The article below is from Rabbi Riskin’s book Shemot: Defining a Nation, part of his Torah Lights series of commentaries on the weekly parsha, published by Maggid and available for purchase here.
Parshat Mishpatim: What Constitutes a Jewish Court?
Rabbi Dr. Shlomo Riskin is the Founder and Rosh HaYeshiva of Ohr Torah Stone
“These are the statutes which you must place before them.” (Exodus 21:1)
If two religiously observant Jews are engaged in a disagreement which has financial ramifications, are they permitted to go to a secular court to arbitrate their dispute or must they go to a religious court or bet din? Is the law different in Israel, which has a religious as well as a secular court system, but where even the secular court judges are Jewish? And if indeed Jews are religiously ordained to go to religious courts exclusively, why is this the case? After all, secular courts in America are certainly fair and equitable!
The Torah portion of Mishpatim provides interesting responses to all three questions. It opens with the command: “These are the statutes which you [the Israelites] shall place before them [the religious judges]” (Ex. 21:1). Rashi immediately cites the Talmudic limitation (Gittin 88b):
“Before the religious judges and not before gentile judges. And even if you know that regarding a particular case, they [the gentile judges] would rule in the exact same way as the religious judges, you dare not bring a judgment before the secular courts. Israelites who appear before gentile judges desecrate the name of God and cause idols to be honored and praised.” (Tanchuma Mishpatim 3)
According to this passage, it would seem that the primary prohibition is to appear before gentile judges who are likely to dedicate their legal decision to a specific idol or god; it is the religion of the judge rather than the content of the judgment which is paramount. From this perspective, one might legitimately conclude that Israeli secular courts – where the judges are all Jewish – would not be prohibited. (*This is the conclusion reached by Jerusalem Magistrate Court Judge Jacob Bazak, in ‘Courts of Law in the State of Israel – Are They Indeed Secular?’, Tehumin i i (5741) pp. 523–528.)
Moreover, secular courts in America – where there is a clear separation between religion and state in the judiciary – may very well likewise be permitted.
However, the great legalist and philosopher Maimonides would seem to support another opinion. Although he begins his ruling, “Anyone who brings a judgment before gentile judges and their judicial systems… is a wicked individual” – emphasizing the religious or national status of the judge rather than the character of the judgment – he then concludes, “…and it is as though he cursed and blasphemed [God], and lifted his hand against the laws of Moses.” (Laws of the Sanhedrin 26:7)
Apparently, Maimonides takes umbrage at a Jew going outside the system of Torah law, thereby disparaging the unique assumptions and directions of the just and righteous laws of God.
In order for us to understand exactly what is unique about the Jewish legal system, permit me to give an example of the distinctive axioms of Torah law from another passage in this Torah portion, the prohibition against charging or accepting interest on a loan.
“If you will lend money to my nation, to the poor person with you, you may not be to him as a creditor, you may not place upon him an interest rate [neshekh]; and if you accept from him your friend’s cloak as security for the loan you must return the cloak to him before sunset. Because, after all, it may be his only cloak and [without it], with what [cover] will he lie down? And if he cries out to Me, I shall hear because I am gracious.” (Exodus 22:24–26)
In addition to noting the touching poignancy of the latter portion of the passage, I would like to ask four questions, one on each of the four earlier phrases of the commandment. First of all, the prohibition against interest begins, “If you will lend money to my nation.” Although Rashi cites the teaching of Rabbi Yishmael that this is on