The chairman of the Constitution Law and Justice Committee, MK Nissan Slomiansky, has proposed a new version of a bill concerning the application of the principles of “Hebrew Law” in court verdicts in the event that judges cannot find any relevant reference in the Israeli law book (i.e. the law as passed by the Knesset or based on previous rulings of the non-religious Israeli courts). The current situation is that under the 1980 Foundations of the Law Act judges may turn to Jewish precedents, vaguely defined as “the principles of freedom, justice, integrity and peace of the Jewish heritage,” but they usually prefer to turn to legal examples from foreign legal systems, such as those of the US, Great Britain, Germany and Spain.
According to the bill currently being promoted by Slomiansky, an institute for the study and accessibility of Hebrew Law will be set up, whose management will be made up of representatives of the Justice Ministry, of the Courts Administration and the Israeli Bar Association.
The task of the institute will be to advise judges who wish to familiarize themselves with the provisions of Hebrew Law. The bill does not say who will actually do the research and advising.
The current proposal resulted from the rejection by Kulanu of a previous version of the bill submitted by Slomiansky toward the dissolution of the 19th Knesset, in which he proposed that in the event of a lacuna in the law, judges be obliged to turn to “the principles of the Hebrew Law, freedom, justice, integrity and peace of the Jewish heritage.” Kulanu is currently examining the new version.
There is certainly a case to made for strengthening the status of Jewish sources – both Ashkenazi and Sephardi – in the Israeli law book. After reading Professor Menachem Mautner’s excellent book Law and Culture in Israel at the threshold of the Twenty First Century, I admit that my views on the subject have changed.
The question is how this should be done. Like most secular liberals I find the attempt to achieve this goal by giving the Orthodox Hebrew Law in toto a formal status in the courts extremely problematic, especially at a time when the Orthodox establishment – both national religious and haredi – is trying to block the granting of any sort of official status to the Reform and Conservative movements in Israel.
One of the problems with the term “Hebrew Law” is that there is no clear definition of what it contains.
It seems to be agreed that Hebrew Law is that part of Halacha (Jewish religious law) that is not purely religious, and deals with matters that secular law deals with (for example criminal law, tort law and property law). Not surprisingly the haredim (ultra-Orthodox) reject the concept out of hand, arguing that Halacha is an indivisible whole, which the Jewish people ought to accept and live by in its entirety.
In practice it is not always possible to place a clear line between what is religious and what is purely judicial.
For example, one of the spheres of Halacha that applies to all Jews in Israel since its establishment is the law concerning marriage and divorce, which is considered part of the Hebrew Law. To many if not most secular Israelis this law represents part of a system of religious coercion, which to add insult to injury prevents many Israelis from realizing the basic human right of getting married in the country of which they are citizens, and puts many others through a very unpleasant “Via Dolorosa” before they can actually stand under the canopy.
Divorce is no less of a harassment. The fact that in the second decade of the 21st century the Supreme Rabbinical Court cannot force a man to give his wife, whom he is accused of having abused, a divorce after three years of separation (the case of Dr. Oded Gez), and must resort to the man’s public denouncement to try to force him to give in, while the wife is prevented from simply going on with her life as is the right of every human being in a democracy, is nothing short of a farce.
The lack of trust that many seculars have in the Hebrew Law does not only result from their personal experience with marriage, divorce and also burial in Israel, but also many open questions on what this body of law, with its vague boundaries and flexible sources of authority, might have to say on various highly controversial issues that liberal democrats have very strong feelings about.
For example, what does the Hebrew Law say about various forms of trickery used by parts of the settler movement to “purchase” land in Judea and Samaria from persons who are not the legal owners of the land (we know of at least 14 such cases)? According to the Hebrew Law, does the end justify the means, especially on issues like land “redemption”? And what does the Hebrew Law have to say about the circumstances under which it is permitted to kill gentiles in times of war and times of peace (the subject matter of the book Torat Hamelech)? And what about the principle of “Din Rodef” as a justification for the murder of prime minister Yitzhak Rabin, who was accused by anonymous religious sources of bringing a catastrophe upon the people of Israel by signing the Oslo Accords? Is Din Rodef part of the Hebrew Law, and if it is, when and how does it apply? Of course, none of these examples denies that there are many fine principles to be found in the Hebrew Law. I recently heard Professor Yedidya Stern – a religious liberal, who proves that one can be both – speak very convincingly of various worthy principles within this body of law (I recall especially his mentioning principles related to commerce), that are certainly worthy of making their way into the Israeli law book.
What I cannot understand is what prevents MK Nissan Slomiansky and other national religious MKs from passing legislation in the Knesset that will turn these fine principles into “the law of the land.” In this way they will increase the Jewish content of the Israeli law book without the secular population feeling threatened.
But if the Bayit Yehudi MKs are not inclined to follow this path, for whatever reasons, why don’t the seculars take the initiative, and preempt? Why don’t we take the lead in adopting suitable principles from the Hebrew Law? And while we’re at it, why don’t we introduce a serious alternative to the plans of Education Minister Naftali Bennett to teach children in the non-religious national schools more about a particular brand of Judaism, which is practiced by many Jews, but not all? Why not come up with a curriculum on Judaism for children in the national school system, which will introduce them to the development of Jewish beliefs and practices from biblical times to the present, in which the children will be exposed to the various religious streams in Judaism, including the Hassidim and Mitnagdim (the Litvaks) who emerged in the 18th century, the Haskala that emerged in the same century, as well as the Judaism practiced by Jews in the Muslim countries, the Reform and Conservative movements whose roots are to be found in the latter part of the 19th century, and the evolution of the National Religious in Israel in the 20th century? The national religious schools will certainly reject such a curriculum, but why can’t we insist on introducing it in our schools? The writer is a political scientist and a retired Knesset employee.