Mishpat - Justice - The Foundation of Jewish Community
Our Chazal teach us (Shabbos - Daf Yud) that One whose judgment in a monetary case can be described as pure unbiased truth, is worthy of being considered a partner to the Holy One in creating the world. In his introduction to the laws pertaining to Bais Din, the Tur (Choshen Mishpat - Siman Aleph) likens the unbiased judge to a valiant defender of G-ds orderly world. He expounds upon the above mentioned Chazal as follows: Hashem created an ordered world so that it should have continuity and the evildoers who upset the just and rightful world order by stealing and cheating their fellow man cause its destruction as illustrated in Parshas Noach where we find that the people of Noach's generation, though guilty of many grievous sins, were doomed to destruction, specifically because of their cheating and stealing. As it is written (Bereishis - 6:13) "And Hashem said to Noach The end of all flesh has come because the world is filled with robbery. Therefore I shall destroy them with the world". The Tur goes on to cite numerous other proofs that Mishpat is "a major cornerstone in the service of Hashem". We are further reminded that the destruction of Jerusalem was brought about by the breakdown of the system of justice as we read from the Navi on Shabbos Chazon (Isaiah 1:21) "once saturated with justice, the city about which it has been said "righteousness here resides" is full of bloodshed, the orphan they did not justly defend and the dispute of a widow they did not take upon themselves, therefore, woefully says Hashem, I will take revenge from my enemies". The Navi goes on to prescribe the formula by which Jerusalem may be redeemed. "Zion will be redeemed through Mishpat and its exiles returned through righteousness. Seek Mishpat, right injustice, justly defend the orphan and the widow. Then, if your sins will be dark as crimson, I shall whiten them as Snow". On Fast Days we read from the Navi (Isaiah - chapter 46)"Guard Mishpat, do acts of righteousness so then my redemption will swiftly come and my righteousness will be revealed". It should be noted that Aharon HaCohen, the famed Ohev Shalom (Avos - chapter 1 Mishnah 12) wore the Choshen Hamishpat, the breastplate representing Mishpat upon his heart. Mishpat is central to the service of Hashem. By protecting the weak and vulnerable from injustice, by righting the wrongs of theft and unfair business practices, we preserve communal harmony and ensure ourselves of a fair lawful society.
It is no wonder that Bais Din is specifically required to enforce the Torah system of justice by declaring a Cherem, a ban of excommunication upon those found in contempt of court (see Sanhedrin 76). One who does not accept the authority of Bais Din is in fact denying the authority of Torah law and upsetting the just and peaceful order of Jewish society - a breach of communal responsibility which may carry tragic consequences as outlined above.
The many sins of a Mesarev - A Jew that refuses to cooperate with Bais Din is labeled a Mesarev L'Din, one who contempts Bais Din. The Mesarev transgresses numerous Torah laws including: Al Pi Hatorah Asher Yorucha, Uvasa El Hashofet Asher Yehiyeh Bayamim Hahem, Ad Haelokim Yovo Dvar Shnayhem,Tzedek Tzedek Tirdof (All found in parshios Mishpatim and Shoftim). One who keeps money or property that is not rightfully his according to Torah law, even if he is entitled to do so according to civil law, is a thief who transgresses, depending on the circumstances, any or all of the following: Lo Signovu Velo Sechachashu Velo Seshakeru Ish Baamiso, Lo Saashok Es Reyacha Velo Sigzol. Lo Salin Peulas Sachir. Lo Saasu Avel Bamishpat Bamida Bamishkal Uvamishura (all in Parshas Kedoshim).
We now understand the serious infraction of a Jew who brings hisdispute to arkaos- civil court rather than to Bais Din. To go before a secular court and ignore the Torah's code of law and the Bais Din's authority is considered an affront to G-d's Torah - a Chillul Hashem. Any judgment won in such a manner may be considered Gezel, stolen money. Even when Gezel is not an issue it is forbidden to sue a fellow Jew in court unless granted specific written permission to do so by a Bais Din. Though the source of this prohibition may be found in the Talmud (Gitten 8A and 8B), it is familiar to us from Rashi's commentary in the very beginning of Parshas Mishpatim. In the words of the Shulchan Orech (Choshen Mishpat - Chapter 26) "It is forbidden to seek judgment in the non-Jewish courts even in areas of civil law which are in agreement with Torah law and even if both litigants agree to submit to the civil law (in both these cases there is no issue of Gezel, but there is Chillul Hashem nonetheless). One who seeks judgment before the civil courts is a "Rasha", and blasphemer who has deserted the Torah of Moshe Rabbeinu. The Rama adds -And Bais Din has authority to excommunicate him and declare a cherem against him.
Is Cherem really all that bad? - The Talmud (Moed Katan 17A) expounds upon the frightening nature of Cherem. Says Rav, "Shamta (The proclamation of Cherem) is a death curse". Shmuel says, "It bespeaks utter destruction". Reish Lakish says "The curse of Cherem affects all 248 limbs of the individual as is illustrated by the fact that the letters Ches, Resh, Mem equal in numerology (Gematria) 248. However, when the sinner repents, these same letters may be rearranged to spell Rachem - mercy, as he has freed himself of the curse of Cherem. The Shulchan Orech (Yoreh Deah Chap. 334) instructs us regarding an individual placed in Niduy (the lesser degree of Cherem) that except for his wife and children, one may not sit next to him within a distance of four amos. One may not share food and drink with him. He is not counted for a Minyan or a Mezumin. He is forbidden to wash his clothing or to wear freshly laundered clothes or to take a haircut, just as though he were in mourning.
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