Rashba on Why We Use Civil Courts and Rely on Their Rules of Evidence

I regularly see comments complaining that civil law employs rules of evidence different from halachic standards for a beit din (court of Jewish law). I thank my reader who comments with the name, “V’hamaivin Yovin” for offering this comment to my post, Was Nechemya Weberman’s 103-Year Sentence Too Long? He  translates a ruling by the Rashba (Rabbi Shlomo ben Aderet of Barcelona, 1235-1310,a  student of the Ramban and Rabbeinu Yona and the teacher of the Ritva).

Out of sheer frustration, reading the Ill-informed comments on various sites, I’ve translated excerpts of the Tshuvas H’Rashba, quoted by the Bait Yosef (Yosef Karo) in Choshen Mishpat 386.

These words (all of Hilchos Aidus) were only said when there exists Sanhedrin, mandated as such by the Torah. However, with the law of the land we disregard all these Halachas (Hilchos Aidus), for their laws, (Dina D’malchusa), are a means to seek out the truth, and they (the defendants) are punished according to the law of the land. (This is true) even with witnesses that are relatives, even when the defendant incriminates himself, even without a warning (withou hasra’a), for their laws are a means to seek out the truth. For if you don’t say so, but you’d rather uphold all the laws of the land according to the standards of the Torah when a Sanhedrin exists, the world would be destroyed; for the deceitful and their cohorts would spread (exponentially)…And even greater (than this example) we find that R’ Eliezar son of R’ Shimon captured and jailed (Jewish thieves) and punished them…So this definitely proves what I have previously said…, for a king with the way he structures the laws upholds the land.

This ruling applies to 103 year sentences, even to capital punishment. The above ruling by the Rashbah is cited by Maran Elyashiv, ZT”L in his ruling authorizing reporting molesters to the civil authorities because they are rodfim (murderous pursuers who may be killed in self defense).

I am continually amazed by readers, pretending to be halachicly knowledgeable, who are ignorant of this basic fact of Jewish jurisprudence. Dinah dimalchusah dinah is not just a slogan. It has halachic teeth.

Weberman defenders are caterwauling  about the jury’s guilty verdict and the judge’s sentence. Weberman was convicted by a court which applied U. S. and New York State rules of evidence. If you think the rules of evidence are poorly chosen, lobby for changes in the law. If you think the rules of evidence were incorrectly applied in Weberman’s trial, pay for his appeal. Appellate courts will overturn a jury verdict if a judge misapplied the  rules of evidence. But please stop complaining about one female witness, etc.


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