Q&A: The Law of the Kingdom Is Law and the Attitude Toward Civil Courts
The Law of the Kingdom Is Law and the Attitude Toward Civil Courts
Question
Hello Rabbi Michi,
How is the Rabbi?
In the past I sent the Rabbi a summary of my analysis on the structure of the economic market,
and, to put it mildly, there was a large gap between the Rabbi’s worldview and mine.
Now, after three months of study,
I dealt with the topic of “the law of the kingdom is law” and the attitude toward civil courts.
The main point of clarification in my article is to create order between the halakha of “the law of the kingdom is law,” the attitude toward civil courts, and the implications that follow from this. From what I have seen, there is confusion and uncertainty among the halakhic decisors regarding the application of the halakha of “the law of the kingdom is law” as against the prohibition of civil courts, the use of state law within a religious court, the limits of stipulations in monetary matters, and so on.
I saw online that the Rabbi has reservations about the prohibition of civil courts nowadays, and also questions about the limits of the rule of stipulations in monetary matters.
Seemingly, these matters are resolved in my article.
I would be very happy to receive criticism and comments,
Answer
Greetings.
More power to you, and thank you.
Unfortunately, it is too long. I went quickly over the table of contents (and a little over the chapter on “the rule of the judicial system”), and I have a few quick comments:
0. In my opinion, control over the land is only a sign, not a cause. If today the government does not control the land, that does not mean that “the law of the kingdom is law” does not apply, even according to the Rashba. All the more so since to a significant extent it does control the land (it can expropriate, it monitors land transactions, it holds the vacant lands through the Israel Land Administration). Moreover, today land is not the primary means of production, as it was in the past. This whole criterion is problematic nowadays.
1. I think there is no point in relying on the views of the medieval authorities (Rishonim), if the assumption is that public consent is the basis of “the law of the kingdom is law.” One simply has to see what the public did or did not agree to. That is a factual question and does not depend on the opinions of the medieval authorities (Rishonim).
2. Your hasty conclusion that when governmental power is handed over to the judicial system there is no “the law of the kingdom is law” seems completely unfounded to me. The judicial system is part of the governing establishment, and by the very fact that it is part of the state, the public accepts the three branches of government. In other words, it is the government that gives power to the judicial system. The internal struggles between the branches are part of that same many-armed government, and it is obvious that taken together all of them are included in “the law of the kingdom is law.”
I have to say that this seems like a very tendentious conclusion, especially given the decisiveness with which it is written, which is inversely proportional to the degree of logic it contains.
3. In my opinion there is a meta-halakhic problem with not recognizing the judicial authorities, and this can be seen in Haredi society, which simply does not function because of this. Private police forces arise there, religious courts conduct themselves in an unsystematic and improper way, and certainly do not operate according to Torah law (for they rule by compromise, which at best is only close to the law). And my friend Nadav Shnerb already wrote that it is absurd to demand that people not go to civil courts because they do not judge according to Torah law, when the religious court itself insists on not judging according to Torah law. He mentions there a case in which they issued a writ of refusal against a litigant who insisted that he wanted Torah law.
Right now I am writing a column in which I explain my approach to the issue of today’s courts as civil courts. It should be uploaded in the coming days.
And again, I apologize for writing without reading, because what the heart desires, time steals away. I hope my comments did not miss too much because of that.
Much success and all the best,