Simon Jackson
Legal Advisor to Torah Mitzion
In the Aloni judgment discussed by us in recent columns, Israeli Supreme Court Justice, Menachem Elon, argued that, when Jewish autonomy was limited, the Halachic scholars were extremely reluctant to aid the government in bringing Jewish criminals to justice before non-Jewish courts. Their reservations were justified “by the nature of Jewish-gentile relations in the medieval world, anti-Jewish discrimination, and corruption and injustice within the nonJewish courts, especially regarding a Jewish defendant.” After the emancipation, however, when the Jews were accorded equal rights, there was no need, Justice Elon argues, to preserve that autonomy, which was willingly abandoned, and “the prohibition on litigating before non-Jewish courts was thus transformed.”
Justice Elon cites two great Torah scholars, Rav Yechiel Michal Epstein, and Rav Meir Dan Plotzky, Av Beit Din and Rav of Novardok and Ostrova in Poland, respectively, as support for his contention that the emancipation changed the attitude of the Halacha towards the law against litigating before gentile courts.
The Aruch HaShulchan
Rav Y.M. Epstein writes in his famous work, Aruch HaShulchan ChM 388:7, in the same section of the Shulchan Aruch in which the statements of Rav Yosef Karo and the Rama appear, prohibiting delivery of a criminal to the non-Jewish authorities, as follows:
“Everyone who is familiar with history knows that in ancient times, in distant lands, no man was safe in his person or property from robbers and extortioners, even if they bore an official title, as is known even today in some lands in Africa, where the government officials commit robbery and theft. We commend the kings of Europe, especially our Master His Royal Highness the Czar, his ancestors the czars, and the kings of Britain, who extended the rule of their governments over distant lands in order that each and every man be secure in his person and property, so that the rich need not conceal themselves in order that their property not be taken and they be killed. All the laws of informers and delivery (of Jews and their property to non-Jews) in the Talmud and the codes revolve around this point, as one who informs on his fellow and delivers him into the hands of these robbers is pursuing him in his person and property, and therefore we save him (at the expense of) the life (of the pursuer).”
Justice Elon comments on this passage:
“The Aruch HaShulchan considered the monarchies of Europe in his time to be governments which guarantee to all their inhabitants, including the Jews, security in person and property, and hence he ruled that the laws against informing and delivery, which were formulated against ancient governments characterized by “robbery and extortion,” do not apply. His optimism seems exaggerated…. especially in the period of the Holocaust and immediately afterwards. However, in principle, the approach of this great Torah scholar to our problem and his bold. explicit reasoning is very important.”
The Kli Chemda
Justice Elon proceeds to cite Rav M. D. Plotzky (the Kli Chemda) regarding the prohibition of having recourse to a non-Jewish court: “After a lengthy analysis of this prohibition, observed throughout the history of Jewish autonomy, the Kli Chemda states:
“There is, however, no practical application of this law, as it does not apply to the judges of our times, who are not, God forbid, idolaters… It is evident that we should litigate before them, because of dina de-malkhuta dina. I outlined the laws only in order to apply them to distant lands, such as China and Japan, where they worship idols and their courts are forbidden.”
Justice Elon’s Conclusion
Great authorities of Jewish Law of the 16th century prohibited the handing over of criminals to the non-Jewish authorities unless their crimes posed a threat to the community (see Shulchan Aruch, ChM 388: 9,12, and Rema’s Glosses). However, according to later authorities, that ruling refers only to uncivilized regimes from whom justice and fair treatment could not be expected, even where the cooperation with non-Jewish courts was coerced on the Jewish community. Consequently, there is no prohibition of handing over a criminal to a non-Jewish civilized regime from whom a fair trial may be expected.
Justice Elon proceeds to argue that extradition is all the more justified when it is executed freely by a sovereign Jewish state, equal in rights to the state requesting the extradition. The Bach, whom we quoted in our last column, was willing to rely on the integrity of the judicial system of his day in Poland, which was not subject, of course, to any supervision whatsoever by the Jewish community. This surely can be assumed, argues Elon, in regard to a country whose judicial system can be monitored by observers sent from Israel, both before and after the signing of the extradition treaty. Moreover, he argues, according to the extradition law, a person cannot be extradited at all for a crime where he may face the death penalty, whereas the Bach accepted the possibility that there would not be a death sentence as sufficient to allow extradition.
Rav Yisraeli’s Criticisms
Rav Yisraeli criticizes as “quite ridiculous” the above statements by Justice Elon, which, he argues, were clearly made “only in order to placate the government censor (who was usually an apostate Jew).” In order to publish his work, the Aruch HaShulchan has no choice but to effusively praise the Czar and, in order to give his statement the appearance of sincerity, he included the other rulers of Europe. “Our Master His Royal Highness the Czar” refers to non other than Alexander III, who was a known enemy of Russian Jewry! “Nonetheless, Justice Elon builds an entire theory on the basis of this statement, perceiving an “important approach” and “bold reasoning” to the effect that a prohibition “observed diligently throughout the Diaspora until the emancipation” has been annulled in modern times.”
Proceeding from “this erroneous conception,” Rav Yisraeli argues, Justice Elon discovers a similar approach in a statement of R. Meir Dan Plotzky. The statement is found in his homiletic commentary to the Torah, Kli Chemda, and not in a legal work (the source quoted from the Aruch HaShulchan similarly appears as an addendum to the text, and not in the legal sections themselves). Here, too, Rav Yisraeli sees the Kli Chemda’s statement that “it is evident that we should litigate before them [the judges of our times]” as nothing more than lip service. According to Rav Yisraeli, “a high degree of naiveté is required to believe that the Kli Chemda maintained that the prohibition of non-Jewish courts did not apply in his time and place. It is clear and indisputable that the prohibition to litigate or deliver a Jew to a non-Jewish court remains in force…”
Justice Elon’s Rejoinder
Justice Elon agrees that the distinction made by some Halachic authorities between a civilized and uncivilized regime, regarding the prohibition of extradition, had its origin in fear. However, he argues that the distinction is also based on “an established Jewish practice during the last two centuries of bringing their cases before non-Jewish courts,” a practice which, according to Justice Elon, is “very difficult to change” (Rav Yisraeli and Rabbi Bleich, both of whose articles appear in full in Techumin, vol. 8, disagree with that conclusion).
