Q&A: Lawsuit in Court for Violation of Rights
Lawsuit in Court for Violation of Rights
Question
Hello Rabbi. I make my living from painting, and for some time now a well-known work of mine has been printed in poor quality by a print shop that also frames it and sells it publicly at a disgracefully low price (it’s a sought-after portrait). Obviously this violates copyright under Israeli law. I don’t know to what extent he is doing this maliciously and in bad faith, or out of stupidity and carelessness. We’re talking about a common thug. Am I allowed to send him a cease-and-desist letter (to make him stop!) and file a lawsuit in court from the outset, or must I first go through a rabbinical court? A rabbi told me that if I sue first in court and they collect from him a fine not according to Torah law, that would be theft on my part. And indeed, it appears that such a claim could easily obligate him in an astronomical sum of 100,000 shekels or more. That’s a price that could financially destroy him and his whole family, and to me it seems villainous under permission of the state to do such a thing (I personally know a photographer whose main livelihood comes from lawsuits against websites that innocently used his photos. Really like a trap… And there are those who specialize in all kinds of technological methods online to expose duplicated images and locate victims for enormous copyright-infringement suits)… On the other hand, my feeling is that in a religious court I won’t receive adequate compensation at all, and certainly I won’t get the publicity and deterrence against future copiers without suing in court. In summary: is it permitted to sue in court, and why? And what about the enormous fine they would impose on him? (Even if I know how much would be reasonable to waive, he would probably still pay full court costs to the authorities.) What would you do?
Answer
I don’t understand the concern. Obviously you should first send him a warning letter telling him to stop, and perhaps also to compensate you for what he sold. If he does not respond, then there is no reason to worry about harming him. He is bringing the harm upon himself.
Regarding the question whether to go to a religious court or a civil court, I do not know how a religious court would rule on this (I assume it depends which religious court). I also don’t know whether the fellow would obey the ruling, or whether there is no point in going to a religious court with a character like this.
As a rule, I object to obligating people to go to religious courts, because their procedural rules are problematic. They are not authorized to summon witnesses effectively (any witness can refuse to come), and they cannot make use of investigative agencies or information from official institutions, and the like. They are not a state institution. Therefore they adjudicate under very problematic constraints, and certainly are not judging according to Torah law (but at most according to a compromise close to the law). So even if you go to them, you have not received Torah law. (See Nadav Shnerb’s fascinating article in Akdamot about this.)
Beyond that, since we live within an existing state that has its own legal system, and since we do not have the privilege of refusing to recognize it (and even the Haredim who supposedly do so turn to it when they have no choice, and even when they do have a choice they pay a heavy social and personal price for that avoidance), therefore in my opinion one may go there directly. In any case, this is the law of the kingdom, and in my view there is no theft here whatsoever.
Discussion on Answer
Hello and blessings,
Regarding the authority of the religious court to summon witnesses: if the parties go to a rabbinical monetary court and sign an arbitration agreement, then it judges by virtue of the Arbitration Law. In the Arbitration Law (section 13) [attached], it says that the arbitrator’s authority to summon witnesses is identical to that of the court.
(The sanctioning of a witness who does not comply with the summons is done in court, as stated there in section 16.)
Summoning witnesses
13. (a) An arbitrator has, in the arbitration, the same authority to summon witnesses to testify or to produce documents as a court has in a case brought before it, and he may award them payment and expenses.
(b) A witness testifying in arbitration shall have the same duties and immunities as a witness testifying in court.
(c) A witness summoned by an arbitrator may apply to the court to cancel the summons, if the court finds that it was issued through abuse of the arbitration process.
After you’ve given him warning, I don’t see room for concern even about the past. The painting you described really appeals to me a lot 🙂
As for arbitration, even if that is correct, the religious court judges by authority of the state and does not judge according to Torah law. So why go there? In my limited experience, as a matter of fact witnesses do not show up there. Such is present reality.
In your view, is the fact that the religious court judges by authority of the state a reason that permits going to secular courts?
After all, when Rabbi Tarfon (Gittin 88b) and after him Maimonides and Rashba forbade going to non-Jewish courts, even then Torah law was not the law of the state, and nevertheless there was still an obligation to go to the Jewish court.
What do you mean?
As I wrote, a religious court does not really judge according to Torah law but rather makes a compromise, and its authority comes from the state’s arbitration mechanism. I do not see why there is some virtue in doing arbitration instead of going to court. What is required of us is Torah law, not arbitrations by men in frock coats.
As for Rabbenu Tam and Maimonides, I do not know whether there too they only made compromises and arbitrations. If so—I would say the same about them as well.
The main problem is not the very fact that they come by authority of the state (for permission from the king was always required), but that in practice they judge according to state law.
A collection of halakhic material on this topic appears in Rabbi Yisrael Rosen’s article, “Are the State’s Courts Considered Non-Jewish Tribunals?”, on the Tzomet Institute website.
With blessings,
S.Tz.
It is worth noting that the compromise by which the religious courts judge is a “compromise close to the law,” based on clarification of the Jewish law according to the Talmud and the halakhic decisors, and resorting to the element of “compromise” only in order to avoid imposing an oath and because of the gravity of concern lest there be error in halakhic clarification. The rulings of the Torah courts are grounded in Torah law, in complete contrast to the secular court, which does not recognize the validity of Torah law at all.
Also on the practical level, proceedings in a Torah court are faster and more efficient than in the courts, where a case can drag on for many years and cause the waste of a fortune on lawyers. And particularly in the case at hand, since this is a picture of a rabbi, whose target audience is the Torah-observant public, the likelihood is greater that the printer will not refuse to litigate in a Torah court; and if, Heaven forbid, he does, he risks receiving a “letter of refusal” that will damage his good name in the Torah community, and will also permit the plaintiff to turn to the courts.
Rabbi Michi,
You wrote:
“The main problem is not the very fact that they come by authority of the state (for permission from the king was always required), but that in practice they judge according to state law.”
But the Talmud in Gittin 88b says that even if the laws are identical, one is still obligated to conduct the case in the Jewish court (“…even though their laws are like the laws of Israel”).
The court here is Jewish. It is like the tribunals in Syria. And where there are qualified judges who judge according to the laws of the tribunals, I do not see why there would be a prohibition against going to Jewish courts.
Thank you for your words.
The “tribunals in Syria” refers to a case where there are no Torah scholars who know Torah law (as for example in Rema, Choshen Mishpat section 8). Where did you find that it is permitted to go to the tribunals in Syria and give up Torah law when there are Torah scholars?
Where did you find that it is forbidden? After all, the Torah scholars are not judging according to Torah law. So these and those alike are Jews judging by a foreign law. What is the difference? That these wear frock coats?
With God’s help, 24 Cheshvan 5780
The “tribunals in Syria” are God-fearing Jews, but since they did not study Torah, they are not expert in Torah law and therefore judge according to their own discretion; and since Torah scholars are not found there, the public need relies on them for lack of an alternative.
By contrast, turning to a court that does not recognize the validity of Torah law is a “raised hand against the Torah of Moses,” and the fact that the judges are Jews with fundamental legal education, who are prepared to use precedents from every legal system in the world except Jewish law, makes it “a tribunal of tribunals.”
Jewish law recognized the halakhic validity of “the law of the kingdom is law,” following Samuel’s statement that “the law of the kingdom is law,” but “judicial legislation” by courts that view “the laws of the state” as a mere recommendation that can be set aside by means of “judicial legislation” is not “the law of the kingdom” but a corrupt custom of judges, of whom it was said: “Let him wear black and wrap himself in black and do whatever his heart desires” 🙂
And even “the law of the kingdom” has halakhic limitations. In a Jewish state one cannot cancel in sweeping fashion the obligation to the laws of the Torah. In a Jewish state, Jewish law should be the basis for law and justice, a basis on top of which there is room for enactments in specific cases where there is a genuine need for the public welfare.
With blessings,
S.Tz.
Rabbi Michi,
Where did you see that in Torah law they make compromise and do not judge according to Torah law?
Do you mean arbitrary compromise? Or applying the law of the kingdom in areas where reality has changed (by virtue of their authority to compromise)?
Meanwhile I found Torah-court rulings on the Din Torah website, and I hardly saw any use of compromise there,
*the Din Torah website
Usually they do not judge according to Torah law. The procedure also does not operate according to Torah law. See Nadav Shnerb’s article in Akdamot.
I know the article, and in my opinion it is not correct.
He claims, and you do too, that the judges rule by way of compromise, but that is simply not the reality. I suggest you go onto the Din Torah website and read the rulings. If you come away with a different impression than I do, I’d be glad to hear. But in practice, the overwhelming majority of the rulings strive to clarify the Jewish law and are not based on compromise.
27 Cheshvan 5780
The “compromise” by whose authority Torah courts judge is not bending both sides in order to reach a settlement, but rather a “compromise close to the law,” whose foundation is clarification of the Jewish law. Resort is made to “compromise” in order not to have to impose an oath, to bypass the limitations of “I can maintain,” and to allow liability also in obligations of “to satisfy the obligation in the eyes of Heaven,” and the like, and also to reduce the gravity of concern lest there be error in the law.
“Compromise close to the law” is based on Torah law, which instructs one to judge a “judgment that contains peace,” and it is the preferred mode from the outset of the court’s operation. It leads to streamlining the process and preventing denial of justice through the dragging out of procedural and formal claims that not infrequently bring the discussion to a dead end.
With blessings,
S.Tz.
Thank you very much.
As for the concern, let me just clarify that the fine would be imposed on him for what he did in the past, not only in a case where he is bringing the harm upon himself. In other words, the artist need not prove damages; the very infringement of the rights imposes a fine on the violator of up to 100,000 shekels. That is my concern. But I understand the picture better now in light of your explanation about the lack of power of the religious courts. More power to you and good tidings. The day will come and I’ll paint you too: white beard, thick mustache, pipe, and fur coat, studying Ketzot HaChoshen propped up on several volumes from Shalem Press.