It’s been nearly seventy years since the British left Palestine and much longer since the Turks have gone. And the Americans were never there. So why is Israeli law a cocktail of British, Ottoman, and American law? Why do the People of the Book use the laws of other people?
Following the destruction of the Second Temple, the Jews, bereft of their own territory and sovereignty, clung tenaciously to their judiciary as the exclusive forum for litigation among Jews. If the yearning to reunite the Law with the Land were ever to become a reality, the integrity of the Jewish courts of law in exile would have to be maintained.
Accordingly, based on the words of the Torah – “these are the laws that you shall set before them” – halacha prohibited Jews, even in the Diaspora, from submitting their disputes to non-Jewish courts, erka’ot akum. This prohibition applies to all non-Jewish courts, including the courts of countries that adhere to monotheism.
The Rambam puts it most forcefully: “Anyone who submits to the jurisdiction of non-Jewish courts is wicked and it is as if he blasphemed and attacked the Torah.” This is the case even if the laws applied by non-Jewish courts happen to be the same as the laws of the Torah.
So strict are the rabbis about this prohibition that most refused to apply the general rule, otherwise applicable in monetary matters, which permits Jews to contract out of Jewish laws. But in the matter of erka’ot akum there is no freedom to contract out. Neither is submission to non-Jewish courts of law permissible under the principle of dina demalchuta dina, which, when applicable, provides that the laws of the land in which Jews happen to live are incorporated into the halacha.
In the political reality Jews found themselves in during the Exile, however, strict adherence to the prohibition of erka’ot akum, without exception, could on occasion lead to grave injustice. What happens if a Diaspora Jew refuses to appear before a Jewish court of law or refuses to honor its judgment? In the absence of Jewish police empowered to enforce Jewish law, is the Jewish plaintiff going to be left to twist in the wind? “No,” ruled Rav Palta’i Gaon, in the ninth century. In such a case, the Jewish plaintiff may summons the recalcitrant Jewish defendant to a secular court of law. The Shulchan Aruch has codified the ruling of Rav Palta’i Gaon with one modification – that before resorting to the secular courts in these circumstances, the Jewish plaintiff must receive permission from the Jewish court of law.
Exemptions from the prohibition against erka’ot akum have occasionally been granted in cases where the government has a special interest such as those involving real estate, the payment of promissory notes, taxes, and situations involving battery and assault. In addition, a Jew who is summoned, against his will, by another Jew to secular court, in connection with a monetary claim, may submit to the jusrisdiction of the secular court to defend himself.
According to the Shach, the prohibition against erka’ot akum does not apply when Jewish litigants agree to litigate in front of a named non-Jewish judge. This judge assumes for the parties the role of a borer, an arbitrator. It has always been accepted in halacha that litigants may submit their case to an arbitrator, even to one who is not versed in Jewish law, as long as both parties agree to abide by his decision. By submitting their dispute to a particular judge, the parties are not paying homage to a secular system of law but rather are entrusting their matter to a person whose decision they agree to respect. According to the Shach, this is allowed. The Shulchan Aruch, however, disagrees.
Submission of disputes by Jews in Israel to the Israeli secular courts is a contentious issue. Much to the chagrin of the Israeli Rabbinate, which hoped the renewal of Jewish sovereignty in Israel would bring with it the rule of Torah law, the Knesset has given exclusive authority in most matters to the Israeli secular courts that apply Israeli secular law. The position taken by former Israeli chief rabbis Pesach Zvi Frank, Yitzchak Halevi Herzog, and Ovadia Yosef is that a system of law that permits Jewish judges to apply non-Jewish law in Israel is more egregious than submission of disputes by Jews to non-Jewish courts of law in the Diaspora. This is because non-Jewish judges have no obligation to apply Jewish law, whereas Jewish judges do.
Accordingly, these Israeli chief rabbis have forbidden litigants and lawyers to appear before Israeli secular courts. According to Rav Ovadia Yosef, a party to a monetary dispute who has been summoned to an Israeli secular court against his will may appear before it with a Jewish lawyer to defend himself.