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The Sources and Nature of Jewish Law and its Application in the State of Israel, Part III

Published online by Cambridge University Press:  12 February 2016

Menachem Elon
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The rise of Zionism, with its call for renewed national political life and return to the national homeland, inevitably evoked a material change in the mental attitude of the Jewish people towards Jewish Law, a law possessing, as I have already said, not merely religious value but also manifest national significance. Thus a movement was mustered of Jewish lawyers and scholars and others from all ranks of society, which regarded the return of Jewish society to Jewish Law a national restoration, parallel with the restoration of the Jewish homeland and the revival of the Hebrew language.

This movement for a restoration of Jewish Law signals also a new trend in its study. From modest beginnings in the 17th century, scientific research into Jewish Law had been occupied with a variety of problems, whether of the parallelism between the Jewish legal system and other systems, the moral and philosophical theories embodied in its institutions and of its vast many-sided historical and literary expression. The common feature in all this research had been that it was pursued for its own sake, for theoretical and not for practical purposes.

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Israel Law Review , Volume 3 , Issue 3 , July 1968 , pp. 416 - 457
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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 Incidentally it may be observed that the term “Jewish Law” (Mishpat 'Ivri) was coined at about this time, and today comprehends that part of the Halachah which corresponds to what is customarily included in the word “law” in its modern sense, i.e. the legal relationship between individuals and between the individual and society, and not matters of religious precept and the law of religious prohibitions and permissions. See also Rappaport, M. Z., “HaMishpat Halvri Besafruth Israel” (1913) 29 HaShiloah 299 ff.Google Scholar

2 The first flowering of scientific research in Jewish Law took place in the period when John Selden (1584–1654) was active. Of later scholarly literature there may be mentioned, by way of example, the writings of John David Michaelis in six volumes (1770–76) and the work of Hirsch Fassel, Zechariah Frankel, Y. L. Saal schűtz, Leopold Auerbach, Samuel Mayer, Moses Bloch and others, that appeared in the ninetenth century; see Eisenstadt, S., 'Ein Mishpat (1931) 19–26Google Scholar; and Frankel, S., Der Gerichtliche Beweis nach Mosaisch-Talmudischen Recht (1846) V.Google Scholar

3 See the interesting report preserved of this meeting reproduced in “On the history of the Hamishpat Ha'Ivri Society”, 2 Hamishpat (1927–28) 220–22. The founding group were S. Eisenstadt, Y. Yonovitz, A. Gulak and Y. Persitz. On the activity preceding the establishment of the Society, see Eisenstadt, S., Zion BeMishpat (1967) 31–34, 167–68Google Scholar. See also Rappaport, op. cit. 304–05.

4 Ibid., 221.

5 “Hamishpat Ha'Ivri: a scientific quarterly” (Moscow, 1918) 122.

6 See the report mentioned in n. 3, at 221–22.

7 Ibid., 222.

8 See e.g. the arguments of Dikshtein, P. in Mishpat HaShalom Ha'Ivri, Sheelotav LeHalachah UleMa'aseh (1925) 9–13Google Scholar, and further essays in his Toledot Mishpat HaShalom Ha'Ivri (1964).

9 The first volume on the law of property was published in Warsaw in 1913: see Eisenstadt, op. cit. 167. A second edition and the three further volumes appeared in 1923.

10 Another comprehensive but unfinished work is that of the late Chief Rabbi Dr. I. Herzog, The Main Institutions of Jewish Law, of which two volumes only, dealing with Property and Obligations, appeared in 1935–36.

11 See (1968) 3 Is. L.R. 102.

12 Already mentioned above in various contexts.

13 Freimann, op. cit. 5–6. For more particulars about periodicals and studies in this period see Eisenstadt, op. cit. n. 2; G. J. Webber in (1928) Transactions of the Society for Jewish Jurisprudence, Nos. 11–12.

14 The school did not obtain Mandatory Government recognition to entitle its graduates to a practising licence which was granted only to those who attend the Government Law School in Jerusalem, where also some limited teaching of Jewish Law was carried on; see Eisenstadt, S. (1927) 2 HaMishpat 209–16.Google Scholar

15 Teaching of Jewish Law here was first undertaken by Gulak and then by Freimann.

16 See Indices to the Responsa of Jewish Law, the Responso of R. Asher b. Yehiel (ed. M. Elon), English Introduction, vii-ix.

17 See (1968) 3 Is. L.R. 102, 118–19.

18 As to “Sha'are HaMishpat Ha'Ivri” planned in Moscow in 1918, see above. Another illuminating proposal was made by Gulak in an article in (1927) 2 HaMishpat Ha'Ivri 195–204.

19 See Hillel HaCohen, Mordechai Ben, “LeToledot Mishpat Hashalom Ha'Ivri BeEretz Israel”, in Mishpat HaShalom Ha'Ivri etc. (1925) 3–4.Google Scholar

20 Daikan (Dikshtein), P., Toledot Mishpat HaShalom Ha'Ivri (1964) 68.Google Scholar

21 Ibid. 14–15.

22 Mordechai Ben Hillel HaCohen, op. cit. 4.

23 Daikan, op. cit. 28. See also the resolutions of the first conference of representatives of these courts of 1922, para. 4, cited in (1925) Mishpat HaShalom Ha'Ivri etc. 35.

24 Daikan, op. cit. 39 ff.; at 43–50 is a full list of the judges, among them leading men of the Yishuv.

25 Ibid., 57 ff.

26 The corruption of this jurisdiction was one element which encouraged the young Jewish settlement to have recourse to Mishpat HaShalom Ha'Ivri; see HaCohen, op. cit., 3–4.

27 Sec. 2 of the Ordinance.

28 See the resolutions of the first conference of 1922, para. 2; HaCohen, op. cit., 6–7; Daikan, op. cit., 29–30, 51–52.

29 Daikan, op. cit., 31–38. The “official” ending of the Mishpat HaShalom Ha'Ivri occurred in June 1949 after the establishment of the State (see ibid., 13, 37) but it had actually ceased to function some 20 years earlier.

30 For the various matters dealt with by the Mishpat HaShalom Ha'Ivri, see ibid., 70 ff., and the literature there indicated.

31 Many indeed denied its very existence and preferred to resort to the official courts; see (1925) Mishpat HaShalom Ha'Ivri, 9–13; Daikan, op. cit., 35–38.

32 See n. 28 above.

33 See in (1921) 20 HaTor: the articles by Rabbis M. Berlin and M. Ostrovski, leaders of national-religious Jewry.

34 Bate HaDin etc. 7–8. Assaf stresses the difference between Mishpat HaShalom Ha'Ivri and the lay courts that had functioned in earlier periods. The latter, even if they did not always adapt their decisions to Jewish Law, did not so act in conformity to a theoretical viewpoint and they had no object of opposing in principle the ancient legal tradition. See (1967) 2 Is. L.R. 528 ff.

35 See Mishpat HaShalom Ha'Ivri etc. (1925) 17–18.

36 Ibid. 18–19.

37 See below on the directives of the Israel legislature.

38 At the second national conference that took place in 1927 the term “guide” was altered to “basis”, having in mind, as Daikan puts it, that “basis implies more than guide but the idea is still very flexible.” (Toledot Mishpat HaShalom Ha'Ivri 72.) But this was not enough to amend what required amendment.

39 See also Daikan, op. cit., 70–74; Eisenstadt, , Zion BeMishpat 167Google Scholar; Bentwich, N., “Jewish Law in Practice”, Journal of Comparative Legislation (1927) 65–7.Google Scholar

40 In his introduction to Assaf, S., Ha'Onshin etc. (1922) 5–6.Google Scholar

41 In addition to these tribunals, the existence of another institution may be noted—that of Mishpat Haverim established by the labour movement, all members of which were obliged to bring proceedings there and to comply with judgments delivered. The judges were drawn from members of the movement and their decisions also were not based on any legal system but on feelings of justice and equity as the circumstances might require. See Daikan, op. cit., 53–54; Freimann, , Dine Israel BeEretz Israel, 114, 118.Google Scholar

42 In marriage and divorce and “probate” of wills this jurisdiction was to be exclusive and in matters of maintenance, succession etc. concurrent. See Vitta, E., The Conflict of Laws in Matters of Personal Status in Palestine (1947)Google Scholar; Bentwich, op. cit. 59 ff. All other areas of law remained within the jurisdiction of the State courts.

43 See (1921) 18, 21–22 HaTor. See also Bentwich, op. cit. 65.

44 HaTor 21–22.

45 See (1967) 2 Is. L.R. 542–50.

46 Sanhedrin 31b; Shul. Ar. Ho. Mis., XIV.

47 (1921) 18 HaTor.

48 Although Assaf (Bate Din etc. 74–86, 137–40) had already remarked upon the existence of appellate tribunals throughout the Diaspora in the Rabbinical period (in Spain, Turkey, Poland, etc.), this was essentially a historically-conditioned phenomenon which is hardly dealt with in the Halachah either negatively or affirmatively. In any event, the establishment of an appellate court in Jerusalem was received as an innovation. See also Finkelstein, L., Jewish Self-Government in the Middle Ages (1964) 379–81.Google Scholar

49 Selection of Rabbinical Judgments, ed. Z. Warhaftig and others (1950) 71.

50 So it was laid down in paragraphs 4 and 101 of the Regulations for Procedure in the Rabbinical Courts of Eretz Israel (1943) about which more later.

51 See Assaf, Bate Din etc. 8; Freiman, , Dine Israel etc. 116–17.Google Scholar

52 Bechorot 29a; Shul. Ar. Ho. Mis. IX, 3–5. It should be noted that mention of a ‘judgment fee’ is to be found in the Takkanot and Responsa of Germany, Poland and Lithuania, see Assaf, ibid., 93 ff.

53 See (1967) 2 Is. L.R. 546, note 113; (1968) 3 Is. L.R. 90 ff.

54 Sanhedrin 19b; cf. Ketubot 50a.

55 These regulations, as well as the decisions made thereunder, merely provide the opportunity for creating a legal bond between the adopter and the adopted similar to that between parent and child. They do not, however, thereby sever the natural bond between the adopted child and its natural parents. Such severance is contrary to Jewish Law according to which the naturally created parent-child relationship can in no way be changed or broken. For the same reason the common concept of the “illegitimate child” born out of wedlock is unknown in Jewish Law, since the mere fact of birth to a couple, though unmarried to one another, renders the child legitimate without any disability. (The “bastard” in Jewish Law refers to a child born to a man and woman in the first degree of kinship—such as brother and sister or son and mother—or to a child born to a married woman of one who is not her husband, the evidence for which has to be beyond all dispute. Even in the case of the bastard the mother and father owe him all the duties of parents. He is only illegitimate in the sense that he may not marry a Jewess.) The Israel Adoption Law of 1960 is a compromise between the attitudes of Jewish Law and some other legal systems with regard to the severance of the tie between the child and its natural parents. The compromise is that the Law on the one hand prescribes that adoption not only creates rights between the adopter and adopted but also brings to an end the obligations and rights between the child and its natural parents and other relatives, but on the other hand it lays down that the court may in making the adoption order restrict the consequences of the creation of the new bond and the severence of the old; in addition, adoption does not affect the rules of Jewish Law relating to marriage and divorce (sec. 13). The Law also provides for an adoption register to be kept by the court, in which particulars of the natural parents are entered (secs. 26–27). See Elon, M., Hakikah Datit (1968) 45–46.Google Scholar

56 Even in these matters there were at different periods a variety of takkanot, see Assaf, , “Lishe'elat HaYerusha Shel HaBat”, Jubilee Volume in Honour of Ya'akov Freimann (1937) 8;Google Scholaridem, Ha'Onshin etc. p. 13–15; Herzog, I., “Hatzaat Takkanot BiYerushot” (1952) 6 Talpiot, 36Google Scholar; Uziel, B. Z., “Mishpat Yerushat HaBat” (1952) 5 Talpiot 451Google Scholar and (1953) 6 Talpiot, 51; idem, “Takkanot Hachamim BiYerushat Halshah”, Or HaMizrach (1957) ; idem, “Halshah BeNahahlat Ba'alah”, 2 HaTorah VeHamedinah, 9; Cohn, H. H., “Hatza'at Seder Dine Yerushah” (1949 Yavneh 80Google Scholar

57 This regulation too was made in consequence of sec. 8(2) of the Succession Ordinance, 1923. The Succession Law of 1965 has abolished the distinction between Miri and Mulk land for succession purposes (sec. 149) and has provided that its provisions alone shall apply (sec. 148). It also makes no distinction in the intestate succession rights of husband and wife, son and daughter, but prescribes a system of distribution somewhat different from that of the Ordinance of 1923 (secs. 10–16). The rabbinical court has jurisdiction to make a succession order if all the interested parties consent thereto in writing and in such event it may follow Jewish Law provided that if a minor or a person declared legally incompetent is one of the parties, his rights either on intestacy or under will shall not be less than what they would be under the Law (sec. 155(b) and (c) ).

58 The Ketubah is the instrument containing the obligations assumed by the husband at the date of marriage and includes, inter alia, the minimum sum he or his estate is liable to pay the wife in the case of divorce and on his death.

59 According to Deut. XXV, 5–10, where a man dies childless, his brother must marry the widow and preserve the deceased's name. In default, he must release her (the widow loosens the shoe of her brother-in-law in order to shame him), otherwise she may not remarry. In the course of time, in most sections of Jewry, the brother-in-law was forbidden to take the widow to wife and release (halitza) alone remained obligatory.

60 The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, contains the further provision that if the court orders the brother-in-law to be compelled to give the release and he refuses to do so, he may be imprisoned until he complies (sec. 7).

61 Ketubot, 49a.

62 Ibid., 49b, 65b.

63 Ibid., 49b. The text of the takkanah is given in Schereschewsky, B., Dine Mishpachah (2nd edxs. 1967) 427 ff.Google Scholar

64 Shu. Ar. Yo. De. CCLI, 3.

65 See also Freimann, A. H., “Hatakkanot HaHadashot Shel HaRabbanut HaRashit LeEretz Israel”, 14 Sinai 254 ff.Google Scholar

66 Selection of Rabbinical Judgments (1950) ed. Z. Warhaftig and others.

67 The Minister of Justice has recently set up a committee under the chairmanship of Mr. Justice Sussman of the Supreme Court to examine this problem and make legislative proposals. The committee reported some time ago. See also in this connection the detailed judgment from the point of view of Jewish Law given by the Supreme Court in Briker v. Briker (1966) I 20 P.D 589.

68 Selection of Judgments, 85.

69 Ibid., 105.

70 See Elon op. cit., 165–67; Z. Warhaftig, , “Shituf Nechasim ben Ba'al VeIshto”, Papers of Fourth World Congress of Jewish Studies (1967) 189–94.Google Scholar

71 See above, n. 42.

72 Freimann, , Dinei Israel etc. 114—15.Google Scholar

73 Introduction to the Regulations for Procedure in the Rabbinical Courts of Eretz Israel (1943) 1.

74 Selection of Judgments (1/32/705) 87.

75 See Talmudic Encyclopaedia (in Hebrew) under this title; Gulak, , The Elements of Jewish Law (in Hebrew) I, 67–75Google Scholar; Schereschewsky, B., “Knas UPitsuim 'Ekev Hafarat Hozim”, Bar Ilan University Publication, (1960) 3–12Google Scholar; Elon, “Ha'Arev”, etc. I Papers of Fourth World Congress of Jewish Studies (1967), 201.

76 Nedarim 27b.

77 It is thought that this formulation is sufficient when asmachta is doubtful. Where it is patent, this formulation could not remedy the imperfection. Another view is that the fact that a contract is not subject to asmachta manifests in fact a firm intention to be bound even where asmachta is certain: Shu. Ar. Ho. Mis. XXVII, 18, and commentators thereon; see Gulak, op. cit., 126–27; Schereschewsky, op. cit., 10–11.

78 Selection of Judgments (1/32/705) 89.

79 Situmta exemplifies the Jewish legal principle that customary practice has validity even if contrary to Halachah, see (1967) 2 Is. L.R. 547–48.

80 Selection of Judgments (1/60/706) 132.

81 “Where one weds not in the presence of witnesses…the marriage does not take effect, even when both parties admit the marriage”, Shu. Ar. Ev. Ha., XLII, 22.

82 Shu. Ar. Ho. Mis., XXXII, 2, 24.

83 Although performed without a huppah (canopy) and “blessings” and not in the presence of a rabbi, since the absence of these does not affect ex post facto the validity of the marriage. Nor does the additional defect—the marriage of a cohen to a divorcee—since the prohibition of such a marriage is only ab initio and once celebrated the marriage takes effect, Shu. Ar. Ev. Ha., XVIII, 1.

84 Selection of Judgments (1/60/706) 137. The judgment continues, “This question indeed requires much investigation and clarification, but this is not the place for that for the reasons explained above”. (The court had an additional reason for the competency of the witnesses: the evidence that they were Sabbath violators related to a period after the marriage and accordingly at the date thereof they were presumptively competent. Their own admission as to violating the Sabbath was not accepted under the rule that no one can “incriminate” himself.) This statement was made apparently to soften the impact of the novel proposition advanced. In fact it is a wide-spread and accepted practice to admit the evidence of all witnesses in the rabbinical courts today when a very considerable number of people are not religiously observant and their evidence should not in strict law be received.

85 See, e.g. Maimonides, , Hilchot Mechirah XXX, 7Google Scholar; Hilchot Malveh VeLoveh, IV, 6; VI, 5; Shu. Ar. Yo. De. CLXI, 1–11; Silberg, M., Principia Talmudica (in Hebrew) (1961) 75–88.Google Scholar

86 Selection of Judgments (1/1/705) 63.

87 It is to be regretted that the judgment contains no references to authorities. Some support may be found in Shu. Ar. Ho. Mis. XXXII, Pitche Tshuvah, para. 1.

88 Selection of Judgments (1/29/704) 41.

89 Ibid., (1/9/704) 33.

90 Ibid., 36–37.

91 On the nature of these legal sources, see (1967) 2 Is. L.R. 542 ff.

92 The religious leaders also took up a sharply critical negative attitude to Mishpat HaShalom Ha'Ivri. See n. 33 above.

93 (1968) 3 Is. L.R. 119 ff.

94 Ibid., 123–24.

95 See the observations of Rabbi Meir Bar-llan, a leader of national-religious Jewry, written immediately after the establishment of the State: “Had we been privileged, religious Jewry, their leaders, rabbis and scholars would have many years ago prepared a legal code for the State of Israel…. Since, however, we were of little confidence, the State of Israel has come upon us unprepared for that event in all that touches its civil and criminal law. We cannot, therefore, complain of those who adopted the law that prevailed under the Mandate and in the light thereof regulated the court system, rabbinical and secular. What was unreasonable was that they did not announce publicly that this was being done as a temporary measure and under pressure.” ((1949) Yavneh 29). It is surprising that in the Collected Writings of Rabbi Bar-Ilan, Vol I (1950) 274–79, where this article is reproduced, its opening passage cited above is not reprinted.

96 See (1968) 3 Is. L.R. 119 ff.

97 See 9 Hebrew Encyclopaedia, sub. Ben Yehudah, Eliezer, 131.

98 See (1968) 3 Is. L.R. 88 ff.

99 Except for some takkanot of little particular importance made in 1950, see below.

100 For a fuller discussion, see Ginossar, S., “Israel Law: Components and Trends”, (1966) 1 Is. L.R. 380.Google Scholar

101 Silberg, M., “A Hebrew Code” (in Hebrew) (1947) 4 HaPraklit 262Google Scholar; idem, Principia Talmudica (in Hebrew) 156.

102 Consideration of the place of Jewish Law in the State system was conducted in two stages; the first on the establishment of the State and the second some time afterwards. At the second stage, new grounds and new approaches to the problem were voiced in consequence of intervening experience. I have confined my remarks here to the proposals made at the first stage. Later I shall deal with the various views that were subsequently advanced.

103 Luach HaAretz (1946) 110, 119 ff.

104 Inter alia, Freiman poses the fundamental question, who is today the law-making authority in Jewish Law and is the status of takkanot hakahal to be conferred upon the enactments of the representative body of the State? I shall return to this question later.

105 See also the proposals of Freimann as chairman of the Jewish Law section of the World Congress of Jewish Studies that took place on Mount Scopus in 1947, in (1949) 6 HaPraklit 146.

106 Cohn, H. H., “Looking ahead”, (in Hebrew) (1946) 2 HaPraklit 38 ff.Google Scholar Cohn disagrees with Freimann that one should continue with the development of Jewish Law from the point at which it ceased at the Emancipation. In Cohn's view no proper basis exists in Jewish Law as it developed after the loss of Jewish independence for its completion by means of interpretation or takkanot, and it is more correct “to strive to reconstruct Jewish Law in the manner in which it would have developed over the generations had we not been exiled from our land and our political independence destroyed without having regard to what was added during the centuries in exile” (ibid. 43). This view, in my opinion, is unacceptable. Jewish Law underwent organic development in all fields of civil and administrative law, apart obviously from certain parts of public and criminal law (I have dwelt on this a number of times in the text) and Cohn himself emphasizes this aspect (ibid. 45). The Law also cannot be revived by ignoring many centuries of organic development. Not to take into account Jewish Law after the loss of independence means to abandon the greater part of the treasures of practical Jewish Law. It may be observed that Cohn himself is one of those who has largely referred to these treasures, particularly as a judge of the Supreme Court, as we shall see later.

107 Silberg, M., “A Hebrew Code” (in Hebrew) (1947) 4 HaPraklit 262.Google Scholar See also E. L. Globus, “The Jewish Court” (in Hebrew), ibid. 111; Eisenstadt, , “The State and Law” (in Hebrew) (1948) 5 HaPraklit 113.Google Scholar

108 Dikstein, P., “Jewish State needs Jewish Law” (in Hebrew) 1947 4 HaPraklit 328Google Scholar; idem, “A proclamation on Jewish Law” (in Hebrew) (1948) 5 HaPraklit 3; idem, “Political and Legal Independence” (in Hebrew) ibid., 107.

109 Additions were proposed to this formulation: abolition of the binding force of English judgments and of particular sections in certain laws (e.g. sec. 4 of the Criminal Code Ordinance, 1936, and sec. 2(1) of the Civil Wrongs Ordinance, 1944) requiring their interpretation to be in accordance with English law. In the case of the Criminal Code Ordinance and the Civil Wrongs Ordinance, Dikstein did not suggest reference to Jewish Law since the two Ordinances are wholly grounded on English law; the aim of abolition of the necessity to resort to that law was in the main to declare formally the break with another legal system—presumptively, the courts would generally interpret the provisions of these laws in accordance with English law from which they are in fact derived.

110 The two are reproduced in (1949) Yavneh 33–40.

111 Set out ibid., 40–41. It is dated June 19, 1947, and it was signed by D. Ben-Gurion. Y. L. Fishman and I. Greenbaum.

112 Ibid., 9–13.

113 Ibid., 9–10. To solve the many problems regarding the relationship between religion and the State in present-day circumstances the late Chief Rabbi Uziel proposed the convening of a Knesset HaGedolah and the setting up of a Sanhedrin, as in the days of Ezra and Nehemia (ibid., 14 ff.).

114 Rabbi Herzog inter alia held that there was no place for the death penalty in a Jewish State, ibid., 10. The death penalty for murder was abolished by the Penal Law Revision Law of 1954.

115 Ibid., 11.

116 An arrangement along similar lines, the decision resting with the plaintiff, is to be found in sec. 4 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, under which a wife claiming maintenance, not in connection with divorce, may bring proceedings either in the rabbinical or in the civil courts.

117 “Hok UMishpat BeMedinatenu” (1949) Yavneh 29; see p. 439 and note 95 above.

118 Ibid., 31.

119 Ibid., 32.

120 See Dikstein, P., “In Memoriam: Dr. A. H. Freimann” (in Hebrew) (1948) 5 HaPraklit 69–70.Google Scholar

121 The proposal styled “A Constitution for Israel” was published in Tel Aviv, 1949. It was prepared at the instance of the Jewish Agency and the Constitution Committee dealt with it on the express understanding that it possessed no official standing, the author alone being responsible for it; see the introductory remarks to the proposal by Dr. Z. Warhaftig, the Chairman of the Committee.

122 Ibid., 38–39.

123 Such a proposal has at times been made regarding the law of Israel generally and at times regarding a particular law alone. As to the former see e.g. the “Bill for the Application of the Principles of Jewish Law”, presented by Warhaftig, Z., Divrei HaKnesset, Vol. 25, 231Google Scholar, and the reply of the Minister of Justice, Mr. P. Rosen, ibid., 232. As to the latter see e.g. regarding the Cooperative Houses Law, 1953, Divrei HaKnesset, Vol. 8, 767, 775; Vol. 12, 2786; Vol. 13, 266–67—the suggestion of Z. Warhaftig and the reply of H. Cohn, Minister of Justice; likewise, regarding the Key Money Law, 1958, Divrei HaKnesset, Vol. 24, 2478, 2514; and regarding the Legal Capacity and Guardianship Law, 1962, Divrei HaKnesset, Vol. 32, 56–57.

124 See also the remarks of the Minister of Justice, Shapiro, Y. S., Divrei HaKnesset, Vol. 46, 1707.Google Scholar

125 See Tedeschi, G., Studies in Israel Law, 166 ff.Google Scholar

126 For examples of matters introduced through art. 46, see ibid., 194–213.

127 Yakobovitz v. Attorney-General (1953) 6 P.D. 514, 564–65.

128 Eshed v. Attorney-General (1955) 8 P.D. 785 at 796.

129 Kochabi v. Baker (1958) 11 P.D. 225 at 244.

130 Ibid., 236. See in greater detail Silberg, op. cit. 141–49.

130a See the detailed explanation given by the Minister of Justice for this provision: 28 Divrei HaKnesset 569.

131 e.g. The Prescription Law, 1958; the Family Law Amendment (Maintenance; Law, 1959; the Adoption of Children Law, 1960; The Legal Capacity and Guardianship Law, 1962; the Agency Law, 1965; the Guarantee Law, 1967; the Bailees Law, 1967; and others. These Laws will be considered below.

132 See, for instance, the observations of Uziel, B. in the Knesset, 44 Divrei HaKnesset, 27–28Google Scholar; Prof.Klinghoffer, Y., 32 Divrei HaKnesset, 158–59Google Scholar; and of P. Rosen, ibid., 413. The reply of the Minister of Justice, Dr. D. Joseph, to the surprise of B. Uziel (44 Divrei HaKnesset, 83) was that “when the general part of Contract Law is completed, we shall have a good opportunity to reconsider whether there is place for declaring again the independence of the law.” This, it is submitted, was not a satisfactory answer.

133 Yadin, U., “The Law of Succession and other steps towards a Civil Code”, 16 Scripta Hierosolymitana, 122–23.Google Scholar

134 The general aim of the independence of every part of the law was expressed by the Minister of Justice, Mr. Y. S. Shapiro, in his report on the work of the Ministry of Justice in June 1966; 46 Divrei HaKnesset, 1706–7, 1730.

135 Elon, M., “The Tenant Protection Law, 1955” (in Hebrew) (1955) 18 Hok UMishpat, 7Google Scholar; Yadin, U., “On the Interpretation of the Laws of the Knesset” (in Hebrew) (1956–1957) 13 HaPraklit 310Google Scholar; idem, “Further on the Interpretation of the Laws of the Knesset (in Hebrew) Jubilee Volume in Honour of Pinhas Rosen (1962) 125–31; Gross, Y., “The meaning of ‘just’ in the Tenant Protection Law” (in Hebrew) (1957) 14 HaPraklit 84–94.Google Scholar

136 Hananovitz v. Lewinharz (1956) 9 P.D. 1904.

137 See n. 116 above. This is a particular case, and the choice rests with the plaintiff and not the defendant.

138 This jurisdiction is similar to the present concurrent jurisdiction of the rabbinical courts in certain matters of personal status, such as probate of wills.

139 The suggestion to give jurisdiction to the rabbinical courts when all parties consent has been made from time to time by different people; see latterly Unna, M. in 46 Divrei HaKnesset, 1712.Google Scholar

140 Sec. 1 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953.

141 Apart from maintenance proceedings, not in the course of divorce, when the choice lies with the woman. For details of rabbinical court jurisdiction, see Chigier, M. in (1967) 2 Is. L.R. 147 ff.Google Scholar

142 A similar instance is to be found in sec. 21 of the Succession Ordinance, 1923, regarding distribution of Miri land in accordance with the schedule. This provision was adopted by the rabbinical courts, see p. 429 above.

143 This also in the religious courts. The civil courts also so held under the Succession Ordinance, 1923.

144 Moslems were until then permitted bigamous marriages under sec. 181(c) of the Criminal Code Ordinance, 1936.

145 Partly according to the original position under Jewish Law and partly according to the interpretations thereof and takkanot made over the centuries; for details see Elon, M., Hakikah Datit (1968) 37–43.Google Scholar

146 The property which a woman brings with her at the date of the marriage is of two main kinds. The first called nichse zon barzel includes that part of her property which the spouses agree shall pass unto the almost absolute ownership of the husband, he undertaking to make good any loss therein (its original value is preserved like iron (barzel), that does not vary). The second, nichse melug, is property which remains in the wife's ownership in respect of its capital value but the usufruct or income of which belongs to the husband; here the husband does not undertake any liability for loss thereof. There is also a third kind of property of which both capital and income are retained by the wife, such as that given to her by others on the express condition that the husband shall have no rights therein or such as that which the husband himself gives to the wife as a gift after marriage. See Schereschewsky, , Dinei Mishpacha 100–03, 152–70Google Scholar. Concerning the term melug see Schereschewsky, ibid., 156 and J. Levy, Wörterbuch über die Talmudim und Midrashim, sub. Melug.

147 See M. Elon, op. cit., 38–41. The theoretical problems arising from this “conflict” between civil law and Jewish Law will be dealt with later. Restrictions upon the rabbinical courts in deciding according to Jewish Law are also to be found in sec. 155 of the Succession Law, 1965; see n. 57 above. On the conflict in this regard between civil and Jewish Law, see the Streit case (1964) 18 P.D. 598, and Elon op. cit., 104–16.

148 That is, matters other than marriage and divorce and even the latter where the question arises incidentally (e.g. a maintenance claim involving incidentally the validity of the marriage of the spouses), as well as when the Supreme Court sits as High Court of Justice; see Elon, op. cit., 33–34.

149 The source of this provision is art. 47 of the Palestine Order in Council. Although both court systems follow Jewish Law, it is very possible for their decisions to differ. Thus, the civil courts, before applying Jewish Law, will refer to private international law and they will only apply the substantive Jewish Law and not its rules of evidence and procedure; see Elon op. cit., 76 ff. and the study below.

150 As a result, the following matters were removed from the list of personal status matters in Article 51 of the Palestine Order in Council: adoption of minors, and successions, wills and legacies.

151 For the special problems arising from the Adoption Law in regard to the attitude of Jewish Law, see n. 55 above.

152 At times these particular laws refer generally to the personal law—in the case of Jews, this is Jewish Law—without stating the law; see e.g. sec. 2(a) of the Family Law Amendment (Maintenance) Law, 1959, which provides that it shall not apply to a person's liability for the maintenance of his spouse which will be in accordance with his personal law; sec. 3(a) is similar with regard to maintenance of minor children. In this instance, the Law incorporates Jewish Law by reference in a manner similar to that of sec. 2 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953. The motives for this approach are discussed below.

153 See n. 123 above.

154 M. Elon, op. cit., 59 ff. and infra. The problem of the reputed wife occupies an important place in matters of personal status. This institution has arisen because of certain difficulties in halahic personal law, as in the case of marriage of a cohen and a divorced woman and of the deserted wife. It reflects some of the most serious difficulties in the present legal and social circumstances of Israel, and these will be considered below.

155 It is to be observed that the legal system includes a number of laws based on Halachah, such as those touching the Sabbath day, kashrut and pig-breeding. These are not treated here, according to the definition of Jewish Law (Mishpat 'Ivri) in this study: see (1967) 2 Is. L.R. 515. See as to these laws, Elon, op. cit., 3–30, 55, 99–103.