What is the role of Jewish law in the life of a Jewish state? The question might seem abstract, but the Knesset has been debating it heatedly for months, often in discussions that deteriorate into shouting matches. Two proposed laws would enhance the influence of “Mishpat Ivri,” or “Jewish law,” in Israeli law. One targets the issue specifically by mandating that principles of “Jewish law” be a point of reference for Israeli courts. The other does so within the larger context of a proposed new Basic Law (Israel’s version of a constitution) formalizing Israel’s identity as the “Nation-State of the Jewish People.”
Supporters of Jewish law enhancement, in whichever form, believe it to be a proud expression of a unique culture. Opponents believe that any reference to Jewish law in the governing of the state is a clandestine attempt to turn Israel into a sharia-law- type Jewish theocracy. Whether these laws could ever pass is not clear, but the Knesset has spent copious time on them.
In a recent debate, some speakers argued that Jewish law is needed as a token of culture; some argued that it is needed to restrain the liberal tendencies of the courts; and others said it is not needed unless one wants to bring about the “destruction of the Third Temple”—that is, the secular civil State of Israel.
The philosophical question about Jewish law is not an easy one to answer. The Jewish state, Israel, is indeed a civil state ruled by civil laws, written by either pre-statehood mandatory authorities, or, in better cases, the post-statehood Israeli parliament, the Knesset. Jewish law is pre-modern, based on religiously saturated principles and ideas—while Israel, as a state, is secular and modern. And Jewish law generally has a bad name: chauvinist, tribal, at times violent (are you in favor of lashing?), often bizarrely alien.
It is even harder to answer such questions in a political atmosphere that rarely allows for serious discussion and that quickly resorts to suspicions, insults, demonization and fear-mongering. In such an atmosphere, legislators often forget that their actual role is to improve citizens’ lives. Instead, they spend their time fighting about symbolic legal statements whose impact on Israel’s reality will be minuscule, if any.
The wasting of energy on gratuitous symbolism is one of the least attractive features of these political times. In fact, the issue is mostly important as a way to understand the deteriorating state of Israel’s legislature. No matter how a new law is crafted—whether it refers (as currently proposed) to “principles of Jewish law” or more vaguely to “Jewish heritage”—the ultimate interpretation of when and how to use Jewish law as a reference remains in the hands of judges. And judges tend to come from law schools, not rabbinic schools.
Those debating should know this, because Jewish law already has an official role in Israel’s legal system. A quite vague law from 1980, written in language reminiscent of Israel’s Declaration of Independence, instructs judges to rely on “the principles from Jewish heritage of liberty, justice, fairness and peace” when the civil law does not provide a clear answer to a legal question. What can a judge do with such instruction? Mostly debate its meaning, as two of Israel’s most influential Supreme Court judges, Aharon Barak and Menachem Elon, indeed did in the 1980s and 1990s.
Barak interpreted this law to mean that a recourse to the “principles from Jewish heritage” would rarely be required. As Tel Aviv University law professor Menachem Mautner explains, Barak “interpreted the term ‘principles of Israel’s heritage’ in a way that distanced it from the halacha,” the religious Jewish law. Barak considered the law “a national concept that embraces the heritage of the nation, old and new together…the legacy emerging from both halakhic and secular literature.”
Elon, a judge with a religious background, disagreed. He believed that the law required change in the way the court operates. When Israel was legally defined (in the early 1990s) as a “Jewish and democratic state,” Elon argued that the Jewish state concept must include reliance on the “enormous legal legacy” of the Jewish people.
So the matter was never settled. And the current ideas for adding less vague language, or strengthening the status of Jewish law by making it a component of the most important Basic Law, will not settle it either. Jewish law, written in eras when there was no modern Jewish state or no Jewish state at all, is not suited to answer the questions a modern civil state must address. It can be only a point of reference, a source for inspiration, a cultural decoration.
Really, there are only two ways to have more Jewish law in Israel’s life: to write specific and detailed legislation based on Jewish law, or to appoint more judges like Elon and fewer like Barak. The first option will not have a majority in the Knesset. The second one takes time, political skill and patience.
Thus, both the fears of opponents (“This road is leading us to a halachic state,” says Member of Knesset (MK) Dov Khenin of the Joint List) and the hopes of proponents (“We are telling the judges that instead of looking at Austrian law, look at the solution given by Jewish law,” says MK Nissan Slomiansky of the Jewish Home) are overstated. Both sides are more concerned with scoring cheap political points and demonizing the other camp’s view than with Israelis’ actual quality of life. Their main achievement is hardly one to be proud of: turning Jewish law, the bedrock of Jewish culture, into a partisan political tool.
Shmuel Rosner is a Tel Aviv-based contributing writer for the International New York Times and political editor of the LA Jewish Journal.