Beth Din
The Prohibition of Turning to Secular Courts
By: Rabbi Shmuel Slasky
Bio:
Rabbi Slasky is the Rabbinical Director, responsible for overseeing the Eiruvin, Mediations, and Kashrut of Mikvaot. Born in South Africa, Rabbi Slasky spent many years living and studying in Israel before joining the Beth Din. In Israel, he learnt in Torah Ohr Yeshiva, the Mir Yeshiva, and Rav Tzvi Kushelevsky’s Yeshiva, receiving Semicha from The Chief Rabbinate of Israel, Rav Zalman Nechemiya Goldberg, and Jerusalem’s Machon Harry Fischel. He has been thoroughly trained for his role as the Beth Din’s mediator, and is also up-to-date in his knowledge of modern-day, practical applications of Halacha. Rabbi Slasky is currently studying Dayanut through Machon Harry Fischel.
The Source of the Prohibition
The Talmud[1] teaches: “Rabbi Tarfon said: Wherever you find assemblies of idolaters, even if their legal rulings are similar to Jewish law, you are not permitted to rely on them. As it says[2], ‘These are the laws that you shall set before them’ – before them, and not before idolaters.” This principle is codified by the Rambam[3]: “Anyone who brings a case before gentile judges or their courts – even if their rulings align with Jewish law – is considered wicked. It is as though they have blasphemed, desecrating the Torah of Moshe. As it says, ‘These are the laws that you shall set before them’ – before them, and not before idolaters.” The Shulchan Aruch[4] rules the same. The Midrash Tanchuma expands on this idea: “It is as if one elevates and glorifies their idols. As it says, ‘For their rock is not like our Rock; even our enemies judge us’[5]. When our enemies judge us, it lends credibility to their reverence.” Rashi elaborates[6]: “Before them – and not before gentiles. Even if you know their legal ruling matches Jewish law, do not bring the case to their courts. Bringing Jewish legal disputes before gentile judges desecrates G-d’s name and enhances the status of idolatry. As it says, ‘For their rock is not like our Rock; even our enemies judge us.’ Gentiles judging us testifies to the superiority of their reverence.”
This prohibition applies regardless of whether the judges are idolaters or not; the critical issue is the deviation from the Torah’s sacred judicial system. By abandoning Jewish judges and Torah law, one violates this prohibition. As the Midrash Tanchuma states: “Whoever turns away from Jewish judges and resorts to gentiles first denies the Holy One, blessed be He, and then denies the Torah.”[7]
Biblical or Rabbinic Prohibition?
The halachic authorities dispute whether the prohibition against turning to secular courts is of Biblical or Rabbinic origin.
The Tashbatz[8] holds that this prohibition is Biblically mandated. However, some interpret the Rambam as considering it a Rabbinic prohibition, noting that he does not include this commandment in his enumeration of the mitzvos. According to this view, the verse “which you shall set before them and not before gentiles” serves merely as an asmachta – a Rabbinic decree that is supported by a Biblical verse.[9] Nonetheless, the majority of Halachic authorities maintain that this prohibition is of Biblical origin.[10] The severity of the matter extends beyond labeling the transgressor a “wicked person.” The Rema[11] writes that a Beis Din should excommunicate the plaintiff who brings a case before gentile courts until they remove the involvement of secular authorities from their dispute.
The Severity of the Prohibition Against Turning to Secular Courts
As previously explained, the prohibition against turning to secular courts is extremely severe. The Rambam writes that one who does so is considered wicked, as if they have raised a hand against the Torah of Moshe. As noted earlier, this strong language underscores the gravity of the violation.
The prohibition extends even further. The community excommunicates not only the person who litigates before gentile courts but also anyone who supports or assists them in doing so.[12] Furthermore, even if someone includes in a legal document a clause permitting the matter to be adjudicated in gentile courts or via any binding commitment to litigate in secular courts, they are forbidden to pursue the case in those courts.[13] The rationale for this is that such stipulations constitute a condition that negates the Torah’s instructions.[14]
The Kesef HaKodoshim elaborates further on the gravity of this prohibition, categorising it as an extension (avizraihu) of idolatry. He writes: “Turning to gentile courts without permission from a Beis Din constitutes a deviation from proper faith. This is why the verse states[15], ‘I have chosen the way of faith; I have set Your laws before me’. For the Jewish people, the mitzvah is to adjudicate disputes according to the laws that G-d revealed to us, not according to human reasoning.” Therefore, later authorities rule that one who litigates before gentile courts without permission from a Beis Din may not be counted in a minyan. This act reflects a level of idolatry-like behaviour, and until one repents, they are considered as having left the fold of Judaism.[16] These ideas are also explicitly stated in the Midrash Tanchuma at the beginning of Parshas Mishpatim. Similarly, the Mishnah Berurah[17] writes that someone who litigates in secular courts is disqualified from serving as a chazzan on Rosh Hashanah or Yom Kippur[18] unless they have repented.
Accordingly, as mentioned earlier it is forbidden to litigate in secular courts, even if their rulings align with those of Jewish law.[19] Furthermore, even in cases where a person would ordinarily be permitted to take justice into their own hands, it remains forbidden to turn to secular courts.[20] Even coercing someone via secular courts to appear before a Beis Din is deemed unacceptable; the Rema writes that such an individual deserves public censure.[21]
The Chazon Ish[22] explains: “Even when no judge exists in their area who adjudicates according to Torah law, and one is compelled to appoint a person of reason guided by ethical principles, they are not permitted to adopt the laws of other nations or legislate based on such systems. If they agree to implement such laws, they desecrate the Torah… Should the city’s residents collectively agree to such a system, their agreement holds no validity. If they attempt to enforce this system, their actions are theft and oppression, a direct assault on the Torah of Moshe.” Therefore, any monetary award extracted through secular courts is considered stolen property. If someone uses such money to sanctify a marriage, the marriage is invalid. Furthermore, such an individual is disqualified from serving as a witness.[23]
Even if one receives explicit permission from a Beis Din to take their case to secular courts, the permission is limited. If the secular court’s ruling awards the plaintiff more than what Jewish law entitles them to, the plaintiff must forgo the excess and withdraw their claim to avoid complicity in theft perpetrated through the secular courts.[24] An exception exists when the funds awarded by the secular courts align with what the plaintiff would have been entitled to under Torah law had they brought sufficient evidence (such as witnesses). In such a case, the Teshuvos VeHanhagos[25] permits the plaintiff to collect the awarded sum, reasoning that there is no theft involved, as the judgment reflects the truth of their claim. Since the plaintiff knows they are entitled to the amount, and the court’s decision coincides with this truth, it is permitted to accept and retain the funds.
Prohibition Against Legal Threats and Advocacy for Secular Court Litigants
Not only is it forbidden to litigate in secular courts, but even threatening to do so through an attorney is prohibited. Such threats elevate the standing of secular courts, thereby violating this prohibition.[26] The only permissible action in this context is for the attorney to notify the defendant that if they fail to respond to the summons to appear before a Beis Din, the case will inevitably proceed to secular court. Similarly, the She’eilos U’Teshuvos Mishneh Halachos[27] writes that included in this prohibition is that an attorney may not represent a litigant who refuses to bring their case before a Beis Din. The Mishneh Halachos states: “It is self-evident that if the plaintiff refuses to first go to a Beis Din or at least to summon the opposing party to Beis Din to determine if they will comply with rabbinic authority, it is forbidden to act as their attorney.” Furthermore, the Mishneh Halachos explores the legal responsibility of the attorney in such cases. Initially, it suggests that only the attorney, as the agent, violates the prohibition, because there is no concept of agency (shlichus) to commit a transgression. Thus, the attorney alone would bear responsibility. However, the conclusion is that since the attorney cannot file a case without the plaintiff’s explicit authorization and signature, both the plaintiff and the attorney are culpable for violating this prohibition. However, Rav Zalman Nechemiah Goldberg permits an attorney to represent a defendant in secular court if the defendant was brought there against their will. In such cases, the attorney’s role is not seen as affirming the court’s authority but as protecting the respondent’s rights.
If One Has Already Litigated in Secular Courts
If someone transgresses and brings a case to secular courts, there is a dispute among the halachic authorities regarding whether a Beis Din may subsequently adjudicate their case.
The Rema[28] cites the opinion of the Maharik that Beis Din does not intervene in such cases. The Gra[29] notes a parallel ruling in Nedarim 20a, where someone who violates a vow may not seek annulment of that vow. In contrast, the Mordechai maintains that Beis Din may still address the case.
However, even according to the Mordechai, Beis Din would only intervene if the secular courts did not unjustly extract funds from the defendant. If the secular courts issued a ruling that unjustly took money from the defendant, all authorities agree that Beis Din will not hear the case again. The Rema ultimately rules in accordance with the Maharik: even if the litigant caused no financial loss to the opposing party by going to secular courts, Beis Din will still not take up the case if the litigant wishes to return to have it adjudicated by Jewish law.
The Nesivos HaMishpat[30] cites two reasons, based on the Tumim, why Beis Din would refuse to intervene in such cases: It is akin to accepting an invalid judge, such as a relative or someone otherwise disqualified. Once a judgment is finalised under such conditions, it cannot be revisited if the respondent had agreed to go.[31] It is a form of penalty (knas) imposed on the litigant for resorting to secular courts.
This distinction has a practical ramification, in the case where they erred in court. According to the first reason, Beis Din would intervene, while according to the second, they would not. Nevertheless, the Nesivos HaMishpat sides with the second reason and rules that in all cases, Beis Din will not adjudicate, as this is the seeming consensus among the poskim. In any event, if a litigant knows he is liable under Torah law, he must pay the debt. If he is uncertain about his liability, he must submit to judgment before a Beis Din to clarify the matter and avoid retaining funds that could potentially constitute theft.
Permissible Scenarios for Litigating in Secular Courts
While turning to secular courts is generally forbidden, certain circumstances allow for exceptions, as outlined below.
- A Recalcitrant Defendant (Ba’al Din Alim):
When Gentile Authorities Are Dominant:
If the plaintiff cannot recover their money except by using secular courts, they must first summon the defendant to a Beis Din. If the defendant refuses to appear, the plaintiff may then obtain permission from the Beis Din to recover their property through secular courts.[32]
Requirement of Evidence for Refusal:
The Nesivos HaMishpat[33] states that permission to proceed to secular courts is granted only if it is proven, with the testimony of two witnesses, that the defendant has refused to appear before Beis Din. The Kesef HaKodoshim explains that this is due to the monetary nature of the case, which typically requires two witnesses.
However, some authorities, such as the Erech Shai, disagree, arguing that two witnesses are unnecessary. The Urim[34] explains this leniency by noting that a Beis Din-appointed emissary is considered sufficiently reliable for this purpose, as in cases of issur (prohibited acts), where a single witness suffices. Indeed, contemporary Batei Din generally do not require two witnesses to establish the defendant’s refusal. The Oruch Mishpat concludes too that a Beis Din-appointed emissary is inherently as credible as two witnesses, and there is no need for additional testimony from two witnesses.
The Kesef HaKodoshim add another possible reason why a Beis Din-appointed emissary is believed like two: because the defendant’s refusal to comply will inevitably come to light, making the testimony reliable. In light of this, it can be argued that in our times, when defendants are summoned using modern technological methods and it becomes evident to the Beis Din that the defendant refuses to comply, this refusal is also considered something “destined to be revealed”. Therefore, it would be permissible to allow the plaintiff to take the case to secular courts.
Clear vs. Unclear Debts:
The Nesivos HaMishpat[35] clarifies that permission to turn to secular courts is granted only when the plaintiff’s claim is definitively established, and the defendant refuses to pay. If the debt is unclear, such as in the case of an oral loan, where Beis Din cannot enforce payment, it remains forbidden to litigate in secular courts. Instead, the defendant should be excommunicated if he refuses to appear before Beis Din.
However, the Erech Shai and The Divrei Geonim maintain that even in cases where the debt is not clear, Beis Din may grant permission to proceed in secular courts. This is, in fact, the practice in many Batei Din today.
Does the Prohibition Against Suing in Secular Courts Apply When Litigating Against a Gentile?
The Acharonim cite the Tashbatz[36], who rules that when a Jew has a legal dispute with a gentile, there is no need to seek permission from a Beis Din before taking the case to secular courts.[37] However, if the gentile expresses willingness to adjudicate under Jewish law, the Jew is obligated to resolve the dispute exclusively in a Beis Din.
- When It Is Known the Defendant Will Not Appear Before a Beis Din
If it is clear that the opposing party will refuse to appear before a Beis Din, this is comparable to the principle stated in the Gemara[38]: “A colleague does not require formal warning.” Thus, permission to proceed is granted without a summons.[39]
However, some Acharonim disagree with this leniency. The Teshuvos VeHanhagos[40] writes that due to the severity of the prohibition, even when it is certain that the defendant will not appear before Beis Din, it is customary for the Beis Din to issue at least one formal summons before granting permission to proceed to secular courts.
- When the Defendant Rejects Beis Din After Formal Notification
If the defendant outright refuses to submit to Beis Din following a formal notification, they are considered a “recalcitrant” against the authority of the Torah. The custom, dating back to the time of Rav Sherira Gaon, was to publicly announce such a person’s rebellion in the synagogue after three summonses.[41] In contemporary Batei Din, the practice is that after summoning the defendant three times without response, or he refuses to appear, permission is granted to the plaintiff to pursue the case in secular courts.[42] The rationale for issuing three summonses is explained by the Maharshal[43] who writes that this provides an opportunity to attribute the defendant’s failure to appear to extenuating circumstances, such as being unable to attend due to unforeseen constraints.
- To Rescue One’s Money
When Assets Are Seized:
If secular courts issue a lien or seizure order on a person’s property, it is permitted to litigate before them to recover one’s assets. Nevertheless, it is preferable to first obtain permission from a Beis Din.[44] Nevertheless, the Teshuvos Knesses Yechezkel[45] rules that permission from Beis Din is unnecessary in such cases. The Teshuvos VeHanhagos[46] summarises: “Regarding liens, the prevailing custom throughout Israel is to be lenient and allow requests for liens according to governmental laws when there is concern that the defendant will not comply with Beis Din or when delaying the proceedings risks financial loss. Permission is granted to request a lien until the claims are addressed in Beis Din.”
- Enforcing a Beis Din Ruling
If Beis Din rules that a party must pay and the defendant refuses to comply, it is permissible to use secular courts to enforce the ruling. This is the consensus of the poskim, as noted in Sefer HaTerumos[47], and similarly in Tosafos (Gittin 88b, s.v. u’venachrim). If this, too, proves ineffective, one may seek further permission from Beis Din to formally litigate in secular courts. (See Rabbeinu Yerucham, Mishpatim, Nesiv 1, Section 12; Rosh, Bava Kama 8:17; Teshuvos HaRamban, Siman 63; and Teshuvos HaRashba, Vol. 5, Siman 171).
Cases of Disagreement Over Beis Din
If the defendant is willing to appear before a Beis Din but refuses to be judged by the specific Beis Din chosen by the plaintiff and instead suggests a different Beis Din, even one of lesser standing, this does not classify them as a rebel (sarvan), provided their intent is not to delay the proceedings.[48]
However, if the Beis Din in question is a recognized and established Beis Din in the city, the parties are generally obligated to appear there, and not elsewhere. Rav Yosef Shalom Elyashiv zt”l ruled that the Beis Din in Johannesburg qualifies as an established Beis Din.[49]
CCMA
The CCMA is an independent body established in South Africa under the Labour Relations Act. It provides a mechanism for resolving disputes between employees and employers regarding labour-related issues. Rabbi Akiva Eiger[50] writes that where merchants have an established custom to adjudicate disputes in commercial tribunals, this custom overrides halachic concerns, and it is permissible to bring claims before such a court.
However, the She’eilos U’Teshuvos Divrei Malkiel[51] clarifies that this leniency applies only when such courts do not follow fixed statutes but rather judge based on discretionary reasoning. Conversely, if the tribunal operates under the authority of the government and its legal system, it is considered akin to secular courts, and it is forbidden to litigate before them. This is also the position of the Teshuvos VeHanhagos[52], which similarly prohibits recourse to such tribunals when their authority derives from governmental laws. Comparable rulings are found in Mishpat Shlomo[53] and from Rabbi Mordechai Gross[54], who unequivocally rules that one may not litigate before what is referred to as a “labour court”. Rav Zalman Nechemia Goldberg zt”l also supported this view. The CCMA base their awards on the government’s legal system, it falls under the category of secular courts and therefore is forbidden.
If, however, adjudicating in Beis Din would result in the expiration of the statutory period for filing a claim in the CCMA or labour court (eg, the 30-day period from the date of termination for employer disputes), it would be permissible to open a case in the CCMA or labour court. This is analogous to the principle of rescuing one’s property, as explained earlier, which is permitted by turning to secular courts when authorised by Beis Din, so long as the claimant agrees to withdraw the case once the parties sign the arbitration agreement at the Beis Din.
Referring Cases to the Police
The issue of turning to the police involves numerous nuances, which are beyond the scope of this discussion. G-d willing, these matters will be addressed in the future.
Gittin (88b ↑
Shemos 21:1 ↑
Mishneh Torah, Sanhedrin 26:7 ↑
Choshen Mishpat 26:1 ↑
Devarim 32:31 ↑
Shemos 21:1 ↑
Tashbatz, Chut HaMeshulash, Third Column, Siman 6
Part 2, Siman 148 ↑
See Kehilas Yaakov by Rabbi Yaakov Algazi, Entry 243 ↑
See Chut HaMeshulash, Third Column, Siman 6, and Chukos HaChaim by Rabbi Chaim Palagi, p.4, citing numerous authorities ↑
Choshen Mishpat 26, quoting the Maharik ↑
Choshen Mishpat 26 ↑
Ibid., Se’if 3-4 ↑
Gra, ad loc., §11 ↑
Tehillim 119:30 ↑
Kesef HaKodoshim, ad loc. ↑
Orach Chaim 53, §82, Eliyah Rabbah, citing Toras Emes ↑
The Mishnah Berurah rules that someone who litigates in secular courts is disqualified only from serving as a chazzan on Rosh Hashanah and Yom Kippur. This seems to differ from the Kesef HaKedoshim, who holds that such a person wouldn’t even be counted in a minyan, making the restriction on being a chazzan unnecessary. This reflects a disagreement among the Acharonim about the severity of this disqualification. ↑
Shulchan Aruch, Choshen Mishpat 26:1 ↑
Sma, ad loc., §1 ↑
Rema, Ibid. ↑
Sanhedrin 15:4 ↑
Teshuvos of Rabbi Akiva Eiger, citing the Tashbatz ↑
This conclusion is straightforward, as noted in Chiddushei HaHafla’ah on Choshen Mishpat 26, and similarly in Pischei Choshen Vol. 1, Chapter 6, Note 12, and Shimru Mishpat Vol. 2, p.374 ↑
Vol. 3, Siman 445 ↑
See Rabbi Mordechai Gross’s article in Tel Talpios, Vol. 62, 5766, p.213 ↑
Vol. 12, Siman 387 ↑
Choshen Mishpat 26:1 ↑
§4
§2 ↑
See Choshen Mishpat 22:1 ↑
Shulchan Aruch, Choshen Mishpat 2; based on Bava Kama 92b ↑
Chidushim 7, citing the Urim, §7
§7 ↑
§3 ↑
Part 4, Siman 6 ↑
Some have inferred from the words of the Chasam Sofer (Teshuvos, Choshen Mishpat, Siman 3) that when a Jew wishes to sue a gentile in their courts, if the gentile accepts Jewish law (tza’is dina), Beis Din’s authorization is still required. (Tel Talpios, as cited). The Chasam Sofer explains that with Beis Din’s permission, the act of litigating in their courts is not considered “our enemies are judging.” However, if the gentile does not submit to Jewish law, no authorization from Beis Din is needed. (Ibid.) ↑
Sanhedrin 8a ↑
Kesef HaKodoshim, Choshen Mishpat 26:2 ↑
Vol. 3, Siman 441, quoting the Minchas Yitzchak ↑
Sma §8, quoting Ba’al HaTerumos ↑
See Choshen Mishpat 11:1 and Nesivos HaMishpat, §4, citing the Tumim; similarly in Pischei Teshuvah, §1 ↑
Bava Kama, 10:15 ↑
Kesef HaKodoshim, Choshen Mishpat 26:1 ↑
Siman 97, cited in Teshuvos Maharsham, Vol. 1, Siman 89 ↑
ibid. ↑
Sha’ar 62, Section 3, cited in the Beis Yosef on Choshen Mishpat 26 ↑
See Nesivos HaMishpat, Chidushim, §13; Aruch HaShulchan, Choshen Mishpat 26:5 ↑
Teshuvos Nitzanei Eretz, Vol. 3, Siman 12, citing a letter from Rav Moshe Kurtstag zt”l ↑
Cited in Pischei Teshuvah, Choshen Mishpat 3:2, quoting Rashach ↑
Vol. 5, Siman 210 ↑
Vol. 5, Siman 563 ↑
Rabbi Shlomo Zev Ze’afrani, Vol. 1, Siman 62 ↑
Tel Talpios, Vol. 62, p.212 ↑
