Parshat Mishpatim
describes many of the civil laws of the Torah.
The Talmud explains in Tractate Gitten that we are required to resolve
disputes regarding civil law in bait din – a Jewish court convened in
accordance to Torah standards. We are
not permitted to submit such disputes before non-Jewish civil courts.[1] Rashi elaborates on this requirement. He explains that there are areas of civil
law in which secular law may closely follow Torah law. In these cases, submitting a dispute to a
secular court will likely produce a decision that is consistent with Torah law. Nonetheless, one may not take the dispute to
a secular court.[2] Rashi does not explain the reason for this
restriction. Why is it prohibited to
submit any civil issue to a secular court?
Assume that one is certain that the laws enforced by this court are
consistent with the Torah. What is
wrong with availing oneself of this secular authority?
Maimonides discusses
this issue in his Mishne Torah. He
explains that one who submits a dispute to a secular court is considered
wicked. He is a blasphemer and has
raised his hand against the Torah of Moshe, our master.[3] This is a very serious condemnation. It seems extreme. The term, blasphemy, implies a denial of a central principle of
the Torah! How has this person
blasphemed? Furthermore, how does one
who utilizes a secular court “raise his hand against the Torah”?
In order to understand
Maimonides’ comments, a brief introduction is required. In his commentary on the mishne, Maimonides
identifies and defines the fundamental principles of the Torah. One of these principles is that the entire
Torah was revealed to Moshe. Every law
of the Torah was given to us by Hashem.[4] We are required to uphold this
conviction. This requirement is not
fulfilled simply through an intellectual commitment to the principle; the
principle must also guide and be confirmed by our behaviors. We must act in a manner consistent with the
conviction that the Torah is a revealed truth.
Any behavior that implies otherwise is prohibited and is regarded as a
rejection of revelation.
We can now understand
Maimonides’ comments regarding secular courts.
We received the Torah from Sinai.
It is a revealed truth.
Therefore, it is a perfect system of law. This status applies to the laws governing ritual and it also
applies to the civil law of the Torah.
A person cognizant of the divine origins of the Torah’s laws would not
willingly submit oneself to the jurisdiction of another system. This person would only wish to be judged by
Torah law. Abandonment of Torah law –
even in a civil matter – implies denial of the Torah’s status as a revealed
truth. It follows that submission of a
civil dispute to a secular court is prohibited. One who does seek justice in a secular court has raised his hand
against the Torah of Moshe. This is
regarded as blasphemy against the Divine origins of the Torah.
The above passage includes
three injunctions. The meaning and
rationale of last of these is easily understood. In deciding a legal issue, the court must follow the opinion of
the majority of its members. For
example: A person brings a question of halachah
before the court. The court discusses
the issue and the judges differ on the resolution of the issue. The members of the court vote. The issue is decided according to the
majority opinion. The law also applies
to civil disputes. For example: Two litigants bring a case before a
court. After hearing from both parties
to the dispute, the court votes. The
decision of the court is determined by the majority’s position.
The first injunction in
the passage is more difficult to interpret.
The pasuk tells us not to
follow the majority to do evil. This is
an odd statement. Obviously, we should
never intentionally act wickedly. A
court cannot knowingly issue an inappropriate decision based on the opinion of
the majority! What is the case to which
the injunction in the passage applies?
The Torah She’Be’Al Peh – the
Oral Law answers this question. Our
Sages explain that the opening portion of the passage deals with capital
cases. In these cases, if the defendant
is found to be guilty, he or she will be executed. Our Sages also explain that the term “evil” in the passage should
not be interpreted literally. Instead,
it refers to a guilty verdict. In other
words, the passage tells that a simple majority is not sufficient to execute a
defendant. What is the criterion that
must be met in order to execute a defendant?
A majority of at least two judges is required.[5]
In short, two messages
are communicated by these two injunctions.
The final portion of the pasuk instructs us that court’s
decisions should generally follow the majority’s opinion. The first portion of the passage establishes
an exception. The execution of a
defendant requires a majority of at least two judges.
Baal HaTumim – an
outstanding scholar – was once asked to defend his commitment to the
Torah. The question posed to him was
based upon our passage. Our pasuk tells us to follow the majority
opinion. It seems reasonable to apply
this principle beyond the confines of court cases. In fact, the Talmud does apply this principle to other areas of halachah. This means that heeding the opinion of the majority is a rational
rule and should be applied wherever appropriate. Baal HaTurim’s opponent observed that the Jewish people are a
minority within civilized humankind.
Furthermore, even among the Jewish people, the Torah is not universally
accepted and observed. Other religions
can rightfully claim larger followings.
Therefore, should we not abandon the Torah based on the principle in our
passage? We should follow the majority
opinion and embrace most widely accepted religion!
Baal HaTumim responded
that this question is based upon a basic misunderstanding of the principle in
the passage. The pasuk does not suggest that we follow the majority in areas in
which we have definite knowledge. The
pasuk deals with a court case in
which an issue is in doubt. The issue
my be how a halachah is applied in a novel situation; it may involve the
resolution of a civil dispute between two litigants; in may concern whether a
defendant committed a crime over which the court has jurisdiction. In all of these instances, the court must
consider the matter, review the evidence, examine the testimony of relevant
witnesses, and after assessing the data provided from all sources, come to a
conclusion. In all of these instances,
there is a legitimate question and the answer is in doubt. In the resolution of the doubt, we follow
the majority opinion. However, we are
not swayed by the majority in areas in which we are certain. For example, assume a person knew that a
certain food was not kasher –
permitted. A group approaches this
individual and claims the food is permitted.
The person cannot eat something that one knows with certainty is not kasher.
It is irrelevant that a large group claims the food is permitted. A person cannot ignore his personal
knowledge simply because a number of ignorant people hold a different
view. Baal HaTurim explained that we
know that the Torah is true. We received
it through a public revelation to the entire Jewish people and its content and
design also reflect its Divine source.
The truth of Torah is not an issue that is in doubt and must be resolved
through resorting to the judgment of the majority. Therefore, regardless of the number of people who deny its
authenticity, we cannot abandon the truth.
Rav Elchanan Wasserman Zt”l
suggests an alternative response to the question posed to Baal HaTurim. He argues that the question is based upon a
different error in the meaning of the passage.
The passage requires us to follow the majority opinion of a group of
judges. This does not mean that the
principle in the passage is limited to decisions of jurisprudence. However, the principle in the passage does
require that the issue in balance be decided by individuals qualified to render
a decision. In matters of halachah, the
judge’s knowledge and wisdom endows his opinion with credibility. The opinion of a simpleton is not given
credence. Rav Elchanan argues that
religious issues cannot be evaluated on the basis of popular appeal. The masses of humanity do not make religious
decisions as a result of thorough analysis.
Only scholars of religion are credible judges. Rav Elchanan points out that the Torah has been scrutinized by
countless scholars. The Sages of the
Talmud and of subsequent generations have subjected every detail of the Torah
to painstaking critical analysis. No
religion has been subjected to more thorough scrutiny over a period of
centuries. Therefore, application of
the principle in the passage only confirms the authenticity of the Torah.[6]
[1] Mesechet Gitten 88:b.
[2] Rabbaynu Shlomo ben Yitzchak (Rashi), Commentary on Sefer Shemot 21:1.
[3] Rabbaynu Moshe ben Maimon (Rambam/Maimonides) Mishne Torah, Hilchot Sanhedrin 26:7.
[4] Rabbaynu Moshe ben Maimon (Rambam/Maimonides) Commentary on the Mishne, Mesechet Sanhedrin 10:1.
[5] Rabbaynu Moshe ben Maimon (Rambam/Maimonides) Mishne Torah, Hilchot Sanhedrin 8:1.
[6] Rav Elchanan Wasserman, Kobetz Ma’amarim, Essay on Conviction.