Halacha and the legal system
My question is related to a question I was unable to express in the last lesson on the legal system. You tried unsuccessfully to lead the discussion on another field, which is the legal system as a system by definition that forces the individual/the community to abide by the law. What is the Torah statement or statements regarding this? Is there a need for such a system? Perhaps it would be more accurate to say: When and in what areas is there a need and even a command to establish and operate such a system – judges and police officers will give you all your gates: What are these gates? Gates/boundaries of the sector. There is a consensus, for example, in the secular world of law: ma liberté s arrete la ou commence celle de l autre, in Hebrew: The limit of the individual’s freedom is the place where this freedom collides with the freedom of the other.
Many secular legal systems are built on this important principle of preserving the various areas of freedom without one harming the other. In contrast, in a religious system, the area of what is forbidden/permitted goes beyond the interests or harm to the freedom of the individual. And it is even possible that the division between a person and a place and between a person and his fellow man is related to the subject. It seemed to me that in a religious system (no matter which religion) there is a clear statement that blurs the line between a person and a place and between a person and his fellow man, and says that at a fundamental level, the duties and systems of what is forbidden and what is permitted exist in both mechanisms. In contrast to secular thinking, which says that in everything related to oneself, a person should do what his heart desires, but as soon as it conflicts with the freedom or interest of another, the legal system and the law have something to say. Although there are exceptional cases in which we will arrest a person who is likely to harm himself (such as in the case where it is assessed that he is likely to harm his own life), this too can be undermined in societies that do not view the value of life as particularly sacred. In any case, my question that I have such difficulty expressing is: We know that there is a large gap between the fundamental laws and the possibility of their application and implementation, such as the fact that in order to impose a penalty on someone, witnesses and a warning are needed, etc., and conditions that are almost unenforceable. There is also this statement that, although the death penalty exists, it has hardly ever happened that the Sanhedrin imposed a death penalty. It turns out that there may be a statement or even a hint that there does not have to be a match between the law and the law, between the laws for the purpose of a coercive system. It is possible that the laws exist, but in the event that they are violated, we will try in every way not to apply the punishment. Is this a reservation about the validity or reliability of these laws or a desire to say that the law belongs to God.
But even if we say that the judgment is for God, when is it said that God will impose the mountain of laws on man like a bathtub?
If we know this, we may reach the point of “let him be killed and let him not pass.”
In any case, regarding gentile courts, is it possible to say that the law belongs to God? And if indeed we need, for the sake of healthy social conduct, a legal system, at least this legal system will be as close as possible to a reflection of the divine law, which God supposedly gave to the Jewish people, since they represent the Torah in principle not only on the theoretical level of knowing laws and rules but also on the personal level of correcting morals, as appears in the Rambam on the heartfelt duties of the judge?
And if so, the prohibition on going to gentile or lay courts is a fundamental prohibition – that it is forbidden to approach them with the thought that they represent divine law, just as in the time of the Ramban, people were reluctant to go to doctors if they thought that it was up to the doctors to determine who should live and who should die. But as soon as a doctor is used as a tool and not as an idol, then it becomes a no-issue. At the same time, it can be said that as long as one turns to a secular or gentile legal system without seeing it as a spiritual or divine system, but rather as an instrumentalist, functionalist system, with the understanding that it actually operates exactly like the mechanism of the referee who referees a football game, then it is not a violation of the prohibition of gentile courts.
Every legal system imposes its laws on the individual, and Halacha is no exception. Indeed, there are situations in which even death is decreed, although the Sages have taken this to almost impossible levels. As I explained, none of this is relevant today (and it is doubtful that it was in the past), since it is difficult to see an offender who intentionally violates Shabbat and even receives a warning. This is essentially a theoretical law that is hardly intended for implementation. An offender who thinks that there is no prohibition in this is a complete rape and exempt from any punishment (there is a well-known Radbaz response on rape with opinions that it is rape in every sense of the word). See my article in Bezhar (also available online) on the fall of a secular person into a crime.
Halacha should not be compared to other legal systems because it is not a legal system (see my article in Akademi, Is Halacha ‘Hebrew Law’?). Unlike other systems, it determines what a person will do and what he will not do, both in private and when he does not directly harm others (although some will say that he does harm, like drilling a hole in his cabin on a ship). Incidentally, other legal systems also have such laws, although they are becoming fewer. See, for example, the prohibition on incest and the non-recognition of marriage between a brother and sister even when there is consent between both of them.
By the way, this is not a difference in perceptions but a difference in the essence of the systems in question. A legal system essentially comes to regulate relationships between people, and as such it does not have permission to intrude on private property when this does not harm others. Halacha contains a legal component, but beyond that it also has requirements for the private life of the individual. A state’s legal system does not see itself as having the right or need to interfere in private life (to get into the thick of things). Take as an example the prohibition on homosexuality. As long as society thought it was forbidden, it prohibited it by law even though it did not harm anyone. When did the change occur? For some reason, exactly when society came to the conclusion that there was no problem with it. Note that society did not say that it did not care what was done on private property, but that the act was not problematic and therefore it permitted it. If the perception were still that there was a prohibition on it, it would still be prohibited today. The discourse of not interfering in private property is just an argument against those who still think it is forbidden (like the religious).
The distinction you made between an appeal to the courts for an instrumental purpose and a substantive appeal is like the distinction between the Shach and the Netiyam that we saw in the lesson. When they want this compromise from them, they consider it an instrumental appeal and therefore there is no problem with it. But when you need a foreign law, it is something else.
If what you mean is that the law today is intended only to regulate social life (and the indication is that it does not enter into the individual’s possession, as we have seen). This shows that there is no alternative to what is permissible and forbidden according to the law, (which is a kind of foreign religion or idolatry) and therefore is essentially instrumental, I tend to agree. This is a very interesting argument and I had not thought of it.
Continuing with the question discussed above, in this week's Torah portion we read a verse that addresses the issue:
Vayikra Chapter 18:
4 Ye shall do my judgments, and keep my statutes, to walk in them: I am the LORD your God.
5 And ye shall keep my statutes and my judgments, which a man shall do, and live in them: I am the LORD.
And ye shall keep my statutes and my judgments, and shall not commit any of these abominations: the native, and the stranger that sojourneth among you.
And ye shall keep my statutes, that ye commit not any of these abominations, which were committed before you, and ye shall not defile yourselves in them: I am the LORD your God.
Above you have made a division between the part of the ”my statutes” and the part of the ”my laws” of Halacha and the secular legal system and you said that a legal system that does not contain a “legal” component does not threaten Halacha. But it seems from the verses above that the Torah compares keeping the laws to keeping the laws, how does this fit with your words above?
I didn't see that I wrote that a legal system without a legal component does not threaten the halacha. What I wrote is that ordinary legal systems do not have a legal component because of their nature (regulating relationships between people).
It is clear that the Torah requires the observance of all halacha, laws and statutes alike. But when stipulations or legislation are made in the law of property, this itself is a halakhic obligation. The stipulation on what is written in the Torah in property is halakhic (Rabbi Yehuda v. R”M). And the Dina Demalchuta or the Seven Good Men of the City determine according to their understanding in the law of property, and this is also halakhic.
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