Halakhah sur L’Exode 21:1

As a rule, there is equality between the sexes. Men and women are all created in the divine image, and the uniqueness of the Jewish people inheres in Jewish women and men alike. The Torah was given to all Israel, men and women alike (see below, 7:1). The Sages derive from the verse “These are the laws that you must set before them” (Shemot 21:1) that “The Torah equated woman to man concerning all the laws in the Torah” (Kiddushin 35a).

The Torah (Shemot 21:1), in introducing monetary laws, commands, “And these are the laws that you shall present to them.” The Gemara (Gittin 88b) interprets “them” as referring to ordained dayanim (rabbinical judges), whereas one may not approach “non-Jews or unqualified Jews” to adjudicate a case against a fellow Jew. The Gemara adds that even if the non-Jewish courts judge according to Halachah, we nevertheless may not submit our internal disputes to them.¹This prohibition applies even if both Jewish litigants wish to adjudicate in civil court. Rav Uri Dasberg (Techumin 24:49-50) offers an interesting suggestion as to why the Halachah prohibits litigating in civil courts, even in cases where civil law and Halachah coincide. He argues that the role of a beit din is not merely to rule on the disputed monies, but also to offer moral criticism. Beit din might recommend that a litigant pay more than the strict law requires, as an act of decency. Moreover, beit din demands of the litigants that they conduct themselves in an ethical manner, above and beyond the strict letter of the law (see our previous chapter). By contrast, a civil court judge has no mandate to demand more than the letter of the law. Thus, a Jew who adjudicates in civil court, even if the court rules just as a beit din would have ruled, rejects the value system that we strive to integrate into our legal system. The Tashbetz (vol. IV, Tur Hashelishi 6) rules that this prohibition even precludes the use of non-Jewish judges who do not practice idolatry, such as Muslims.

Although the Gemara names two groups of unacceptable judges, non-Jews and uncertified Jews, in the same sentence, the Ramban (Shemot 21:1) notes a critical distinction between them (codified in Shulchan Aruch, Choshen Mishpat 26:1):