Archaos (Non-Jewish Courts)

Archaos refers to non-Jewish courts or courts that do not rule according to the laws of Torah.

Mitzvah to Judge in Beis Din

It is a Torah commandment to turn to a Beis Din that judges according to Torah law and to act according to its rulings and instructions. This mitzvah is included in the Rambam's Sefer HaMitzvos as Mitzvah 174: "We are commanded to listen to the Great Beis Din and do everything they command regarding prohibition and permission. There is no difference between matters they understand logically, matters they derive through the methods of Torah interpretation, matters they agree are Torah prohibitions, or matters they believe are correct and strengthen the Torah - we are obligated to listen and do everything and stand by their words without deviating. As Hashem says (Devarim 17:11) 'According to the Torah that they will teach you.' The Sifri says on 'whatever they tell you to do' - this is a positive commandment. The details of this mitzvah are explained at the end of Sanhedrin."

From the Rebbe's many letters, his holy opinion is clear regarding disputes requiring judgment - one must only turn to Beis Din and not to Archaos. (For example, from a letter the Rebbe sent to the leadership of Tzeirei Agudas Chabad in Eretz HaKodesh in 1966: "If any claims arise between you and the Tzeirei Agudas Chabad center that cannot be resolved - the Central Chabad Rabbinic Beis Din of Jerusalem should decide." Similarly from another letter sent in 1977 to the Tzach leadership in Eretz HaKodesh: "If you cannot clarify among yourselves all the details until no claims remain...both sides should appear promptly before the Rabbonim of Anash.")

Severity of Going to Archaos

The Rambam writes that one who turns to courts that do not rule according to Torah law - Archaos - is called wicked and it is as if they blasphemed and raised their hand against the Torah of Moshe Rabbeinu. The reason for the prohibition against going to Archaos is that the Torah states "And these are the judgments that you shall place before them." The word "before them" means before Jewish judges and not before non-Jewish judges.

The prohibition of going to Archaos is so severe that in a situation where there are no judges fit to judge, we appoint other judges even if they are not fit to judge, as long as Jews don't turn to Archaos. Apparently, there is no permission to turn to Archaos in any form, even if they judge according to Jewish law. Part of the prohibition is judging before non-Jewish judges, even if those courts rule according to Torah law.

Laws Regarding One Who Turns to Civil Courts

A person who turns to civil courts (Arkoas) - Rambam lists those whom the Beis Din is permitted to excommunicate, including among them one who turns to civil courts. In the Shulchan Aruch, regarding who is fit to serve as a Shliach Tzibur, it states: "A Chazzan should not be removed from his position unless a disqualification is found in him." The Be'er Heitev comments: "One who went to gentile courts is not fit to be a Shliach Tzibur on Rosh Hashanah and Yom Kippur unless he does teshuva." The Zohar explains that the inner reason why we don't turn to gentile courts is because gentiles have no part in our faith. The severity of one who turns to civil courts is extremely great: "This is a sinner who diminishes the secret of faith, and turns himself to that side which has judgment without merit."

Cases When It Is Permitted to Turn to Civil Courts

The Rambam establishes a clear rule in this law stating that if the gentile authority rules the place - "the hand of the gentiles is strong" - and the defendant is violent and unable to collect his debt through Beis Din, he may - with Beis Din's permission of course - turn to civil courts. There is another possibility, to write authorization between parties before conducting business that each has permission to turn either to Beis Din or civil courts in case of a claim against the other party. This law is possible because there may be cases where the defendant is violent and money cannot be extracted from him through Beis Din except through civil courts. The Rebbe writes similarly in response to someone who had a court case with a violent person regarding a certain matter: "...one must establish matters that cannot be compromised on (...) and obviously this should be in writing and in a way that has validity in civil courts and not only in Jewish courts - fitting with the above conduct."

Types of Civil Courts

• Gentile courts that rule according to gentile laws
• Gentile courts that rule according to Torah law
• Jewish courts that rule according to gentile laws

All these are considered civil courts in regard to halacha and it is forbidden to turn to them.

Courts in Syria - Judges who don't know Torah law, appointed by those who aren't Torah scholars. Even though it's established that they don't rule correctly according to halacha and their rulings aren't valid - we don't disqualify what comes from this court, since they are in places where there are no Torah scholars and all the people of that place accepted this court upon themselves. Another opinion explains that courts in Syria are courts of common people, where among any three of them it's impossible not to have one who is fit to judge.

Definition of "Strong Hand of Gentiles" in Laws of Civil Courts

In laws of civil courts, the term "strong hand of gentiles" is frequently mentioned. This means that gentile rule controls the country or place where the judgment is conducted, where gentile judges don't rule according to Torah law. Since in that place gentiles rule, the strong force is gentile law. Therefore when there is a defendant who refuses to obey Beis Din, the Beis Din can permit the plaintiff to turn to civil courts - but only if their laws rule in this case according to Torah law. This rule applies not only when gentiles have a strong hand, but even when Jews have a strong hand but the government law doesn't rule according to Torah law Heaven forbid - the law of government courts has the same status as when gentiles have a strong hand.

Additional Reading

• Menachem Mendel Bronofman, And These Are the Laws, the Rebbe's view on implementing Torah laws within the court system's legal framework, Kfar Chabad Weekly Issue 1997 page 55