointed a judge nowadays, on the condition he strives to change the situation and attempts to rule according to the Torah when possible * Caution should be taken in regards to legal rulings suitable in the past, but today, cause injustice, for rabbis are required to enact ordinances in accordance with the present situation
The Legal Establishment – A Non-Jewish Court System
Last week I briefly reviewed the harmful and systematic damage the secular legal establishment causes to the Jewish identity, security, and settlement of the State of Israel. This is the punishment for neglecting the mitzvah (commandment) of the Torah – to appoint judges who decide the law according to the Torah, as it is written: “These are the laws that you must set before them” (Exodus 21:1). Certainly, public representatives have the authority pass laws and amend regulations, but this is only on the condition that the underlying commitment to the principles of the Torah remain unchanged; however, when the legal system derives its conceptions and values from non-Jewish sources, the courts are considered “Gentile courts”.
If so, as many rabbis have written, the harsh declaration of the Rambam seemingly also applies to our secular court system: “When any person has a judgment decided by Gentile judges and their courts, he is considered a wicked person. It is as if he disgraced, blasphemed, and lifted up his hand against the Torah of Moses our teacher” (Laws of Sanhedrin 26:7). In addition, Rabbi Yitzchak Herzog ztz”l, the Chief Rabbi of Israel at the time of establishment of the state, wrote: “Presently, when the Jewish nation dwells in its homeland and regretfully judges according to foreign laws, it is a thousand times worse than an individual or a Jewish community who brings their cases before non-Jewish courts…who knows what the results will be from such a shameful and humiliating situation” (“HaTorah ve’Ha’Medina” Volume VII). This was also the opinion of many rabbis, including Rabbi Tzvi Pesach Frank ztz”l, Tzitz Eliezer, Chazon Ish, the Rishon Lezion Rabbi Mordechai Eliyahu ztz”l, and the Rishon Lezion Rabbi Ovadia Yosef ztz”l.
At the time of the establishment of the state, there were still some devoted Jews who, according to various sevarot (logical insights), questioned the prohibition and its serious implications; however, after experience has accumulated over the years, the seriousness of the sin, and the extent of its punishment, is clearly evident.
We are Also Guilty
Nevertheless, we must be honest and admit the truth that we, too, the students of Torah, are to be held accountable.
Let’s suppose that tomorrow, the people of Israel awaken to do teshuva (repentance), wishing to fulfill its destiny of ‘repairing the world in the Kingdom of God’ (‘tikkun olam’), and the entire nation demands from its representatives in the Knesset and government: “Please! Rid us of all these Gentile laws, ‘restore our judges as before, and our counselors as at first’! Return Torah law to its proper standing, so the message of ‘tikkun olam’ can ring loud.” The Knesset members and government would then convene, deciding to change the legal system, and without delay, come to the rabbis and inform them: “Behold! We have decided to abandon the secular court system, and starting from next month, we request that you run the entire judicial system.”
Under present circumstances, the rabbis would have no choice but to ask the secular court system to continue managing all legal affairs, because, to our great dismay, we have yet to prepare the educational infrastructure needed to establish a legal system in accordance with the Torah. We have yet to train judges who can fill the place of the present judges, we still lack a coherent position regarding the rules of procedure, evidence, criminal prosecution, contract, labor and public laws, taxes, corporation laws, and so forth. In yeshiva’s, we study laws pertaining to the times of the Tanaim, Amoraim, Rishonim, and the first Achronim (10 CE till approx. 1600 CE). If someone were to come and ask a question about the Jewish community in the Middle Ages, we would have detailed answers; but unfortunately, we have not dealt sufficiently with laws pertaining to today’s society and economy (with the exception of a few institutions, which have clarified some of the issues).
Furthermore, in numerous issues there is a certain amount of confusion, seeing as the Rishonim were divided in their opinions, and as a result of the galut (exile), Torah scholars lacked the authority to decide the halakha; thus, any litigant can assert that he subscribes to a minority opinion ruling in his favor (‘kim li’), and because the halakha is inconclusive, it is impossible to decide who is right. In order to establish a legal system according to the Torah, first, we would have to decide the exact halakha in all fundamental issues.
‘Limmud Zechut’ for the Founders of the Israeli Court System
Thus, the Israeli jurists who did not willfully turn their backs on Torah law, but rather, believed it was impossible to successfully establish a modern society and economy in accordance with laws of the Torah, can be judged on a favorable basis (‘limmud zechut’). They turned to the legal system that was already prevalent in the country – a legal system beginning with Turkish laws, but mainly followed by British law. Thereafter, they continued building the court system in accordance with the vast experience acquired by legal systems of democratic countries, and together with the work of hundreds of thousands of lawyers, via inquiry, trial, error and correction, created a sophisticated system suitable for modern society.
Therefore, the Rambam’s declaration that “anyone who has a judgment decided by Gentile judges and their courts is considered a wicked person, and it is as if he disgraced, blasphemed, and lifted up his hand against the Torah of Moses our teacher”, does not apply to supporters of the secular legal system.
However, since in practice the secular court system derives its values from Western society (along with all its various ills), it is impervious to the values of Torah, the nation, and the Land (again, the court system can possibly be judged on a favorable basis claiming that in order not to confuse its legal considerations, they built a high dividing wall between the values of the secular courts, and Jewish values of the Torah. In practice, the result is dreadful for the Jewish identity of the state). Time after time, the judicial system exploits the Jewish people of its values, rights, land, and national calling. Only by using arguments of mortal danger (such as the issue of Arab immigration to the State of Israel on the grounds of family reunification), have national claims narrowly been agreed to.
It should be added that even if we had a systematic doctrine, and were able to promptly appoint a superbly organized court system, an interim period of time would still be needed, during which all contracts, agreements, and criminal cases could be judged in accordance with the current legal system, so as not to destabilize the social and economic frameworks based on it. Therefore, the transition to Torah law should be done gradually, in such a way that no one is adversely affected by the change.
The Study of Torah Law
Consequently, Torah students and teachers have a great obligation resting on their shoulders – to thoroughly clarify Torah law, and according to it, assess both the positive and negative aspects of the various legal systems in the world, examine the system of laws and regulations currently in force in the State of Israel, and consider what should be adopted, what needs to be changed, and what regulations to enact.
It should be noted that from the time of the Talmud until the early modern period, yeshiva students were proficient in the economic and legal doctrines which prevailed in their days. They knew how the Gentiles judged according to their laws, and how it was proper to rule according to halakha. Unfortunately, in recent generations a gap has been created between the world of Torah and the practical world; the Torah world has withdrawn into theoretical inquiries, to the point where some argue that any study concerning halakha or anything practical, is considered inferior compared to abstract ‘pilpul’.
If we continue the legacy of Torah study for generations, then today, students learning the tractates of ‘Nashim’ and ‘Nizikin’ in the Talmud and parts of ‘Choshen Mishpat’ and ‘Even Ha’ezer’ in the Shulchan Aruch should be proficient in knowledge of the legal system in all its various levels – criminal law, law procedures, systems of commerce, credit, investment, leverage, interest, taxes, labor laws, etc.
As a result, we would be able to provide a vision of a Jewish state acting according to Torah law, and set an example for all mankind how through the Torah, justice and moral values receive full expression, as it is written: “Safeguard and keep [these rules], since this is your wisdom and understanding in the eyes of the nations. They will hear all these rules and say, “This great nation is certainly a wise and understanding people. What nation is so great that they have God close to it, as God our Lord is, whenever we call him? What nation is so great that they have such righteous rules and laws, like this entire Torah that I am presenting before you today?” (Deuteronomy 4:6-6).
May an Observant Jew be a Judge in a Secular Court?
There are rabbis who believe it is forbidden for a Jew to be appointed as a judge in a secular court. A God-fearing judge once told me that he refrained from signing as a witness on ketubah’s (Jewish marriage contracts), out of consideration for rabbis who were of the opinion that he was disqualified to testify.
On the other hand, there are rabbis who believe that since the public by way of its representatives in the Knesset accepted upon themselves the secular legal system, a person may be appointed a judge, seeing as he is not to blame for determining the Gentile judicial system.
In my humble opinion, it appears that everything depends on the judge’s positions. If he regrets that the system is not run according to Torah law, and tries his best to amend it, then his appointment as judge is valuable. Understandably, he cannot violate his obligation to rule according to the accepted law, but in cases where the law is subject to interpretation, it is a mitzvah for him to stretch the interpretation as far to the edge as possible in the direction of Torah law, in the same way secular judges sometimes tend to stretch their interpretation of the law radically in the secular direction. However, if he fits into the system, wholeheartedly accepting its moral yoke, even if from time to time he “decorates” his comments in verses from the Torah and words of our Sages, he is indeed a partner in the desecration of God (apparently, this was also the opinion of the Rishon Lezion Rabbi Mordechai Eliyahu ztz”l, “Techumin” Vol.3, pg. 244).
Every now and then we hear of religiously observant lawyers who dismiss Israel’s basic right to its land, and even draw their arguments from the dubious authority of the International Court of Justice in The Hague, which is undoubtedly a “Gentile court”. In such a case, even if they believe they are only following the prevailing international law, seeing as they could have chosen another option that is legitimate and compatible to the Torah (such as the Edmond Levy report), in practice, they are partners in the desecration of God which the Rambam spoke of.
The Authority to Enact Ordinances
I must add that sometimes, judges and dayanim (rabbinic judges) who rule according to formal Torah law (such as in the case of inheritances or alimony), will find themselves ruling contrary to the principles of the Torah. For indeed, it is clear that if Torah scholars had the authority, they would enact a regulation solving the distortion that is liable to occur from a simplistic understanding of Torah law.
This article appears in the ‘Besheva’ newspaper, and was translated from Hebrew. Other interesting, informative, and thought-provoking articles by Rabbi Melamed can be found at: