The article below is from Rabbi Riskin’s book Shemot: Defining a Nation, part of his Torah Lights series of commentaries on the weekly parsha, published by Maggid and available for purchase here.
Parshat Mishpatim: What Constitutes a Jewish Court?
Rabbi Dr. Shlomo Riskin is the Founder and Rosh HaYeshiva of Ohr Torah Stone
“These are the statutes which you must place before them.” (Exodus 21:1)
If two religiously observant Jews are engaged in a disagreement which has financial ramifications, are they permitted to go to a secular court to arbitrate their dispute or must they go to a religious court or bet din? Is the law different in Israel, which has a religious as well as a secular court system, but where even the secular court judges are Jewish? And if indeed Jews are religiously ordained to go to religious courts exclusively, why is this the case? After all, secular courts in America are certainly fair and equitable!
The Torah portion of Mishpatim provides interesting responses to all three questions. It opens with the command: “These are the statutes which you [the Israelites] shall place before them [the religious judges]” (Ex. 21:1). Rashi immediately cites the Talmudic limitation (Gittin 88b):
“Before the religious judges and not before gentile judges. And even if you know that regarding a particular case, they [the gentile judges] would rule in the exact same way as the religious judges, you dare not bring a judgment before the secular courts. Israelites who appear before gentile judges desecrate the name of God and cause idols to be honored and praised.” (Tanchuma Mishpatim 3)
According to this passage, it would seem that the primary prohibition is to appear before gentile judges who are likely to dedicate their legal decision to a specific idol or god; it is the religion of the judge rather than the content of the judgment which is paramount. From this perspective, one might legitimately conclude that Israeli secular courts – where the judges are all Jewish – would not be prohibited. (*This is the conclusion 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 Hachayim. In an ideal world, he maintains, there ought to be no rich and no poor, no lenders and no borrowers; everyone should receive from the Almighty exactly what they require to live. But, in His infinite wisdom, this is not the manner in which the Lord created the world. He provides certain individuals with excess funds, expecting them to help those who have insufficient funds, appointing them His “cashiers” or “ATMs.” Hence you must read the verse as “If you have [excess] money to lend to my nation, [understand] that what ought to have gone to the poor individual is with you.” You were merely given the poor person’s money in trust; your extra funds actually belong to him!
If you understand this fundamental axiom – that the rich person is actually holding the poor person’s money in trust as an agent of the divine – then everything becomes clear. Of course, the lender may not act as a creditor, because she is only giving the poor man what is in actuality his. And of course one dare not charge interest, because the money you lent out was never yours in the first place.
This is the message of the exodus from Egypt, the seminal historic event which formed and hopefully still informs us as a nation: no individual ought ever be owned by or even indebted to another individual. We are all owned by and must be indebted only to God. This fundamental truth is the foundation of our traditional legal system which is uniquely just and equitable: it is especially considerate of the needs of the downtrodden and enslaved, the poor and the infirm, the orphan and the widow, the stranger and the convert, the “chained wife” and the indigent forced to sell their land. From this perspective, not only must we submit to Jewish law, but it is crucial that our judges be certain that Jewish law remains true to its ethical foundations