Q&A: Religious Courts and Judges Nowadays
Religious Courts and Judges Nowadays
Question
I wanted to ask whether today’s religious courts—regardless of which sections of the Shulchan Arukh they are responsible for, Even HaEzer, Choshen Mishpat, Orach Chayim; I’m asking in general—are subject, on the Torah level, to all the commandments of the Torah? For example: “do not commit injustice in judgment,” “do not be afraid of any man,” “justice, justice shall you pursue,” and similarly all the Torah’s commands that judges are to fulfill.
Answer
Good question. I don’t know. Clearly, the spirit of these things speaks to them as well. Since they were appointed as agents of the earlier ones, the commentators disagree whether their authority to judge is Torah-level or rabbinic. If it is Torah-level (and in my opinion that seems to be the case), then it would seem that all the prohibitions apply to them. If it is only a rabbinic law, then one has to consider whether it makes sense for such prohibitions to apply on the Torah level to a rabbinic judge.
Discussion on Answer
I don’t know where you got this divine assurance from. I’m not familiar with any such thing. Maybe they promised it to you in secret. What I do know is that “do not be afraid” is a command to the judge to judge and not to fear, and very much not a promise. On the contrary, the halakhic decisors qualified this obligation in a situation where his life is in danger. The more far-reaching opinions required him to judge when there is a doubt about danger, but not when the danger is certain. Most maintain that even a possible threat to life does not obligate him.
So what, then? As the Radbaz writes on this halakhah, it is society’s duty to protect the judge, not the Holy One’s. And that is what is supposed to happen today as well, if there were a system of halakhic courts. But there isn’t, and therefore there really is no point in going to them. For that reason too, and for many other reasons.
So whom do you recommend going to? Today, when there is a legal dispute, for example between one person and another, or between a husband and wife?
I have no recommendations. Let everyone decide for himself. I am only arguing that there is no prohibition against going to civil court, and no permission is needed. See my column on the prohibition of secular courts and the “it’s just not fitting” arguments.
On the side that this is Torah-level, how then can the Torah commandment nowadays actually be fulfilled—one that is of course also ruled by Maimonides as one of the 613 commandments—namely the commandment, “do not be afraid of any man”? Either way, if the judge has no protection whatsoever (some kind of heavenly assurance that although in general we do not rely on miracles, here it is different, and the Torah allows you and even promises you that no harm will come to you as a result of your legal ruling, and you really can rely on that), then even if the whole commandment were only in the heart, it still wouldn’t make sense, because the Torah was not given to ministering angels. If a litigant appearing before me is a violent person and threatens me, and I know he will carry out his threats and there is also a record of his violence, like one of the crime families—does it make sense to tell a human judge, don’t be afraid? All the more so when the commandment is also to rule without fear and without taking future consequences into account. And if there is such a heavenly assurance, what can we say nowadays? That this is a time of hidden divine presence and there are no miracles? Has this Torah commandment then been nullified?? And therefore judges nowadays need to be afraid like any other person and not rule the case truthfully if there are real threats against them? Unless you force the point and say that all these Torah commandments only apply when judges have armed bodyguards (I assume that’s presumably how it is in today’s civil courts, though I haven’t checked). But a judge like Rabbi Nissim Karelitz of blessed memory, for example, would have to distort the law because he has no human physical protection and we do not rely on miracles?