Some observations about Jewish law in Israel's Supreme Court.

• Published date: 22 December 2009
• Author: Friedell, Steven F.
• Date: 22 December 2009

ABSTRACT

This Article considers whether the Israeli Supreme Court's effort to incorporate the parts of Jewish law that deal with secular subjects is internally flawed. The use of Jewish law differs from the use of the law of other jurisdictions. Typically courts rely on other jurisdictions' precedents to show that a rule is practical, that the court is not overstepping its authority, and that adoption of the rule will lead to interstate or international uniformity. The use of Jewish law does not satisfy these goals. There is concern that the religious elements of Jewish law are pervasive and that much of Jewish law is not well suited for a modern society. This Article considers the approach of looking to Jewish law, not for specific rules that will be applied, but as a storehouse from which one can seek enlightenment. Even under this approach, this Article finds that some Israeli Supreme Court cases have misapplied Jewish law either by taking Jewish law out of context or by reading modern legal concepts into Jewish law. This Article suggests ways that some of these cases could have better employed Jewish law and also describes cases that have properly done so. It concludes that, when used properly, Jewish law can help to link Israeli law to a rich cultural heritage.

I. INTRODUCTION

For almost a century--and for a variety of motives--some have sought to find a way to integrate parts of Jewish law into the law of what has become the State of Israel. (1) The proponents of this effort have coined the term "Mishpat 'Ivri" (literally, "Hebrew law," but often mis-translated as "Jewish law") to refer to those parts of Jewish law that deal with matters typically treated by Western legal systems. (2) The effort has helped spawn a tremendous body of scholarship determined to apply modern methods of research and analysis to a vast body of legal literature. (3) There has been a phenomenal growth in the understanding of the linguistic, textual, historical, and doctrinal aspects of over two millennia of Jewish law. If for nothing else, the Mishpat 'Ivri movement deserves credit for contributing to this phenomenon.

Some Israeli Supreme Court judges use Jewish law even when Israeli law requires the courts to fill lacunas in the law by referring to English common law. (4) This practice gained support when the Knesset adopted the 1980 Foundations of Law Act, which provides in part: "Where the court, faced with a legal question requiring decision, finds no answer to it in statute law or case-law or by analogy, it shall decide it in light of the principles of freedom, justice, equity and peace of Israel's heritage." (5) In 1992 the Knesset passed a basic law on human dignity and freedom that seeks "to establish ... the values of the State of Israel as a Jewish and democratic state." (6) This, too, has been used as a basis for the use of Jewish law. (7)

Israeli courts apply Jewish law in different contexts, and some of these applications have created tension within Israel's largely secular society. This Article will not discuss issues of marriage and divorce, for which Israeli Jews are governed by Jewish law. (8) Nor will it address the tension that arises when the Israeli Supreme Court determines whether a rabbinic court or religious body has complied with a statutory mandate. (9) Rather, this Article will focus on the Supreme Court's use of Jewish law as an aid for filling gaps in the law in areas such as torts, contracts, and criminal law.

This Article will not address the difficulties facing the Mishpat 'Ivri movement of enabling a largely secular bar, unfamiliar with the sources and methodologies of Jewish law, to use that law effectively. (10) Rather, this Article will examine whether the project is internally flawed. That is, even if Israel's bench and bar desired to comply with the movement's aims, could its goals be attained? This Article will describe some of the difficulties inherent in the goal of incorporating Jewish law; it will focus on a few Israeli Supreme Court cases that illustrate some of the stumbling blocks to incorporation or that show how the effort has succeeded. When used properly, Mishpat 'Ivri serves to ground decisions in a rich legal heritage.

In part, the problem posed by Mishpat 'Ivri is that of any legal transplant: the way a rule operates depends on how it meshes with other substantive and procedural rules; borrowing a rule from another source can have unintended consequences. This can happen even when the borrowing occurs within a given legal system (11) and all the more when the borrowing is between different legal systems. The problem is compounded by Mishpat 'Ivri's incorporation of only certain aspects of Jewish law--those that deal with matters typically handled by a secular state such as contracts, torts, property, and criminal law. Although the object is understandable, the boundaries between the secular and the religious are not always clear within Jewish law. (12)

The multiple systems of law that are embodied in Jewish law itself add another level of complication. (13) In addition to the rabbinic law that seeks to understand and elaborate upon the law that is based on the Torah ("Formal Law"), rules are created by multiple institutions: rabbinic courts have the power to enact emergency rules, (14) local Jewish communities can institute and enforce their own regulations, (15) and, as recognized by Jewish commentators, the Jewish king (and by extension any Jewish governing body) had the power to apply his own system of law. (16) Because non-Jewish medieval authorities granted Jewish communities a large measure of autonomy, Jewish communities developed a variety of changes based on local custom, (17) and in some circumstances, Jewish courts also enforced the law of the non-Jewish government. (18) Another difficulty is that many Jewish communities lost their autonomy with the rise of the Emancipation at the end of the eighteenth century. Thus, there are often conflicting authorities within the formal legal system of Jewish law. Because there is no supreme authority to resolve these conflicts, there is a greater degree of uncertainty about how they ought to be resolved than what might be expected in other legal systems. This has forced proponents of Mishpat 'Ivri to maintain that judges should reject those aspects of Jewish law that are impractical or unsuited for a modern Israeli society. (19)

Consequently, if Mishpat 'Ivri is to work at all, judges and legislators must choose from a vast array of Jewish sources. The often-unidentified criteria for choosing which rules to adopt may be ones that seek to promote morality, desired social policy, administrative efficiency, or other notions of justice. Since the object of Mishpat 'Ivri is unprecedented in Jewish history, whatever criteria are used must arise from outside the Jewish legal system. Therefore, if Israel's courts adopt aspects of Jewish law, the result will be a hybrid of Jewish legal rules, external legal rules, and external values.

In what way does a secular court's citation of Jewish law differ from a court's use of another jurisdiction's precedents? Although all courts that cite decisions from other jurisdictions make selective use of precedent, their purposes may differ from those of secular courts that cite Jewish law. A court has at least three possible reasons for citing decisions of another jurisdiction. One is to show that the rule is likely to be functional since at least one other jurisdiction has adopted it. Second, the court looks less arbitrary. Whenever a court makes law, there is always concern that it might be abusing its role by acting more like a legislative body. Citation of another jurisdiction's precedent helps to show that the rule it is announcing is a product of reason, not merely the court's whim. Third, the court provides assurance that there will be some degree of uniformity among jurisdictions that will aid interstate or international commerce.

Citation of Jewish law, however, may not provide the same advantages. Because the rules of Jewish law may have developed under very different economic, social, and political circumstances, they may not all be functional in today's world. Also, because Jewish law often presents a judge with a vast range of conflicting decisions from which to choose, the citation of Jewish law may do little to reduce the appearance that the court is imposing its will rather than engaging in reasoned decision-making. Further, deciding in accordance with Jewish law does not necessarily provide uniformity with other jurisdictions.

The proponents of Mishpat 'Ivri have tried to deal with some of these problems. They have recognized that Mishpat 'Ivri must sift though the corpus of Jewish law and discard archaic elements and select only those rules that fit the needs of a modern society. (20) In some instances, the long and complex development of Jewish law may signal that a rule of Jewish law was well thought out and tested. (21) Also, although reliance on Jewish law will not necessarily result in international uniformity, it can bolster a sense of pride, a sense of continuity, and may aid in uniting segments of Israeli society that hail from different lands and cultures. (22)

Part II of this Article will examine some of the challenges of incorporating non-religious aspects of Jewish law into a modern legal system. These include the difficulty of separating secular and religious components and some of the ways in which the rules of Jewish law are impractical. Part III will focus on problems that have arisen when the Israeli Supreme Court has taken Jewish law out of context and when it has improperly read modern doctrines into Jewish law. Part IV will provide examples of Israeli cases that have made good use of Jewish law.

II. CAN A RELIGIOUS LEGAL SYSTEM BE MADE SECULAR AND PRACTICAL?

The terms "secular" and "religious" have no obvious counterpart in rabbinic Hebrew. Rabbinic law...