By Rabbi Chaim Chazzan
I have heard that in the case where one party refuses to appear before a Beis Din, the Beis Din may give permission to turn to a secular court to retrieve money owed to him. How is it possible that an biblical prohibition is waived for monetary gain? Why is it treated differently than all other issurim which the Torah obligates one to forfeit all his money to avoid transgressing?
The prohibition of litigation in secular court (halacha l’erkaos) is a severe one, and one who transgresses is considered to have raised a hand against the Torah and as having blasphemed. Nevertheless, when one party refuses to come to Beis Din, it is permissible for various reasons.
The most basic explanation is that this case was especially permitted since the Torah was concerned lest anarchy reign. Had there been no recourse to turn to secular courts, rogues who fail to submit to the authority of Beis Din would be able to do as they see fit, leaving observant Jews without any remedy.
On a deeper note: The reason it is prohibited to litigate in secular courts is because by preferring secular law which is the product of human intellect over halacha which is Hashem’s wisdom, it creates the impression that the litigant acknowledges the superiority of man-made law, which is idolatrous. However turning to secular court out of desperation, when a litigant has no other alternative to obtain money rightfully belonging to him, does not give the appearance of regard to secular law.
Another explanation discussed in poskim is that once a litigant receives permission from Beis Din, the secular court becomes “agents”, so to speak, of the Beis Din to carry out its bidding.
However the simplest explanation is as follows: The prohibition to summon another Jew to a secular court is derived from the possuk “v’eyle hamishpotim asher tosim lifneihem” (these are the laws you place before them) from which chazal deduce “before them” i.e. a Beis Din but not before a secular court. Hence this only applies where one has the option of going to Beis Din. However if the litigant was summoned to Beis Din and refused to appear, it is as if there is no Beis Din, and it follows that there is no prohibition to turn to secular courts to begin with.
רמב”ם סוף הל’ סנהדרין, טושו”ע חו”מ סי’ כו ובנו”כ. ראה בכל זה בספר סדר הדין (דרברמדיקר), המשפט וישראל (מוניסר).
Reprinted with permission from Lmaan Yishmeu – a project of Mercaz Anash. To see more articles visit Mercazanash.com