Parshat Mishpatim: Torah law and secular courts
In our modern lives we live with a certain dissonance, and as a result many Torah observant people feel that they should turn to secular courts to solve their civil disputes instead of turning to the beit din (rabbinic courts). As we will see, this is not only a philosophical issue, but a halakhic one. Much of our lives are governed by secular state laws, so it’s no wonder that people feel a separation between religion and state. Spiritual laws between human beings and the Creator are the purview of rabbis, and financial and civil matters that shape most of our social interactions are the purview of lawyers. Sure, we still give tzedaka (charity) and visit the sick, allowing the Torah to dictate our actions in these matters, but when it comes to loans, damages, and civil suits, even many religious Jews turn to the secular state courts.
Is this separation appropriate? What’s the alternative?
In Parshat Yitro, Yitro gave Moshe two pieces of advice. First, he told him to teach the people Torah: “And you should caution them with the laws and procedures, and give them the knowledge of the way they should go and the actions they should do.”[1] Second, he advised him to establish a hierarchical court system: “And you shall look for leaders who hold God in awe among the entire nation, people of truth who loathe [ill-gotten] gains, and you shall appoint them as ministers of thousands, ministers of hundreds, ministers of fifties, and ministers of tens.”[2] Immediately afterward the people stand at Mount Sinai, and receive the Torah directly from God; after that, Parshat Mishpatim presents the legal system.
“These are the laws that you shall place before them.” This introduction to the parsha can be understood as a continuation of Yitro’s first piece of advice – to teach the people Torah, or his second – to establish a court system. Ramban explains it according to the former; to observe “You shall not covet” one needs to know what belongs and that is partially determined by the laws of damages delineated in this parsha.[3]
Chazal, on the other hand, understand it as the latter: “These are the laws that you shall place before them” – you, the People of Israel, must bring your legal matters to them, the people who have just been chosen to implement this code of law, and not people from other nations and not lay-people (hedyotot) without authority (semicha) to judge.[4] It is their responsibility to judge the people according to this code, and it is the people’s responsibility to turn to them for their judgment.
The Torah uses the term “E-lohim” several times when discussing the legal system – “The owner of the house shall be brought before E-lohim,” “The words of both will come to E-lohim,” etc.[5] Why? It’s possible to read this as Divine intervention in the legal system. There are some things that remain in God’s hands, when the only way to determine the truth and reach a righteous judgment is through an oath in God’s name.[6] Yet Chazal explain that these judges are also the long arm of God’s law. The judges are called E-lohim because they are God’s representatives to the people, with the authority to execute Divine tzedek (righteous justice).[7]
Viewing the judges’ authority as an extension of God’s authority shows the complexity of the Torah’s legal system. Beyond the basics of legislating interpersonal conduct and establishing social order, there is an added aim of Divine tzedek. The penalties described throughout the parsha can be understood as damages – restitution to the injured party, but they may also be exemplary or punitive measures imposed by judges to deter wrongful conduct or restore tzedek (perhaps though the principle of midda k’neged midda, measure for measure, to create some type of cosmic balance – since it’s unfathomable that justice can be achieved without ”restitution”). As we shall see, the judges don’t dole out these punitive consequences as representatives of civil order; this is the exclusive purview of the representatives of Divine tzedek.[8]
The problem of secular courts (erkhaot)
This understanding of Parshat Mishpatim led to important, practical halakhic conclusions. The first is a prohibition against going to courts that do not judge according to Torah law.[9] Since Torah law represents Divine justice, it must be used to determine who is guilty and who is innocent, who must pay restitution and who is not liable. To submit to another legal system is to deny the God-given Torah and its precepts; accepting payment inconsistent with the laws of Divine justice borders on theft.[10]
The second is a prohibition against going to judges who are not God’s representatives. This includes gentile courts and courts run by Jews that do not rule according to Torah law, but even Jewish courts that abide by Torah law are problematic if the judges do not have the semikha (authority) to judge.[11] This semikha (authorization) was bestowed by a dayan musmakh (authorized judge), handed down in a chain originating with Moshe – God appointed him as representative and gave him authority to appoint new representatives.
The problem is that we no longer have this type of semikha, and so there are no dayanim (judges) who are authorized to judge through an unbroken chain. At a certain point the chain of semikha transmission was broken. How can there be a legal system without these Divine representatives at the helm? The Babylonian Amoraim (rabbis in the period the gemara was composed) recognized this problem, as Babylon already lacked dayanim musmakhim at the time.[12] As a result they concluded that “[judges] do not rule concerning kenasot (fines/punitive payments) in Babylon.”[13]
The sages recognized that the payments delineated in Parshat Mishpatim (and the Torah’s general legal system) reflect the two aspects we mentioned above – a civil element of restitution to create order and a punitive element to realize Divine tzedek. But Divine tzedek can only be implemented on the condition the judges know – “the one whom God determines is guilty.”[14] One must be an authorized Divine representative, a dayan musmakh, in order to impose punitive consequences on the guilty party. Therefore, judges in Babylon without semikha could not impose kenasot, although they could rule to restore the original order through compensatory damages or restoration of property. This distinction is somewhat artificial since there is an element to Divine tzedek in imposing order as well.
The Babylonian sages justified their involvement imposing order in civil matters based on two principles. First, “We are discharging their commission.” The Babylonian sages, and for that matter sages in all future generations, are considered to be messengers of the sages of the Land of Israel who had semikha.[15] While they themselves do not have semikha and are unable to represent God, they can still impose order as representatives of the Torah justice system. Second, “So the door won’t be locked.” The sages understood that in the absence of a functioning legal system, the financial system would collapse – and the first people to be shut out would be the needy. If people could not bring suit to demand repayment of loans, they would stop loaning money to those in need. And in general, the courts needed to rule in common financial matters (such as theft and damages) or there would have been total anarchy. These things fall under the purview of “imposing order.”[16]
So what’s the halakha today?
Nowadays there is still a general prohibition against electing to use secular courts instead of the beit din. In criminal matters there is no choice, as the state is the only entity that has jurisdiction and “if it were not for the fear of the monarchy (government) a person would swallow their fellow alive.”[17] Even in the Land of Israel, the State institutions represent the will of the community in these matters.
Financial matters are more complicated, since there are state civil courts that have jurisdiction. Nevertheless, when beit din is an option (which is particularly relevant in the State of Israel) one is obligated to turn to them, as recognizing the authority and Divinity of Torah law is part of our avodat Hashem (serving the Lord). But since the beit din of today does not have the authority to compel people to participate and submit to their authority, there is often an issue getting all parties to cooperate. In these cases we are once again faced with the problem of disorder; in this case it is specifically the person observing Torah law who is adversely affected. To remedy this situation, this person can ask the beit din to grant them permission to turn to the secular courts. The beit din looks at the case, and if it decides that the party is owed money according to Torah law (based on evidence, etc) it authorizes the civil suit.[18] In this way the person who turns to the secular court does so in a way that still fulfills God’s will, and the secular courts themselves become messengers of the beit din.
[1] Shemot 18:20
[2] ibid 21
[3] Shemot 21:1
[4] For example: TB Gittin 88b. “These are the laws that you shall put before them.” “Before them” and not before gentiles, “before them” and not before lay-people.” Also see Sefer HaChinuch’s framing of the mitzvot in this parsha.
[5] Shemot 22:7-8
[6] See commentaries on Shemot 22:7
[7] For example: Tosefta Sanhedrin 1:9; Rav Avraham ben Ezra Shemot 21:6
[8] See the first sugya (matter) in TB Sanhedrin 2b-3a
[9] See Midrash Tannaim Devarim 16”18; Rashi and Ramban on Shemot 21:1; Rambam Hilkhot Sanhedrin 26:7; Shulchan Aruch Choshen Mishpat 26:1
[10] Regarding other legal systems see the sources in the previous comments and also: Responsa Yechave Da’at IV 65. Regarding theft see footnote 3.
[11] In addition to the sources above see Chazon Ish Sanhedrin 15:4
[12] Two conditions to giving semicha to dayanim (judges) are semicha from a dayan who has semicha and that it be done in Israel. Even those who claim that the chain of semicha was unbroken at this time, since semicha was not performed outside of Israel there weren’t dayanim with semicha at that time.
[13] For example, see TB Bava Kama 27b, 84b, and Rav Nutranai Gaon in Sha’arei Tzedek IV 1:2 “Kakh ra’inu.”
[14] Shemot 22:8, TB Bava Kama 64b
[15] TB Gittin 88b, Bava Kama 84b
[16] TB Sanhedrin 2b-3a
[17] Mishna Avot 3:2
[18] TB Bava Kama 92b
