Get More Enthusiasm for Your Judaism!
The Torah as an eternal document applies to all places and times. Therefore analyzing the text solely with a contemporary perspective may not do justice to what G-D wised to convey through scripture. The sidra Mishpatim addresses many aspects of civil and criminal law. The Sidra opens with “ And these are the judgments which you shall set before them” (Shemoth 21:1) Rashi ZT’L ZY’A comments that one is obligated to bring litigation to a Torah-Law court and not a secular forum even if both venues would rule the same way. Rashi asserts seeking redress in the secular courts “ . . . Bringing litigation between Jews before secular authorities desecrates G-D’s name and raises the prestige of secular, non Torah law jurisprudence” (ad. loc). By no means is it suggested that one use Torah law court, Beit Din as a means of circumventing justice or avoiding the jurisdiction of the secular courts regarding the adjudication of disputes between gentiles and Jews. A full discussion of when one is allowed to bring a case in the secular courts is well beyond the scope of this comment.
However it would be far too simplistic to assert the prohibition against going to secular court is based solely on notions of national fidelity. Secular law is completely the product of human intellect which is limited in scope and perception. Whereas the Beit Din, the Torah court relies on human intellect applied against G-D’s law, aligning the finite with the infinite.
Interestingly enough 22:27 teaches “You shall not ridicule the judges, nor curse the a leader of your people.” At first blush this seems as blanket prohibition against dissent. The ability to speak critically about society’s institutions is one of the most sacrosanct liberties enjoyed in a democracy particularly in the United States. Therefore, this text appears contrary to contemporary sensibilities. It is particularly troubling as the text would appear to shut down even legitimate criticism or protest in the face of corruption or other misconduct.
Rabbi Yehudah Chaim Cohen ZT’L ZY’A in Yehudah Ya’aleh cites the Alshich ZT’L ZY’A in placing the text in context. 22:24-26 addresses what the procedure should be when extending a loan to a poor person. Even if the only way the lender can secure the debt is by seizing a poor man’s clothes (or other essentials) the lender must not deny the borrower use of the items such as one’s bedding at night. Both the lender and borrower have legitimate claims, the borrower is concerning about losing his only change of clothes or bedding and the lender about his money. The ruling leaves neither the lender or borrower happy. The lender is displeased with the judge requiring him to give the borrower the items pledged to secure the loan. The items have to be given up daily to the borrower who will depreciate their value through use or other damage. The borrower is angry at the lender taking his property and what amounts to exploiting his poverty. Therefore, the lender is commanded not to ridicule the judge and the borrower his lender.
The rabbi’s observation leaves open the question why should the Torah create such a prohibition? According to the Rashbam ZT’L ZY’A judges are often targets of ridicule by disappointed litigants. Rabbi Naftali Zvi Berlin ZT’L ZY’A in Hamek Davar (22:27) took a similar approach concerning leaders as public figures they are uniquely exposed to criticism. The prohibition against cursing any member of the community would not be adequate for a highly exposed individual in the public eye. However what about in the event there was an apparent miscarriage of justice, where the ruling is just wrong and may be beyond the ability of the disappointed litigant to prove? Earlier 21:13 (see Rashi VaElokim Ana Liyado) that even if someone escapes justice G-D will arrange events to settle out any inequities.
Belief that G-D works out injustices even if it takes several generations is the subject of many stories told by the Chassidic masters. Therefore, possibly this belief that G-D settles all scores and that no one escapes justice is why the Torah commands not to curse either judges or prominent people.Also it is clear in the face of corruption one should protest and seek justice however when one merely perceives injustice maybe it is time to consider whether the matter has been turned over to a higher authority.