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The Rabbinical Courts in the State of Israel

Published online by Cambridge University Press:  12 February 2016

M. Chigier
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Extract

In order fully to understand and appreciate the place of the Religious Courts in modern Israel, we must go back to the time when Palestine was ruled by the Porte of Constantinople and Moslem law was the law of the country. Thereafter we have to consider the period of British Mandatory rule of Palestine and the changes then introduced in the legal system.

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Articles
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Israel Law Review , Volume 2 , Issue 2 , April 1967 , pp. 147 - 181
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1967

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References

1 Young, , Corps de Droit Ottoman, vol. 2, p. 1 (Oxford, 1905).Google Scholar See also Goitein, Sh. D., Hamishpat Hamuslemi Be Yisrael (Jerusalem 1957), pp. 20 ff.Google Scholar

2 See Vitta, E., Conflict of Laws in Matters of Personal Status in Palestine (Tel Aviv, 1947), p. 1.Google Scholar

3 See Young, op. cit., 19, 153. See the full text of the firman granted to the last Haham Bashi, the late Meyer, Rabbi J., in 1911, in Yehudei Hamizrach BeEretz Israel, part 2, p. 370, by Gaon, M. D. (Jerusalem, 1938).Google Scholar

4 Young, op. cit., vol. 1, Introduction pp. XI, XII.

5 Ibid. pp. IX, X.

6 Ibid. p. 285. See also the several circulars of the Minister of Justice at pp. 291–93, which bear the title “Conflit de jurisdiction entre Tribunaux du Chéri et Tribunaux ‘Nizamie’.”

6a See Shanti v. Kadi of the Moslem Court in Jaffa (1966) vol. 2, 20 P.D. 578.

7 See Koran V, 45.

8 See Koran II, 178, IV, 92.

9 Young, op. cit., vol. 1, pp. 291–92.

10 Ibid.

11 Only between husband and wife. See infra, 12.

12 Young, op. cit., vol. 2, p. 2, note 4, p. 19 and p. 153, note 5.

13 Regarding general problems of a religious character, power was vested in a special religious council. Ibid., 151–53.

14 8. “The privileges and immunities of foreigners including the benefits of consular jurisdiction and protection as formally enjoyed by Capitulation or usage in the Ottoman Empire shall not be applicable in Palestine….”

9. “…[R]espect for the personal status of the various peoples and communities and for their religious interests shall be fully guaranteed….”

15 Proclamations, Ordinances and Notices issued by O.E.T.A. (South) Courts, p. 9, (No. 42).

16 Drayton, , The Laws of Palestine, vol. III, pp. 2581–82.Google Scholar The jurisdiction of the Christian Religious Courts was identical (art. 54).

17 Art. 15. See also Art. 17 of the Palestine Order in Council. The question whether the Mandate was legally binding on the British authorities was decided in the negative by the Mandatory Courts, and affirmatively by the Israel Court. Hussein v. Postmaster General (1920–33) 1 P.L.R. 50; Rosenblatt v. Registrar of Land (1947) 14 P.L.R. 286; Levine v. Gubernik (1948) 1 P.E. 14.

See Zilberger, , Sidrei Shilton Umishpat Belsrael pp. 19, 20, 32, 33. (Jerusalem, 1954.Google Scholar)

18 This was slightly modified in 1939 to embrace only those foreigners who in their home country would be subject to the jurisdiction of the Moslem Religious Courts. This modification, however, only made the difference in the jurisdiction of the various Religious Courts Jess glaring and conspicuous, for in most Moslem countries, the Moslem Religious Courts had exclusive jurisdiction in matters of personal status. The Moslem Religious Courts were not affected by the exception stated in art. 65, that the Religious Courts are not competent to grant a decree of divorce or annulment of marriage to foreign subjects even with the consent of the parties. This exception, which by art. 64 applies equally to the civil courts, having been interpreted to apply also in the case when only one of the parties is a foreigner (Apte v. Gross (1943) A.L.R. 12) has caused much hardship to many a man and woman in Palestine and in Israel, and this anomalous position has been often criticized by the Israel Supreme Court, e.g. Yanai v. A.G. (1966) vol. 2, 20 P.D. 147.

The jurisdiction in blood money and compensation for loss of limb, which under Ottoman Law was exclusive to the Moslem Religious Courts (n. 9 supra) and, because it was omitted from art. 51 of the Order in Council, was no longer within the exclusive jurisdiction of the Moslem Religious Courts, had been restored to those courts by the Civil and Religious Courts (Jurisdiction) Ordinance of 1925.

19 They were also given exclusive jurisdiction regarding the constitution and internal administration of a wakf. Art. 53(3) supra.

20 Alpert v. Alpert (1920–33) 1 P.L.R. 395; Haddad v. Haddad (1937) 4 P.L.R. 249; David v. David (1943) 10 P.L.R. 24; Goldberg v. Goldberg (1946) 13 P.L.R. 180.

21 See the arguments of President Smoira in Rosenbaum v. Rosenbaum (1948) I P.E. 144. See also Vitta, op. cit., 26.

22 Thus, when the question arose whether the Rabbinical Courts could order a husband to support his divorced wife until her ketuba had been paid, as required by Rabbinical Law, the court held that this was a matter which cculd not be considered either as alimony or maintenance. Alpert v. Alpert (1920–33) 1 P.L.R. 395.

23 “Now with regard to C.A. No. 62/37 [Haddad v. Haddad] it must be observed that the Court in that case was not considering the jurisdiction of the Moslem Religious Courts. For that reason alone I do not consider that case to be an authority for holding that the words ‘alimony’ and ‘;maintenance’ in article 52 of the Order in Council are to be interpreted according to the English Law of ‘husband and wife’.” (Anabtawi v. C.E.O. Na. (1945) 12 P.L.R. 426).

It is true that the court gave another reason for differentiating between the Moslem Religious Court and the Rabbinical Courts, namely, that in art. 52 the words “in accordance with the provisions of the Law of Procedure of the Moslem Religious Courts” appear. But to accept this reason would only mean that the British legislator discriminated between Moslem and Jew not only openly but also “stealthily” so to say, an idea repugnant to every honest man. In any case, art. 52 would prove that the legislator did not always think of the terms “alimony” and “maintenance” in accordance with their meaning in English Law.

24 International and Inter-Religious Private Law in Palestine (Jerusalem, 1926), cited by Smoira, P. in Rosenbaum v. Rosenbaum (1949–1950) 2 P.E. 5.Google Scholar

25 Dr.Silberg, , Personal Status in Israel (Jerusalem, 1961)Google Scholar, mentions the expressions “matters of marriage or divorce” as found in the Order in Council (p. 10, note 5). This is inaccurate as such an expression is not found there. Art. 51 speaks of “suits regarding marriage or divorce”, while arts. 53 and 54 speak of “matters of marriage and divorce”.

26 Alpert v. Alpert (1920–33) 1 P.L.R. 395.

27 Haddad v. Haddad (1937) 4 P.L.R. 249. See also Goldenberg v. A/C.E.O. (1946) 13 P.L.R. 180.

28 Rosenbaum v. Rosenbaum (1953) 7 P.D. 1037. By the time this decision was given it was of little value for the Jewish community, as the matter was fully regulated by the Rabbinical Courts (Jurisdiction) Law. But the erroneous judgment was responsible for the adoption of sec. 4 of the Law which deprives the Rabbinical Courts of exclusive jurisdiction in claims for support from husbands; see below.

28 Sec. 7 of the Rules, The Law of Palestine, vol. III, p. 2132.

30 See the long list of court decisions in Vitta, op. cit., p. 65, note 6; p. 152, note 9.

30a The official Hebrew translator appears to have been aware of this difference. While in arts. 53 and 54 of the Order in Council he translated “member” as ben (=a son of), which is an ethnic term, in the Jewish Community Rules he renders it as haver (=a friend), which is a social and political term.

31 Glicksberg v. C.E.O. (1948–49), 1 P.E. 210. See also Cohen v. A.G. (1954) 8 P.D. 15.

32 Supra, p. 151.

33 Marques v. Director of Land Registration (1934–35) 2 P.L.R. 411.

34 Kawas v. Kawas (1940) 7 P.L.R. 411; (1943) 10 P.L.R. 328.

35 Glick v. Glick (1946) 13 P.L.R. 311.

36 e.g. Zaadeh v. C.E.O. (1941) 8 P.L.R. 175. It is interesting to note that while Vitta op. cit., p. 184, cites this case as showing that the Religious Court could appoint a guardian ad litem where a minor is a party to a suit, Dr. Silberg, the present Deputy President of the Israel Supreme Court (op. cit., 55) cites it as upholding the Privy Council's decision. See also his remarks at p. 81, note 96. On reading this case one must agree with Dr. Silberg, since the court said “Following the principle laid down by this Court in CA 40/40…” (which is the case of Kawas v. Kawas).

37 See Ostrowsky, , Irgun Hayishuv Hayehudi BeEretz Israel (Jerusalem, 1941) p. 93 ff.Google Scholar

38 See infra, p. 166.

39 Feigenblatt v. C.E.O. (1945) A.L.R. 640; Dienfeld v. Dienfeld (1936) 3 P.L.R. 214; Minti v. Mintz (1938) 5 P.L.R. 262.

40 Levy v. C.E.O. (1947) 14 P.L.R. 282.

41 A situation might arise where the power of an estoppel would not be effective, while if the consent brought the matter within the exclusive jurisdiction of the Rabbinical Court, it would still hold good. See Silberg, op. cit. pp. 41–44.

42 Arts. 53(3) and 54(3) grant exclusive jurisdiction to the Religious Courts in cases regarding the constitution or administration of wakf (consecrated property or funds). But as this is not a matter of personal status and is not mentioned in art. 51, it falls outside the scope of the present study.

43 Salman v. C.E.O. (1944) A.L.R. 792; Khasho v. C.E.O. (1946) 13 P.L.R. 76

44 1 L.S.I. 9. See Ginossar, , “Israel Law: Components and Trends” (1966) 1 Is. L.R. 380, 384.Google Scholar

45 Supra, p. 156.

46 Glicksberg v. C.E.O. (1948) 1 P.E. 210. It should be pointed out that the minority opinion of Assaf J. was that under the new conditions the former decisions of the Mandatory Court in this respect could not be upheld (pp. 223–24). See also Menashe v. Rabbinical Court of Jerusalem (1951) 5 P.D. 714; Goldstein v. Goldstein (1948) 1 P.E. 193.

47 It is a fact that for election to the first and second Knesset neither the electors nor the candidates had formally to be citizens of the State.

48 “A Palestine citizen during the Mandate becomes a stateless person in the absence of an Israeli nationality law”. Re Shifris (1950–51) 3 P.M. 222 and to the same effect Ozri v. Ozri (1953) 8 P.M. 79; and see Hosin v. Superintendent of Prisons (1952) 6 P.D. 897 and Menashe v. Rabbinical Court (1951) 5 P.D. 714.

49 4 L.S.I. 114.

50 6 L.S.I. 50, sec. 3.

51 Supra, p. 160.

52 See supra, n. 46.

53 7 L.S.I. 139.

54 This is one of the few laws to which no amendment has been made since its enactment. That does not mean that it is perfect, but may be explained by the attitude of the political parties in the Knesset. While the religious parties would like to see the powers of the Rabbinical Courts widened, especially as the Supreme Court has been gradually reducing them by restrictive interpretation, the non-religious parties would like to deprive the Rabbinical Courts of the powers already granted to them by law. Thus, a truce has been reached.

It is not unreasonable to assume that underlying the approach of the Supreme Court is the realization that while the legislature would not restrict the powers of the Rabbinical Courts for political reasons, the Court itself might do so by way of interpretation.

55 The Hebrew word “toshav” implies a resident of a permanent nature aííd excludes tourists. Yet it does not correspond exactly to “permanent residence” to exclude the temporary residents in the legal and administrative sense. It is somewhat less than “domicile” in the English legal meaning and corresponds more closely to the English “settler”. It is interesting to note that in the Registration of the Population Law, 1965, two different definitions of the term “toshav” are given, and the law uses both of these in different sections.

See M. Silberg, op. cit., n. 25 supra, p. 361, note 26; Matalon v. Matalon (1963) 17 P.D. 1640, 1644, and Anon. v. Rabbinical Court (1964) vol. 4, 18 P.D. 141.

56 Supra, p. 155.

57 Supra, p. 155.

58 Silberg, op. cit., 348, seems to see the abolition definitely implied in the change from “members of the Jewish Community” to the term “Jews”. However, since the Law did not repeal art. 53, one could argue that the disparity in terms was not so great as to indicate a change of the accepted interpretation, since “Jews” is also undefined and might just as easily mean “members of the. Jewish Community” and would therefore also be subject to the conditions of rule 2 and to the interpretation adopted by the Mandatory Courts. The reason why such an argument has never been advanced must be sought rather in the environmental changes, both factual and political.

59 According to the definition in art. 59. of the Order in Council.

60 Interpretation Ord., sec. 2. See Silberg, op. cit., 356–57.

61 Laws of Palestine, vol. III, 2582.

62 See Mrs. S. v. Mr. S. (1957) 11 P.D. 921. The court did not, however, stress the point here.

63 Sec. 2.

64 According to art. 67 of the Order in Council and reg. 4(2) of the Personal Status (Consular Powers) Regulations, which states that a consul of any foreign state may perform a marriage when one of the parties is a national of that State. (Laws of Palestine, vol. III, 2604). This rule is still in force. In regard to Jews, it may perhaps only apply when the foreigner is a non-Jew. (Silberg, op. cit., 366.)

65 Silberg (Ibid., 361) makes it a point to state that when both parties are not in Israel, the Rabbinical Court has no jurisdiction unless both parties consent. It is difficult to imagine what powers the Rabbinical or any other relevant Israeli court could have on a person in a foreign territory to be able to adjudicate upon his marriage or divorce.

66 Garus v. Ados (1942) 9 P.L.R. 707.

67 These are the well-known Cyprus marriages, where people not permitted to marry in Israel, go to the nearby island of Cyprus and marry there. No divorces have yet been granted there, probably because rabbinical law regarding divorce is more lenient than any secular law, and also because such divorce would not be accepted for the purpose of remarriage in Israel, although if such a remarriage were celebrated the parties, most probably, would not be charged with bigamy. It is difficult to decide whether the marriage of a party who was divorced and remarried abroad would be recognized by the civil courts in Israel. In fact, mixed marriages performed abroad have not been given legal recognition by the court. Instead, the Ministry of Interior has been directed to register the parties as married, separating the act of registVation from the act of recognition. (Schlesinger v. Minister of Interior (1963) 17 P.D. 225). It should be pointed out, however, that the Order in Council also twice used the expression “of persons in Palestine”, but only when speaking of the civil courts (arts. 38 and 47). It appears that the civil courts never argued thai both parties to the action must be bodily found in Palestine.

68 Supra, p. 154.

69 Supra, p. 152.

70 Sec. 9.

71 Rosenbaum v. Rosenbaum (1949–50) 2 P.E. 5.

72 According to art. 55 of the Order in Council.

73 Rosenbaum v. Rosenbaum (1953) 7 P.D. 1037.

74 Rabbinical Court Jurisdiction (Marriage and Divorce) Law, 1953, Sec 3.

75 Sec. 4.

76 Rockmani v. Rachmani (1957) 11 P.D. 247.

77 See Ostrowsky, , Irgun Hayishuv Hayehudi BeEretz Israel (Jerusalem, 1941) at end.Google Scholar

78 Supra, p. 154.

79 Supra, p. 155.

80 The conscientious testator can, in my opinion, ensure that his Will be proved in a Rabbinical Court only by inserting a clause to this effect. The objection of a beneficiary to the jurisdiction of the Rabbinical Court, contrary to the expressed wish of the testator, would then be discordant with his claim that the Will be executed according to the wish of the testator. To avoid any doubts in this matter, the testator's wish can be drafted in the form of an express condition. Furthermore, it seems to me that in the absence of a special clause to this effect, external evidence could be brought to prove that the testator desired that the Will be proved in a Rabbinical Court only. It may also be suggested that where the interpretation of the written clause or in the external evidence is in doubt the beneficiaries could refer the matter to the Special Tribunal under art. 55 of the Order in Council. Since that article speaks of “a case”, any particular case and not only general matters may be dealt with by the Special Tribunal.

81 Ratzabi v. Ratzabi (1955) 9 P.D. 1319.

82 With the exception of para. (3).

83 Silberg, op. cit., 348.

84 Sidis v. C.E.O. (1954) 8 P.D. 1020.

85 See Vitta, op. cit., 160 and decision cited in note 36.

86 The legislature seems to have been aware of the difficulties and has tried to provide a remedy in sec. 18(2) of the Courts Law. But because of the vagueness of the language employed, the remedy has proved unsatisfactory. See for example the article “Is Notice by a Woman of Withdrawing her Claim for' Maintenance in the Rabbinical Court Sufficient to Give the Civil Court Jurisdiction to Deal with a Similar Claim Filed by the Same Woman?” by the present writer in (1965) 21 Hapraklit, 299.

87 Silberg, op. cit., 378–79, maintains indeed that a widow's claim for maintenance from her husband's estate is still within the exclusive jurisdiction of the Rabbinical Courts, contending that it is unlikely that the legislature would deprive the Rabbinical Courts of the jurisdiction they enjoyed during the Mandate. In view of the fact that the legislature has deprived the Rabbinical Courts of exclusive jurisdiction in the matter of confirmation of wills, hiS contention does not leem to hold good. However, the question is now a matter of past history as the Succession Law of 1965 definitely gives the civil courts jurisdiction in such a claim.

88 Palestine Order in Council, art. 47, as interpreted by the Mandatory as well as by the Israeli courts: Kotik v. Wolfson (1951–52) 5 P.D. 134, and others.

89 Sefer Hachukim 1965, p. 63.

90 Sec. 59. See also Frak v. Director of Succession Tax (1962) 16 P.D. 85.

91 Since the Succession Law expressly safeguarded the jurisdiction of the Rabbinical Courts to deal with maintenance claims of a wife and of a widow, (sec. 155(3)).

92 5 L.S.I. 171.

93 Sec. 155(2).

94 Supra, p. 151.

95 Provided of course that only one total sum is mentioned in the claim. Feinstein v. C.E.O. (1943) 10 P.L.R. 122. This decision was upheld by the Israeli court in Sultan v. Rabbinical Court (1962) 16 P.D. 1764. Cf. Danish v. Danish (1960) 14 P.D. 1107; Rachmani v. Rachmani (1957) 11 P.D. 247.

96 Supra, p. 157.

97 Peretz v. Director of Land Registration (1950) 4 P.D. 257.

97a It was held in a recent decision that the consent of the mother, as natural guardian, was sufficient to give the Rabbinical Court jurisdiction to deal with the child's claims for maintenance against the father (Levy v. Levy (1964) vol. 4, 18 P.D. 577, 580).

98 Strimel v. C.E.O. (1942) 9 P.L.R. 213.

99 Rabbinical Courts Jurisdiction Law, sec. 5, ubi supra.

100 Silberg, op. cit., 394.

101 Sec. 10(d), The Laws of Palestine, vol. III, p. 2134.

102 See infra, p. 180.

103 The Laws of Palestine, vol. I, p. 40.

104 See infra, p. 176.

105 Gideon, , Hukei Medinat Israel, vol. II, p. 1064.Google Scholar A new Execution Office Law has been introduced by the Ministry of Justice, but has not been passed to date.

106 The Laws of Palestine, vol. II, p. 2569.

107 Ibid., vol. I, p. 613.

108 Ibid. 356.

109 According to the definition in sec. 2.

110 Ulman v. Ulman (1942) 9 P.L.R. 312.

111 Secs. 6 and 7 of the Law.

112 Maimonides explains that the instances, when compulsion is to be applied to a husband refusing to grant a bill of divorce to his wife after being ordered to do so by the Rabbinical Court, are not contrary to the principle that the act must be voluntary. (Yad Hahazaka, Gerushin, Ch. 2, para. 20).

113 It must be realized that the powers of the execution office are not applicable in a number of instances of husband and wife relationship. Thus, when the Latin Ecclesiastical Court of Jerusalem issued an order for the police to return a wife to her husband, the court allowed the C.E.O. to disobey that order. Barhem v. C.E.O. (1934–35) 2 P.L.R. 40.

114 Sec. 9 of the Civil Wrongs Ordinance, 1944. An amendment of the section was recently introduced in the Knesset by the Minister of Justice. In recent judgments the High Court has also criticized the common law rule, which is applicable in Israel, that no husband may be charged with rape of his legal wife. Kativ v. A.G. (1966) vol. 2, 20 P.D. 136; Al-Pakir v. A.G. (1964) vol. 4, 18 P.D. 200.

115 Apart from the Appellate Court which does not sit in judgment on the judge or justice, but on the verdict or judgment.

116 Laws of Palestine, vol. I, p. 398.

117 The Ordinance only mentions an order to a magistrate with regard to the conduct of a preliminary investigation.

118 Kassis v. C.E.O. (1938) 5 P.L.R. 351.

119 Khoury v. Zoadeh (1938) 5 P.L.R. 1673; Haddad v. Haddad (1937) 4 P.L.R. 249. In the latter case the Court observed that it would interfere if the Religious Courts refused to exercise an authority which they are compelled to exercise by law. The writer, however, could not find any case where mandamus was granted against a Religious Court during the Mandate.

120 Schwarz v. President Military Court (1950) 4 P.D. 185; Menashe v. Rabbinical Court (1951) 5 P.D. 714; Zigelman v. Rabbinical Court (1953) 13 P.E. 210.

121 Probably by applying art. 46 of the Order in Council, although one could argue that this article refers only to lacunae in the existing law, while art. 55 provides that in cases of doubt as to the jurisdiction of the Religious Court, the matter should be referred to the Special Tribunal.

122 Pollak v. Herzog (1955) 9 P.D. 155.

123 11 L.S.I., 157.

124 Musman v. Rabbinical Court (1964) vol. 3, 18 P.D. 504.

125 Levi v. Rabbinical Courts, (1959) 13 P.D. 1182. It is interesting to note that the Mandatory courts, not finding in the enacted law that a decision of a lower court may be upset by proving lack of jurisdiction, argued that acting without jurisdiction is equivalent to acting contrary to natural justice, while the Israeli courts, not finding in the enacted law that the decision can be upset because of action contrary to natural justice, argued the other way that action contrary to natural justice is equivalent to action without jurisdiction. One wonders why, if the equation of these two principles is so complete, the legislator sometimes uses one and sometimes the other.

126 See the memorandum sent to the Chief Secretary of the Mandatory Government by the Chief Rabbinate in 1941, supra, p. 166.

127 See article by the present writer in HaPraklit, supra, n. 86.

128 See introduction to Rules of Procedure in Rabbinical Courts in Palestine, (1943) by Chief Rabbi I. H. Hertzog.

129 Rule 4 of the Rules of Procedure in the Rabbinical Courts in Israel, 1960.

130 B. Sanhedrin 8a.

131 Rules 54–56. Here too the court may absolve a party from pleading for himself.

132 Rule 51.

133 Rule 74.

134 Rule 66.

135 Rule 116.

136 Rule 117.

137 See the report of the symposium held at the Faculty of Law, Hebrew University, on “The Importance of Procedure and the Observance of Justice” (Jerusalem, 1966, in Hebrew).

138 See Rules of the Jewish Community, Laws of Palestine, supra, n. 101.

139 9 L.S.I. 74.

140 Kovetz Hatakanot, 1955, p. 1273.

141 With a few exceptions, a Dayan, though a qualified rabbi, is not permitted to hold a rabbinical post with any congregation. Even in the few exceptional cases enumerated later, they are not allowed to draw additional salaries for their spiritual work in the community or congregation.

142 The Dayanim Law, sec. 3.

143 Supra, n. 139.

144 Dayanim Law, sees. 5 and 6.

145 They are as a rule the District Chief Rabbis. At the higher ranis, it was found inconvenient and impractical to separate the two positions—that of Chief Rabbi and that of President of the Court, or that of the local Chief Rabbi and that of the President of the District Court.

146 Dayanim Law, sec. 13.