Deciding Disputes in Civil Court

And these are the laws that you should place before them. (Shemot 21:1)

Parshat Mishpatim describes many of the civil laws of the Torah. The Talmud explains in Tractate Gitten that we are required to resolve disputes regarding civil law in bait din – a Jewish court convened in accordance to Torah standards. We are not permitted to submit such disputes before non-Jewish civil courts.[1] Rashi elaborates on this requirement. He explains that there are areas of civil law in which secular law may closely follow Torah law. In these cases, submitting a dispute to a secular court will likely produce a decision that is consistent with Torah law. Nonetheless, one may not take the dispute to a secular court.[2] Rashi does not explain the reason for this restriction. Why is it prohibited to submit any civil issue to a secular court? Assume that one is certain that the laws enforced by this court are consistent with the Torah. What is wrong with availing oneself of this secular authority?

Maimonides discusses this issue in his Mishne Torah. He explains that one who submits a dispute to a secular court is considered wicked. He is a blasphemer and has raised his hand against the Torah of Moshe, our master.[3] This is a very serious condemnation. It seems extreme. The term, blasphemy, implies a denial of a central principle of the Torah! How has this person blasphemed? Furthermore, how does one who utilizes a secular court “raise his hand against the Torah”?

In order to understand Maimonides’ comments, a brief introduction is required. In his commentary on the mishne, Maimonides identifies and defines the fundamental principles of the Torah. One of these principles is that the entire Torah was revealed to Moshe. Every law of the Torah was given to us by Hashem.[4] We are required to uphold this conviction. This requirement is not fulfilled simply through an intellectual commitment to the principle; the principle must also guide and be confirmed by our behaviors. We must act in a manner consistent with the conviction that the Torah is a revealed truth. Any behavior that implies otherwise is prohibited and is regarded as a rejection of revelation.

We can now understand Maimonides’ comments regarding secular courts. We received the Torah from Sinai. It is a revealed truth. Therefore, it is a perfect system of law. This status applies to the laws governing ritual and it also applies to the civil law of the Torah. A person cognizant of the divine origins of the Torah’s laws would not willingly submit oneself to the jurisdiction of another system. This person would only wish to be judged by Torah law. Abandonment of Torah law – even in a civil matter – implies denial of the Torah’s status as a revealed truth. It follows that submission of a civil dispute to a secular court is prohibited. One who does seek justice in a secular court has raised his hand against the Torah of Moshe. This is regarded as blasphemy against the Divine origins of the Torah.

Following the Conclusion of the Majority in Issues Other Than Halachah

Do not follow the majority to do evil. Do not speak up in a trial to pervert justice. A case must be decided on the basis of the majority. (Shemot 23:2)

The above passage includes three injunctions. The meaning and rationale of last of these is easily understood. In deciding a legal issue, the court must follow the opinion of the majority of its members. For example: A person brings a question of halachah before the court. The court discusses the issue and the judges differ on the resolution of the issue. The members of the court vote. The issue is decided according to the majority opinion. The law also applies to civil disputes. For example: Two litigants bring a case before a court. After hearing from both parties to the dispute, the court votes. The decision of the court is determined by the majority’s position.

The first injunction in the passage is more difficult to interpret. The pasuk tells us not to follow the majority to do evil. This is an odd statement. Obviously, we should never intentionally act wickedly. A court cannot knowingly issue an inappropriate decision based on the opinion of the majority! What is the case to which the injunction in the passage applies? The Torah She’Be’Al Peh – the Oral Law answers this question. Our Sages explain that the opening portion of the passage deals with capital cases. In these cases, if the defendant is found to be guilty, he or she will be executed. Our Sages also explain that the term “evil” in the passage should not be interpreted literally. Instead, it refers to a guilty verdict. In other words, the passage tells that a simple majority is not sufficient to execute a defendant. What is the criterion that must be met in order to execute a defendant? A majority of at least two judges is required.[5]

In short, two messages are communicated by these two injunctions. The final portion of the pasuk instructs us that court’s decisions should generally follow the majority’s opinion. The first portion of the passage establishes an exception. The execution of a defendant requires a majority of at least two judges.

Baal HaTumim – an outstanding scholar – was once asked to defend his commitment to the Torah. The question posed to him was based upon our passage. Our pasuk tells us to follow the majority opinion. It seems reasonable to apply this principle beyond the confines of court cases. In fact, the Talmud does apply this principle to other areas of halachah. This means that heeding the opinion of the majority is a rational rule and should be applied wherever appropriate. Baal HaTurim’s opponent observed that the Jewish people are a minority within civilized humankind. Furthermore, even among the Jewish people, the Torah is not universally accepted and observed. Other religions can rightfully claim larger followings. Therefore, should we not abandon the Torah based on the principle in our passage? We should follow the majority opinion and embrace most widely accepted religion!

Baal HaTumim responded that this question is based upon a basic misunderstanding of the principle in the passage. The pasuk does not suggest that we follow the majority in areas in which we have definite knowledge. The pasuk deals with a court case in which an issue is in doubt. The issue my be how a halachah is applied in a novel situation; it may involve the resolution of a civil dispute between two litigants; in may concern whether a defendant committed a crime over which the court has jurisdiction. In all of these instances, the court must consider the matter, review the evidence, examine the testimony of relevant witnesses, and after assessing the data provided from all sources, come to a conclusion. In all of these instances, there is a legitimate question and the answer is in doubt. In the resolution of the doubt, we follow the majority opinion. However, we are not swayed by the majority in areas in which we are certain. For example, assume a person knew that a certain food was not kasher – permitted. A group approaches this individual and claims the food is permitted. The person cannot eat something that one knows with certainty is not kasher. It is irrelevant that a large group claims the food is permitted. A person cannot ignore his personal knowledge simply because a number of ignorant people hold a different view. Baal HaTurim explained that we know that the Torah is true. We received it through a public revelation to the entire Jewish people and its content and design also reflect its Divine source. The truth of Torah is not an issue that is in doubt and must be resolved through resorting to the judgment of the majority. Therefore, regardless of the number of people who deny its authenticity, we cannot abandon the truth.

Rav Elchanan Wasserman Zt”l suggests an alternative response to the question posed to Baal HaTurim. He argues that the question is based upon a different error in the meaning of the passage. The passage requires us to follow the majority opinion of a group of judges. This does not mean that the principle in the passage is limited to decisions of jurisprudence. However, the principle in the passage does require that the issue in balance be decided by individuals qualified to render a decision. In matters of halachah, the judge’s knowledge and wisdom endows his opinion with credibility. The opinion of a simpleton is not given credence. Rav Elchanan argues that religious issues cannot be evaluated on the basis of popular appeal. The masses of humanity do not make religious decisions as a result of thorough analysis. Only scholars of religion are credible judges. Rav Elchanan points out that the Torah has been scrutinized by countless scholars. The Sages of the Talmud and of subsequent generations have subjected every detail of the Torah to painstaking critical analysis. No religion has been subjected to more thorough scrutiny over a period of centuries. Therefore, application of the principle in the passage only confirms the authenticity of the Torah.[6]

1. Mesechet Gitten 88:b.

2. Rabbaynu Shlomo ben Yitzchak (Rashi), Commentary on Sefer Shemot 21:1.

3. Rabbaynu Moshe ben Maimon (Rambam/Maimonides) Mishne Torah, Hilchot Sanhedrin 26:7.

4. Rabbaynu Moshe ben Maimon (Rambam/Maimonides) Commentary on the Mishne, Mesechet Sanhedrin 10:1.

5. Rabbaynu Moshe ben Maimon (Rambam/Maimonides) Mishne Torah, Hilchot Sanhedrin 8:1.

6. Rav Elchanan Wasserman, Kobetz Ma’amarim, Essay on Conviction.

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