<< Prev || עברית || Français || Русский || Next >>

Part Four - Judaism, Culture and State

Jewish Civil Law
An Identity-Based Alternative

"The hold of Jewish civil law on us is many-layered. It is our religion, the basis of our heritage, and the essential expression of the concept of our identity, all together... In the same way as the Land of Israel and the Hebrew language... we wish in the first place and specifically, for good or for ill, so to speak, we also desire the renewal of Jewish civil law!"

–Shabtai Ben-Dov, Jewish Law and the State of Israel[20]

The Vision

Law and justice are not neutral technical tools for regulating the conduct of our lives, but are rather the state expression of the culture, values and national identity of every nation with its country.

This is especially true with respect to the People of Israel, whose original legal system, Jewish law, was perceived throughout the ages and throughout the Diaspora as a fundamental expression of the Jewish way of life – not only in religious areas, but rather primarily in the areas of civil law.

Zehut will act for the revival of Jewish law, in its entirety, as a civil judgment alternative, parallel to the existing system of civil law[21], which will enjoy the full recognition of the State for those who choose to use it.

The establishment of this system will be a key and underlying element of the national Jewish identity of the state, and a cornerstone of the revival of Jewish culture as a comprehensive national culture.

The Actual Situation and the Arbitration Compromise

Due to circumstances at the time of the establishment of the state, Jewish civil law did not receive its proper place in the State of Israel. It should have been the foundation of the Israeli legal system, as it is our law and part of our identity as a Jewish state. Specifically, Jewish civil law has advantages over the existing law even from a practical utilitarian standpoint[22]. Currently, Jewish civil law as a whole has no defined status in Israel[23], whose legal system is based on an improvised combination of previous legal systems, particularly British law.

It is true that anyone who wants to be tried in civil matters today under religious law can turn to private courts, which have the status of an arbitrator whose decisions are backed by the state. This option is certainly important, and many courts that serve an increasingly diverse population have grown up in its framework[24]. This option, however, has no connection at all with the identity of the State of Israel as a state. Similarly, it is possible to open a civil court with the status of arbitrator that rules according to the laws of Hammurabi or according to Turkish law, so long as it does not conflict with the laws of the state.

Statehood-Status of the Law, and a Jewish State

The judicial system is one of the fundamental elements of the concept of the state, and one of its central raison d'etre[25]. For Judaism, mankind's obligation to maintain a justice system that enables a life of law that aspires to justice is a universal fundamental obligation that precedes the Torah and its commandments, and is the only "positive" commandment that applies to all of humanity[26].

This centrality dictates how natural it is for the identity of a state to be expressed in its legal system. The State of Israel is currently doing the opposite, abandoning its Jewish identity (even by coercion) in areas related specifically to private life, such as kashrut and marriage. Zehut opposes the assumption that this is a natural and correct situation. The hidden treasures of Jewish civil law should receive legal status in the State of Israel, simply because it is a Jewish state.

The Problem with Integration Attempts

"... The method of bringing the spirit of the Torah into those laws that contradict the Torah creates an illusion ... there is no benefit in all this. There is even damage. Half truths are worse than lies ... The main struggle should to expand the powers of the rabbinic courts ..."

–Rabbi Shaul Israeli, "Torah Law and State Law"[27]

Since the establishment of the state (and even before that), and to this day, there is a lot of talk about the need to integrate Jewish civil law into the national law of the State of Israel. Parties that claim to pay homage to Jewish identity have proclaimed their commitment to this idea for the past 70 years. Sometimes it is in very softened demands, such as deriving inspiration from legal sources in Judaism, and sometimes it is in more strident demands, such as adopting the Torah and its Jewish law as the constitution of the State of Israel[28].

The Problem of Distortion

This approach has had its ups and downs in terms of its implementation on the ground, and it is possible to find an important example of it in the preface to Basic Law: Judging, which states that "in this spirit":

"If the court sees a legal question that requires a decision, but does not find an answer in legislation, in case law, or by way of analogy, it should determine it in light of the principles of liberty, justice, equity and peace of Israel's heritage."

Ostensibly, this is a real commitment to address Jewish sources as sources of Israeli justice as defined by law. However, consideration of this phrasing reveals that this "obligation" is not at all concrete, and is not connected even peripherally to any specific content, and in particular not to specific laws and specific principles of Jewish civil law as written.

Moreover, even when Jewish civil law is inserted into the Israeli state legal system, it is always done while taking those parts of Jewish civil law that match the worldview of "justice, equity and peace", as the judges understand it. The parts that they do not perceive as such are blithely omitted, significantly distorting the original content in the process[29].

The Problem of Coercion

The other side of the distortion coin is coercion. Coercion in religious law is essentially a primary obstacle to applying Jewish civil law in all its details to the State of Israel as exclusive law. Only someone who is interested in ignoring this basic problem can honestly advance an agenda of adopting Jewish civil law as binding law on all citizens[30].

Another, more practical aspect of the problem of coercion in applying Jewish civil law as the legal norm of the State of Israel is the requirement included in it for judges who aren't committed to Judaism in any practical way to judge according to the laws and basic assumptions of its laws - which are replete with ethical content stemming directly from Judaism, and which derive legal solutions from it. It would be naive to demand that Aaron Barak judge according to Jewish civil law and expect that he will agree to do so in a manner that is "true to the source".

Practical Failure of Integration into Civil Law

In the 1960s, as part of the Department of Law Planning in the Justice Ministry, Shabtai Ben-Dov, one of the greatest Jewish thinkers in the last century, did an enormous job of formulation of civil law directly from Jewish sources. Ben Dov was well aware of the problems inherent in his experiment, in light of the above problems, and justified it thus[31]:

"There may be historical significance to things in a roundabout way, if we don't adopt " two holding a tallit " approach in isolation, but rather recognize the virtue of a tractate of Hebrew Laws as such, or at least if a legal system enacted by the Knesset will simply and deliberately reframe the tractate of laws in accordance with the Torah of Israel, in a manner in which understanding the new wording would require the interpreter to return to the (Jewish) sources ".

But even Ben Dov rejected the introduction of Jewish foundations into civil law as mere "decorations ", and on the other hand he clearly understood that it is impossible to embed the State Jewish law as law of the state on a total scope.

At any rate, his great work, which has not been equaled ever since, was summarily shelved when the Justice Minister was replaced, on the grounds of impracticality. This put an end to orderly attempts with systemic perspective to integrate Jewish civil law into existing legislation.

If this method had a chance to really bear fruit a few decades ago, today there is no benefit in trying to continue to graft together two unlike entities, neither from a practical nor essential standpoint. The reverberating practical failure of attempts to apply this approach in the field over seven decades reflects its inherent failure.

The Solution: An Identity Alternative

In recognition of the irrelevance of replacing the existing state law state with Jewish law, and in recognition of the existential need to lend both principled and practical state expression to Jewish law as an expression of the Jewish identity of the state, Zehut has chosen a new-old path within Judaism itself, which gives room for both systems in parallel.

... The appointment of judges (the Sanhedrin) was to judge only laws of the Torah ... and appointment of the King (the government) was to complete the political order and everything needed for that time.

–(Drashot HaRan, Drasha XI)[32]

Judaism has always recognized the authority of the state court system, which operates according to rules that do not match the halacha, alongside the Jewish legal system, designed to regulate practical problems in national life that have no easy solution within the framework of halacha.

In this spirit, Zehut will act to define Jewish civil law as the parallel civil law recognized in Israel. It will be autonomous of parliamentary legislation, as religious legislation has always been autonomous of state intervention. The validity of rulings of the courts recognized by the state would be the same as the validity of the rulings of civil courts, subject to two exceptions listed below.

Civil Law for Interested Parties

The Irrelevance of Jewish Law in Criminal Law

The jurisdiction of the Hebrew courts will cover only civil law, not criminal law. That is, the state will not prosecute thieves and murderers through Jewish courts, but by the existing national legal system only. This is not just a technical compromise resulting from the difficulty of running a country with two parallel and contradictory legal systems, but also on an essential level.

It is true that, from a Jewish perspective, Torah courts absolutely discussed criminal matters and handed down penalties. But anyone who knows at least something in the field of Jewish law, knows that Jewish law has not dealt with institutional state criminal law for 2000 years. This surrender of authority was deliberate and conscious. Now, Judaism has nothing to offer in the field. Concerning civil law, which includes the entire range of laws of finances, just the opposite is true: the continuity of engagement on these issues from within the walls of the courts of Israel has never ceased.

Complete Absence of Coercion

Jewish courts authorized by the State will be allowed to meet only in cases where both sides want to explicitly lay out their arguments before the Jewish Court. In the event that one of the parties will not be interested, the Jewish Court would be prevented from addressing the claim and the parties will be directed to general civil law.

Just as the national status of Jewish law should be a central theme of the Jewish identity of the State of Israel, so this identity must not be compelled by force of law for those who do not identify with it.

Jewish law is not neutral. It is rooted in Jewish culture upon all its aspects and its use as a tool for solving legal problems should be made by choice.

The Practical Implication - State Backing and Autonomy

The essential difference between the status Zehut seeks to reach and the current situation is the question of sovereignty of Jewish law. We propose that when a Jewish court rules in the legal case between two parties who are interested in its services, the ruling would be binding under the laws of Israel regardless of the existing legal system. Authorities will be obliged to implement the Jewish Court's judgments by virtue of their status as state courts as they are obligated to implement the civil court rulings today.

Moreover, when one of the parties appeals the judgment of the Court, he will appeal to a higher court within the Jewish Court system. Once he has decided that his case will be judged by Jewish law, he shall not have the right to apply to another court in this matter and the general civil law will not have jurisdiction to deal with it until a verdict is handed down.

The Revival of Judaism as a Relevant National Culture

The granting of official status to Jewish law and the emergence of a judiciary system that serves the public thereunder will constitute a foundational milestone of Judaism's unburdening of the small-mindedness of the exile in the areas of lifestyle and commandments concerning individuals only. It will constitute the return of Judaism to what it always was meant to be: a complete national culture that relates to and solves all problems of life, both mundane and religious, on the collective individual level according to its own assumptions and sources.

When the current Israeli (secular and religious alike) realizes that the Jewish law offered by the Torah is better at finding solutions to the legal problems of everyday life than existing government systems imported from other nations, this will be Judaism's real breakthrough into national relevance.

[20] Ladder to the Destined Kingdom of Israel – writings of Shabtai Ben-Dov edited by Yehuda Etzion. Volume III, page 64.

[21] The existence of such a dual legal system does not really contradict Judaism, as it might seem at first sight. Jewish law already recognizes a dual justice system in a Jewish state, and the completion of the Jewish justice system by a civil justice system, as expressed clearly in The Book of Sermons of the Ra"n, Sermon XI.

[22] Particularly noteworthy is the firm position of Jewish civil law against further intolerable extensions of legal proceedings indefinitely, known in Jewish law as "oppression of justice". Jewish civil law does not recognize the legitimacy of dragging out legal proceedings as is the case in existing civil law. The dragging out of justice over an indefinite time is one of the basic factors that makes the existing legal system almost irrelevant to solving the legal problems of ordinary citizens who are unable to free up all of their time and financial resources for the benefit of the legal process.

[23] In existing courts for Monetary Affairs there is a status of "arbitrator" alone, just as in any private entity that deals with arbitration.

[24] Today, there are about 40 such courts active across the country.

[25] The very word for "state" in Hebrew (medinah) is derived from the root "law" (din). This reflects the conceptual identity obvious to our ancestors between the judicial system and the state that sustains it and is established for its sake.

[26] "The first man was commanded regarding six things: idolatry, blasphemy, bloodshed, incest, and theft (all of these are prohibitions), and justice (this is a positive commandment)." Maimonides, Laws of Kings, Chapter Nine.

[27] From the book The Rabbinate and the State, article "Torah Law and State Law," Page 316 in the 5775 edition, Mossad HaRav Kook.

[28] Such statements are more for the sake of the constituents of the parties that utter them, because it is clear to all that they have no real relevance for implementation in the State of Israel.

[29] That is what Former Chief Justice Aharon Barak wrote on this subject. His approach to the subject reflects the prevailing attitude of his time, the time prior, and the time subsequent: "It is proper and desirable for Jewish civil law, through whose inspiration, statutory provisions were enacted, to constitute a source of inspiration for interpretation; i.e., to expand the horizon and range of interpretive and expansive vision, thereby creating additional depth for interpretive creation. But the determination between the various options is our decision, without external legal constraints and without priority or preference given to any other method, whatever may happen to us ... "

[30] Actually, it is quite convenient for all concerned. Those interested in Jewish civil law can claim to be acting on its behalf to its constituents, and whoever is not interested in it can always block it because it involves coercion.

[31] Shabtai Ben-Dov, Jewish Law and the State of Israel, edition of "Ladder to the Destined Kingdom of Israel", edited by Yehuda Etzion, Volume III, page 61.

[32] It appears in similar ways in other sources, such as Maimonides' classic formulation: "All those who kill people without an eyewitness (and there is no possibility of convicting them according to Torah law) ... the king has the right to kill them and correct the world as needed at that time (not according to Torah law, but according to the king's law)" Mishneh Torah, Laws of Kings, Chapter 3.