The Halachic Status of The Israeli Court System*

Prof. Yaacov Bazak

Reprinted with permission from "Crossroads: Halacha and the Modern World, Vol. II," Published by Zomet Institute (Alon Shvut-Gush Etzion, Israel)

Contents

1. Civil Law and Criminal Law
2. "Non-Jewish Courts"
3. Two Systems
4. To Learn and to Study
5. Responsa Literature with Commentary
6. Method of Study

A discussion of the status of Jewish law in the State of Israel necessitates the prior elucidation of several basic concepts in order to avoid the confusion and distortion common to most discussions of this problem, a situation which has effectively precluded logical analysis and the proper drawing of conclusions concerning this central issue in the spiritual life of the Jewish people.

Firstly, it is imperative to emphasize that the problem of the State and Jewish law is not essentially a religious-halachic one, but rather a national-cultural one.

A. Civil Law and Criminal Law

From a purely halachic point of view, the community has the power to autonomously establish laws and enactments, both in civil and criminal matters, that differ from Torah law. The Rosh, for example, writes: "In financial matters, the court has the power to enact enactments according to the times and the need, even if they overrule Torah law, taking from one and giving to the other (Responsa Rosh (55,10), cf. Rambam, Hilchot Sanhedrin, ch.24).

The same is true for criminal law. The community may establish laws and exact penalties not in accordance with Torah law, including the death penalty; cf. Responsa Rivash (234): "...for the court may punish not in accordance with the law, even without proper testimony, according to the need of the hour." This is recorded in the Shulchan Aruch (ChM, 2): "Any court, even if not ordained in the Land of Israel, if it perceives that the people are rife with transgressions and it is the need of the hour, may impose the death penalty or a fine or any other punishment, even without proper testimony."

This applies not only to a particular statute, but also to the composition of the court. Cf. Shulchan Aruch (ChM 8.1):: "Any community may accept the authority of a court not qualified by Torah law."

This process reaches its acme in the statement that one should refrain from judging according to Torah law, because of the chance of error in the explication and application of the law. 'The judges should refrain as much as possible from obligating themselves to judge according to Torah law." (Shulchan Aruch, ChM 12,20). Indeed, the phrase "I do not know Torah law" is common at the beginning of many halachic responses.

The Halacha is extremely flexible, as we have seen, concerning the content of the civil and criminal law. it allows the adaptation of these laws according to the changing times and conditions and the needs of the hour. There is no basis whatsoever for the charge that it is an inflexible, frozen. sanctified system that can never be changed.

On the basis of the preceeding paragraphs, we may conclude that anyone who labels the Israeli courts (established by law, with the concurrence of the public) "non-Jewish courts" (there are those who use the name "courts of idolaters") does not know what he is talking about.

B. "Non-Jewish Courts"

The opposite conclusion was expressed in an article published in a religious academic journal, in which the distinguished author cited the following ruling of the Rambam (Hilchot Sanhedrin, 26,7): "Anyone who litigates with non-Jewish laws or in their courts... is an evildoer and is considered as though he has blasphemed and raised his hand against the Torah." On the basis of this statement, the author concluded that the courts in the State of Israel "which rule according to foreign laws have the status of non-Jewish courts since they rule according to non-Jewish laws."

However, a minor error in citing the Rambam has resulted in a major distortion of the Halacha, for the text reads not "non-Jewish laws" ("dinim") but "non-Jewish judges" ("dayanim"). For our purposes the distinction is crucial. Both the Talmudic source of this law and its citation in the Shulchan Aruch demonstrate clearly that it does not refer to the character of the law by which one is being judged but only to the nationality of the judges, or more correctly the court, before which one is appearing. The source of the law is in the statement of R. Tarfon (Git. 88b): "Tanya, R. Tarfon would say: Wherever you find congregations of non-Jews. even though their laws are the same as Jewish law, you may not have recourse to them." (Similarly in the statement of R. Elazar b. Azarya, Mechilta D'Rabi Yishmael Mishpatim, Masechta D'Nezikin, Parsha 1. ed. Horowitz, p.246).

The law against recourse to "non-Jewish courts", as it appears in the Talmud, the Rambam, and the Shulchan Aruch, is explicitly directed against appearing before the judicial bodies of a foreign government. rather than utilizing the courts of the Jewish community. It makes no reference whatsoever to the nature of the legal system used; on the contrary, it emphasizes that one may not have recourse to a non- Jewish court even if it makes use of Jewish law. It may be stated with certainty that a Jewish court which utilizes non-Jewish law is preferable to a non-Jewish one which utilizes Jewish law.

In stating this I don't wish to suggest for a moment that it is desirable that Jewish courts judge according to non-Jewish law. Not in the slightest! Mv only intent is to say that it is a total distortion to equate them with non-Jewish courts.

An uncircumcised Jew is undoubtedly flawed, as he has neglected a cardinal mitzvah; nonetheless, he is still Jewish and calling him a goy is both wrong and sinful. The same is true for a Jewish court in the State of Israel; it is a Jewish court. We should thank Cod that we have lived to see Jewish judges. appointed by the sovereign Jewish community, judging our people, rather than non-Jewish judges. The fact that the legal system by which they judge is not Jewish law is a serious defect; nonetheless, this does not bestow upon them the status of "non-Jewish courts". It should be noted that the defect is not so much a religious-halachic one, for, as we have seen, the community has the power to accept any rules and laws it wants in this area, but rather is a national-cultural defect.

C. Two Systems

One can approach the subject of Jewish law from two viewpoints. On the one hand, it is a specific Jewish cultural creation which has objective reality like all other cultural objects, whether or not we fulfill it in daily life. On the other hand, it is a binding system of imperatives by which one is supposed to order his daily life.

We shall approach the problem firstly from the national-cultural point of view. Jewish law is one of the most exalted cultural assets of the Jewish people, one that has attracted the best minds and hearts of our people from Hillel and Shamai, R. Gamliel, R. Yehuda HaNassi, Abaye and Rava, until the Rif, the Rambam, the Rosh, the Maharam of Rottenberg, the Shulchan Aruch, the Shach, the Sma, the Taz, and the saints and scholars of every generation. It is a creation that gi\'es expression to the history of the greatness and struggle of our nation, one that has been and will continue to be for generations to come the object of the thoughts of young schoolchildren and aged jurists, one whose effects are present in the speech and thought patterns of every Jew wherever he may be.

Every cultured person in the world feels the need and the obligation to be acquainted with his people's history and major cultural achievements. Is it conceivable that any Jew with a measure of national self-consciousness shall not feel a corresponding need to study and know the principles of Jewish law, which are undoubtedly among the essentials of our cultural heritage?

There is, however, another aspect to this question. Jewish civil law is a system of binding rules, and we should strive to ensure that our legal existence be structured to the greatest extent in accord with this distinguished system. We should prefer our own indigenous legal system to foreign ones even if it includes several troublesome points, and even if modern legal methods are more amenable to study and application. The Hebrew language was equally difficult to use, but that did not inhibit us from making it into a living language. The Land of Israel was a barren desert, but we did not shrink from leaving bountiful and flourishing foreign lands in order to settle here. Why should the position of Jewish law be different.~Just as language and state do not belong only to religious Jews, but to every Jew with a sense of national identification, so too should Jewish law be the common legal legacy of all Jews.

D. To Learn and to Study

What can be done to turn these romantic aspirations into reality?

The answer is that first of all we must study and come to know Jewish law. This requires the total abandonment of the assumption that mastery of Jewish law is possible only for one of superior intellect and endless perseverance who will spend day and night studying Torah. "It is not in the heavens" and "Torah was not given only to the angels". If we desire that Jewish law should be the common legacy of the Jewish community, we must inculcate the awareness that it can be mastered by an average jurist in a plausible number of years of study. It is imperative that we not sabotage this endeavor by spreading the belief that only select geniuses can achieve it.

At the same time we must correct the common error that all that is needed is a modern reformulation of the laws in the Shulchan Aruch. This belief was expressed by one of the founders of modern research into Jewish law, Prof. Asher Gulak, in an article written fifty years ago.

The system of Jewish laws must be adapted on the basis of ancient Jewish law and the principles of jurisprudence. arranged in a modern system. and corrected and improved so that it can be applied in a developed country according to the needs of our times.... This endeavor is indeed weighty and will undoubtedly continue two or three years, but it can be done by experts... (in Hamishpat Halvri U' Medinat Yisrael, ed. Dr. Y. Bazak. p.34).

I do not believe that ir was excessive naivete for Gulak to believe that this reformulation could be done in a few Years; rather, his error was in the assumption that all that was needed was a modern reformulation of the laws. It is clear that without continuous contact with the sources of Jewish law, in particular the responsa literature, there is not much value in a modern reformulation of an ancient book of laws

E. Responsa Literature with Commentary

Several years ago the Knesset passed the Bailees Law (chok hashomrim), in order to regulate the responsibilities and the status of bailees. Assuming for the moment that all sections of this law were merely reformulations of the laws of the Talmud and the Shulchan Aruch, would that suffice? In my opinion the answer is definitely not. The important and definitive question is how will these laws be interpreted on a day to day basis, for if jurists will not know how to find precedents and interpretations in the source literature, the Bailees Law will quickly assume a form and interpretation completely foreign to the spirit and nature of Jewish law. It is necessary to provide a simple and efficient means of access to the sources of Jewish law, including responsa literature, in order to preserve the continuity and special nature of the law after it achieves a modern formulation. This entails not merely indices to responsa literature, important as that may be, but especially new and enlightening editions of various responsa works, together with a short topical commentary, as well as a systematic annotated edition of the Shulchan Aruch Choshcn Mishpat. This is a major and weighty undertaking, but it can be done if approached with the spirit and energy appropriate to its importance.

F. Method of Study

Concurrently, the method of study of Jewish law in our universities should be changed. It is not possible for a single teacher to be an expert in all areas of general law, such as criminal law, obligations, property. history of law, philosophy, etc. This is far more true in Jewish law, where there are no systematic textbooks or annuals, no tradition of academic teaching of the subject~ and no publication of research on a regular basis. The subject should be taught in several tracts. according to the various subjects, with the choice left to the students. This will facilitate specialization and research in each area. At the same time, seminars should be held for attorneys and jurists in all areas of Jewish law. Reference to Jewish la\\' in court decisions will increase in direct proportion to the study and knowledge of the legal public. We will be able to see not only the return of our judges as of yore, but also of our laws.

* The article originally appeared in Ha Tzofe in Elul 5728, and was resubmitted by the author in response to the preceding article of Rav Ariel. - ed..