Mishpatim – Arka’os; isms, modesty

ואלה המשפטים אשר תשים לפניהם. This of course is the source for the issur d'oraysa of arkos. That for two Jews to go to settle a din torah, to go to settle a dispute, not to a din torah to a beis din, but to go to a Gentile court, a civil court, a secular court, is an issur torah of asher tasim lifneihem, לפניהם ולא לפני עכו"ם. There is a very interesting halacha the Chazon Ish says based on the Gemara the beginning of the third perek in Sanhedrin. The Chazon Ish has the following very interesting halacha. What happens if there's simply a person finds himself in a place where there are just no people who are qualified to serve as dayanim? You don't have anyone who knows Choshen Mishpat. And yet you obviously need some kind of a mechanism to resolve disputes, so what do you do? So the Chazon Ish says again based on the Gemara the beginning of Sanhedrin, the third perek of Sanhedrin, that even in such a situation it's assur to go to arkos. And what's more, it's even assur to appoint people, even if you create a Jewish court but where they will pasken על פי נימוסי וחוקי ערכאות is still assur. And what you do is you appoint three people and they pasken according to their intuition, according to their common sense, according to their common sense. So the Chazon Ish explains that basically there are two elements to the issur of arkos. One element is to abandon dinei torah and the other is to adopt the laws of arkos. And therefore even when you find yourself in a situation where we really are not able to appoint dayanim who will necessarily uphold dinei torah because we simply don't have any qualified dayanim, nevertheless the other element of the issur of accepting the dinei arkos that that remains in effect. And therefore it's preferable to have three honest people who will pasken according to their common sense and their intuition rather than adopt the nimusei arkos. That's what the Chazon Ish explains. And again the consensus amongst the Chazon Ish, basically amongst all poskim again is that the issur of arkos is not a function of Jewish versus Gentile but rather whether it's based on dinei torah or whether it's based on not on dinei torah. So I think there's just about a consensus secular Israeli courts are considered arkos and pose the same difficulties as American courts do because it's the abandoning of dinei torah and the adoption of some other system which is assur and it's not a function, not some kind of ethnic distinction as to who the judges are. The yesod which is embedded and embodied in the din of arkos, in the issur of arkos has broader applications as well beyond again the realm of just disputes and dinei torah. And what it means is that a person is supposed to live. According to the Torah's value system. And the person should not, even while continuing to go through the motions of being mekayem Torah umitzvos, he shouldn't adopt or try to superimpose an external value system. And the way he measures right and wrong, be it in dinei mammonos, be it in other other issues, issues of morality and such, has to be from a Torah perspective. And that too is implicit in the halacha of ואלה המשפטים אשר תשים לפניהם that our measuring stick for every issue, every problem that we encounter has to be what the Torah's approach to that is. Okay. Now at times there may be differences of opinion what the Torah's approach is. Okay. However, our approach has to be, again, not one of what what secular morality says or what our society happens to think about these issues, that that too to adopt that kind of value system is also a type of abandoning lifneihem in Beis Din for arkaot. And this is something which has much much broader applications than simply settling a dispute. And the average person probably probably goes through life without ever having to go to a din Torah. Not such a common occurrence. But we all think about issues which are debated in contemporary society. And it's very very important that there too, in a figurative sense, that it be asher tasim lifneihem and that the way we approach, react and think about contemporary issues should be al pi Torah. And what's more implicit in that is a demand for a lot of restraint on our part. When talking about politics, so then everyone, everyone can have a radio talking, a radio call-in show, talk show, and everyone, everyone's the biggest expert in the world, זה אומר בכה וזה אומר בכה. Yes bomb Iraq, don't bomb Iraq, so everyone's, everyone's a big expert. But if the assumption is, again, on issues of morality and such, not talking about political strategic issues now, but issues of morality, that a person can't simply just follow what he thinks. A person can't just simply adopt secular mores to which he's been exposed, but a person is supposed to reflect on it from a Torah perspective. So then that means that if we have the self-awareness to know that maybe at times we're not sure what the Torah's perspective is or maybe we don't fully understand it, so a person can't have an opinion on everything. Nowadays everyone has an opinion on every question. Questions of whether it's a question of more technical questions of of brain death or whether it's more less technical questions on on women's issues, so everyone has an opinion on everything. Everyone has an opinion on everything. So hanicha again if what you're talking about is doesn't isn't something to which there's a Torah answer because it because it comes down to a political assessment. Okay, meila meila. But if what you're talking about are things which require a Torah perspective so then I think we're sometimes we have to have the restraint to say well I don't know, maybe I'm not entitled to to an opinion on on this subject. I don't know, so you can't really a person has to have the modesty to exercise restraint to know when he is entitled to an opinion and when he has to say, well, I'll look for guidance and I will operate in concert with that guidance. It's very, very important to keep in mind that with the proliferation of Sifrei Halacha and especially Sifrei Halacha in the vernacular which are a tremendous, tremendous service for the Jewish community and which create a lot of harbotzas Torah but there should be a warning attached which very often is articulated in such sefarim and if perchance in one particular sefer it's not, it's very important that we always approach it that again, the accessibility of such sefarim shouldn't blur the lines between rabbanim who are poskim and such and between us, the hamon am, who we try to learn as much as we can, we try to know as much as we can, but we recognize our shortcomings and our limitations. And it's very important again whatever the issue is, whatever the issue is, when it's an issue which has to be evaluated al pi Torah, so the same way a din Torah has to go to a Beis Din where it will be paskened al pi Torah, so too whatever the question is, whether it's some modern ism or whether it's some kind of other shaila which has to be evaluated al pi Torah, it's very important that we recognize that and that we also accept upon ourselves the implicit restraint which that demands from us.