Taking the Law Into One’s Own Hands

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by R. Gidon Rothstein

Parshat VaYera, 5784: Choshen Mishpat 4

When we pick up in the middle, we don’t always know the background. Previous simanim, chapters, to Choshen Mishpat 4, discussed the numbers of judges needed for various kinds of court cases. Our siman opens with a rule from earlier, a random individual is not qualified to be a lone judge, and certainly a litigant cannot be the judge—you can’t judge your own case.

Acting For Oneself

And yet. Sometimes, halachah allows a person to act for him/herself, such as if one sees one’s own property in the thief’s possession. [True story: years ago, my mother, hk”m’s, car was stolen, and a week or two later we saw it parked literally on the next block over. She had once before tried to enlist the police in her cause, to no avail. This time, I went home, got an extra set of keys, and took it back. She had it from then until it stopped working.]

I find this whole category fascinating, where halachah does not require us to rely on legal authorities for help, explicitly allows us to fend for ourselves. Other examples are where we see the criminal in the process of taking property; refuses to return an item the owner left in his/her care; or is about to damage our property or ourselves. We are within our rights to defend ourselves and our property, AH Choshen Mishpat 4;1 says.

Nor need it be where the loss will be irreplaceable should we wait to go to court, such as if the thief would hide the property meanwhile. Were that to be true, we would be allowed to engage in physical violence to secure our rights. Where nothing would be lost by waiting, such as if the person is taking land (which will always be there), Nesivos HaMishpat thought physical violence was proscribed, but we could take back the land nonviolently, if possible.

The interesting catch comes now: the owner must have ironclad proof it is his. Without, s/he first needs authorization from Bet Din. It is a catch more significant than we might realize, I think, because one person’s ironclad is another’s arguable. Below, we will see circumstances where being a muchzak, in presumed possession of the property, affects the conduct of the case. In se’if four, AH cites R. Akiva Eiger to tell us an individual without clear proof will not be able to claim to be a muchzak, either.

Items, Not Finances

Se’if, paragraph, two gives a key caveat: this is all for a specific item, such as my mother’s car. A Jew may not on his/her own collect money someone else owes, either theft or debt, no matter how well documented, nor confiscate (against the person’s will) money in place of an item the other failed to return and then got destroyed. In such cases, we need courts.

Unless the claimant worries the defendant will flee, successfully hide his/her assets, or refuse to obey the court’s verdict. In such cases, the claimant may take collateral. More, if s/he happens to already have some of the defendant’s property, or finds other people who do, the claimant may hold it until a court’s ruling, even without any worry the defendant will flee or otherwise evade payment of a judgment.

I waited until now to note AH does not source these ideas (beyond the Talmudic discussion). This is all seemingly the Gemara’s assessment of how halachah understood the obligation of people to yes or no use the court system. No Torah law or halachah le-Moshe mi-Sinai seems to have defined the issue. I mention it here, because at the end of se’if two AH notes the Zohar opposes holding on to a pikadon-an item the other left with us to watch—in this situation, for reasons AH does not share but which he thinks a ba’al nefesh, someone careful to act correctly, will choose to follow.

The Zohar thinks the claimant should go to court first. Should the defendant not appear, the court can issue an order for him or a third party to hold onto the item. Of course, this is true in all situations; I think AH is saying that since we have no clear sources on the issue, if the Zohar says something, we might as well live within its dictates.

Group Rights

When the claim comes from a group, such as if a municipality sues an individual for his/her share of the king’s taxes, their certainty they are right permits them to take the law into their hands, and confiscate the money, even if they could not prove it in court. [A recipe for strife and argument!] A town’s ability to prove its case is hampered by all the relevant witnesses also being interested parties, since the more people who pay, the less each person has to pay. As nog’im ba-davar, people with a stake in the matter, they cannot give valid testimony.

Should there be internal fighting in the city about it (rarely is one person so in the wrong that s/he has no allies), and they go to a third-party court, the group is considered muchzak, in presumed possession (even if the defendant has not yet paid), so the individual will have to give collateral, then prove his/her case, because s/he is trying to extract money they have.

Since they’re muchzakim, in presumed possession, Sema held they can invoke kim li, another fascinating halachic idea, that one litigant can insist s/he/they hold adopt a particular opinion among halachic authorities, even if general practice follows another one.

Where the Group Are Not Muchzakim

Their legal upper hand came only because they were collecting governmental taxes, and the government is always muchzak, says se’if four, because it has the permanent right to enforce laws. Were the lawsuit to pit a community against an individual on a non-tax issue, or with someone from a different tax zone, they lose their muchzak status as well as their kim li right.

The individual would still have to give collateral, AH says, because groups are very bad at collection; should they win, each member will expect someone else to collect. [This implies that where the group has collection agencies, the right to demand collateral goes away, but he doesn’t say.] They may also go to non-Jewish courts for assistance, if needed, where an individual may not, even if he had the right to act on his/her own.

They also lose their advantage when suing a Torah scholar, because his (her? When will halacha extend financial rights of Torah scholarship to women?) responsibility to pay taxes is more complex.

Escrow is a Good Option

When litigants do not trust each other, AH thinks we put the disputed funds in escrow, such is our uncertainty about whether people will obey a verdict, considering courts’ limited means for enforcing their judgments. He says he himself would generally require that of litigants, making clear that one’s having given cash does not make the other muchzak, escrow is a neutral zone, neither litigant considered more in possession than another.

That took longer than I expected, but highlights what I suspect we will find to be true often in Choshen Mishpat: the need to establish law with a paucity of sources. While it is the law for as long as it is the law, it also seems to me the kind of law a future Sanhedrin could revisit, with fewer barriers to revamping processes and legal assumptions than in other areas of halachah.

I am tempted to push on, but tafasta merubah lo tafasta, maybe stopping here is the wiser course, giving us a chance to digest, come to Orach Chayyim next time with new eyes.

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