Wednesday, December 09, 2009

The place of Jewish Law in Contemporary Israel

Justice and Halacha

Justice Minister Yaakov Neeman must have been thinking out loud when he told a legal conference Monday night that judicial decisions in this country ought to be based on Torah principles and this goal should be implemented incrementally.

"We will bestow upon the citizens of Israel the laws of the Torah and we will turn Halacha into the binding law of the nation," the minister pledged, "Soon, in the near future, amen."

What possessed this savvy lawyer, consigliere to the stars, and a power broker in his own right, to in effect call for the creation of a theocracy? Does Neeman envision it would be based on his type of progressive national-religious Orthodoxy? Would it not more likely adhere to a form of haredism? Shas spiritual leader Rabbi Ovadia Yosef was inspired to blurt out that he anyway discourages his followers from turning to goyish courts because Israeli judges do not adjudicate according to Halacha.

Having unleashed a storm of concern, Neeman's office "clarified" that he did not, actually, mean what he said - though Neeman later told the Knesset that rabbis could right now start taking some of the burden off judges.

Frankly, Neeman's remarks catch us by surprise. We had pegged him as a man who appreciated where fundamentalist Orthodoxy - the stream now ascendant - is leading the country.

It was a committee Neeman chaired that recommended Robinson's Arch as a solution to the Orthodox hegemony at the Western Wall. It was Neeman who proposed the formation of the Institute of Jewish Studies, where representatives of different streams of Judaism would instruct prospective converts. And it was Neeman who supported the appointment of more compassionate Orthodox rabbis to the rabbinical courts.

Neeman well knows that operating a modern state on the basis of Halacha is unworkable.

In 1953, the secular state enacted the Rabbinical Courts Adjudication Law that empowered the rabbinate to apply Halacha in areas of marriage, divorce and citizenship. The results have been ... unsatisfactory.

Thousands of citizens must go abroad to marry because the state clergy does not acknowledge they are Jewish. Scores of women are chained in dead marriages because the same clergy will not grant them divorces. Tens of thousands of potential Jews have been turned away from Jewish civilization because they will not commit to leading Orthodox lifestyles.

The profane blending of politics, patronage and piety has alienated countless secular Israelis. Yet jealous of their prerogatives, the Orthodox will not share the taxpayers' resources with the Masorti and Reform streams who might be able to reach these people.

LIKE NEEMAN we, too, cherish the halachic tradition. Over thousands of years, the sages created legal foundations that have formed a basis for Western jurisprudence.

For instance, laws of inheritance and torts, topics being studied this week by Talmudists worldwide, epitomize Jewish ideals of fairness. From the Pentateuch to responsa literature, Halacha has made it possible for Jews to flourish intellectually, communally and spiritually under the harshest conditions.

It is a grand idea for Israeli jurists to be informed by Halacha, but it would be terrible if they were bound by it.

Halacha, like American constitutional law, is organic, evolving and malleable. It is intended to unify the Jewish people. Tragically, however, those who today dominate the application of Halacha tend to be strict constructionists. A theocratic state in which such rabbis would replace judges would be hellish.

A learned, astute observer, a personal friend of the minister, told The Jerusalem Post the idea that Israeli jurisprudence could operate on halachic grounds is "not serious" and Neeman well knows this.

"Jewish law was never the law of the land in any period of Jewish history. So no one really wants this, not the secular, and also not the rabbis; the secular for obvious reasons; and the rabbis because it would require a stunning revolution in Jewish law," the source said.

After all, what, practically, does Hebrew law have to say about the currency markets? Where would bad guys go? Can contemporary litigation follow halachic rules of witnesses or the limitations on the testimony of women?

If our justice minister wants to think out loud, he should do so in the privacy of his own home.

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