usion 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 one of the three biblical instances where the usage of the Hebrew ‘im’ is not to be understood as being volitional – if – but is rather to be taken as an imperative – “When you lend money to my nation,” as you should do – nevertheless, one might legitimately query why the Bible chooses to use such an ambiguous term for an act of lending, when it is clearly God’s desire that we perform this act!
Second, the Bible seems repetitious: “…to my nation, to the poor person with you.” One or the other of these two phrases would have been sufficient to teach the point!
Third, “You may not be to him as a creditor,” says the Torah. This is interpreted by our sages to mean that not only is it forbidden for the creditor to remind the debtor of the loan, but the creditor must go out of his way not to cause the debtor embarrassment; if the creditor sees the debtor walking towards him it is incumbent upon the creditor to change direction. Why? After all, the debtor took money from the creditor, didn’t he? Why not remind the debtor that the loan must be repaid?
Fourth and finally, the specific prohibition against interest itself seems problematic. The Hebrew word used in the Bible for interest – “neshekh” – also means the bite of a snake, which our sages compare to interest since the serpent initially injects his venom painlessly but it ultimately consumes the entire individual and takes his very life! Maimonides goes so far as to codify:
“Anyone who writes a contract with an interest charge is writing and causing witnesses to testify that he denies the Lord God of Israel… and is denying the exodus from Egypt.” (Laws of Lenders and Borrowers, 4:7)
What is the logical reason for the prohibition against interest – and why the hyperbolic comparisons? After all, there is no prohibition against charging rent for the use of my house! W hy should there be a prohibition against charging rent for the use of my excess funds?
Rabbi Haim ibn Attar, in a most brilliant illumination, beautifully explains this passage in his commentary Ohr Hachayi