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The Problem of Jewish Law in a Jewish State

Published online by Cambridge University Press:  12 February 2016

Izhak Englard
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Introduction: With the increasing tendency in Israel to replace the old Ottoman civil law, thefamiliar question of the reception of Jewish (talmudic) law has once again become the subject of lively discussion. In his policy speech in the Knesset the then new Minister of Justice, Mr. Y. S. Shapiro, declared as his objective the gradual severance of Israel law from the present pervasive influence of the English legal system. He was too cautious to take a definite stand on the question of the reception of Jewish law (or any other specific system) to replace the present law, but aspirations towards this goal have recently been expressed on various occasions by representatives of different parties. The forceful demand “to base the laws of the State on the Halacha” comes especially from die religious parties. But representatives of the non-religious parties also recommend the reception of Jewish law in those areas of private law where no decisions on ideological grounds need to be made.

In point of fact, the unanimity with regard to the reception of Jewish law is based on two outlooks differing in origin. Non-religious circles view Jewish law as a cultural creation of national significance, comparable to the revival of the Hebrew language. The firm establishment of Israel law on Jewish legal principles is advocated as an expression of spiritual independence, stressing the historical continuity of the people residing in Zion.

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Israel Law Review , Volume 3 , Issue 2 , April 1968 , pp. 254 - 278
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1968

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References

1 Divrei HaKnesset, Sixth Knesset, First Session, sitting of June 13, 1966.

2 See for example the words of Mr. M. Unna (National Religious Party) in connection with the Succession Law, 1965 Divrei HaKnesset, Fifth Knesset, Fourth Session, 952, and of Mr. S. I. Gross (Agudath Israel) in the discussion on the Gift Bill, 1965. Divrei HaKnesset, Sixth Knesset, First Session, 29.

3 See for example the words of Mr. G. Hausner (Independent Liberal Party) and Mr. E. Meridor (Gahal) in the debate on the Gift Bill, 1965 (ibid. 24–25, 28–29), and of Mr. R. Arazi Mr. U. Avneri (Haolam Hazeh) and Mr. M. Erem (Alignment) in the debate on the Pledge Bill, 1965 (ibid. 36–37).

4 Prof. Tedeschi rightly notes that from a religious viewpoint it is not proper to speak of the reception of religious law. Reception denotes acceptance of an external set of norms. However, from the standpoint of Jewish religion the Halacha is the legal system, and thus, technically speaking, it is not “received” when accepted, but is rather returned to, as being the true law of the people. See Tedeschi, G., “On Reception and on the Legislative Policy of Israel”, Scripta Hierosolymitana XVI, Studies in Israel Legislative Problems, Jerusalem (1966) 11, 20–22.Google Scholar In reality, however, acceptance of the Halacha by the State today bears the character of genuine reception. As we proceed we shall recount the reasons for the inexorable secularization of the religious norms as a result of being accepted by the State. Besides, Jewish Civil law is no longer part of the vivid consciousness of the majority of the people, and thus even subjectively one cannot really speak of mere official recognition of a law that has never lost any of its validity. Cf. Tedeschi, Ibid.

5 Both bear the character of religious law and are governed by the same jurisprudential categories. See especially Silberg, , Principia Talmudica (Heb.) Jerusalem (1964) 4Google Scholaret seq. In regard to civil law, however, the parties are often free to stipulate otherwise. Such stipulation is recognized by the Halacha, following therule that “whoever makes a stipulation which is contrary to what is written in the Torah, his stipulation is null and void, except in a civil matter, where his stipulation is valid”.Ketubot 56; Maimonides, , Hilchot I shut, ch. 6, hal. 9.Google Scholar

6 On the important distinction between these two kinds of reception, see Tedeschi, ibid, 24 et seq.

7 Baba Meziah, 59b, and also T. J. Moed Katan, ch. 3, hal. 1.

8 Hence also the tendency against halachic decisions derived from prophecy; see Maimonides, Introduction to the Commentary of the Mishna, Order Zera'im: “If the prophet testifies that the Lord has told him that the law regarding a certain precept is such and such and that a certain opinion is true—he shall be put to death, for he is a false prophet, as we have shown. For the Torah was not revealed after the first prophet, and nothing may be added or taken away, as it is said, (Deut. 30), it is not in Heaven. And the Lord has not authorized us to learn from the prophets, but from the wise men of thought and knowledge….” And see Ibid., annotations of R. Yakob Emden. See further Urbach, E. E., “Halacha and Prophecy” (Heb.) in 18–19 (5707) Tarbiz 1.Google Scholar

8a Bereshith Rabba, parsha 8.

9 See also the introduction (letter D) to Nahal Yitzhak by R. Isaac Elchanan Spector: “Since the Torah was… delivered over to the wise men of the generation they may consider matters as their mind leads them and in that fashion their decision shall stand in law. For that reason it has been said that ‘it is not in heaven’, since the Torah was given us to determine and direct according to ourown decision, and from heaven such decision is agreed to.” See also Sefer Nitzahon by Rabbi Lippman, art. 321—”Those that are composed in collections” (Eccl. 12, 11): “For He Who gave us the Torah made it depend on the opinion of the Sages as they see fit, and on this it has been said (Isaiah 2): ‘For out of Zion shall go forth the law’ and is to say, the word of the Torah shall go forth today that did not go forth yesterday.” As to the relationship between the written and oral law, compare further the words of the Gaon of Wilna, in his commentary on the Torah, section Mishpatim, s.v. “or unto the doorpost”: “Halacha uproots Scripture…and this is of the greatness of our oral law which was given directly to Moses on Sinai and is impressible as sealing wax…therefore one must know the simple meaning of the Torah so as to know the seal.”

10 See for example the words of R. Arye Leib HaCohen, in the introduction to Avnei Milluim: “A person engaged in matters of industry and civilization and even in those of natural science and philosophy is not by that fact required to have true belief and be engaged therein; but a person engaged in the Torah of the Lord is required by such engagement to be of true opinions and knowledge, for the existence of a commandment and a warning is inconceivable without prior existence of a commander and warner, prevailing among us, inspecting both our hidden and revealed affairs, and near us to award each person his due for his deeds.”

11 Cf. Kirschenbaum, A., “Rabbi Moshe Feinstein's Responsa (Review-Essay)” (1966) 15 Judaism 364, 367.Google Scholar

12 Generally as to this power see Elon, M., “On the Nature of Communal Legislation in Jewish Law” in Studies in Law in Memory of Abraham Rosenthal (Heb.) (1964) 1.Google Scholar

13 We refer especially to the institute of “Qinyan” peculiar to the Halacha.Cf. Gulak, , Elements of Jewish Law (Heb.) Book 2, (Berlin 1922) para. 21, pp. 47et seq.Google Scholar

14 Tur Hoshen Mishpat, Hilchoth Dayanim, art. 1: “For law is a foundation and a great principle in divine service”; see n. 32 infra. We beg to differ with Daykan, P. “Regarding the Future of Jewish Law” (1957–58) 3 Sura (Heb.) 464, 469–70.Google Scholar In the author's view “if weremove the outer coatings from the law, if we delve deeply to comprehend the values of Jewish law for what they really are intrinsically, we shall be unable to arrive at any other conclusion than that inward Jewish law is permeated with general and national human values, and its religious appearance is nothing but the outer crust, perhaps only a defensive crust against attacks….As a matter of fact, among the people of Israel matters between man and his fellowman, and between the individual and society and the nation, have always been decided according to secular-national considerations, the religious form being merely external”. He proceeds to base this view on the fact that in the development of Jewish law there participated not only the rabbis, the mainstays of the Torah, but also secular leaders, heads of communities, etc. The author speaks of secular considerations and secular leaders in regard to a period when the whole community was still fully religious in thought and mind. The communal leaders, who no doubt performed an important function among the people, were not “secular” in the modern sense, but what we would term laymen. Due consideration for human needs does not make the law secular when all the people engaged in Halacha approach it with the fear of Heaven in their hearts. It seems that the author mistakenly restricts religion to the aspect of formal worship. See infra, esp. n. 32.

15 Cf. Ellul, J., “Réalité sociale et théologie du droit” in Existenz und Ordnung, Festschrift fuer Erik Wolf (Frankfurt 1962) 36, 53, et seq.Google Scholar For this reason there is no ground for the demand of secular circles for changes in the Halacha so as to adapt it to the spirit of the times, basing themselves on halachic changes in the past. See for instance Cohn, H., “Secularization of Divine Law” XVI Scripta Hierosolymitana, cit. 102et seq.Google Scholar The demand for secularization of the religious law means in fact negation of the basis of the religious law.Cf. also n. 32 infra.

15a Weber, Max, Wirtschaft und Gesellschaft 4.Google Scholar Auflage, 2 Halbband, Tuebingen (1956) 456 et seq., 492.

16 See Sternberg, M., “The Basic Norm of Law in Israel” (Heb.) (1953) 9 HaPraklit 129, 140–41Google Scholar, and Skornik v. Skornik (1954) 8 P.D. 141, 179–80 (per Witkon J.): “And if it be argued that Jewish law is universal it must be replied that all religious law in so far as it has effect in this country is derived from the will of the secular legislator…whose position is that of the basic norm of Kelsen's doctrine— and from which it draws its power.” See our article “The Relationship between Religion and State in Israel” XVI Scripta Hierosolymitana, cit. 254, 262.

17 Divrei HaKnesset, Knesset, Fifth, First Session, Vol. 32 pp. 54–57Google Scholar, sitting of October 9, 1961.

18 Prof. Klinghoffer, Ibid., mentions sec. 18A of the Law and Administration Ordinance, 1948, which declares the Sabbath to be a permanent day of rest in the State of Israel without providing any sanction for its non-observance. And he asks, “[does this] section reduce the injunction ‘and on the seventh day thou shalt not do any manner of work’ from its height to the level of a mere legality?”

19 Tedeschi, G., “The Crisis of Family and the Attitude of the Orthodox” in Studies in Law in Memory of Abraham Rosenthal (Heb.) (Jerusalem 1964) 282, 283–85, 289–90.Google Scholar

20 Prof. Tedeschi concludes his article by saying that this is not the only case where the stand taken by the orthodox actually operates against the realization of the Torah's precepts in their spirit, even in the limited sphere of the Ten Commandments. He refers especially to adultery and concubinage. See Ibid. 322 et seq. His words touch especially on the field of “prohibition and permission”, which is outside the scope of this article, and we therefore do not elaborate on them here.

21 Divrei HaKnesset, ibid., vol. 34, p. 3078.

21a As distinct from a principle of moral validity, which may be assumed to be generally accepted.

22 In this context compare the importance that the Halacha ascribes to the intent of a non-Jew observing the seven commandments of the sons of Noah (Maimonides, , Hilchoth Melachim, ch. 8 hal. 11Google Scholar): “Anyone accepting the seven commandments and observing them carefully is one of the righteous of the nations of the world andhas a portion in the world to come, provided that he does so because the Holy One blessedbe He ordained them in the Torah and informed us through our master Moses that the sonsofNoah had been previously commanded to observe them. But if he does them due to an intellectual decision he is not a resident proselyte and is not one of the righteous of the nations of the world, nor one of their wise men” (according to another version “but” should be read instead of “nor”, see Katz, I., Between Jews and Gentiles (Heb.) (Jerusalem 1960) 174).Google Scholar

23 Silberg, M., Principia Talmudica (Heb.) (Jerusalem 1964) 156.Google Scholar

24 See further, in the same spirit, the speeches of the members of the Knesset referred to above, n. 3, and see Tedeschi, “On Reception, etc.” Scripta Hierosolymitana, cit., 36 et seq; H. Cohn, loc. cit. Cf. also Yehoshafat, J. J., “Renewal of the Law” HaMishpat Halvri (Heb.) 2nd collection (Tel Aviv 1927) 1Google Scholar; Cohn, H., “Yesterday's Worry” (1957–1958) 3 Sura (Heb.) 475.Google Scholar

25 As to this movement see Daykan (Dikstein), P., History of the Jewish Magistrate Law (Heb.) (Tel Aviv 1964).Google Scholar Within this movement there was also a different trend, which advocated the free creation of law by the judges, see Ibid. 143 et seq.

26 See for instance the words of Rabbi Assaf in the introduction tohis book, Courts and their Rules after Conclusion of the Talmud (Heb.) (1924): “The protagonists of the Magistrate Law created, in connection with its establishment, a theory of renovation of Jewish law, which in their view does not suit the cir cumstances of life in our generation and the opinions of our contemporaries, a renovation to be effected calculatedly and deliberately by people who will review the Hoshen HaMishpat, will select what they find good and fair, and will declare: ‘This appeals to me and this does not’ ”. The author opposes this approach. Another proposal for the reception of Jewish law by the State has been put forward by Elon, M., “Jewish Lawin the Law of the State” (5719) Deoth (Heb.) No. 10 p. 15.Google Scholar In the opinion ofthe author the concept of Jewish law should be taken from the aspect of its “historical connotation”, there being a difference between the function of a rabbi deciding Halacha and that of the legal scholar attempting to discover the nature and substance of a given legal principle of Jewish law. The legal scholar must examine all the stages ofdevelopment of Jewish law. To quote Prof. Elon: “In investigating a principle of Jewish law with the intention of weaving it into the law of the State, we have no pretensions of deciding Halacha on any point of Jewish law. Jurisdiction to decide Halacha is exclusively reserved to the Chief Rabbinate, and we are not allowed, nor do we pretendto encroach on its preserve. As we have noted, our method of research into the legal principle is substantially different from the method of deciding in Halacha, the latter dealing only with the final conclusion, the examination and determination of the latest dogmatic Halacha, whereas the former, i.e. research, deals with all the stages of the Halacha, throughout its periods. When we bring to light all the stages of the legal principle and its development we are equipped with the data sufficient to determine, in case it is necessary, what may be regarded as a substitute for a community regulation, for the purpose of determining the principle in Jewish law for planting it in the law of the State, by calculating how Jewish law would develop—in view of previous periods—in the setting of conditions and circumstances prevailing in our day.”

We find this approach rather strange. In effect it maintains that there is an immanent difference between Halacha and Jewish law. We find it difficult to conceive how a legal scholar may create what may be regarded as a substitute for a community regulation by a personal calculation as to how Jewish law would develop in the setting of present-day circumstances, whereas a rabbi deciding Halacha is allowed to adopt a different course. A community regulation is a halachic concept of outstanding religious significance. Any creation of Jewish law not in accordance with the Halacha must in effect be tantamount to a secular legal creation, that is to say, a new human creation. Any recognition, therefore, of the existence of a Jewish law as a legal system not identical with the Halacha, means a secular critique of the religious law. Prof. Elon's method may be nearer to the Halacha than that proposed by the Magistrate Law movement (see n. 25 and pertinent text, supra), but in point of substance there is no difference between them; from a religious viewpoint neither is legitimate. It can only be gathered that the Halacha and “Jewish law” (in the meaning put forward by Prof. Elon) cannot co-exist within a single system of values.

27 Mr.Yeshayahu, Yisrael (Divrei HaKnesset, ibid., 1722–23)Google Scholar: “Not a little has been said today regarding incorporation of Jewish law in secular legislation…. I find this demand strange when it emanates from secular spokesmen, and all the more when it is sounded by spokesmen of the religious camp….Jewish law is a comprehensive and complete entity, whose source is the command of the Creator and whose continuation is to be found in an uninterrupted tradition of hallowed decisions. Jewish law does not need the stamp of approval of secular legislation, as it is self-sustaining; and any admixture may in some measure benefit the secular legislation, butcertainly not Jewish law which it may even injure because in certain circumstances it maybe viewed as a substitute. The alternative is then between accepting Jewish law as it is and enacting new laws according to the needs and spirit of the times. Whoever demands complete preference to Jewish law has made his intents clear, and they must be respected, but he must waive the right to secular legislation and cling to the chain of decisions of Jewish law according to its logic, its development and its sanctity…. Secular legislation must be built from its ground-work according to considerations of current needs, of the logic of life, without being bedecked with feathers not its own. On the other hand,total incorporation of Jewish law in the secular legislation is a thing which is totally unattainable.”

28 See infra.

29 See n. 27, in fine.

30 For an attempt in this direction see Albeck, S., The Meaning of the Law of Torts in the Talmud (Heb.) (Jerusalem 1965).Google Scholar

31 For instance, no halachic decisions have been given, as far as we have been able to find, concerning road accidents of motor vehicles or work accidents resulting from the use of machines. It is hard to find out the attitude of the Halacha to such modern institutes as private insurance, national insurance, legal bodies and the like. It may be assumed that if there were a supreme Torah authority, responsible for the administration of the State, it would operate in many fields through community regulations and undoubtedly would adopt arrangements similar to those arrived at by the State. Today the position of the Halacha is passive; at most it has regard a posteriori to legal institutes recognized by the State; it does not initiate arrangements which it considers desirable. Of course, this state of affairs reflects the absence of competent organs ofHalacha. An inter esting example is served by the institute of the limited company (or ingeneral by the concept of the legal body). The Halacha refers to this institute mainly indirectly, in questions of prohibition and permission, such as the question whether granting a loan on interest to a limited company is or is not permitted. See Wasserman, I., “Interest on a Bank Loan” (1960) 3 Noam (Heb.) 195Google Scholar; and cf. Beeri, I., “May One Purchase Shares in an Enterprise that Does not Observe the Sabbath?” 11–13Hatora VeHamedina (Hebrew) 462Google Scholar; and generally see Miron, S., “The Status of the Limited Company in Jewish Law” (1965) 59 Sinai (Heb.) 228.Google Scholar The interest that deciders of Halacha evince in this institute is not directed towards deciding a priori whether it is desirable that business life should be conducted by means of such bodies; the test is rather a posteriori, viz., in view of the fact that such institutes exist how are they reconciled with existing Halacha.

32 See Tur Hoshen Mishpat, Hilchoth Dayanim art. 1: “For the law is a foundation and a great principle in divine service”, and cf. ibid., Derisha (R. Yosha Wallach Katz): “I would further explain that when they said ‘Whoever arrives at a veritably true judgment is as if he became a partner to theCreator in the Creation of the world’, they meant a judge who considered the matter according to its place and time, that it be veritable, as distinct from one who always decides strictly according to Din Torah, for sometimes the judge must decide more leniently than the law requires, according to the time and to the matter in hand, and when he does not do so the result in law may be true but not veritable.” Cf. further Maimonides, at the end of Hilcoth Me'ila (ch. 8 hal. 8): “It is proper for a person to contemplate the laws of the holy Torah and to know their ultimate meaning as far as it is in his power, and if he finds something the meaning or reason of which he cannot find or know, let him not consider it trivial, and let him not break through to come up unto the Lord lest He break forth upon him, and let his thoughts on such a matter not be like his thoughts regarding other, profane matters.”

33 On the origin of dissension in the Halacha see Maimonides in hisintroduction to the order Zera'im; TB Sanhedrin 88b; Hagiga 3b.

34 For examples see nn. 40 and 41 infra.

35 Principia Talmudica (Heb.) 157.

36 However, an important attempt to present the Halacha clearly has been undertaken in the endeavour of Halacha Pesuka, the Law of the Torah according to its Sources in the Talmud and Poskim, following the Order of the Shulchan Amch, Hoshen Mishpat vol. 1 (arts. 1–8) (Heb.) (Jerusalem 1962). But this endeavour ofthe Harry Fishel Institute is still in its beginnings. Moreover it is restricted due to the fact that it refers to paragraphs of the Shulchan Aruch and not systematically to topics.

37 Sefer HaHukim, 1967, p. 46. Cf. Hatza'ot Hok, 1964, nr. 632.

38 The Jewish law department, in its notes, remarks that this definition is in accordance with Jewish law.

39 As to a legal body, cf. n. 31 supra; as to a guarantee relating to a conditional obligation it should be noted that an ordinary conditionalundertaking is of no effect, due to the law concerning asmachta. Such a “conditional undertaking” does not fall within the connotation of an obligation from the viewpoint of the Halacha. See in this matter Shulchan Aruch, Hoshen Mishpat, art. 129, para. 8, and Rama and the commentators, Ibid. We must gather that according to this view there exists in the Halacha a guarantee without an obligation.

40 See Shulchan Aruch, Hoshen Mishpat, art. 131. para. 4.

41 See Ibid., art. 132, para. 3; cf. sec. 8 of the Law.

42 A considerable part of decision making in Halacha in the Jewish world is really centred about questions of prohibition and permission, which are not in the nature of a dispute between individuals, but concern the duties of an individual towards his Maker.

43 Hazon Ish on matters of faith, confidence, etc. (Jerusalem 1954) Ch. 3, art. 24; see also supra n. 10.

44 See Rashi's commentary to TB Sabbath 31, on the text “fear of heaven is like”: “to outer openings through which one enters the inner ones, so if a person has the fear of Heaven he is anxious to observe and perform; otherwise he is not careful about his Torah.

”In this connection, compare the words of the scholar Rheinstein in discussing the various kinds of reception. After adopting Weber's theory referred to above (see n. 15a) he adds: “a profound difference of technique exists between a law which has been moulded by professors and civil servants and one which has been formed by theologian jurists. A profound transition is to take place where one such group of legal honoratiores is replaced by another.” Rheinstein, M., “Types of Reception” in (1956) Annales de laFaculté de Droit d'Istanbul 33–38.Google Scholar

45 See Shulchan Aruch, Hoshen Mishpat, art. 7, paras. 9, 11: art. 8, paras. 1, 2.

46 Cf. the words of the late Chief Rabbi I. H. Herzog, On the Law of the Torah in Israel, quoted in Halacha Pesuka, ibid.

47 Cf. supra, near n. 29.

48 The problem is really even more severe. Not only are the judgments of the civil courts not recognized by the Halacha, but it is also highly questionable whether under existing provisions of the Halacha a Jew may at all have recourse to the courts themselves. According to the religious law there is a prohibition against having recourse to gentile courts, termed “'arkaoth”, and there is a view that the civil courts in the State fall within that category. On this matter see Englard, , “The Relationship between Religion and State” XVI Scripta Hiero- solymitana, cit. 254, 261.Google Scholar

49 See Kotek v. Wolfson (1951) 5 P.D. 1341; Anon v. Anon (1961) 16 P.D. 2300; Feldman v. Feldman 19 P.D. 197; and see infra.

50 Generally as to art. 46 mentioned see Tedeschi, G., “The Problem of Lacunae in the Law and Article 46 of the Palestine Order-in-Council”, Studies in Israel Law (2nd ed.) (Jerusalem 1966) 166et seq.Google Scholar It should be mentioned that the legislator severed this bond with English law within the framework of the Succession Law, 1965, sec. 150. However, he did not replace it with Jewish law.

51 See the speech of Dr. Warhaftig in the debate on the Capacity and Guardianship Law, 1962, Divrei HaKnesset, Fifth Knesset, First Session, p. 57; compare the words of Mr. I. Korn (Mapai) Ibid. 292.

52 Litwinsky v. Litwinsky (1959) 18 P.M. 64, 67–68 (Per Judge Lamm).

53 The legal basis for such reference to Jewish law is shaky. But we shall not go into this here.

54 Hoshen Mishpat, art. 174, para. 1. For some reason the judge omitted the dissensions from his quotation. But see the continuation of the judgment.

55 Ibid.

56 Shvut Ya'acoυ, part. 2, Hoshen Mishpat, art. 162.

57 Peleg v. A. G. (1963) 17 P.D. 1122.

58 Rosenberg v. Karmaz & ors. (1959) 12 P.D. 1096.

59 Ibid. 1128.

60 TB Psakim 50 b. et passim.

61 Such as Daykan (Dikstein) see supra n. 14.

62 See also Tedeschi, , “On Reception and on the Legislative Policy of Israel” XVI Scripta Hierosolymitana 11, 38 note 41.Google Scholar

63 Of course it cannot be gainsaid that the language has developed and that its present-day use has created independent moulds. Cf. Tedeschi, Ibid. 35, n. 37.

64 The Agency Law, 1965 (art. 2).

65 The Defamation Law, 1965.

66 See also the Bailees Law, in which the legislator used categories of Jewish law (unpaid bailee, paid bailee, borrower).

67 See our article mentioned in n. 48, supra.

68 See supra, n. 48.

69 See the demand of Mr. I. Katz, which implies that this task is the duty of the State (Divrei HaKnesset, ibid. 1718): “The Minister of Justice should have brought forth some crystallized plan, along with setting up a team of lawyers learned in all branches of civil and religious law, scholars in Jewish law, who could interweave the matters properly.”

70 In the spirit of the well-known saying: “Always pray for the welfare of the kingdom for but for its fear men would devour each other alive” (Avoth, III, 2).

71 As to this see Singer, , “Why is there in Israel no Debate on Religion?” Turei Yeshurun (Heb.) 5727, Shevat issue, 5.Google Scholar