Unfinished Manuscript

Jewish Law And the Separation of Religion and State:а Part I

By Prof. Paul Eidelberg

Jewish law has two major divisions.а One concerns the relation between man and his fellow, the other the relation between man and God.аа The former has various branches, such as civil, criminal, and commercial law.а A relatively small number of such laws has been incorporated into IsraelТs legal system.а Hence, contrary to appearances, the separation of religion from the stateЧreally from public lawЧpredominates in the so-called Jewish State of Israel.аа A single fact illustrates this point:а only 20% of IsraelТs education budget goes to religious schools, even though 25% of IsraelТs Jewish population are religious, while 55%а are traditional, and no less than 27% of IsraelТs Knesset are Orthodox Jews!

Nevertheless, ultra-secularists remain unhappy:а УThe laws of the State of Israel should have nothing to do with religious matters.Фа The religious respond:а УWhy should the tax money we contribute to the public treasury be used for secular schools and for sustaining the secular kibbutz movement but not for religious schools and institutions?Фа (Incidentally, many УsecularistsФ send their children to religious schools.)

Informed secularists approve of such Knesset legislation as the Wage Delay Prohibition Law, the Severance Pay Law, the Prohibition of Defamation Law, and the Right to Privacy LawЧall based on the Torah!аа In contrast, ultra-secularists oppose a clause of the Law and Administration Ordinance of 1948 which incorporates basic tenets of Judaism:а УThe Sabbath and the Jewish festivalsЧthe two days of Rosh Ha-Shana, Yom Kippur, the Day of Atonement, the first and eighth day of Sukkot, the first and seventh day of Passover, and the festival of ShavuТotЧare legal holidays in the State of Israel.Фаа If the State were utterly separated from religion, the Sabbath and the Jewish festivals would cease to be part of the laws of the State.аа Such a state, the religious argue, could hardly be called Jewish, contrary to the Declaration of Independence of 1948, which proudly proclaims Israel as a УJewish State.Ф

Observant Jews oppose separation of religion and state saying it would transform Israel into another America, steeped in materialism and immorality.а And because advocates of separation want a constitution to effectuate that end, many religious Jews oppose a constitution as well. аThus, when Knesset Member Dan Meridor proposed a constitution, he was summarily denounced by Rabbi Meir Porush of Agudat Israel.а In fact, however, a constitution need not entail separation of religion and state, as may be seen in the constitution proposed by the Foundation for Constitutional Democracy, many of whose members are Orthodox Jews, including rabbis.а

It should be emphasized that the idea of separating religion from the state originates in the Christian doctrine, УRender unto Caesar the things that are Caesars and unto God the things that are GodТs.Фа This doctrine severed Christianity from nationality and eventually made religion a private matterн.а The same doctrine influenced the First Amendment of the American Constitution, which declares, УCongress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof ЕФа This clause is now misunderstood.аа It was intended not to prevent Congress from enacting laws supportive of religion, but to prohibit Congress from establishing any state or national religion.аа AmericaТs founding fathers were not ultra-secularists or moral relativists.а They deemed support of religion essential to national morality.а In his УFarewell Address,Ф drafted by James Madison and Alexander Hamilton, George Washington declared:а УOf all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supportsЕ. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that National morality can prevail in the exclusion of religious principle.Фа

Divorcing public law from religion, hence from morality, deprives law of sanctity and authority while depriving morality of the support of law.а Moral decay and lawlessness eventually follow.а Those who drafted the First Amendment would be appalled by its present consequences.

Inasmuch as the Уestablishment clauseФ of the First Amendment mandated institutional separation of religion and state, and not the separation of the state from religious values, a constitution may be designed for the Jewish State of Israel without severing public law from Jewish values.аа For example, a constitution can prescribe a legislature without specifying the content of any law which the legislature may enact.а A constitution, therefore, need not affect the scope of legislative power presently exercised by IsraelТs Knesset.а Also, a constitution can be silent about, or empower the legislature to prescribeЧas has the KnessetЧvarious systems of jurisprudence, Jewish and non-Jewish, leaving the judiciary to decide which is the most appropriate in a given case.аа

On the other hand, a constitution can explicitly acknowledge IsraelТs raison dТêtre as a Jewish State, as stipulated in its Declaration of Independence.а By designating the State as УJewish,Ф that designation becomes the stateТs paramount principle, in relation to which any other principle may be limited lest it lead to the negation of the StateТs Jewish character.а Israeli law today prohibits any party that negates the Jewish character of the StateЧclearly a limitation of the principle of political equality prescribed in the Declaration of Independence, a logical as well as necessary limitation given the StateТs raison dТêtre.

Going further, a constitution can specify that only Jews, whether religious or not, may exercise the legislative, executive, and judicial powers of the State; yet that same constitution can not only secure the personal and religious freedom of non-Jews but endow them with institutional means of recommending legislation and of exercising administrative oversight!

Part II

When religionists object to a constitution, they typically say, УWe have a constitution, the Torah.Фаа It may be argued, however, that few rabbinical leaders today are qualified to exercise the powers of government prescribed in the Torah, and fewer still command the recognition of most Jews in Israel.а With all due respect to IsraelТs learned rabbis, how many fulfill the extraordinary qualifications of the Sanhedrin?а The judges of that supreme body, according to the fourteenth book of MaimonidesТ Mishneh Torah, must not only be experts in the vast corpus of Jewish law, but well versed in many branches of science, including astronomy, mathematics, logic, anatomy, and medicine?аа All honor to IsraelТs halakhic authorities, but would investing them with the legislative as well as judicial powers of the Sanhedrin be acceptable to the majority of IsraelТs Jewish populationЧas it must be according to Jewish law?аа Moreover, on what prominent Jew would the people of Israel be willing to bestow the executive power and life tenure of a king?аа And where are the prophets who, like those of old, admonished kings who strayed from the high standards of Jewish law?а

Those who now shun a constitution in the name of the TorahТs system of governance unwittingly elevate the present generation as if it had risen to the heights of the Torah!а Hence they fail to see that a well-designed constitution may bring not only secular but many religious (!) Jews closer to the Torah without derogating from the TorahТs ultimate authority.

Recall the five Torah-based Knesset laws mentioned in Part I.а Two prohibit Defamation (of character) and Delays in the Payment of Wages, while two prescribe Severance Pay and the Right to Privacy.а These laws exemplify the many ethical laws in the Torah now deemed of universal validity.а Juxtapose the Knesset law making the Sabbath, Rosh Ha-Shana, Yom Kippur, the first and eighth day of Sukkot, the first and seventh day of Passover, and the festival of ShavuТot legal holidays.а This law fosters among the people of Israel a sense of national identity.аа We see here a synthesis of УuniversalismФ and Уparticularism.Фа Such a synthesis can be embodied in a constitution.а

The constitution can be designed as an educational as well as legal document.а Thus conceived, a constitution can render its prescribed system of government more comprehensible to laymen.а It can thus facilitate government by the consent of the governed, a principle of Jewish lawн.а If citizens are to influence the laws affecting their lives, they must have adequate knowledge of the general structure and purposes of the legislative, executive, and judicial branches of government, something a concise constitution (like the American) can provide for secular and religious students alike.а Such a constitution, more clearly and coherently than IsraelТs uncertain, uncoordinated, and intermittent Basic Laws, can delineate and interrelate the powers of government, define the basic rights and duties of citizens, prescribe criteria by which to remove corrupt public officials, and thereby promote public morality and the rule of law.

Indeed, a constitution, understood as a fundamental law superior to, and less mutable than, statute law is a precondition of the rule of law.а To be sure, no constitutionЧnot even the TorahЧcan guarantee honest government and ensure its efficient operation.а Nevertheless, a well-designed constitution can increase the probability of obtaining such a government.а It can therefore facilitate the development of consistent, comprehensive, and resolute national policies and thus contribute to national unity and security as well as national dignity and prosperity.

Every sensible and unbiased Jew, whether religious or not, will support such a constitution, provided he is fairly confident that it will help remedy the manifest flaws of IsraelТs existing form of government, while safeguarding his personal, civil, economic, and religious rights.а No well-informed and civic minded Jew can be happy with a parliamentary system which makes Israel the only one of 75 democracies that lacks constituency elections!аа Surely he would prefer to vote for an individual candidate familiar and accountable to him, rather than vote for an obscure, self-perpetuating oligarchy, i.e., some party list that gives politicians safe seats and enables them to ignore Jewish public opinion with impunity.а Who can be content with a parliamentary system whose 1.5% electoral threshold spawns political parties like weeds, fills the Knesset with party-hopping job seekers, fosters egotism and venality, fragments and paralyzes the Government, sullies public life and undermines any sense of national purpose?а True, a constitution cannot of itself make men virtuous, but it can mitigate rather than magnify their vices.а

Contrary to a widespread prejudice, IsraelТs religious parties did not oppose a constitution when the State was formed in 1948.а IsraelТs Declaration of Independence, which prescribes a constitution, was signed by four rabbis.а IsraelТs Provisional Council of State arranged for the election of a Constituent Assembly to draft a constitution.а A committee composed of various party spokesmen was elected.а A draft constitution was submitted to the Committee by Dr. Leo Kohn, who had been Secretary of the Political Department of the Jewish Agency Executive and became the Political Adviser to the Foreign Ministry after the establishment of the State.а The draft was supported by Meir Loewenstein of Agudat Israel and by Zerah Wahrhaftig representing Mizrachi and Ha-Poel MizrachiЧall religious parties.а However, the committeeТs majority, consisting of Mapai and Mapam spokesmen, rejected the proposed constitution.аа A constitutional solution to the religion-state relationship issue was left in abeyance.аа The reasons for this failure need to be carefully examined.

 

Part III

As one looks back on the three decades separating the Balfour Declaration and the establishment of the State of Israel, one wonders why the status of Jewish law remained problematic in the emerging Jewish Homeland.а To clarify this still crucial question, it will be necessary to review the attitudes of secular and religious Zionists in the pre-state period.а For this purpose I shall rely primarily on Volume IV of Jewish Law (Jewish Publication Society, 1994), the monumental work of Professor (Rabbi) Menachem Alon, a former Deputy President of IsraelТs Supreme Court.а (Page numbers will appear between parentheses in the text.)

As early as 1909, the Israel office of the Zionist Organization in Jaffa established a Jewish Court of Arbitration which was intended to be

 

a stage in the achievement of a full national renaissance.а Our law is one of the most valuable assets of our national culture, and a unifying force [among Jews] throughout the world.а The Jewish people have developed and maintained a remarkable system of law, whose foundations were laid at the dawn of our national existence; hundreds of generations have tiled over it, perfected it, and adorned it, and even today it retains the powers to renew its youth and to develop in a manner appropriate to the outlook of our time.а During the thousands of years of the existence of our nation, this law was influenced by many material and spiritual factors.а It absorbed religious and ethical concepts; it reflected cultural, economic, and social values; and it can still faithfully reflect the life of the people throughout the future (p. 1592).

 

It should be understood, however, that Jewish Court of Arbitration was committed to the renewal of Jewish law Уwithout any admixture of religion.Фа Its goal was to restore Jewish law only insofar as it governs the relation between man and his fellow.а The court respected the Jewish religion, but it viewed Jewish law as something apartЧsomething of value to everyone, religious or not.

Unfortunately, the Jewish Court of Arbitration failed to take root in the yishuv (the Jewish community), and not primarily because of religious opposition.аа It was a lay court which simply applied general principles of equity, justice, and social welfare without the guidance of any systematic legal system, Jewish or otherwise.а The overwhelming majority of its judges, though intelligent, were not only ignorant of Jewish law but often had no legal training.а Still, it should be borne in mind that here were secular Zionists who recognized that the laws governing the Jewish community in Israel should be based on Jewish law (p. 1594).

ааааааааааа The same attitude was expressed by the Jewish Law Society, established in Jerusalem in 1918 soon after the Balfour Declaration.а The SocietyТs purpose was to create an institute for research into Jewish law and to make Jewish law an active force in the Land of Israel.а It recognized that if Jews were eventually to establish an independent state, the state would require a system of law in harmony with its people.а Such a legal system, it was obvious, could not be simply imported from abroad.а УEven those foreign legal principles that merit being treated as models or incorporated into Jewish law must first be adapted to fit our own historical legal characteristics and must pass through the channels of our nationТs creative processes to take on a national form consistent with the needs and temperament of the peopleФ (pp. 1590).

While acknowledging the creative development of Jewish law down through the centuries, the Society had to confront the fact that, given the religious culture of the Jewish people, the Jewish legal system was closely tied to religious law.а Hence it would be difficult in many subjects to the discern the boundary between law and religion.а The Society nonetheless saw in recent literature the beginning of a process of separating law and religion, and this became its goal:а Уto continue this process and prepare Jewish law to exist as a secular legal systemФ (ibid.)

Professor Alon acknowledges the Уmagnitude of the difficulties involved in this СprocessТЧespecially after the establishment of the State of Israel and the emergence of the problem of choosing the basic norm of the legal system.Фа But he questions whether the creative development of Jewish law during the past two millennia can Уcontinue if its national and religious aspects are uncoupledФ (ibid.)а Since Judaism, unlike Christianity, is a nationality as well as a religionн, how can IsraelТs legal system be at once creative and Jewish if not linked to religious principles and values (as was the case prior to the Emancipation when Jewish communities in Europe possessed juridical autonomy)?

аIn any event, the Jewish Law Society sought to unite jurists throughout the Land of Israel and to make contact with scholars and jurists in the Diaspora.а The aim was not only to conduct research into development of Jewish law from its beginnings to the present time, but Уto make it compatible with the legal systems of the West and the East, and to formulate proposals for legislation prescribing the future governance of the Land of Israel.а This legislation will be based on ancient Jewish law, but it will also include all the improvements found in the laws of other nations, and will be consonant with present-day conditionsФ (p. 1591).

Notice, again, that non-religious Jews deemed it necessary and proper to develop what may be termed a heterodox legal system for the emerging State of Israel based on Jewish law.

 

Part IV

Nowadays, non-religious people regard Jewish law as rigid or not adaptable to changing social and economic conditions.а Yet the history of Jewish law testifies to its creative development.а Why, then, did Jewish law fail to become the primary source of law in the State of Israel!а Was it the fault of secularists or of religionists or both?аа Again we must review the early days of the British mandate, when the institutional framework of the Jewish Homeland was in the first stages of organization.

In 1921 a commission was formed to organize the Council of the Chief Rabbinate. The commission was chaired by Norman Bentwich, Attorney General of the British Mandatory Government.а Bentwich compared the establishment of the Council of the Chief Rabbinate to that of the Great Assembly in the days of Ezra and Nehemiah, when the exiles returned to the Land of Israel from Babylonia in the fifth century b.c.e.аа He expressed the wish that the rabbinical court system would solve the legal problems facing the Jewish community in this new era.а He even hoped that the rabbinical court system would eventually be recognized throughout the world as the ultimate institutional authority for resolving issues of Jewish law (Alon, p. 1597).а

ааааааааааа In BentwichТs view, the jurisdiction of the rabbinical courts ought to extend beyond personal status, i.e., marriage, divorce, support, and succession.а Abraham Isaac Kook,а the Land of IsraelТs first Chief Rabbi, fully endorsed this goal:

 

It is well known that there are two major sources of corpus juris of Jewish law:а received laws (dinim) and legislative enactments (takkanot).а It is not possible for us to make any changes within the category of received laws that are firmly established.а However, we are free, by using the method of takkanot, to make new law and to institute those improvements which the court, acting Уfor the sake of heaven,Ф and with public approval, will find necessary for the general welfare.а The halakhic authorities throughout the generations have enacted many important takkanot; not only the tannaim and amoraim in earlier times, but also the courts of geonim and later authorities exercised this power.

ааааааааааа In our new national life in the land of Israel, there will sometimes surely be a great need to enact important takkanot, which, so long as they are approved by the majority of the generally recognized of Israel and then accepted by the community, will have the same force as a law of the Torah (pp. 1597-98).

 

Notice that takkanot or legislative enactments must be accepted by the community.а Takkanot is the category by which Jewish law meets the needs of new social and economic situations.а As for dinim, this involves interpretation and application of the law to actual cases so that the law continues to develop even within the category of received law.аа

ааааааааааа The hopes expressed by Rabbi Kook (who died in 1935) were only minimally realized.а In 1943, the Chief Rabbinate adopted procedural enactments for the rabbinical courts.а These enactments contained regulations on the manner of initiating claims, trial procedure, evidence, and appeals.а Some enactments were based on Jewish law; others were influenced by practices in the secular court system.а Other beneficial legislation continued but came to a virtual halt after 1944.а (The most important of these takkanot prohibited the marriage of females under the age of sixteen.)а

ааааааааааа

Regrettably, the religious-nationalist leaders confined themselves to resisting the secular courts and failed to develop a suitable code of civil law that would have motivated the submission of civil disputes to the rabbinical courts.а The national-religious leaders, writes Professor Alon,

 

Failed to realize Е that one of the most important and effective means of connecting the nascent Jewish state with the great spiritual past of the Jewish people would be to restore Jewish law as a fully operational legal system.а Moreover, it is precisely in all the branches of Jewish law other than marriage and divorce [on which most Jews, then, were not divided] that it is possible by means of appropriate and thorough preparatory work to arrive at a common language and understanding among the various elements of the people who differ in their religious and social outlook (p. 1606).

 

Rabbi Meir Bar-Ilan (Berlin), the distinguished religious Zionist, also lamented this failure:а

 

Had we been more fortunate, the leaders, the rabbis, and scholars of observant Jewry would many years ago have preparedа a code of lawа for the State of Israel for the time when we would be privileged to see it established.а But because we lacked faith, the State of Israel caught us suddenly unaware, without our having adequately prepared a civil and criminal legal system for it.а We cannot, therefore, criticize those legislators for using Mandatory law as their guideline and setting up courts accordingly.а What they can be criticized for, however, is that they did not declare that that system was only a temporary expedient for an emergency situation (p. 1606, n. 82).

 

Apparently, both secular and religious leaders share responsibility for the failure to establish Jewish law as the primary source of the stateТs legal system.а The former failed to realize that the renewal of Jewish law required that its development be rooted in the past, i.e., in the peopleТs religious heritage, yet fashioned to meet the needs of the present.а Meanwhile, the religious leaders, who viewed Jewish law as having not only national but religious significance, lacked the vision to remold the Jewish legal system to enable it to respond to the demands of contemporary social and economic life (p. 1610).аа The relationship between religion and the state thus remained undefined.

Part V

The problem of the relationship between religion and the state was not addressed in the yishuv until the very end of the British Mandate.а During the Mandate period,а the principles governing the legal system were set forth in Article 46 of the Palestine Order in Council of 1922.а This article specified that the Ottoman law in force in the Land of Israel on November 1, 1914 was to be recognized as binding, subject to the ordinances promulgated by the Mandatory Government. While various aspects of civil and commercial law were drawn from Ottoman law, which was based partly on Moslem religious law and on French law, the criminal legal system was derived from English law.а Since these different sources made it necessary to turn to different languages in which these sources were written (respectively Turkish, French, and English), the legal structure of the country could hardly serve as a firm basis for healthy and normal relations.

ааааааааааа Criminal law under the Mandate law was quite draconian.а Here are some examples of Mandatory law still operative in Israel.а One law authorizes Уadministrative detention,Ф a euphemism under which people can be jailed for years without trial and without even being informed of the charges against them!а Another Mandatory law makes it a criminal offenseЧpunishable by prisonЧto speak disparagingly of civil servants, the court system or of an individual judge.а The prophets of Israel would be incarcerated under these laws!ааааааааааа

ааааааааааа In all fairness, however, it should be borne in mind that, under the British Mandate, the Chief Rabbinate and the rabbinical courts had exclusive jurisdiction over matters of personal status, which is no longer the case in Israel today.аа The present tendency is to subordinate the rabbinical courts to the anti-traditional agenda of IsraelТs Supreme Court, whose President, Aaron Barak, deems it his duty to be Уfaithful to the views of the enlightened population,Ф meaning IsraelТs diminishing ultra-secular minority.а This agenda is now enfolding largely because of the failure of the religious leaders to prepare Jewish law for incorporation into the legal system of the emerging Jewish state.аа Neglected, thereforeЧuntil the last momentЧwas the problem of the relationship between religion and the state in the Land of Israel.

For example, a June 1947 letter from the Jewish Agency to Agudat Israel summarized the discussions between the two bodies concerning the religious guarantees in the future state.а The letter, signed by David Ben-Gurion, declared that Уthe Jewish Agency Executive obligated itself to do all in its power to ensure that the State would be responsible to guarantee:а (1) the sabbath as the official day of rest; (2) kosher food in all state facilities used by Jews; (3) all necessary action to ensure that matters of personal status are governed by religious law in order Уto prevent the Jewish people from being split (God forbid!) in twoФ; and (4) religious education for all those desiring it.Фа Notice that this УconstitutionalФ letterЧconstitutional because it outlines fundamental principles of governanceЧsays nothing about the place of any aspect of Jewish civil law in the new state (Alon, p. 1614).а It is nonetheless clear that Mr. Ben-Gurion and the Jewish Agency accepted the premise that a Jewish State must be based, to some extent, on Jewish religious law.

ааааааааааа A profoundly important dimension of the religion-state issue is contained in an article written by Chief Rabbi Isaac Herzog just before the State was established.а The article begins:

ааааааааааа The aspiration of religious Jewry in this country and in the diaspora must be that the constitution include aа basic provision that the legal system of the land of Israel is based on the fundamental principles of the Torah.а However, in order that such a provision be acceptable to a large part of the population of the Land of Israel (who are far from knowledgeable about the Torah and, to our sorrow, so remote from our sacredа tradition, that they believe that the Torah and democracy are inconsistent), it is essential at this time to work out a proposal for a legal system that will take into account the democratic nature of the state.а This is also essential because Е a considerable and important minority of the citizens of the State will be non-Jews, so that although the State will be a Jewish state it will include, in no small measure, non-Jews as well as Jews (p. 1615).

Clearly, the role of Jewish law in the supposedly democratic State of Israel gives rise to the question of whether Judaism and democracy are consistent.а A digression is necessary, if only because those who most vociferously advocate separation of religion and the state parade as the champions of democracy.

ааааааааааа If it be said that the greatest barrier to the incorporation of Jewish into IsraelТs legal system is democracy, no less than Benedict de Spinoza would agree.а Spinoza, the father of liberal democracy and of modern biblical criticism, deemed the Torah incompatible with democracy.а Yet distinguished rabbis and jurists contend that the two are consistent.а I shall resolve this contradiction in the sequel by distinguishing between two types of democracy, УcontemporaryФ and УclassicalФ democracy.

 

Part VI

Democracy has two basic principles, freedom and equality.а Whereas freedom, in contemporary democracy, means Уliving as you like,Ф equality legitimates all Уlife-styles.Фа This is why moral equivalence now permeates democracy, which was not the case when Rabbi Herzog was writing.аа If that illustrious Rabbi were alive today he might ask, УWhat is there about democratic freedom that would prompt youth to restrain their passions, to be kind, honest, and just?а What is there about democratic equality that would prompt a person to defer to wisdom or show respect for teachers or parents?Фа

In contrast, classical democracy derives freedom and equality from the TorahТs conception of manТs creation in the image of God, which provides freedom and equality with ethical and rational constraints.а Recall the American Declaration of Independence.а Since the Declaration proclaims Уall men are created equal,Ф and refers to God as the УSupreme Judge,Ф it follows that all are obligated to obey the laws of their Creator (say the Seven Noahide Laws of Morality).а Admittedly, the Declaration emphasizes Уrights,Ф whereas the Torah emphasizes Уobligations.Фа Although the two are correlativeЧyour rights are my obligations, and vice-versaЧrights connote Уtaking,Ф while obligations denote Уgiving.Фаа Still, if freedom is linked to obligation, and if equality is construed as an elevating and not a leveling principle, classical democracy can beа assimilated to Judaism.а

Turning to IsraelТs Declaration of Independence, there the terms Уpolitical equalityФ and УfreedomФ must be understood contextually.а By acknowledging IsraelТs raison dТêtre as a Jewish State, such that its being УJewishФ is the StateТs paramount principle, the Уpolitical equalityФ mentioned in the Declaration must then be construed not as an absoluteЧthe tendency of contemporary democracyЧbut as a logically subordinate principle.а Consider, too, the DeclarationТs avowal that the Jewish State will be based on Уfreedom Е as envisioned by the prophets of Israel.Фа Any intelligent and honest person, even if not religious, will admit that the prophetsТ understanding of freedom differs from the normless freedom of contemporary democracy.а For the prophets, only those who obey the laws of God are truly free.а If we take the prophets seriouslyЧrecall how they admonish kings and denounce immoralityЧwe may learn how to elevate democracy and render it compatible with Jewish law, to which we now return.

To renew Jewish law without utterly disrupting the social and economic relationships developed under Mandatory law, Chief Rabbi Herzog proposed two separate and parallel court systems.а The rabbinical courts would retain exclusive jurisdiction on matters of personal status.а Regarding civil law, the rabbinical courts would have concurrent jurisdiction with secular courts, and the parties would choose which court system should try the case.

In contrast, Rabbi Meir Bar-Ilan wanted Jewish law to be the foundation for the entire legal system of the emerging state.а However, to achieve this goal the halakhic leaders of the community would have to be flexible and creative.а They would have to enact appropriate takkanot and formulate the law in a manner consonant with contemporary legal conditions.а A dual system of rabbinical and secular courts, he believed, would eventually relegate the Torah to a corner and have calamitous consequences for the Jewish state for generations to come.а He warned:а

 

If we are not flexible enough to find a practical solution, our rigidity will lead to ultimate disrespect [for Jewish law].а In that event, the governing law will certainly not be our own, and societal life in our state will not reflect our spirit or outlook.а The pattern that emerges will reflect and influence all of lifeЧall our public and private actions, even those pertaining to religious matters Е (p. 1617).

 

None of the preceding views as to method of preparing Jewish law for incorporation into the legal system of the State was implemented, if only because of the short time before Jewish statehood would become a fact.а Nevertheless, an original proposal was advanced by P. Dykan who had long campaigned for restoring Jewish law in daily life.а He proposed that an appropriate declaration concerning Jewish law be included in the very first document proclaiming the restoration of Jewish sovereignty.а This declaration could be implemented by repealing the provision of Article 46 of the Palestine Order in Council, which designated English common law to fill gaps in the law, and would designate Jewish law instead.аа Thus:а УWhenever the existing law does not deal with any particular issue or is ambiguous or inconsistent, the courts and other governmental agencies shall be governed by the rules of Jewish law, in accordance with the needs of the time.Ф

УThis proposal,Ф says Professor Alon, Уwould have achieved three important objectives: (1) it would have eliminated the dependence by a sovereign Jewish state on a foreign (namely, the English) legal system; (2) it would have linked, however tenuously and modestly, the law of the sovereign Jewish state with the entire system of Jewish law; and (3) it would have stimulated all interested parties to take the necessary action to prepare Jewish law to become suitable for use whenever recourse to Jewish law is required by the law of the StateФ (p. 1618).а It was believed that this stimulus, backed by official governmental authority, would lead to a central role for Jewish law in the legal system of the State.а As happened, however, the Declaration of Independence of the Jewish state was imminent, and the Jewish legal system had not been prepared for this historic event.

 

Part VII

That the young State of Israel not find itself in a legal vacuum, it was necessary, as soon as the State was established, to adopt the now famous Section 11 of the Law and Administration Ordinance of 1948 which provides:а УThe law on the 5th day of Iyyar (May 14, 1948) shall remain in force insofar as not inconsistent with this ordinance or with the other laws that may be enacted by or under the authority of he Provisional Council of State, and subject to suchа modifications as may result from the establishment of the State and its agencies.Фа As Professor Alon points out, Уthe State of Israel continued in effect the entire legal system, with all its diverse sources and tendencies, that existed just prior to the StateТs establishment.Фаа

ааааааааааа аIt was still possible, however, to link the stateТs legal system to Jewish law, if only to a modest extent, by adopting the draft constitution submitted by Dr. Leo Kohn to the Constitutional Committee mentioned in Part II of this essay.а Section 77 of the draft proposed:аа УThe law existing in Israel on the day this Constitution takes effect shall remain in force insofar as consistent with the provisions of the Constitution and so long as it has not been repealed or amended by the elected legislative body.а The legislation of the State shall be based on the fundamental principles of Jewish law, which shall guide the courts in filling gaps in the existing lawФ (pp. 1621-22).а An Explanatory Note to this proposal is worth quoting at length:

 

It is here proposed that when new laws are prepared, the fundamentals of Jewish law should be used as guiding principles, and that until new laws are enacted, judges will be required to draw on that [i.e., Jewish] law when they fill gaps in the existing law.а The underlying theory is that, although it is impossible to substitute another legal system for the Mandatory system overnight, new legislation in Israel should be based on the fundamentals of Jewish law.аа This law is one of the most fascinating manifestations of the Jewish spirit.а Being firmly rooted in the Bible and in the Oral Law, it has been developed throughа rich literature of responsa [case law] which has adapted to the changing conditions of the life of the Jewish peopleЕ.Jewish law never stagnated.а Theoretical study and practical application provide constant fine-tuning.а This law is an integral part of our national Jewish heritage.а It must be adapted to our present conditions and become the foundation f the new legal system of the State of Israel (ibid.).

 

The Kohn constitution did not get beyond the Constitutional Committee, and Section 77, which could have been enacted as a statute, died with it.а Its opponents successfully argued that there is no assurance that Jewish law provides a ready solution for various problems of the new state, and that the vast majority of lawyers and judges lack sufficient knowledge of Jewish law for answers to the problems that might arise.аа

ааааааааааа Professor Alon questions the validity of these arguments.а Section 77 merely proposes recourse to Jewish law when there is a gap in existing law, Уwhich, in the nature of things, will probably occur in few cases, since the vast majority of legal questions are answered by the StateТs current law.Фаа Besides, Уrecourse to English law is not to a clear and explicit code, but to case law, which is voluminous, obscure, and scattered throughout different legal sources.а Moreover, access to these English-language sources is far from convenient for the overwhelming majority of Israeliа citizens, who have a right to know what the law of the State provides.а Even Israeli lawyers Е experience the same difficulties with English precedentsФ (pp. 1622-23).

There was, however, another reason why the Kohn constitution did not get beyond the Constitutional Committee.аа Since Israel is proclaimed as a УJewishФ State in its Declaration of Independence, any constitution would have to address the political status of IsraelТs non-Jewish citizens.аа The Kohn constitution prescribes equal political rights of all non-Jewish citizens except in the case of the President, who had to be a Jew.а Although this provision contravenes the principle of equality, the extent to which that principle is applied in practice must be limited, we saw, by IsraelТs paramount principle or raison dТêtre as a УJewishФ State.а Mapai and Mapam members of the CommitteeТs rejected this logic.а They did so not by the logic of totalitarian equality, so much as from fear that a constitutional provision requiring IsraelТs President to be Jewish would be regarded by the world as Уracist.Ф

It could be said, of course, that fear of the canard of racism, especially among Jewish socialists, is a manifestation of their egalitarian mentality or lack of Jewish national pride or self-confidence.аа This lack of national pride or self-confidence will obviously be more prevalent among secular than among religious, i.e., Orthodox Jews.а Thus, Meir Loewenstein of Agudat Israel dismissed the fear in question as УcowardiceФ!а

Be this as it may, it does seem that not only ignorance, negligence, and circumstances, but also a lack of Jewish national pride or self-confidence prevented the architects of the new state from adopting a constitution that would have made Jewish law a primary source of the stateТs legal system.а

 

Part VIII

With the establishment of the State of Israel, the situation regarding Jewish law changed.а УIn the pre-State period,Ф says Professor Alon УJewish law, laid claim to the right to replace the existing non-Jewish legal system Е; and if Jewish law had been properly prepared, this substitution could have been accomplished at once, or at least a general proclamation of this goal could have been adopted or specific Jewish legal principles enacted.а However, once statehood had been achieved, the legal system with which Jewish law had to contend was that of the Jewish state, and the reception of Jewish law could only be piecemeal, one step at a time, as changes were made in the StateТs legal system either by the Knesset of the courtsФ (pp. 1623-24).

ааааааааааа Soon after the State was established, the Minister of Justice, Pinhas Rosen, declared that the patchwork legal system of the Mandate would for the time being remain in force, but that, hopefully, it would soon be replaced by a more progressive legal system drawn and from Уthe sources of our own national law.Фаа Four years later the Ministry drafted a bill intended to serve as a model for legislation in the domain of civil law.а The goal was to end IsraelТs dependence on any foreign legal system.а The draft bill set forth three guide lines:а (1) the legal and factual situation presently existing in Israel; (2) the renewal and further development of Jewish law; and (3) the laws of other countries, western and eastern, from which the Jewish people have been gathered to become fused into one community.а

Professor Alon remarks:а УThat the law must, first and foremost, fit the factual situation in the country where it applies Е is also a basic requirement of Jewish law.Фа He asks, however, which law should have priority law when conflicts obtain between Jewish law and the laws of other countries?аа The answer is contained in Introduction of the draft bill:а УWe have regarded Jewish law as the primary but not the sole or binding sourceЕ. As for the laws of other nations, we think that the practical experience they represent should serve as an ancillary source of enlightenment and guidanceФ (p. 1626).а

The distinction between Jewish law as УprimaryФ and the laws of other nations as УancillaryФ is clear enough in theory.а But to effectuate this distinction, those engaged in the legislative process would have to possess adequate knowledge of Jewish law as well a commitment, as proud Jews, to make Jewish law the foundation of IsraelТs legal system.а Since Jewish law is inseparable from Jewish ethics, at stake here is nothing less than the nationТs way of life.а Would Israel become an authentic Jewish State ethically and spiritually linked to its Patriarchs, Prophets and Sages, or would it become just another a secular democratic state in which Jews happen to be, as Arabs predict, a transient majority?ааа

The forecast is not bright from a УpoliticalФ perspective.а Despite the noble intentions of IsraelТs first Minister of Justice, Jewish law has been relegated to an ancillary role in IsraelТs legal system. True, a considerable number of Israeli statutes are based on principles of Jewish law.а But as Alon observes,а Уthe number, relatively speaking, is meager and much smaller than it need have been; and, in fact, various laws are in conflict with Jewish law for no good reasonФ (p. 1627).а Since law shapes a peopleТs way of life, the predominance of non-Jewish law in the State of Israel cannot but dilute IsraelТs Jewish character and lead to its cultural demise.а This is the inevitable consequence of separating Judaism from public law.

Countering this gradual erosion of the StateТs Jewish character is the birthrate, superior education, and talents of religious Jews.а Religious Jews are well-represented in the countryТs academic institutions, in the professional sectors of IsraelТs economy, and in the Israel Defense Forces.ааа Also, they now account for 25% of the KnessetТs membership.а In contrast, religious Jews are hardly represented at all in the Supreme Court, the stronghold of ultra-secularism.а Indeed, the Arab demographic problem aside, the conflict between the Supreme Court and the religious (especially the ultra-orthodox, who have 22 seats in the Knesset) will very much determine IsraelТs future as a Jewish State.аа The Barak court is committed to minimizing the influence of Jewish law, hence of the Jewish heritage, on IsraelТs way of life to the extent of dignifying a petition challenging circumcision!а Nor is this all.

We have seen that various Jewish laws, such as those mandating severance pay and the right to privacy, have been incorporated into Israeli legislation because of their universal, ethicalа significance.аа However, these laws, which are now deemed Уuniversal,Ф were once unique to the Jewish people, as was the Sabbath.а Indeed, there was a time when gentile nations, in imitation of Jewish law, enacted УSunday Blue LawsФ to prohibit business on their Уday of rest,Ф which, to be sure, is only a pallid version of the Jewish Shabbat.а Nevertheless, suppose many Jewish laws, now regarded as Уparticularistic,Ф were incorporated into the laws of Israel.а What might be their influence on other nations?а Might not some of these laws be adopted by other nations and thus become УuniversalisticФ?а

[give two examples from KahanaТs book]

 

Thus, by minimizing the role of Jewish law in IsraelТs legal system, those engaged in IsraelТs legislative process, whether in the Knesset, the Ministry of Justice, or especially the Supreme Court, are hindering IsraelТs historic mission as a light unto the nations!

It may be argued, however, that the salutary effect of including Jewish laws into IsraelТs legal system Уis apparent only at the outset, when the origin of these laws can still be recalled.а As the law becomes part and parcel of the body of civil secular law, modified and explicated by secular jurists who utilize the mental framework and conceptual world derived for the most part from non-Jewish sources, it gradually loses its Jewish character, and the situation reverts to one of total repudiation in principlesФ [Cite Rav Yaakov Ariel, (p. 222).]

а

а

 

Part IX

In 1955, a private members bill entitled the УWage Delay Prohibition LawФ (mentioned in Part I), was introduced in the Knesset but failed to pass.а The bill was explicitly based on Leviticus 19:13, УThe wages of a laborer shall not remain with you until morning,Ф and on Deuteronomy 24:15, УYou must pay him his wages on the same day,Ф as well as on other Jewish legal sources which deem the failure to pay wages promptly a serious transgression.а

Two years later, the Government introduced its own bill.а Theа Minister of Labor noted that the bill is intended to Уprevent a troublesome situation which the moral, social, and legal conscience of our people has condemned since ancient times, as stated in Leviticus:а УThe wages of a laborer shall not remain with you Е,Ф and also in Proverbs [3:28]:а УDo not say to your fellow:а СCome back again; IТll give it to you tomorrow.ТФа Knesset members from all parties also saw in the bill Уa faithful expression of the ancient Jewish tradition, Biblical, Talmudic, and post-Talmudic sources, including one of the outstanding halakhic authorities of the last generation, the Hafetz Hayyim (Israel Meir haKohen).а One Knesset member declared:а УIt is no accident that the entire bill has everyoneТs blessings.а There is no difference between us, be we religious or free-thinking, progressive or conservative.а Deep down in our hearts is rooted the age-old feeling of concern for social justice for the weak and [therefore] for the worker and his wages.а It is not by chance that divine law enjoins us on this matter ЕФ (Alon, p. 1630).

A no less interesting labor law is that governing severance pay for dismissed employees.а УThis obligation to give a gratuity is unique to Jewish law among the ancient legal systems ЕФа Although neither the Torah nor the Talmud expressly provides for compensation, the Halakhic authorities derived such a right by analogy from the Biblical law that a master must pay a slave upon slaveТs release after six years of service (Deut. 15:12-14).а Explaining the Severance Pay Law, 1963, the Minister of Labor said:а УKnesset members will certainly associate the bill with the age-old tradition which is the pride of the Jewish peopleЕ. Compensation to the dismissed employee is perhaps the first social right that employees in this country achieved, even before they came to be organized in a strong general union.а It represents a continuation of the ancient Jewish tradition rooted in the concept of the Biblical gratuityФ (p. 1633).

In 1985, the Introduction to a bill on labor contracts declared that УBasic rights of the worker as against his employer were defined and established in the Bible and in the Mishnaic and Talmudic periods.а The bill adopts the approach of Jewish law.Ф (Accordingly, if a worker unintentionally caused damage to the employer, the court may relieve the worker from liability according to the principle of lifnim mi-shurat-ha-din (acting more generously than the law requires), citing Proverbs 2:20, УSo follow the way of the good , and keep to the paths of the justФ (p. 1634, n. 51).

In 1967, the Knesset, replaced the existing Ottoman law by abolishing imprisonment for debt, except where the debtor was known to have means but refused to pay.а The chairman of the committee declared:а УI wish to reiterate strongly that Е we are following Jewish law, which fundamentally rejects imprisonment for debt but is prepared [to make the stated exception], when the public welfare and a sound social order so require, to adapt to the circumstances of time and place and to the climate of public opinion.Ф

Jewish law has also influenced IsraelТs criminal law.а Notable is the Penal Law Revision (Bribery) Law, 1952.а It was said at the billТs first reading that the title УBribery and RewardsФ is taken from the Book of Isaiah, where the prophet admonishes the government:а ФYour rulers are rogues and cronies of thieves, everyone avid for bribes and greedy for rewardsФ (1:23).а (As indicated in Part V, Isaiah would be indicted for such a remark under IsraelТs existing legal system!)а The bill prescribes penalties of varying degrees of severity:а for a bribe taken by a judge, imprisonment for five years; if taken by any other government employee, imprisonment up to three years.а The more severe penalty for a judge is based on Jewish law, which avoids the indiscriminate egalitarianism of contemporary democracy.а Consistent with Jewish law, the bill also provides that the recipient as well as the giver of the bribe is criminally liable, a principle followed by the laws of the United States and other countries.

The Defamation Law of 1962 is another example of a criminal statute based on Jewish legal principles, with specific provisions adapted to modern social conditions.а The term for УdefamationФ in its Hebrew title is leshon ha-ra (lit. Уlanguage of evilФ), a term unique to Jewish law.а The Explanatory Notes quotes Leviticus 19:16, УDo not go about as a talebearer among your countrymen.Фа Various Jewish authorities are cited.а Maimonides deemed defamation Уa great sin and a cause of the death of many JewsФ (Mishneh Torah, DeТot 7:1).а The Hafetz Hayyim refers to Psalms 34:13-14:а УWho is the man eager for life, who desires years of good fortune?а Guard your tongue from evil, your lips from deceitful speech.Ф

Unsurprisingly, the original bill evoked a storm of protest by libertarians because of its apparent limitations on freedom of the press and public debate.аа We discuss this in the sequel.

 

Part X

Any law that prohibits defamation involves a limitation of freedom of speech and of the press.а Freedom of expression enjoys a Уpreferred positionФ over public morality in contemporary democracy.а The basic reason is this.а Contemporary democracy imitates the value-free orientation of modern science.а Modern science discards all considerations based on moral and aesthetic values.а Distinctions between the good and the bad, the beautiful and the ugly, collapse into mere emotions or subrational forces.аа Put another way:а since moral and aesthetic values are not susceptible to scientific, i.e., exact measurement, they allegedly lack objective validity and express merely the likes or dislikes of this or that person or culture.а This is why contemporary democracy, unlike classical democracy, tolerates obscenity and pornography.а Indeed, such is the latitude now granted freedom of expression that it is extremely difficult to win damages in a cases involving defamation.

ааааааааааа Bearing this in mind, it will be understood why the original bill prohibiting defamation evoked protests by liberal democrats.а A modified bill was introduced by the Minister of Justice, who remarked:

 

Ancient Jewish law, too, did not tolerate defamation.а In chapter 19 of Leviticus, the precept УDo not go about as a talebearer among your countrymanФ (verse 16) is immediately followed by the precept УReprove your kinsmenФ (verse 17).а The first precept became the foundation in Jewish law for the prohibition of defamation, and the second for freedom of public debate.а There is no need in this House to belabor the fact that sharp public debate has freely taken place among Jews since the beginning of Jewish history.а The prohibition of defamation has not prevented free debate, inasmuch as free debate does not necessitate freedom to defame.а These principles are undisputed.а Any disagreement concerns the balance to be struck between the two principlesЧwhere to set the boundary between them.а In the bill, which I now have the honor to present on behalf of the Government, we have attempted to draw the correct boundary line.а (Alon, p. 1644.)

 

Whether that line was correctly set or not, serious observers in Israel agree that public debate in this country, especially during election campaigns, is non-existent or sullied by defamation, deceit, and downright falsehood.а At the same time, however, Jews have never been more extensively engaged in the study of the Talmud, which involves the most rigorous logical discourse.аа We see here two overlapping stages of IsraelТs historical restoration, one political, the other spiritual.а The political stage of IsraelТs restoration witnessed the establishment of the State, the ingathering of the Jewish people, and the development of the countryТs physical or scientific-technological infrastructure.а This Israel is approaching its demise, if only because its political institutions are neither viable nor Jewish.а The spiritual stage of IsraelТs restoration is witnessing an unprecedented return of Jews to Torah Judaism, an extraordinary multiplication of Jewish academies (yeshivot), a renaissance in Jewish philosophy, and the interfacing of science and Torah.а

As the political stage of IsraelТs restoration approaches its end, two extremes surface and clash:а the ultra-secularists (who are really anti-religious) and the ultra-religious (who reject normless or indiscriminate pluralism).а Two related issues divide them:а Jewish law and democracy.а Is Jewish law to be the primary source of IsraelТs legal system?а If so, Israel would then derive its national identity or way of life from the Torah, and not from gentiles.а Or is Jewish law to be separated from the state or public law?а If so, Torah Judaism would cease to be a nationality and become simply a religion, a private matter.а As for the issue of democracy, is Israel to be a classical democracy assimilated to Jewish principles and values?а If so, then Israel could again enlighten mankind.а Or is Israel to be merely another contemporary or conventional democracy?а If so, it will be based on moral relativism and have no justification for its existence.

There are, of course, intermediate or УcentristФ positions between the ultra-secular and the ultra-religious.а Butа these, whether preferable or not at this juncture of IsraelТs history, obscure the issues in question (which obfuscation, perhaps, is an essential aspect of politics).аа Although Jewish civil and criminal law usually strike a mean between extremes, one can hardly devise a logically intermediate positions to such basic tenets of Judaism as the Jewish Sabbath and festivals, which have been given special status in various Knesset statutes.а These statutes, by the way, restrict public transportation and certain business activities and therefore impose limits on freedom, as this term is understood in modern times.аа Or consider Section I of the Law of Return, 1950, which declares:а УEvery Jew has the right to immigrate to the Land of Israel.Фа This law was based on Jewish legal sources.а It manifests the religious idea that the Land of Israel was and always will remain the property of every single Jew, wherever he may be, as well as the property of the Jewish people as a whole.а On this issue (leaving aside the question of УWho is a Jew?Ф), a УcentristФ position can only obscure what underlies the justification the Law of Return, namely, the fundamental character and world-historical mission of the State of Israel.

 

Part XI

The Law of Return embarrasses ultra-secularists:а it offends their indiscriminate egalitarianism.а The Law affirms the heritage of the Jewish People and thus manifests the most solid justification for the existence of the State of Israel.а As the late Deputy President Moshe Silberg of IsraelТs Supreme Court aptly explained:а УThis heritage Е is one of the foundation stones of our right to possess and settle this land.а We were exiled from this land 1900 years ago, but were not absent from it for even a single dayЕ.а Our spiritual presence in this land was far more intensive than the physical presence of all the nations and peoplesЧRomans, Greeks, Crusaders, Tatars, Mamelukes, Turks, and ArabsЧwho ruled or inhabited it in the nineteen centuries after the destruction [of the temple].Ф (Alon, p. 1649.)

ааааааааааа The Law of Return is also grounded in international law.а The historic connection between the Jewish people and the Land of Israel was recognized by the Balfour Declaration, the Mandate of the League of Nations, and by the United Nations.а Moreover, IsraelТs Declaration of Independence proclaims that, УThis recognition by the United Nations of the right of the Jewish people to establish their state is irrevocable.Фаа

Viewed in this light, opposition to the Law of Return by ultra-secularists may appear as a manifestation of Jewish self-hatred.а More fundamental is the indiscriminate egalitarianism implicit in the ultra-secularist position.а This egalitarianism reveals the enormous influence of contemporary democracy on the human mind.а Unfortunately, IsraelТs Supreme Court has succumbed to this leveling tendency, as we shall now see.

ааааааааааа One of the most important Knesset statutes is the Foundations of Law Act, 1980.а This statute (1) severed IsraelТs legal system from the binding force of English common law and equity, and (2) created a binding link with Jewish law, to which it gave official status as a complementary legal source, making Jewish law a part of Israeli positive law (p. 1828).а The Foundations of Law Act repealed Article 46 of the Palestine Order in Council, and provided that, УWhere a court finds that a legal issue requiring decision cannot be resolved by reference to legislation or judicial precedent, or by means of analogy, it shall reach its decision in the light of the principles of freedom, justice, equity, and peace of the Jewish heritage.Фа

The Explanatory Notes to the bill explained that it was formulated in such a way that, in the event of any gap or lacuna in the law, Уthe judge would be directed to look to the fundamental principles and ethical values of the Jewish heritage but would not be bound by Jewish law.Фа How do various justices of the Supreme Court interpret the Foundations of Law Act?а Advocates of the most narrow view (led by Justice Aaron Barak) claim that reliance on Jewish law is appropriate only in the rare situation where the legal system had never dealt at all with the subject in issue, either directly or indirectly.аа This approach, says Professor Alon, would have us believe that Уthe Act does not accord any special status to Jewish law, either as binding or as first among equals, even where the Israeli Legislature deliberately and expressly incorporated an entire legal institution, and not merely a term or expression, from the Jewish legal system.аа According to this approach, the infant has no hope for a future normal growth, but is condemned forever to remain stuntedФ (p. 1895).

Other judges and legal scholars aver that a gap in the law exists not only in cases where there is a complete void in the Israeli legal system, but also where the Knesset has used value-laden terms, such as Уjustice,Ф Уgood faith,Ф and Уpublic policy.Фаа Still others maintain that Уstatutory terms or expressions not commonly used in ordinary legal language but peculiar to Jewish law should be interpreted as to accord them their original meaning in Jewish law ЕФаа In fact, however, says Alon, those who officially hold these more Jewish oriented approaches unofficially manifest a clear preference to one or another non-Jewish legal systemЧAmerican, English, and sometimes Continental.а

Professor Alon maintains that the Foundations of Law Act Уestablished Jewish law as the primary persuasive force, the Сfirst among equals,Т in every case where an Israeli statute is ambiguous or uncertain, except only where the Israeli statute explicitly differs from Jewish law.Фа Indeed, he holds that Jewish law had this preferred status even before the Foundations of Law ActЧwhich may be inferred from the bill drafted by the Ministry of Justice in 1952.а That bill, recall, was intended to serve as a model for legislation in the domain of civil law.а Its goal was to end IsraelТs dependence on any foreign legal system and to renew the development of Jewish law.а Twenty-eight years had to elapse before that bill metamorphosed into the 1980 Foundations of Law Act.аа During that period the Supreme Court became increasingly removed from Jewish law.а What happened in 1980, or rather, three years earlier, is that the Labor Party, for the first time, lost control of the Government.а Menachem Begin became IsraelТs Prime Minister, and the religious parties joined his ruling coalition.а Israel, it then seemed, might soon take a significant step toward becoming an authentic Jewish state, one whose legal system would be based primarily on Jewish law.а Much depended on the Foundations of Law Act.аа We still await its faithful application.а Until then, the issue concerning the separation of religion from the state will continue to vex Israel.

 

Conclusion

УAt the beginning of the twentieth century, as the dream of establishing a Jewish state on Jewish law was beginning to take form, those who wished to base the legal system of the future Jewish state on Jewish law because of its cultural value and national importance spoke of the need to continue the Сprocess of separating law from ethics and religion Е and to prepare Jewish law to exist as a secular legal system.Фа As Professor Alon sees, however, the connection between Judaism on the one hand, and nationality, law, and all other fundamental Jewish values on the other, Уis so integral and organic that while boundaries may possibly be marked between them, the connection cannot be completely severedФ (p. 1904).