Simon Jackson
Legal Advisor to Torah Mitzion
A Jew deliberately murdered another in a foreign country because the latter was harassing his brother who owned a nightclub. The victim would eat and drink, and then refuse to pay. Apparently, he threatened to use violence, as a result of which they did not complain to the police. After the crime, the Jew flees to Israel. The country in which the crime was committed (France) has an extradition treaty with Israel. A request for extradition is consequently forwarded to the Israeli authorities. It may be assumed that he faces the possibility of a long prison term in the foreign country (there is no death penalty).
After being tried in several courts, the matter reached the High Court, which ruled in favor of extradition. The decision of the High Court was accompanied by a survey of the attitude of Jewish Law toward the problem of extradition, authored by Israeli Supreme Court Justice Menachem Elon, as we saw in our last few columns. We also saw that Rav Yisraeli vehemently disagreed with Justice Elon’s analysis and interpretation of the Jewish legal sources on the subject of extradition. The first and most important issue which concerned Rav Yisraeli revolved around the issue of whether the prohibition of adjudicating before a non-Jewish court still applies today.
A. The Reason for the Prohibition
1. The Shu1chan Aruch (ChM 26:1) states: “It is forbidden to litigate before non-Jewish judges or in their courts, even if they rule in accordance with Jewish Law, and even if both litigants have agreed to litigate before them.”
2. On the verse (Shemot 21:1): “And these are the statutes that you shall set before them,” the Rabbis comment: ‘Before them’ – and not before idolaters” (Gittin 8b).
3. “Anyone who forsakes Jewish judges and appears before non-Jewish ones has first denied God and secondly denied the Torah, as is written (Devarim 32:31), ‘For their rock is not as our Rock, and our enemies are judges’” (Commentary of the Vilna Gaon, Shulchan Aruch, op. cit., citing the Midrash Tanchuma).
It is obvious, argues Rav Yisraeli, that the term “idolater” (Akum) which appears in the printed texts is a deliberate emendation in place of “non-Jew” (Goy) designed to avoid problems with non-Jewish readers, as the prohibition is derived from the words “before them” meaning before the Jews – which in turn implies that all other judges are prohibited.
The reason for this prohibition, argues Rav Yisraeli, is not our fear of injustice in the foreign court, as it is forbidden even if it is clear that the court will follow Jewish law, and even if both parties agree in advance to accept the ruling (as stated in source A1) above). In contrast, an agreement to litigate before Jewish laymen, ignorant of the law, would be valid and there would be no objection to the proceedings (cf. Ramban, Shemot 21:1). The prohibition, then, Rav Yisraeli concludes, is absolute, and is of Torah status, as it is derived from a verse in the Torah. It is therefore not dependent on time or place, nor on the attitude of the non-Jews to the Jews, or the rights accorded the Jews as citizens of the particular country.
This prohibition was observed in all Jewish communities until the Holocaust. In cities with large Jewish populations, regular courts were in existence. In smaller communities, the local rabbi acted as a judge (av beit din), and all civil disagreements were brought before him – and not before the local non-Jewish courts.
B. The Halacha Does Not Change
“This is not the opinion of Justice Elon,” Rav Yisraeli continues. “He believes that this prohibition was transformed in the second half of the nineteenth century and the beginning of the twentieth, against the background of the emancipation and its ramifications for Jewish-Gentile relations. His conclusion is based on a theory he has developed, according to which the prohibition was enacted in comparatively late times, with the loss of Jewish sovereignty and as part of an attempt to preserve communal and judicial autonomy. Hence, after the emancipation, when the Jews were accorded equal rights, there was no need to preserve that autonomy, which was willingly abandoned. However, this theory is not historically valid and has no basis in Halacha, as explained above.”
In his rejoinder, Justice Elon argues that the distinction made by some halachic authorities between a civilized and uncivilized regime regarding the prohibition of extradition (it being permitted, he argues, to extradite a criminal to a civilized regime), has its origin mainly on “an established Jewish practice outside of Israel 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).
Postscript – “Non-Jewish Courts” in the Modern State of Israel
Some authorities have argued that the courts in the modernday State of Israel which rule according to “foreign laws” have the status of non-Jewish courts since they rule according to non-Jewish laws. Whether or not one agrees with Justice Elon’s contention regarding the above “established Jewish practice,” it is clear that the foregoing argument is based on an erroneous premise. As we saw at the beginning of this article, the Gemara’s prohibition (Gittin 88b) refers not to “nonJewish laws” (dinim) but “non-Jewish judges” (dayanim). This distinction is crucial. The source does not refer to the character of the law by which one is being judged, but rather to the nationality of the judges, or more correctly the court before which one is appearing. The law against recourse to “nonJewish courts” is thus explicitly directed against appearing before the judicial bodies of a foreign government, rather than utilizing the courts of the Jewish community. It makes no reference whatsoever to the nature of the legal system used; on the contrary, it emphasizes that one may not have recourse to a non-Jewish court even if it makes use of Jewish law. It may be stated with certainty that a Jewish court which utilizes nonJewish law is preferable to a non-Jewish one which utilizes Jewish law.
In stating the above, I do not wish to suggest for one moment that it is desirable that Jewish courts judge according to nonJewish law – my only intent is to say that it is a total distortion to equate them with non-Jewish courts. To quote Israeli Justice Yaacov Bazak, in an article entitled “The Halachic Status of the Israeli Court System”: “We should thank God that we have lived to see Jewish judges, appointed by the sovereign Jewish community, judging our people, rather than nonJewish judges. The fact that the legal system by which they judge is not Jewish Law is a serious defect; nonetheless, this does not bestow upon them the status of ‘non-Jewish courts.’” Indeed, from a purely halachic point of view, Prof. Barak argues, the community has the power to autonomously establish laws and enactments, even if they overrule Torah Law. The defect is not so much a religious-halachic one, therefore, but is rather a national-cultural problem. May we merit to see not only the return of our judges as of old, but also of our laws.
