by HaRav Mordechai Greenberg
Nasi HaYeshiva, Kerem B'Yavneh
"And these are the ordinances that you shall place before them." (Shemot 21:1) The Mechilta comments, in the name of Rabbi Yehuda, "'And these' adds to the earlier ones [the Ten Commandments]. Just as the earlier ones are from Sinai, so too these are from Sinai." This statement stands in antithesis to the famous saying in the New Testament, from the teaching of Rome, "What is God's is God's; what is the Emperor's is the Emperor's."
That outlook says that there is a complete separation between religion and state, between the Divine ideal and the societal ideal. In contrast, Judaism teaches that the entire societal and political order has to be based on the Divine ideal, and not on human, societal norms. Righteous and pious individuals exist in every nation. The unique claim of Judaism is to form a nation that lives in its state, while all the orders of society and government -- not only that which is between man and God -- are Divine.
God says about Avraham, "I have loved him, because he commands his children and his household after him that they keep the way of Hashem, doing charity and justice." (Bereishit 18:19) It does not say, "they keep the way of Hashem and do charity and justice," which would mean that there are two realms: the way of Hashem (between man and God), and charity and justice (between man and his fellow). Rather, it says, "the way of Hashem, doing charity and justice" -- in other words, doing charity and justice is the way of Hashem.
Similarly, Moshe tells Yitro, "The people come to me to seek God." (Shemot 18:15) What is the nature of this seeking of God? "When they have a matter, one comes to me, and I judge between a man and his fellow." (18:16)
The approach which sets aside for God the spiritual realm alone, and removes Him from the socio-political realm, is an invalid approach, and is the basis of Chazal's opposition to one who goes to be judged before the secular courts. "Even for a case that they judge the same as the laws of Israel, and even if both litigants agreed to argue before them [the secular courts] -- it is prohibited. Anyone who comes to litigate before them is wicked, and it is as if he cursed and blasphemed and raised his hand against the Torah of Moshe Rabbeinu a"h." (Shulchan Aruch C.M. 26:1) "Secular courts" does not only mean a non-Jewish court, but rather any legal system that is not based on Torah law, even if its leaders are Jewish, since going before them implies admission that Divine justice is unable to deal with and to offer solutions to problems that are beyond the 613 mitzvot.
Secular justice comes only to ensure a proper societal order, so that society will function properly, but it does not intend to educate and to elevate society. In contrast, the purpose of Divine justice is not only to ensure proper functioning of society, but, as the Ran writes in his Drashot, "So that the Divine Influence will dwell on our nation and stick with us." Therefore, God is called the "King of Justice," and the judge is called elohim, "for the judgment is God's."
Rav Herzog, the Chief Rabbi of Israel, wrote: "I do not agree to appoint judges who will judge based on their own inclination, all the more so based on laws and practices that are not from our sacred Torah. This is simply rebellion against the Torah on the part of the community and the government in Eretz Yisrael. As for our Torah from Heaven -- what will be of it? There is no embarrassment for the Torah and internal destruction greater than this."
At the time of the establishment of the State of Israel he wrote:
Our desire, our goal, is that the State should be democratic in the original spirit of Israel, in the spirit of "Love your neighbor as yourself;" of "Righteousness, righteousness you shall pursue." Our intention is not that our democracy should be a mere imitation, subjugated in its spirit to the democracy of the nations. But now ... what system of justice [is there] -- a mixture of Turkish and English law! "Then I will restore your judges as at first ... Zion will be redeemed through justice." (Yeshaya 1:26) "On account of the justice that will be done in it, she will be redeemed from the nations." (Metzudat David) These are the nations that did not rise to the level of civilized nations until thousands of years after we stood at Har Sinai. In truth, the wisdom of their laws is like a monkey compared to a person relative to our laws ... and the one speaking to you is a person who is well versed in both Roman and English law.