Professor Paul Eidelberg ______________________________________________________________________________
*Were it not for attorney Arnon Kemelman, who happened to give me two articles on Israel’s judicial system while I was vacationing in Safed, the present essay would not have been written. I am grateful to him for subsequently providing other source material. Needless to say, I assume full responsibility for the analysis and the conclusions of this essay.
Introduction
Israel’s Supreme Court adjudicates thousands of cases a year affecting the political, social, economic, ethnic, and religious character of the State. It does so with only occasional reference to laws and moral principles drawn from the heritage of the Jewish people. No other court in the world ignores the legal history of its own people. The question arises: Can Israel endure as a Jewish state when its judicial system, which subtly influences every aspect of daily life, is deliberately and primarily based on non-Jewish law? Implicated in this question is the halachic status of Israel’s secular courts. Are they halachically Jewish or non-Jewish?
The present writer, a political philosopher, has no pretensions of being qualified to discourse on Jewish law per se. However, one does not have to be a Talmudist to project the political consequences of a Supreme Court whose judges employ gentile laws and principles in making decisions affecting the beliefs and values, the memories and aspirations, hence the very national consciousness of their fellow citizens.
This essay will examine divergent opinions regarding the halachic status of Israel’s secular courts from a logical and political perspective. Since Israel’s Supreme Court resorts to gentile legal systems, the present author will present prima facie evidence indicating that Jewish law is more rational, more humane, and more ethical than these other systems. He will argue that the adoption of Jewish civil law will render Israel more capable of confronting the relentless animosity of Islamic states in the Middle East. Finally, he will propose practical measures to facilitate the incorporation of Jewish civil law into Israel’s legal system such that it will be at least “first among equals” vis-a-vis English, Continental, and American law.
I
Certain rabbinical scholars contend that Israel’s secular courts are halachically non-Jewish because their judges decide the vast majority of cases by non-Jewish laws and concepts. Professor Yaakov Bazak disagrees. “[I]t is imperative to emphasize.” he writes, “that the problem of the State and Jewish law is not essentially a religious-halachic one, but rather a national-cultural one.[1] He thus attributes to Judaism—perhaps unwittingly—a dichotomy between religion and nationality which, though foreign to the Torah, is quite compatible with Israel’s secular judicial system. Also, by holding that the problem of the State and Jewish law is a “national-cultural” one, Bazak can then base his conclusion that Israel’s secular courts are halachically Jewish on the premise that they have been “established by law, with the concurrence of the public” (p. 208). However, he will still need to relate this premise to some sort of “religious-halachic” argument.
he does by emphasizing the flexibility of Jewish civil and criminal law and its great medieval expositors. He first quotes the Rosh:
“In financial matters, the court has the power to enact legislation [takkanot] according to the times and the need, even if they overrule Torah law…” He then cites the Ribash:
“… the court may punish not in accordance with the law, even without proper testimony, according to the need of the hour” (pp. 207-208).
We have here a non sequitur. Although the quoted remarks illustrate the flexibility
of the halachic authorities, they provide no logical support for Bazak’s
thesis. The Rosh and the Ribash were referring to courts learned in Jewish law,
something lacking in Israel’s secular judicial system. The courts of which
these two authorities
speak can rightly enact takkanot according the needs of the time. But one can
hardly make a norm of necessity. Israel’s secular judges do not make occasional
exceptions to Jewish law when dealing with the needs of the hour. Their judicial
norm ignores Jewish law if only because they were not educated in that rigorous
discipline, one that requires far more than three years of study at a university.
Nevertheless, Bazak finds support in a passage contained in the Shulchan Aruch (Choshen Mishpat, Ch. 8.1):
“Any community may accept the authority of a court not qualified by Torah law” (p. 208).
Actually, this ruling is a commentary of the Rema, which was incorporated in the chapter of the Shulchan Aruch cited above. Contrary to the Rema, however, Professor Bazak fails to mention that a community may accept the authority of a lay court only in the absence of halachic scholars, a situation that does not obtain in Israel. Yet, without going further, Bazak believes he has proven his case, saying: “… anyone who labels the Israeli courts (established by law, with the concurrence of the public) ‘non-Jewish’ … does not know what he is talking about” (ibid.). But he does go further.
He cites the Rambam:
“Anyone who litigates before non-Jewish laws or in their courts … is an evildoer and is considered as though he has blasphemed and raised his hand against the Torah.”
Bazak maintains that the law against recourse to non-Jewish courts, as it appears in the Rambam and in the Talmud, “is explicitly directed against appearing before the judicial bodies of a foreign government, rather than utilizing the courts of the Jewish community” (p. 209).
Bazak’s quote from the Rambam is tendentious. He fails to mention the sequel, where the Rambam refers to the Talmud’s explanation of Exodus 21:1 in tractate Gittin 88b:
“And these are the ordinances which you shall place before them—before them and not before non-Jews; before them and not before laymen."[2]
Here laymen include Jews not learned in Jewish law, which applies to Israel’s secular courts. Instead of quoting this halacha, Bazak selects a related one from Gittin 88b:
“Wherever you find congregations of non-Jews, even though their laws are the same as Jewish law, you may not have recourse to them” (p. 209).
This halacha has no relevance to Bazak’s thesis, which concerns only Israeli courts, not gentile courts.
Bazak’s position is paradoxical. While he contends that Israeli courts are halachically Jewish, he prefers and urges the incorporation of Jewish law into Israel’s legal system! Perhaps a well-informed public would share Bazak’s preference. Even now much of the public might turn to rabbinical courts if the latter’s jurisdiction were comparable to that of secular courts, as was proposed in 1947 by Israel’s first Chief Rabbi, Isaac Herzog. This suggests that Israel’s court system is not the result of public acceptance but of resignation to a fait accompli occurring at the establishment of the State.
Indeed, it can be shown that Supreme Court decisions frequently violate the abiding beliefs and practices of most of Israel’s Jewish citizens, of which 25% are Orthodox, 55% are traditional, and 50% are Sephardi.[3] To mention a few examples of its bias, the Court, without legislative authority or judicial precedent, has (1) ordered the Minister of Interior to register Reform conversions; (2) ruled that rabbinical courts must adopt the same criteria as civil courts when deciding property settlements in divorce cases; (3) directed the Minister of Religious affairs to sign appointments of Reform and Conservative members to religious councils; (4) ruled that kibbutz shopping centers may remain open to the public on Shabbat; (5) declared “illegal” the Defense Ministry’s policy of exempting yeshiva students from military service (yet blanket exemptions from national service has remained “legal” for Arab citizens); (6) ordered the return of a girl to a secular school after her father withdrew her; (7) overruled the Education Minister’s decision to delay the screening of a program on homosexual youth.
Although the Court does not deny that Israel is a Jewish as well as democratic state, it exalts democratic rights in almost total disregard of Jewish rights, ignoring, therefore, the convictions and customs of a large majority of Israel’s Jewish population. And while the rule of the majority is not the last word of democracy, or even of Judaism, it remains a basic principle of both. Nevertheless, the Court’s President, Justice Aaron Barak, baldly states that his duty is to be “faithful to the views of the enlightened population,” meaning Israel’s intellectual and cultural elites—secularists alienated from the Jewish heritage.[4]
These facts refute Professor Bazak’s thesis. He has said that “Israel’s secular courts are halachically Jewish, basing this thesis on the supposition that Israeli courts were “established by law, with the concurrence of the public.” This supposition ignores the great ideological disparity between the Supreme Court and the public (even though much of the public may not be aware of this chasm.).
Bazak also ignores a basic Jewish principle. A Jewish community’s acceptance of a law or legal system does not necessarily make it Jewish or lawful. Sanhedrin 26a states that the majority in a community may consist ofwicked men, and that the "…."
“agreement of transgressors is not a lawful decision.”Finally, Bazak’s contention that Israel’s court system is Jewish because it has been “established by law, with the concurrence of the public” may be reduced to a logical absurdity. Suppose Supreme Court decisions repeatedly entail a desecration of Shabbat. Suppose, too, that the Court, by adhering to foreign jurisprudence, repeatedly violates Jewish marriage laws. Suppose, further, that the Court legalizes sodomy and same-sex marriage. Lastly, suppose the Court goes so far as to declare that an agreement between a couple to live together as man and wife, even if either or both are married to others, “is not in any way prohibited, immoral,or contrary to the public interest.”[5]
Can such a court, even if it were originally “established by law, with the concurrence of the public,” rightly be called “Jewish”? If not, it might then follow, according to the Rambam that any Jew who litigates before such a court without having first received permission from a Beit Din, is “an evildoer and is considered as though hehas blasphemed and raised his hand against the Torah.” This leads me to Rav Yaakov Ariel.
II
Rav Ariel contends that “The general spirit of the [Israeli legal] system, as well as most of the judges, is alien toJewish tradition. Most religious Jews, under the impression that dina d’malchuita dina applies to [Israel], are unaware of the seriousness of the prohibition on litigating before secular Israeli courts.”[6] A word about this principle.
Dina d’malchuta dina applies to Jews living in the Diaspora, and primarily to the collection of taxes. The principle does not apply to family matters. Nor is it binding if inconsistent with Jewish law in the area of forbidden acts. Moreover, “the law of the land” is not law if it violates the rights of the people. Finally, according to the Rashbetz, dina d’malchuta dina is no authority for governmental appointment of a judge over the Jewish community where such an appointment involves an infringement of the basic principles of justice embodied in Jewish law.[7] Clearly, this ruling of the Rashbetz has appalling implications for the State of Israel and its judicial system.
Returning to Ariel, he writes: “Since the State of Israel is the state of the Jewish people, it should be governed by authentic, traditional Jewish law. In the same way that it is inconceivable to have a Jewish state without a Jewish language as the official language, the Jewish calendar as the official calendar, and an explicit relationship with the Jewish people (the Law of Return), so too a Jewish state without Jewish law is inconceivable” (p. 213).
Most religious Jews, he avers, do not understand that secular law or justice, like secular education, shapes the social and economic relations among men and therefore the daily life and ultimate character of the community. “Perhaps the political struggle to ensure religious education resulted in the neglect of the problem of religious justice” (p. 214).
Rav Ariel blames religious jurists for the general indifference of the religious public to this problem. The burden of his essay is to refute those “who … developed the theory that the prohibition on non-Torah judiciaries does not apply to the Israeli court system” (ibid.).
He begins with Exodus 21:1, again: “And these are the ordinances which you shall place before them.”
As noted above, Gittin 88b explains the words before them as meaning not before non-Jews as well as not before laymen). This dual prohibition clearly prohibits recourse to any court that does not adjudicate on the basis of Torah law. This obviously applies to Israel’s secular courts, or so Rav Ariel concludes.
He defends this conclusion by a complex but logically rigorous elucidation of such authorities as Rashi, the Rambam, the Ran, the Shulchan Aruch and other basic halachic sources.[8] When all is said and done, however, the reasoning of these authorities is based on Gittin 88b. Exceptional circumstances aside, all agree that it is impermissible to adjudicate before a non-Torah court.
Shifting to ideological grounds, Arial insists that, under the Torah, “The human judge derives his moral values, his legal reasoning, and his judicial authority [not from the public or some transient political assembly but] from the Supreme Judge, Creator of the world, Who created man in His image so that he might lead a life of truth and justice.” “Justice,” he continues, “is not a product of mere human intelligence, designed only to facilitate social utility and efficiency. Jewish social existence possesses a divine purpose and reflects a divine order” (p. 217). These exalted ideas obviously transcend the intellectual horizons of secular judges entrenched in Israel’s Supreme Court, otherwise known as the High Court of Justice.
For Rav Ariel, “it is inconceivable that the entire system of justice be entrusted in principle to human agreement. This would make justice dependent on the vagaries of current modes of thought” (p. 218). Such a system would succumb to the moral relativism that permeates the secular democratic world. There would be no absolute standards by which to distinguish right from wrong. Judicial decisions would vary according to the predilections of judges or the whims of Israel’s opinion-makers, its assimilated intellectual and political elites.
(To deliberately abandon Jewish law and adjudicate according to non-Jewish or gentile laws and principles is to pursue a policy of assimilation: the assimilation of Judaism from which will inevitably follow the assimilation of Jews—their loss of Jewish national consciousness.)
Ariel admits that a system of “relative or temporal justice” is sometimes necessary, but such a system, he adds, should not deviate excessively from the absolute standards of the Torah. This is pertinent in the domain of civil law, which shapes the social and economic life of the community. Concerned about the long-range consequences of a Jewish state without Jewish law, Ariel argues that it is forbidden to appoint laymen instead of Torah scholars as permanent judges. Of course, to choose laymen “incidentally” to arbitrate a dispute is permissible. So, too, is the permanent appointment of a non-Torah judiciary in a locality where no rabbis are available. Therefore, whether a secular court system constitutes a denial of the Torah depends on the availability of a rabbinical alternative.
To prevent the abandonment of Jewish justice in Israel, Torah jurisprudence, says Ariel, must be at least equal to that of foreign law. This may be accomplished legislatively by making rabbinical courts equal in authority to secular courts (pp. 218-219). Until this happens, however, what are religious Jews to do when involved in civil law disputes? The vexing problem remains: Is it halachically permissible to litigate before secular courts ab initio?
III.
Enter Professor Menachem Elon, a former Deputy President of Israel’s Supreme Court, a man learned in both Jewish and secular law. Elon discusses the halachic status Israel’s judicial system in his monumental work, Jewish Law: History, Sources, Principles.
He, too, refers to Gittin 88b, but he dismisses, “for both halachic and
historical reasons,” the argument prohibiting recourse to Israeli courts
consisting of Jews unlearned in Jewish law. Referring to the same section of
the Shulchan Aruch cited by Professor Bazak (Choshen Mishpat, Ch. 8.1), Elon
states that “litigation may be brought before laymen with the consent
of the parties” (IV, 1916, n. 47). As already noted, however, this ruling
is derived not from the Shulchan Aruch itself (which, by the way, is more stringent),
but from the Rema, whose commentary, to repeat, was incorporated into this work
of the great Joseph Caro. Moreover, the Rema begins with the halacha, namely,
that permission to litigate before laymen depends on the non-availability of
a rabbinical alternative, a ruling held by all halachic authorities. As for
history, we learn from the eminent historian Salo W. Baron (on whom Elon himself
relies) that, because Jewish communities in the pre-Emancipation era enjoyed
juridical autonomy, rabbinical insistence on the exclusivity of Jewish law was
the rule in theory and in practice.[9]
Elon admits that “The goal of preventing resort to non-Jewish courts and of protecting Jewish juridical autonomy motivated the halachic authorities in the post-Talmudic period to permit the appointment of three laymen to function as a court, even if none was gamir [learned in Jewish law] …” (I, 23). Nevertheless, to bolster his opinion on the halachic status Israel’s secular courts, Elon resorts to eloquence: “Today, even the most strictly observant Jews throughout the Diaspora turn to the courts of the countries in which they reside. It is thus particularly ironic that the prohibition against ‘resorting to non-Jewish courts’ is invoked precisely with regard to the Jewish courts of a Jewish state in which Jewish law is a ‘member of the family’—or at least a frequent guest” (IV, 1917).
With all due respect, one cannot but wonder why Elon singles out those who claim that the prohibition against resorting to non-Jewish courts applies to Jewish courts in Israel, when he elsewhere admits that Gittin 88b also prohibits recourse to courts consisting of laymen.
Elon’s eloquent statement requires further scrutiny. First, that religious Jews in the Diaspora litigate before non-Jewish courts is irrelevant to the halachic issue in Israel where Jews litigate before courts of Jewish laymen. Besides, and as another commentator observes, “Even today, among the orthodox everywhere from New York to Bombay, it is considered a disgrace for a Jew to summon a fellow-Jew before the courts of the land. A decent respect for Jewish observances still requires that the aggrieved party should first apply to a rabbinical court to have the matter adjudged there. Only after the defendant ignores the rabbinical summons, is it proper to sue in the courts of the land.”[10]
Second, in referring to “a Jewish state in which Jewish law is a ‘member of the family’—or at least a frequent guest,” Elon has in mind the Foundations of Law Act of 1980, which authorizes the Supreme Court, when there is a gap or ambiguity in the law, to apply “the principles of freedom, justice, equity, and peace of the Jewish heritage.” But as he well knows and deplores, the Court pays only lip service to the Foundations of Law Act.
Third, Elon also knows and regrets that only a minute fraction of Jewish law has been incorporated into Israel’s legal system. Moreover, partial recognition of Jewish law is misleading, since its salutary effect, as Rav Ariel points out, “is apparent only at the outset … [For] as the law becomes part and parcel of the body of secular law, explicated and modified by secular jurists who use the mental framework and conceptual world derived for the most part from non-Jewish sources, it gradually loses its Jewish character” (p. 222). In fact, Israel’s Supreme Court has adopted the permissiveness underlying American jurisprudence, such that the Court is now pursuing the anti-Torah agenda evident in its decisions regarding adultery and sodomy, as well as Shabbat and conversion.
(This must be regarded by any candid observer as a deliberate assault on the beliefs and feelings of a very large majority of Israel’s Jewish population.)
Fourth, the Jewish Sages warn that whoever resorts to secular laws desecrates God’s name because it conveys the impression of their being superior to the laws of the Torah. Also, “The essence of … the prohibition of resorting to a secular judicial system is the deinstitutionalization of Torah law and its subsequent nullification by atrophy and neglect … That this ‘other law’ is made by Jews in the Knesset and interpreted by Jews in the Israeli judicial system does not alter the fact that a conscious choice was made to forgo Torah law for other law.”[11] The consequence is headless Judaism.
However, to fully appreciate the subversive consequences of Israel’s judicial system, we turn to Rabbi Kopel Kahana’s, The Case for Jewish Civil Law in the Jewish State.[12]
IV
Rabbi Kahana, who taught at Jews’ College, London, declares: “That a civilized people should administer its own laws in its own country is a proposition which, indeed, should not call for discussion” (p. 1). Such discussion, however, is urgently necessary in Israel, for its legal system is undermining the people’s sense of national consciousness. Severed from its own constitutional history, a country’s political, economic, and social history will be largely unintelligible. Its legal heritage will cease to have practical relevance. Fewer people will understand their past, the way their forefathers related to each other in daily life, the conditions under which they lived, their way of thinking. Without such knowledge Israel will forget its world-history mission.
Ignorant of their legal heritage, Israel’s opinion-makers and policy-makers can have no clear sense of national purpose. Their public statements, their political and judicial decisions, especially when influenced by a pluralistic mode of thought, will lack coherence and direction, indeed, will be all the more prone to foreign influence and pressures. At stake is a people’s emotional security, their solidarity and confidence in the future, their very ability to withstand adversity.
“By turning to our own system of law,” says Rabbi Kahana, “instead of borrowing from other systems, the State of Israel would give expression to the inner feelings of its citizens.” (p. 12). “The more we delve into Jewish law and into its history the more we find there the reflection of the creation of our own national ideas” (p. 14). These are the noble ideas of Torah Judaism which sustained the Jewish people through centuries of humiliation, torture, and decimation. These ideas, as Nietzsche discerned, enabled the Jewish people to despise their despisers.
Rabbi Kahana’s “plea for the acceptance of Jewish law is not based only on the idea of tradition; it is an appeal for the recognition of the Jewish people’s instinctive feeling that their law is founded on ethics and justice” (ibid.) This sense of ethics and justice may be seen in the following laws incorporated into Israel’s legal system: the Wage Delay Prohibition Law (1955), the Prohibition of Defamation Law (1962), the Severance Pay Law (1963), and the Right to Privacy Law (1981)—all based on the Torah.[13]
However, to borrow piecemeal from diverse legal systems to meet various needs and fleeting circumstances without reference to well-established unifying principles can only result in complications and bewilderment. Conversely, when the legal order accords with a people’s abiding sense of justice and national consciousness, the laws will not be felt as arbitrary or coercive. Respect for law will then follow, as will mutual confidence and social harmony.
To facilitate acceptance of Jewish law, Rabbi Kahana focuses on Jewish civil law (Mishpatim), in contradistinction to religious law (Hukim). Hukim are laws whose reasons are unknown and not intended to be known. They relate to ritual and “commandments” and concern the relationship between man and God. In contrast, Mishpatim are laws that can be explained in a rational manner, for they concern the affairs of man and his neighbor. Some halachic authorities maintain that a principle derived from Hukim cannot be applied to Mishpat (p. 27). This is why the expression “judgment” and not “commandment” is used in Jewish civil law.
Jewish civil law, says Rabbi Kahana, is so rational that the term “imposition” will not be found where Mishpat is introduced in the Torah. The Talmud requires the teacher to explain Mishpat solely on the basis of reason. Jewish civil law “exhorts the people to realize that it is for them also to learn its rules and principles, so that they know what are the rights and duties of individuals in relation to their neighbors and the community at large” (p. 29). Because Jewish civil law is rooted in reason, it provides, like any science, a basis for future generations.
Rabbi Kahana compares Jewish and Roman law. Although Roman law has the “formal rationality” required of a sound legal system, it lacks the “substantive rationality” of case law, which endows legal principles with concrete meaning on the one hand, while promoting justice and neighborly relations on the other. The logical rigidity of Roman law may be seen in this example. “By the Roman law every man had a right to dig in his own land for the purpose of improving it, even though he should thereby intercept the water which supplied his neighbor’s fountain” (p. 60, n. 1). Here jurisprudence is confined to legal principles divorced from ethics. In Jewish law, more than in other legal systems, a man who merely anticipates that his own property may suffer from what his neighbor does or is about to do can obtain a court injunction (p. 60).
Although English law is based on case law, a precondition of “substantive rationality,” examination of actual cases reveals that inconsistency permeates English jurisprudence. In certain cases judges have upheld violated laws over against considerations of morality; in others they have upheld morality over against the law. Former Deputy President Moshe Silberg illustrates the problem by citing two cases that occurred some 180 years ago:[14]
[The first] involved two Frenchmen who had immigrated to London, and one of them, a priest by profession, had been stricken with syphilis. His colleague cured him through the use of various drugs, and he sued him for twenty pounds as the fee for curing him. The defendant … argued, however, that his colleague was not legally permitted to attend to him because ... no one was allowed to practice medicine in London ... unless he were licensed by the medical association. He therefore claimed that his cure of syphilis was a violation of the law, and that one could not claim to be paid for doing something which transgressed the law, that one had to do it without a fee! The Court did not recognize this argument, and ordered the defendant to pay the full amount of the claim.
In the second instance, which was tried the same day and by the same judge, the claim was for payment of the cost of a certain fabricated article—bricks. The defendant claimed that the bricks did not conform to the size prescribed by law, and that it was, therefore, forbidden for the seller to sell them, and that he could not, therefore, claim their price. The Court accepted the argument and dismissed the claim.
After examining more recent cases of English law, Silberg states that two mutually contradictory tendencies played on the loyalties of the judges: “The desire to defend the validity of the legal proscription on the one hand, and the desire to grant redress to the aggrieved claimant on the other.”
(Had the judges followed Jewish law in such matters, then the recipient of illegally dispensed goods or services would be compelled to render payment to the aggrieved claimant, but who would then be fined to that (or a greater) amount for violating the law.)
Silberg concludes that the contradiction between law and morality permeates modern English jurisprudence and indeed all other systems of modern law. In contrast, “there is no legal system in the world, ancient or modern, in which the principles of morality and law are so intertwined as in Jewish law.” Here a digression is necessary.
Using the term “morality” or “ethics” in the context of Jewish law is misleading. The Prophets and Sages of Israel looked upon law, in the larger sense, as ethical jurisprudence. They also regarded law as the guardian of liberty. Since moral conduct hinges on free will, Jewish law does not impose morality. Jewish law balances individual rights and social obligations and thereby fosters harmonious social and economic relationships. Jewish law thereby facilitates the development of refined or moral human beings.
Let us now assimilate the term morality to the Torah by defining it as “the imitation of God’s ways.” Thus, “You shall be holy, for I, the Lord your God, am holy” (Leviticus 19:2). Just as God is gracious, so too we must be gracious. Just as He does justice, so too we must do justice. Thus understood, morality may then be rooted in the Torah’s conception of man’s creation in the image of God. Created in God’s image, man is endowed with reason and free will, which are preconditions of moral conduct. But conduct cannot be moral unless consistent with the ways or laws of God. Judaism therefore avoids the dichotomy of law and morality that has long perplexed Western civilization.
One other point needs to be emphasized. It is precisely from the Torah’s conception of man’s creation in the image of God that we may derive the most exalted ideas of human dignity. This is why human dignity, indeed, the sanctity of human life, is a cornerstone of Jewish law.
A distorted view of human dignity will be found in a September 1999 ruling of Israel’s Supreme Court. In the midst of an upsurge in Arab terrorism, the Court, in an opinion delivered by Justice Barak, held that the use of “moderate physical pressure” in the interrogation of terrorists violates Basic Law: Human Dignity and Freedom. One may reply that terrorists are themselves inhuman, that their savage acts constitute a denial of human dignity. It may also be said that Barak’s opinion denies the human dignity of the Jews who have been the victims of Arab terrorism. Moreover, the same judge has turned down petitions against the release of Arab terrorists who, it is well known, go on to commit further acts of savagery against Jewish men, women, and children. Israel’s Supreme Court, which condones pornography and sodomy, has made a mockery of human dignity. This highlights the question of whether Israel can survive its judicial system.
Returning to Rabbi Kahana, regard for human dignity, he shows, has not played a central role in the development English (or in Roman) law. As late as the eighteenth century, it was a crime punishable by death to hunt or steal a deer or a rabbit or to cut down a tree planted in an avenue or garden. The number of persons executed in England for trivial offenses is shocking. At the outcome of a single court session, thirteen persons were hanged for associating with gypsies! Sir Robert Peel, in his speech to Parliament in 1830, said, “Capital punishments are more frequent, and the criminal law [is] more severe, on the whole, in this country than in any other country in the world.”[15]
In Jewish law theft and robbery, although considered heinous wrongs, were never subject to capital punishment. So restrictive are the rules of evidence in Jewish law that, prior to the destruction of the Second Temple, the death sentence issued by a Sanhedrin must have been very rare indeed. The Mishna states: “A Sanhedrin that puts one man to death in seven years is called ‘destructive.’ R. Eliezer b. Azariah says: Or one in seventy years. R. Tarfon and R. Akiba say: Had we been in the Sanhedrin none would ever have been put to death” (Makkot, I, 10).
Until the last century, and quite contrary to the long history of Jewish law, imprisonment for debt was common in English and Continental law. In Jewish law the security for a loan was always limited to the property rather than the person of the debtor. Because its aim is to promote kindly as well as just relations among men, Jewish law is especially protective of the needy, the economic rights of workers, and the rights of former criminals. In Jewish law, and apart from cases involving manslaughter, all criminals who have paid the penalty for their misdeeds and have done teshuva are not only qualified to resume their former occupations, honors, and offices, but are eligible to be appointed or elected to new ones for which they are qualified. Also, By prohibiting disclosure of a person’s past misdeeds, Jewish law facilitates his rehabilitation, repentance, and self-respect. Manifested here is Jewish law’s concern for human dignity.
“For the Jewish people,” writes Kahana, “the law was based neither on command nor on sanction. The validity of the law was based on the fact that it was good and just” (p. 101). This is why lifnim mi-shurat ha-din, i.e., to act more generously than the law requires, is a basic principle of Jewish law. This principle also demands higher standards of conduct from the leaders of the community. The reason is simple enough. The leaders of the community, especially its educators, politicians, and jurists, possess the power to do great harm as well as great good, for they shape the standards of the living and posterity. The more elevated a person, the higher is the level of conduct required of him.[16] This Jewish principle, which is aristocratic (noblesse oblige), conforms to a lofty conception of human dignity. The principle was emulated by American law until 1967, when it was nullified by the U.S. Supreme Court on the grounds that it violates the equal protection clause of the Fourteenth Amendment of the American Constitution.[17] American jurisprudence, like American higher education, is tainted by moral equivalence. An Israeli imitation follows.
Israel’s Corporation Law mandates “approximate representation” of women on the boards of directors of public corporations. Accordingly, the Supreme Court vetoed the appointments of three men because of gender.[18] How ironic that the American “quota system,” which discriminated and still discriminates against some of the most gifted members of that country, should become part of Israeli law. Israel’s Supreme Court seems to have forgotten that Israel is supposed to be a nation of kohanim, meaning men of preeminent intellectual and moral character—noblemen. Israel can hardly become a light unto the nations when its laws and jurisprudence ape the leveling egalitarianism or stupidity of the world’s greatest democracy.[19]
Jewish law does not sacrifice reason on the altar of indiscriminate equality. Unlike other legal systems, Jewish law unites “formal” and “substantive” rationality. This it can do because Jewish law consists of the Written Law of the Bible and the Oral Law of the Talmud. To paraphrase Rabbi Kahana: “While the Bible embodies the formal rationality of the law, its juridical rules and principles, the Oral Law is concerned with their case by case application in the daily life of the community. Also, whereas the Written Law presents to us the legal institutions and the nature of our rights and duties, the Oral law teaches us the practical application of those institutions and the working out of those rights and duties in social conduct” (pp. 34-35).
Rabbi Kahana emphasizes that the Oral Law was needed not because the Torah was incomplete, but because the Written Law, by its very nature, demanded the Oral law. Any written statement, by itself, may be open to more than one interpretation and misinterpretation. But conclusions reached after adequate discussion, as took place among the Sages in the great Jewish academies, can dispel ambiguities. While the Written Law gives only headings and principles, which may give rise to disputes over their exact meaning, the Oral Law clarifies those headings and principles by their application to concrete cases. “It was not accidental that the Torah leaves development to the Oral Law; it is because the Torah recognizes that life is a process of continuous growth and therefore the law must possess vitality to allow the growth” (pp. 39-40).
V
Strange as it may seem, secular Zionists in the pre-state period recognized that Israel’s national renaissance required the restoration of Jewish civil law. As early as 1909, the Israel office of the Zionist Organization in Jaffa established a Jewish Court of Arbitration which declared:
Our law is one of the most valuable assets of our national culture, and a unifying force [among Jews] throughout the world. The Jewish people have developed and maintained a remarkable system of law, whose foundations were laid at the dawn of our national existence; hundreds of generations have toiled over it, perfected it, and adorned it, and even today it retains the powers to renew its youth and to develop in a manner appropriate to the outlook of our time.[20]
The Arbitration Court’s goal was to restore Jewish law, but only insofar as it governs the relation between man and his fellow. The Court respected the Jewish religion, but viewed Jewish law as something apart—something of value to everyone, religious or not.
The same attitude was expressed by the Jewish Law Society, established in Jerusalem in 1918. The Society recognized that if Jews were eventually to establish an independent state, the state would require a system of law in harmony with its people. Such a legal system could not be simply imported from abroad. “Even those foreign legal principles that merit being treated as models or incorporated into Jewish law must first be adapted to fit our own historical legal characteristics and must pass through the channels of our nation’s creative processes to take on a national form consistent with the needs and temperament of the people.”[21] Remarkably, these secular Zionists discerned that it would be necessary to recreate Jewish national consciousness before creating the Jewish state!
This is not the attitude of Israel’s Supreme Court, as may be seen in Justice Aaron’s Barak’s attitude toward the Foundations of Law Act mentioned earlier. The Act severed the Israeli legal system from the binding force of English law and created an official link with Jewish law. Thus: “Where a court finds that a legal issue requiring decision cannot be resolved by reference to legislation or judicial precedent, or by means of analogy, it shall reach its decision in the light of the principles of freedom, justice, equity, and peace of the Jewish heritage” (italics added).[22]
Despite the imperative “shall reach its decision,” Justice Barak contends that Jewish law should not be given a preferred status when there is doubt as to the meaning of a particular statutory provision. He writes: “It should never be said that a particular [legal] system has the primary claim to interpretive inspiration.” (Imagine a U.S. Supreme Court justice teaching his fellow-countrymen, “It should never be said that the American legal system has the primary claim to interpretive inspiration!”) Barak, he goes on to say: “In my view, not only is there no advantage in giving priority to Jewish law, but such priority runs counter to the essential nature of the interpretive process.”[23] This “in my view” gives judges complete license to ignore Jewish law, indeed, to impose their personal preferences on the judicial process and on their countrymen (all in the name of “freedom” and “democracy”).
Israel has thus come a long way from the non-religious Zionists of yesteryear to the irreligious post-Zionists of today. Many are the causes contributing to this decline, not the least of which is the abandonment of Jewish law. The adverse psychological impact on Jews escapes superficial observers. By forsaking the legal heritage of their country, legislators and jurists assault the emotions and expectations of the older population while rendering young people rootless and aimless, placing all at the mercy of whim, chance, and accident.
Judges who habitually apply foreign jurisprudence and concepts to problems in Israel, despite Israel’s unique people and precarious situation, know not what they do. They not only undermine Israel’s foundations and world-historical purpose—“From Zion shall go forth the law”—but they unwittingly undermine the rule law, which ultimately depends on a people’s respect for that which is firm and abiding. The consequence is the arbitrary rule of men. Is this not evident in the so-called “activism” of the Supreme Court, which goes so far as to dignify a law suit against circumcision, a 4,000 year-old Jewish observance?
There can be no rule of law in a country whose judges have forsaken their people’s legal heritage. Contempt for law in Israel is obvious, corresponding to contempt for the past. For this we may thank Israel’s intellectual, political, and judicial elites, untutored as they are in Jewish wisdom. They are even indifferent to the wisdom of gentiles, whose greatest philosophers and statesmen understood that the rule of law requires reverence for the law, but that one can hardly revere what is ephemeral.[24] Yet Justice Barak has declared that Israel’s Basic Laws should be easily amendable.[25] Having abandoned the past, people of Barak’s mentality live only in the fleeting present. Of them Goethe has written, “He who cannot draw on three thousand years is living from hand to mouth.”
Jewish law reconciles permanence and change and thereby endows the present with background and purpose. This is why Jewish law is at once unifying and conducive to freedom and creativity. It was the wisdom of the Torah and its Sages that united and preserved Jewish communities throughout the Dispersion. It was because of that wisdom that the Jews, without a state and land of their own, never lost self-government. Throughout the Middle Ages Jewish communities, whether de jure or de facto, were autonomous entities. They had a highly developed system of jurisprudence, their own officials, and were usually governed by democratic institutions. They enacted takkanot to deal with new and diverse conditions and still preserve their loyalty to the Torah. Moreover, these Jews were the first to develop a comprehensive system of public education without parallel in the history of civilization until the modern public school era. Theirs indeed is a religion of reason through law.
Not that these Jewish communities were without human failings, or never succumbed to the defects which all institutionalized religions are susceptible, such as rigidity and individual submissiveness. But these defects, writes Salo Baron, “were minimized in the medieval Jewish communities … by the absence of permanent, hereditary leaders and of sacramental distinctions between rabbis and laymen, by the perfect equality before God, by the dynamism of the messianic aspiration and by the progressive nature of Jewish law which had long before developed an almost perfect system of checks and balances, apparently able to combine basic continuity with surface change.”[26]
This ability to reconcile continuity and change is one of the hallmarks of Jewish law. Because of the timeless principles of the Written Law and the Oral Law’s application of those principles to novel social and economic conditions, a Jew could find himself at home even when suddenly expelled from the place of his birth and upbringing to a distant country. Jewish law can therefore unite Jews having diverse ethnic backgrounds, as witness the intermarriage of Ashkenazi and Sephardi Jews in Israel. I will go further: Jewish law is absolutely essential to the preservation of the family, the cornerstone of Judaism. Hence, any assault on Jewish law, whatever the motives, is more serious than outbursts of anti-Semitism.
Conclusion
I must now offer a remedy to the subversive jurisprudence of the Barak Court. Since the Knesset is the creator of the country’s entire system of governance, including the judiciary, it is not bound by any Supreme Court decision. If the Knesset disagrees with the Court’s interpretation of any law, it may change the law, as it has done on various occasions. According to Jewish law, however, “No legislation should be imposed on the public unless the majority can conform to it” (Avoda Zara 36a).
This principle is expressed differently in the Jerusalem Talmud:
(Avoda Zara 2:8)
“... any legislation enacted by a court but not accepted by the majority of the public is no law” (Avoda Zara 2:8).
It follows from this principle of Jewish law—and here I quote Professor Elon: “(1) before legislating the legislator must examine and investigate whether a majority of the public will be able to conform to the proposed enactment, and (2) if, after the legislation is enacted, it appears that a majority of the public do not accept it, the legislation is legally ineffective.”[27] This applies to decisions of the Supreme Court.
The Knesset should therefore amend the Foundations of Law Act to require the Court to regard Jewish law as “first among equals.” Two salutary consequences would follow. First, putting teeth into the Foundations of Law Act would induce the Court to consult halachic authorities whenever gaps or ambiguities in the law require resort to Jewish principles. Second, a rightly amended Foundations of Law Act would prompt members or would-be members of the legal profession to study Jewish law.
To hasten the process, the Knesset should alter the method of appointing Supreme Court justices, which is the most undemocratic in the free world. Only Israel allows almost no role for elected officials in the selection process. Three members of the nine-member selection committee are sitting members of the High Court, including the court’s president, two are representatives of the Israel Bar Association, and four are members of the two leading parties, including the justice minister and a member of the Knesset Law Committee. The majority, therefore, is unelected. Moreover, the two members of the Bar are subject to various forms of pressure by the president of the Court before whom they may frequently appear. For similar reasons, the justice minister can also be manipulated by the Court’s president. And since the Court’s president handpicks the judges for every case, he can very much determine the selection of his own successor as well as the Court’s character as a whole. In short, Israel’s High Court of Justice is a self-perpetuating oligarchy.
Unlike the American Supreme Court, which includes “liberals” and “conservatives,” what distinguishes Israel’s Supreme Court—which preaches pluralism—is ideological uniformity. Of its current fourteen members, all graduated from the same law school, only one wears a kippa, and only one is Sephardi. In contrast, the Knesset has no less than 33 orthodox Jews—27.5% of that 120-member body. As for the Sephardi, recall they number 50% of the Jewish population. Hence Israel’s Supreme Court is extremely unrepresentative of Israeli society.
Even though the Court, unlike the Knesset and cabinet ministries, lacks the complex factual knowledge required to resolve problems in various areas of public concern, it nonetheless arrogates to itself jurisdiction over matters concerning security, counter-terrorism, and even traffic regulations.[28]
To remedy this unheard of as well as undemocratic state of affairs, justices of the Supreme Court should be nominated by the Prime Minister and their appointment should require the approval of a majority of a Knesset plenum.
One last word. Solidifying the Foundations of Law Act will not immediately resolve the halachic dilemma posed by Israel’s secular court system. Nor will it soon restore Israel’s judges as of yore, as Jews pray for in the Shmona Esrei. Nevertheless, it would facilitate Israel’s complete restoration as a Jewish state. Otherwise, metaphysical reasons aside, it is doubtful that Israel will survive its judicial system.
* * *
[1] “The Halachic Status of the Israeli Court System,” Crossroads, Halacha and the Modern World (Zomet Institute, Alon Shvut-Gush Etzion, 1988), Vol. 2, p. 207. Page references will hereafter appear between parentheses in the text.
[2] Unless otherwise indicated, all references to the Talmud will be to the Babylonian Talmud. Although the term “laymen” includes unordained judges, the primary reference is to Jews unlearned in Jewish law.
[3] See Shlomit Levy et al., “Beliefs, Observations, and Social Interaction Among Israeli Jews” (Jerusalem:” Louis Guttman Israel Institute of Applied Social Research, 1993), p. 101, Table 38, Appendix A,
[4] Cited in Yonason Rosenblum, “He Who Judges Too Much Judges Not At All: The Controversial Course Pursued by Israel’s Supreme Court,” The Jewish Observer, Nov. 1996, p. 8.
[5] See Menachem Elon, Jewish Law: History, Sources, Principles (4 vols.; Jewish Publication Society, 1994), B. Auerbach & M.J. Sykes, trans., IV, 1685 (volume and page references hereafter cited in the text between parentheses.
[6] “Secular Courts in the State of Israel,” Halacha and the Modern World (Zomet Institute, Alon Shvut-Gush Etzion, 1988), Vol. 2, p. 213. Page references will hereafter appear between parentheses in the text.
[7] See Elon, I, 133-135.
[8] Rav Ariel’s argument resolves apparent contradictions in the Ran, the Rambam, and the Shulchan Aruch, and one cannot do justice to his analysis without reproducing it in its entirety. Nevertheless, Section III of this essay will adduce evidence supportive of Ariel’s conclusion.
[9] See Salo W. Baron, The Jewish Community (3 vols., Philadelphia: Jewish Publication Society, 1948), II, 212-215, 239, 285-290.
[10] Bernard Meislin, Jewish Law in American Tribunals (KTAV Publishing House, 1976), p. 125.
[11] See Simcha Krauss, “Litigation in Secular Courts,” The Journal of Halacha and Contempoary Society, Vol 3, p. 51, Fall 1981.
[12] London: Soncino Press, 1960. Page references will appear between parentheses in the text.
[13] Elon, IV, 1629-1634, 1642, 1856-1860.
[14] Moshe Silberg, Talmudic Law and the Modern State, cited and more extensively discussed in Paul Eidelberg, Beyond the Secular Mind (Greenwood Press, 1989), pp. 154-156.
[15] Cited in Kahana, p. 86, n. 1.
[16] See Baba Metzia 83a.
[17] See Garrity v. New Jersey 17 L. Ed. 2d 562 (1967), and Spevack v. Klein, 17 L Ed. 574 (1967).
[18] See Steven Plaut, “Affirmative Stupidity,”Jerusalem Post, May 1, 1996, p. 3.
[19] To fully appreciate the consequences of the egalitarianism that permeates decisions of Israel’s Supreme Court, consider the following. In April 1996, the Court rejected a petition against the registration of Ahmed Tibi’s Arab Movement for Renewal party in the Knesset’s May elections. Plaintiff charged that there was a conflict of interest between a party’s obligation of loyalty to the State and Tibi’s role as an adviser to Yasir Arafat, the head of a foreign power, and one that has openly called for Israel’s piecemeal destruction. It was further argued that Tibi’s party platform seeks to redefine Israel as “a state of its citizens,” rather than as a Jewish state. Nevertheless, the Court ruled that since the right to establish a party is so fundamental to a democracy, a party could only be disqualified for reasons explicitly listed in the Party Law: denying Israel’s existence as a Jewish and democratic state, inciting racism, or serving as a front for criminal activity. See Jerusalem Post, April 30, 1996, p. 3. Some may say that the Court in the Tibi case manifested a lack of intellectual integrity or moral courage. Be this as it may, contrary to Judaism and Jewish law, the Court invariably emphasizes rights and is virtually silent about duties (such as loyalty to the State that protects those rights).
[20] Cited in Elon, IV, 1592.
[21] Ibid., IV, 1590.
[22] Ibid., IV, 1828.
[23] Ibid., IV, 1867.
[24] See Paul Eidelberg, The Philosophy of the American Constitution (University Press of America, 1986), pp. 229-232, discussing The Federalist Papers, No. 49.
[25] See Jerusalem Post, Dec. 20, 1995, p. 3.
[26] Baron, II, 168.
[27] Elon, II, 539-540.
[28] See Jonathan Rosenblum, “A Court of One,” Jerusalem Post, Oct, 15, 1999, p. B9.