ARKA’OS: When Is One Permitted To Go To Secular Court?

By: Rav Ari Marburger, Dayan Beis Din Maysharim
Prepared for print by R’ Nechemya Klugman
As is well known, it is assur to bring a case in front of secular courts (arkaos). Does this issur apply where the courts rule exactly like Torah law, and if so, why? Is it permissible to testify in a secular court? Under what conditions is it permitted to bring a case to a secular court? Does one need an official heter from the Beis Din before going to court? Does the heter have to be given in writing? In the following article we will discuss these and other questions.

The Severity of the Issur Arkaos and the Reasons for the Issur

The Shulchan Aruch1states that one may not bring a lawsuit in secular courts even in a case where the court will rule the same as a Beis Din would, or even if both parties agree to go to secular court. One who does so is a rasha and an apikores, and is consideredto have “lifted his hand against the Torah.” The Rema2adds that Beis Din must place the person in cherem. In addition, anyone who helps this person in bringing his case to arkaos is also placed in cherem. So we see that this is considered a very serious aveirah. Why is this so?

Rashi at the beginning of parshas mishpatim3explains that one who goes to arkaos is “mechalel es Hashem,” he desecrates Hashem’s name, and is“meyaker shem he’elilim,” gives prestige and honor to idol worshippers. By choosing to go to a non-Jewish court rather than a Beis Din, one shows that he prefers the laws of idol worshippers over those of the Torah. In this way he accords respect and legitimacy to idol worshippers. And since this is done in public, a chilul Hashem is created.

The poskim4point out that the issur applies even nowadays, even though the laws of the courts have nothing to do with idol worship. This is because the issue of chilul Hashem is still relevant, since the person who chooses the secular court is in effect saying that man-made laws are more fair and just than Hashem’s laws.

Testifying in Secular Courts

If someone knows testimony that relates to a case being judged in arkaos should he testify? The answer is that it depends on the situation. In cases where it is permitted to go to secular court (see below) one may surely testify. Similarly, if a defendant is forced by the plaintiff to go to secular court, it is a mitzvah to testify on behalf of the defendant.

However, if the plaintiff did not have the right to go to arakaos, and one knows that the plaintiff happens to be correct, there is a machlokes whether one may testify. The Rema5rules that it is forbidden since the witness is helping out the plaintiff in his sin in going to secular court. The Shaar Hamishpat,6however, disagrees because the issur of arkaos has nothing to do with winning or losing. Thus, regardless of whether the person testifies, the plaintiff violates the issur arkaos. The sole purpose of his testimony is to help the plaintiff recover his money, and this is permitted.

However, most poskim agree with the Rema. They explain that the mere fact that a Jew is testifying in secular court constitutes a chilul Hashem. Furthermore, his testimony can cause others to go to arkaos relying on the fact that Jews will testify for him. Rather, he should not testify, and this will in turn discourage people from going to arkaos, since Jews will not testify for them in these courts.7

Cases in Which One May Go to Secular Courts

The Shulchan Aruch8rules that if the other party refuses to come to Beis Din, and Beis Din is unable to force the person to come to them, one is permitted to take his case to secular courts. However, there are three prerequisites to this law:

1. Summoning Three Times

The minhag is that even where we know that the other person will not appear in Beis Din, the Beis Din nevertheless summons the person three times before permitting the plaintiff to go to secular courts.9 However, because this is only a minhag, there are certain situations in which this is not required. For example, if the defendant is a non-observant Jew who does not recognize the authority of Beis Din at all, it is not necessary to summon him three times.

2. Obtaining a Heter from Beis Din

The Beis Din must officially permit the plaintiff to take his case to secular courts, even if it is obvious that the other party will not come to Beis Din.10 The reason for this is that going to a secular court involves chilul Hashem and cannot be taken lightly. Because of the seriousness of the matter, one must receive official permission from Beis Din.11

Another reason is thatone is permitted only to recover the money he is owed according to halachah. If one would be permitted to sue in secular court on his own he is liable to sue for all sorts of other fees and punitive damages. He might also sue other people connected to the case who would not have been liable in Beis Din. Therefore, one must receive a heter from Beis Din, and make sure that he coordinates with Beis Din to ensure that his claim in court is in accordance with halachah.12

It is recommended that one get the heter in writing. This is because if one is called to Beis Din to defend his going to secular courts, he is not believed to say that he obtained a heter.13 Therefore, one should have the heter in writing so that he can prove that he received permission from Beis Din.

3. Verifying the Facts

The Aruch Hashulchan14rules that Beis Din can issue a heter onlyif they are reasonably sure that the plaintiff is in fact owed the money. Although they cannot formally accept testimony and issue a verdict without the other party present, they can at least hear the testimony in order to verify that there is some credence to the plaintiff’s claim. However, if they have no idea if the claim is true they cannot issue a heter. Other poskim15disagree, and say that since the other party refuses to come to Beis Din as he is required, Beis Din can issue a heter in all cases. The fact that the case might not have any basis is not our concern, because by refusing to come to Beis Din the defendant has brought this upon himself.

1  חומ סי‘ כו סא

2  שם

3  שמות כאא‘ דה לפניהם

4  נתיהמ ?, אות ?

5  בתשובותיו סי‘ נב ?

6 ?

7  עיין בס‘ אורח משפט ?

8  סי‘ כא סב

9  עיין בפת ?

10  שוע סי‘ כא סב ?

11  מהרשג חג סי‘ קכז

12  עיין במהרשל בישש שכ‘ שהטעם דבעי‘ רשות הוא משום תקנת חכמיםונראה דגזרו כן משום שאם ילכו אנשים לערכאות בלא רשות יתבעו יותר מן הראוי.

13  ככ המהרי טץ בסי‘ קב

14 ?

15  עיין באמרי בינה ?




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