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Israeli Law and Jewish Law — Interaction and Independence: A Commentary
Published online by Cambridge University Press: 16 February 2016
Extract
The focus of the article written by my colleague, Prof. Brahyahu Lifshitz, was the extent of the influence of Jewish law on the legal system of the State of Israel during the forty years since its establishment. In my view, a symposium on “Forty Years of Israeli Law” ought also to include a study of the innovations and developments which have taken place within Jewish law during this period, since to a certain extent, Jewish law is an integral part of Israeli law. A comprehensive analysis of this issue is clearly beyond the scope of this paper. Nevertheless, one major question should be dealt with, i.e. to what extent does the legal system of the State find expression in modern Rabbinical case law? Has the new political reality of statehood, achieved after many centuries of exile, and the ramifications of this reality in the field of law, in any way affected modern Rabbinic decisions in the years following the establishment of the State—decisions which are meant to reflect the changes and developments that have taken place in the world of Jewish law?
In the opening section of his article, Prof. Lifshitz describes the influence of Israeli law upon Jewish law in the following terms:
The generally accepted view is that Jewish law does not respond to, nor is shaped by, developments in the legislative or judicial organs of the State of Israel.
- Type
- Jewish Law
- Information
- Israel Law Review , Volume 24 , Issue 3-4: Israel Law—Forty Years , Summer–Autumn 1990 , pp. 525 - 536
- Copyright
- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1990
References
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2 5 L.S.I. 171.
3 Supra n. 1, at 291.
4 Englard, I., “The Status of Religious Law in the Israeli Legal System” (1970) 2 Mishpatim 291Google Scholar.
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6 (1982) 36(ii) P.D. 733Google Scholar.
7 Ibid., at 742.
8 See e.g. Resp. Rashba 4, no. 185, and 5, no. 178. Also note Rashba's sentence: “The agreement of the community nullifies the halakhah” in Resp. Rashba no. 7.
9 See supra n. 6, at 742. The significance of this rule is, as stated above, to empower the representatives of the community to enact legislation.
10 Resp. Yaskil Avdi 6, Hoshen Mishpat no. 8.
11 See a review of these decisions in Dov Katz, R., The Decisions of the Rabbinical Courts (Jerusalem, 1976, in Hebrew)Google Scholar. On the approach adopted in Rabbinical decisions towards the State of Israel, see: Blidstein, Y., “The State of Israel in Halakhic Decisions” (1986–1988) 13–14 Dine Israel 21–39Google Scholar.
12 (1970) 24(i) P.D. 792Google Scholar.
13 Ibid., at 805.
14 Ibid., at 809.
15 Ibid., at 813.
16 Id.
17 In relation to the disregard of High Court decisions on matters of jurisdiction by the Rabbinical courts, see: Dichowsky, R. Shlomoh, “The Jurisdiction of the Rabbinical Courts from the Perspective of the Case Law” (1981–1983) 10–11 Dine Israel 9–22Google Scholar.
18 See Shilo, S., Dina Demalkhuta Dina (Jerusalem, 1975, in Hebrew) 99Google Scholar.
19 Resp. Peat Sadkha no. 91.
20 According to some poskim, this principle has no application in Eretz Yisrael. It is limited to non-Jewish governments in the Diaspora: see Shilo, supra n. 18, at 99 ff.
21 See Elon, supra n. 5, at 101 ff. Also see an expanded list in Elon (Jerusalem, 3rd ed., 1988, in Hebrew) 3, 1361 ff.
22 See Englard, I., “The Incorporation of Jewish Law in the Israeli Legal System” in Bazak, Y., ed., Jewish Law and the State of Israel (Jerusalem, 1969) 112ffGoogle Scholar.; Englard, supra n. 4, at 510 ff.; cf. Elon, supra n. 21, (3rd. ed.) 3, 1598.
23 See, e.g., The Unjust Enrichment Law, 1979 (33 L.S.I.) which is cited by Elon, supra n. 21 at 1424 as an “outstanding example of the wholesale incorporation of Jewish law”; cf. Lifshitz, B., “‘The One Benefits and The Other Does Not Lose’ — ‘A Benefit Which Did Not Involve a Loss to the Benefactor’?” (1986) 37 HaPraklit 203–218Google Scholar.
24 34 L.S.I. 181.
25 See my article: “On Analogy as a Mode of Decision-Making in Jewish Law and in the Context of the Foundations of Law Act 1980” (1987) 13 Shenaton HaMishpat HaIvri 307ffGoogle Scholar., and the bibliography cited in n. 1. Also see the other articles published in the Shenaton, at 277 ff.
26 See Divrei HaKnesset 88(1980) 1817–1836Google Scholar; 89 (1980) 4025-4031.
27 See Shilo, , “Observaions and Comments on the Foundations of Law Act” (1987) 13 Shenaton HaMishpat HaIvri 351ffGoogle Scholar. Deutsch, S., “Jewish Law in the Decisions of the Courts” (1988) 6 Mehkarei Mishpat 6–37Google Scholar. On the principles underlying the trend towards restricting the application of this Law, see Elon, supra n. 21, at 1591. Also see the list of articles published in (1987) 13 Shenaton HaMishpat HaIvri 227Google Scholar.
28 Uziel, R. Ben Zion Meir Hai, “On the Definition of Invalid Witnesses” (Hamaor 5:3 (Kislev, 1054) 11Google Scholar.
29 Or by the Chief Rabbinate together with the dayyanim of the Rabbinical Appeals Court in the same way that the Rules of Procedure for the Rabbinical Court were established in 1960. The importance of both bodies in the process of issuing enactments was emphasized by the present Sephardic Chief Rabbi, R. Mordekhai Eliyahu, in his decision in an unpublished appeal (5741/291).
30 There may very well be parts of these regulations which conflict with the Law and which were not accepted in a wholehearte fashion: see Wineman, Z., “Theory and Practice in Succession Law in the Rabbinical Courts” (1981) 8 Shenaton HaMishpat HaIvri 358Google Scholar.
31 The sole reaction to R. Uziel's suggestion was on the part of the editor of the journal in which the article was published. (In fact, this part of the article was published posthumously.) In a note, the editor claimed that the author's remarks were confined to a Knesset composed of observant Jews. There is no doubt, however, that R. Uziel was referring to the Knesset as it existed at the time, and this emerges quite clearly from the first part of the article which was published in 4:10 Hamaor(Ellul, 1953) 4Google Scholar.
32 “The Authority of the Torah in the State of Israel” in Legislation According to Torah Law(Beth Midrash for Torah Law, Legislation Department, Jerusalem, 1950, in Hebrew) 4Google Scholar.
33 See Elon, supra n. 5, at 607 ff. According to Eliash, B., “Rabbinical Legislation in Rabbinical Case Law” (1981–1983) 10–11 Dine Israel 178Google Scholar, “Rabbinical halakhah is hesitant to regard Israeli legislation as communal enactments for reasons of a mainly ideological nature” [my emphasis — E.S.]. In my humble opinion, the issue is not ideological, but goes to the very roots of Jewish law which only recognizes communal legislation under certain conditions, at least according to some poskim. For one problematic aspect of the halakhic recognition of Knesset legislation, see my article: “A Majority of the Whole — The Legal Status of Decisions Accepted in a Knesset Plenary Which is Not Full” (1988) 9 Tehumin 82–102Google Scholar.
34 See Resp. Hatam Sofer, Orah Hayyim nos. 148, 181 (s. v. veim ken); Yoreh Deah no. 19 (s.v. veyaan); Even Haezer 1 no. 69 (s.v veod beinyan) and 130 (s.v. vezulat); Kovetz Teshuvot no. 58 (s. v. yikrato). This slogan is also mentioned by many poskim after the Hatam Sofer: see e.g. Resp. Binyan Zion no. 122; Resp. R. Azriel Hildesheimer, Orah Hayyim no. 21; Resp. Maharsham 7 no. 20.
35 See Sharashewski, B., Family Law (Jerusalem, 1984, in Hebrew) 565–571Google Scholar.
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37 Excluded from this category are the Procedural Enactments of the Rabbinical Courts which, by their nature, are generally non-controversial and are therefore dealt with and discussed to a much greater extent.
38 See Shapira, R. Avraham, Eliyahu, R. Mordekhaiand Dov Lior, R.in a symposium entitled, “A Torah Perspective on the Laws of the State of Israel and the Enactments Passed in Our Time” (1982) 3 Tehumin 238–249Google Scholar.