Halakhah do Wyjścia 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):

The words "Eleh ha-mishpatim asher tasim lifneihem" (Exodus 21:1) are immediately recognized as the opening sentence of the Torah reading of the Shabbat known as Parashat Mishpatim and identified in that manner because of the initial noun of the verse. The very division of the biblical text into weekly segments in which that verse introduces one such portion indicates that the verse in question serves as a preamble to the immediately following section. Accordingly, the verse is rendered in translation as "These are the statutes that you shall place before them." As an introduction to the verses that follow, the term "mishpatim" must connote the subject matter that ensues, i.e., it serves as a description of the salient provisions of biblical jurisprudence presented in the immediately following section. Accordingly, the word "mishpatim" is understood as meaning "laws" or "statutes." Moses is commanded by God to transmit a host of commandments pertaining to torts and bailments as well as to sundry other financial matters and is informed that what is about to be imparted to him is in the nature of mishpatim, i.e., rules necessary for the government of society.

More fundamental is the transgression involved in the very act of petitioning a civil court for redress. The standard translation of Exodus 21:1 is "And these are the ordinances (mishpatim) which you shall set before them," i.e., before the children of Israel. Rabbinic exegesis endows this passage with an entirely different meaning.

Some background information is necessary in order to understand Rav Waldenberg’s concerns. The Gemara (Bava Kama 85a) infers from the obligation that the Torah (Shemot 21:1) imposes upon an injurer to pay his victim’s medical bills that “The Torah permits a physician to heal.” Absent such permission, explain Tosafot (Bava Kamma 85a s.v. Shenitnah), we would have thought that we are forbidden to heal because we “appear to be contradicting the King’s decree.” By authorizing medical attention, however, the Torah teaches that we are not contradicting Hashem’s will, because the King who issued the decree for the illness or injury also permitted physicians to heal.

There is indeed an even more fundamental difference between the respective ambits of these two prohibitions. As recorded by Shulḥan Arukh, Hoshen Mishpat 26:1, recourse to a non-Jewish court is prohibited even with the consent of both litigants.⁹For a discussion of variant conflicting sources see Eliav Shochetman, Teḥumin, XIII (5752-53), 346-349 and especially p. 347, note 43. However, if both parties agree, they are permitted to have their dispute heard by a tribunal composed of laymen.¹⁰This distinction between gentile courts and lay judges is explicitly formulated by Ramban in his commentary on the Bible, Exodus 21:1. For a discussion of the seemingly contradictory view of Ran, Sanhedrin 2b, see R. Judah Siegal, Ha-Torah ve-ha-Medinah, VII-VIII (5715-5717), p. 87 and the notes appended to that article by R. Saul Israeli, ibid., p. 80, note 7. The exclusion of laymen from the judiciary is not absolute; laymen are simply denied the power to compel appearance before them with the result that litigants who willingly submit to their authority commit no transgression. However, litigants do not have the right to accept the authority of a gentile court and, should they do so, they incur a serious transgression.

Rashi, in his commentary on Exodus 21:1, offers a somewhat different rationale:

(Tav) ‘I have strolled in my heart to understand that which is written in Sifrei Devarim 144, “[‘You shall place officers and magistrates in all of your gates, etc.’ –] the appointment of proper judges is worthwhile to give life to Israel and to settle them on their land.” See there. And the language, “The appointment of proper judges is worthwhile to give life, etc.,” is not understood. As it is certainly worthwhile for far more [than only this], since we have found that the Torah itself was only given to Israel on condition that they would execute the laws. [That is] as it is [found] in the Midrash (Shemot Rabbah 31:1), “‘And these are the laws’ (Exod. 21:1) – and this is [the meaning of] that which is written (Ps. 99:4), ‘Mighty King who loves law,’ etc.” And it appears to me that [this can be understood] according to that which is written in Akeidat Yitschak, Parashat Vayera, and these are his words:
And I also wonder, is there favoritism in the matter – in what way were the people of Giveah (from the tribe of Binyamin)⁶⁶See Jud. 19. different than the people of Sodom, etc.? And behold, Ramban,⁶⁷Ramban on Genesis 19:8. may his memory be blessed, defended them, etc. However the simple text equates them completely.
See there, as he wrote at length. But he concludes:
If a city is ‘surrounded by the walls’ of good laws and ordinances and proper precepts – even if ‘foxes’ will sometimes breach the fences and break the laws – such a city is close to healing and repair. As ‘one from a city and two from a family’ will rise up to reprove the people [of the city, such that] their hearts will be aroused and they will go back to the [earlier strength]. However if it has no fence – not from ordinances and not from proper customs – even if it has a tall wall of ‘snakes and scorpions,’ ‘thorns and thistles’; their laws are not good and their ‘judgements are not’ to live by, etc. And behold that, in truth, this was the sin of Sodom, etc. – to the point where they established bad and disgusting things to be [as if] good laws. And they [even] enforced them [strictly] with penalties, that they should not transgress them, etc. But in Giveah, they had good laws; however, they sometimes transgressed them, etc. This is possible to fix. [See there.]
And it is possible that this is the intention of the Sifrei – “the appointment of judges is worthwhile,” meaning the appointment itself. [As] even if they do not listen to the voice of the instructors, they are close to being saved by the rebuke of the elders – as is written in Akeidat Yitschak about the people of Giveah. And were not the ones setting up the laws of the judges those who settled first in the country of a ‘boundless inheritance’ – ‘no eye has seen [them], O God, but You’?

Accordingly, if two parties, regardless of where they may be domiciled or where the contract is executed, enter into a contract and stipulate that any dispute with regard to fulfillment of the terms of the contract is to be resolved by a rabbinic court in accordance with, for example, the laws of the State of Delaware, the stipulation is void by virtue of being inconsistent with biblical law (matneh al mah she-katuv ba-Torah).¹⁹Cf., Teshuvot Rivash, no. 52 and Tashbaẓ, I, no. 61, who reject Rivash’s conclusion. See also Ramban, Commentary on the Torah, Exodus 21:1; Teshuvot ha-Rashba, cited by Bet Yosef, Ḥoshen Mishpat 26; Rema, Ḥoshen Mishpat 248:1 and 369:8; Sema, Ḥoshen Mishpat 369:20; Taz, Ḥoshen Mishpat 248:1; Teshuvot Maharit, II, Ḥoshen Mishpat, no. 6; Teshuvot Ḥatam Sofer, Ḥoshen Mishpat, no. 142; and Teshuvot Ba’i Ḥayyei, Ḥoshen Mishpat, no. 158. Cf. also, Sema, Ḥoshen Mishpat 26:10; Taz, Ḥoshen Mishpat 26:3; and Birkei Yosef, Ḥoshen Mishpat 26:3 as well as R. Judah Siegal, Ha-Torah ve-ha-Medinah, pp. 84-91. The parties are, of course, bound to appear before the Bet Din, but the Bet Din must adjudicate the dispute in accordance with the provisions of Hoshen Mishpat.