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Beit Midrash Series Parashat Hashavua

Cooperation with the State’s Legal Apparatus – Is it Possible?

Our parasha opens with the pasuk, “These are the statutes that you shall place before them” (Shemot 21:1). This is the source for Chazal’s derasha that adjudication is to be done in front of a Jewish beit din and not before non-Jews or those who are not trained in Torah law (Gittin 88b). The Shulchan Aruch (Choshen Mishpat 26:1) rules this way, including in cases in which both sides agree to the non-Torah arrangement. Not only that, but one who is not careful on this matter is called a “rasha” and like “one who blasphemes the Torah of Moshe Rabbeinu.”
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Our parasha opens with the pasuk, "These are the statutes that you shall place before them" (Shemot 21:1). This is the source for Chazal’s derasha that adjudication is to be done in front of a Jewish beit din and not before non-Jews or those who are not trained in Torah law (Gittin 88b). The Shulchan Aruch (Choshen Mishpat 26:1) rules this way, including in cases in which both sides agree to the non-Torah arrangement. Not only that, but one who is not careful on this matter is called a "rasha" and like "one who blasphemes the Torah of Moshe Rabbeinu."

From one perspective, the establishment of the State of Israel created a challenge for the poskim of the generation regarding the status of the secular courts in Israel. There was great pain for the Torah observant community when the government decided to base the State of Israel’s law system on Ottoman and English law. This was one of the driving forces in Rav Shaul Yisraeli z.t.l.’s decision to launch our Eretz Hemdah beit din system, in which we have clear rules and procedures, ethical guidelines, a clear arbitration agreement, and we are careful to seat talmidei chachamim with great Torah knowledge and a breadth of wisdom. Such a beit din can recommend halachic solutions for a host of contemporary problems.

We sought partners, including the Mishpetei Eretz research center, to prepare halachic position papers on crucial issues. These position papers become the standard for the rulings of the entire Eretz Hemdah-Gazit beit din network. The last position paper was on the matter of payment for causing the loss of profits.

We are obviously not able to reinstate authentic Torah-level semicha (ordination), and we are also not able to present to the public a holistic halachic legal system that is tailor-made for a modern economy. However, we are able to present litigants with a just solution to their disputes on virtually any topic. This we do on a regular basis, with professionalism and transparency, according to the principles of Halacha and Jewish justice, as our great poskim have done over all the generations.

According to the guidance of Rav Yisraeli, we see cooperation with the Israeli legal system as a means of promoting the solutions to societal problems. There are even some times when the rulings of the general courts are binding according to Halacha (see Mishpetei Shaul 43, regarding a unanimous decision by Rav Yisraeli, Rav Elyashiv, and Rav Aboudi).

We should also note that it is the state’s obligation to take care of the welfare and safety of the populace. This includes the penal elements of the court system. Rav Yisraeli (Amud Hayemini I,9:12) posited that a government that is supported by the people has the authority to punish those who commit felonies. This is not against the Torah as long as it is done to make society run smoothly. Beit din is allowed to get involved in such areas only under special circumstances.

We pray that Hashem will return us to a time of just courts, which will renew Yerushalayim to the status of the "city of justice" (see Yeshaya 1:26-27).
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