The Impacts of Jewish Law on Policies and Law in Israel

By: Sophie Goodman

The State of Israel was founded on May 14, 1948 in the aftermath of the Holocaust.[1] Upon the establishment of Israel, a unique situation arose.[2] While a Jewish State had been created, it was still governed by Ottoman and British laws.[3] Thus, to have a smooth transition of powers, the Law and Administration Ordinance of 1948 was adopted.[4] This maintained “the status quo,” which allowed for the previous legal regime to remain in place.[5] The previous government allowed for recognized religious authorities to regulate matters “that had religious significance, including marriage, divorce, and education.”[6] Even today, religious authorities have these same powers.[7]

Soon after the establishment of Israel, the Proclamation of Independence was adopted by the first Knesset. The Proclamation of Independence set out that Israel is both a “Jewish and democratic State,”[8] but both are given equal weight in Israel’s legal system.[9] There is no clear separation of state and religion because “being Jewish describes both a citizen’s religion and nationality.” [10] Despite this, Israeli law is still established on secular notions.[11] However, some preferences are given towards Judaism.[12] For example, the government gives funds directly to religious authorities.[13] This preferential treatment towards religion is also seen in the certification requirement for imported meats to ensure that Kosher standards are met.[14]

Jewish law is comprised of Mishpat Ivri, Hebrew law,[15] and Halakhah.[16] These two concepts interrelate[17] because Mishpat Ivri refers to the civil laws of Halakhah.[18] Thus, Mishpat Ivri mainly encompasses legal issues dealt with by Western legal systems.[19] The Mishpat Ivri movement began to adopt the secular laws of Halakhah to govern the state.[20] In addition to this, Mishpat Ivri also addresses moral legal issues.[21] The development of these laws occurred “while Jews were a minority, dispersed among mainly intolerant and belligerent … majorities.”[22]

There is no distinction between religious and secular law in Jewish law,[23] which creates uncertainty as to where Jewish law fits into the current Israeli legal regime.[24] Some scholars “claim that Jewish law … functions merely as ‘a decoration and not a serious source of substantive law.’ [While other scholars argue] that Jewish law plays a substantive and crucial role in the interpretation of value-laden terms, such as equity, public policy, and good faith.”[25] Despite this uncertainty, many scholars believe that Jewish law can be used to govern Israel, as Jewish law contains secular concepts.[26] These secular concepts are derived from the sections of Jewish law pertaining to legal issues that modern legal systems cover.[27]

Jewish law was used as a source for many statutes after Israel was established in 1948.[28] For example, the Severance Pay Law (1963) is based on a law from the Torah,[29] which contains the written laws of Judaism.[30] Another example is the Bailees Law, enacted in 1967, which is based on the Talmud.[31] The Talmud is based on Jewish oral law which expands on the laws of the Torah.[32] Furthermore, individual judges on the Supreme Court of Israel have utilized Jewish law in making decisions.[33]

A turning point in Jewish law occurred in 1980 with the Foundations of Law Act (the Act).[34] This Act states that “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 the light of the principles of freedom, justice, equity and peace of Israel’s heritage.”[35] This Act linked secular law and Jewish law by giving Jewish law an “official status as a complementary legal source” to secular law.[36] Courts may utilize this Act where no statute or case law applies to the legal question, which then makes Jewish law the deciding factor in the case.[37]

After the enactment of the Act, the Knesset unambiguously used Jewish law for the first time in 1998.[38] The Knesset enacted a law, the Hok Lo Ta’amod al Dam Re’akha (The Do Not Stand Idly by the Blood of Your Fellow Law), which incorporates Scripture from Leviticus into the title of the law.[39] It is important to note that not only does the above law “embody … principles of Jewish law,” but it also incorporates this Scripture into the title of the law.[40]

While the Knesset enacted statutes based on Jewish law, the Supreme Court of Israel is weary to do adopt Jewish law into their decisions.[41] Just one year after the passing of the Act, the Supreme Court of Israel held that “‘where there is no lacuna but rather an issue involving interpretation of a subsisting legal provision,’ [the Act] does not apply, and there is consequently no obligation [whatsoever] to resort to Jewish law.”[42] However, where Jewish law does not conflict with secular law, the Supreme Court of Israel will defer to Jewish law.[43] Thus, tension remains on where exactly Jewish law fits into Israel’s secular laws.

There are many who criticize integrating religious laws with a state’s secular laws. One commentator notes that Jewish law is based on religious obligations and not legal motives.[44] Therefore, some parts of Jewish law may not align with the goals of peacekeeping.[45] Moreover, Jewish law “developed under very different economic, social, and political circumstances” and therefore may not have much standing in the modern world.[46] Additionally, there is tension between the broad principles of Jewish law “and the practical reality of applying those principles to a complex and diverse society.”[47] While many disapprove of the integration of Jewish law into a State’s laws, others feel that “Jewish laws are essential to retaining Israel’s identity and tradition.”[48]

Israel’s legal system is entrenched in a deep history of constant changes.[49] From the Ottoman legal system to the British Mandate, multiple legal systems have reigned.[50] However, the 1960s reformation of the legal field attempted to align Israel’s laws with Western modern legislation.[51] Although it has been almost seventy years since the founding of Israel, the construction of Israel’s legal system is not yet complete.[52] Statutory and case law will continue to evolve,[53] likely with influences from Jewish law.

[1] Michal Tamir, A Guide to Legal Research in Israel, NYU L. Global, http://www.nyulawglobal.org/globalex/Israel.html (last visited Oct. 4, 2017).

[2] See Menachem Elon et al., Jewish Law (Mishpat Ivri): Cases and Materials § 21.02 (1999).

[3] Shlomo Guberman, The Development of the Law in Israel: The First 50 Years, Isr. Ministry of Foreign Affairs (Sept. 25, 2000), http://www.mfa.gov.il/mfa/aboutisrael/state/democracy/pages/development%20of%20the%20law%20in%20israel-%20the%20first%2050%20yea.aspx.

[4] Id.

[5] Frank Ravitch, Religious Freedom and Israeli Law, 57 Drake L. Rev. 879, 884 (2009).

[6] Ravitch, supra note 5, at 884.

[7] See id.

[8] Tamir, supra note 1.

[9] Isaac Roszler, Law as a Prism into National Identity: The Case of Mishpat Ivri, 38 U. Pa. J. Int’l L. 715, 717 (2017).

[10] Tamir, supra note 1.

[11] Id.

[12] Government and Politics: How Religion Affects Israeli Politics, Just Landed, https://www.justlanded.com/english/Israel/Israel-Guide/Culture/Government-and-politics (last visited Oct. 4, 2017).

[13] Ravitch, supra note 5, at 883.

[14] Global Agricultural Information Network, Israel Food and Agricultural Import Regulations and Standards 2016, USDA (Dec. 16, 2016), https://gain.fas.usda.gov/Recent%20GAIN%20Publications/Israel%20Food%20and%20Agricultural%20Import%20Regulations%20and%20Standards%202016_Tel%20Aviv_Israel_12-16-2016.pdf.

[15] Roszler, supra note 9, at 729.

[16] Frank Ravitch et al., Law and Religion: Cases, Materials, and Readings 946 (3rd ed. 2015).

[17] See Shmuel Shilo, The Contrast Between Mishpat Ivri and Halakah, 20 Tradition: J. Orthodox Jewish Thought 91, 91 (1982).

[18] Elon, supra note 2, § 2.02; see also Roszler, supra note 9, at 730.

[19] Steven Friedell, Some Observations About Jewish Law in Israel’s Supreme Court, 8 Wash. U. Global L. Rev. 659, 690–91 (2009).

[20] Roszler, supra note 9, at 718.

[21] Hershey Friedman, The Impact of Jewish Values on Marketing and Business Practices, 21 J. Macromarketing 74, 74 (2001).

[22] David Wermuth, Human Rights in Jewish Law: Contemporary Juristic and Rabbinic Conceptions, 32 U. Pa. J. Int’l L. 1101, 1102 (2011).

[23] Roszler, supra note 9, at 730.

[24] Wermuth, supra note 22, at 1102.

[25] Id.

[26] Roszler, supra note 9, at 731.

[27] Elon, supra note 2, § 2.02.

[28] Id. §21:04(A).

[29] Id.

[30] Friedman, supra note 21, at 74.

[31] Elon, supra note 2, §21.04(A).

[32] Friedman, supra note 21, at 74.

[33] Roszler, supra note 9, at 743.

[34] Id. at 744.

[35] Foundations of Law, 5740–1980, art. 1, 72 LSI 181 (Isr.).

[36] Elon, supra note 2, § 21.04(B).

[37] Roszler, supra note 9, at 744.

[38] Elon, supra note 2, § 21.04(A).

[39] Id.

[40] Id.

[41] See id. § 21.04(B).

[42] Id.

[43] Wermuth, supra note 22, at 1102–03.

[44] Friedell, supra note 19, at 667–68.

[45] See id. at 667–68.

[46] Id. at 663–64.

[47] Ravitch, supra note 5, at 883.

[48] Government and Politics: How Religion Affects Israeli Politics, supra note 12.

[49] See Guberman, supra note 3.

[50] Id.

[51] Id.

[52] Tamir, supra note 1.

[53] See Basic Legal System of Israel, LectLaw, http://www.lectlaw.com/files/int19.htm (last visited Oct. 9, 2017).