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.

Settlement freeze? Not a brilliant result

All pain, no gain

{Pictured: Ma'aleh Adumim a consensus "settlement")


Let's tally the diplomatic benefits that have accrued to Israel since Prime Minister Binyamin Netanyahu's November 25 announcement of a 10-month moratorium on new settlement construction. That statement followed tardily on his June 14 address at Bar-Ilan University formally accepting the creation of a demilitarized "Palestine" as the endgame to negotiations.

Since the freeze was announced, US Special Envoy George Mitchell has managed to contain his enthusiasm. While acknowledging that Netanyahu has gone further than any previous Israeli leader, Mitchell could bring himself to say only that he wants to see permanent status negotiations resume "as soon as possible."

To which Mahmoud Abbas essentially responded: "I don't think so."

In an interview with a Washington-based think tank, Mitchell did at least reiterate Secretary of State Hillary Clinton's recent statement that negotiations should be "based on the 1967 lines with agreed swaps."

This is significant, because the Obama administration had previously been seen to be backing away from George W. Bush's April 2004 letter to prime minister Ariel Sharon, in which the former president said a negotiated outcome would have to be based on a 1967-plus formula.

Unfortunately, in an extraordinary tactical blunder, Netanyahu allowed consensus settlement blocs to be included in his freeze.

THE administration's minimalist response to Netanyahu's two historic announcements, along with its failure to persuade Arab governments to take steps toward normalization with Israel and demonstrate that the Arab Peace Initiative is not simply a propaganda ploy, can only make one wonder where this freeze is going to lead.

If it means so little to the White House and nothing to the Palestinians - if it is, moreover, not part of some larger coherent strategy in which Netanyahu enunciates what Israel's boundaries ought to be - and if the moratorium's gut-wrenching impact domestically is all pain and no gain, what are its benefits?

Indeed, a Swedish EU initiative "takes note" of Netanyahu's freeze by proposing to sanctify the Palestinian position on Jerusalem as Europe's own policy.

It's bad enough that Europe rejects Israeli sovereignty over west Jerusalem on the grounds that it does not want to prejudge a negotiated outcome. But to watch Sweden (which is finishing its tenure as rotating president of the EU) push so hard to acknowledge east Jerusalem as the capital of Palestine, even as Abbas refuses to negotiate, is profoundly demoralizing to an Israeli mainstream which genuinely seeks accommodation with the Palestinians.

Evidently, it's politically easier for elements in the EU to parrot PLO demands, rather than support an equitable solution that also takes Jewish sensibilities into account.

Of course, Abbas's demand for a settlement freeze is patently bogus in the first place. A prospective peace deal would permanently resolve the issue of where Jewish rights could be exercised and which settlements would be uprooted. So why are we arguing about a freeze when we should be negotiating borders?

The real reason Abbas does not want to talk is because he hopes that by hanging tough, an exasperated Washington will impose the Fatah position on Israel. On top of that, he does not want to appear conciliatory when Hamas's fortunes are on the rise.

It doesn't help that Netanyahu is placing Abbas in an untenable position. The PLO, which ostensibly eschews armed struggle, has been demanding the release en masse of Palestinian prisoners since 1993. To which Israel has responded in dribs and drabs under the rubric of "helping Abu Mazen."

Yet by taking a single IDF soldier captive and by adhering to its original demands for three years, Hamas is on the threshold of achieving the release of 1,000 terrorists, including the vilest in the Israeli prison system. The popularity of the Islamists will skyrocket; Fatah's will nosedive.

To add insult to injury, Netanyahu is reportedly toying with freeing Marwan Barghouti, whose arrival in Ramallah would be one big headache for Abbas and hasten a rapprochement between Fatah and Hamas at the expense of both Israel and Abbas. No wonder the rais is sulking.

So Netanyahu's US-pressed freeze has pitted settlers against soldiers. It hasn't swayed Abbas or the Arab League. Hamas is bemused. Europe is little impressed.

The Obama administration, which so far has merely offered parsimonious praise, needs to do better.

Global warming

Copenhagen concerns


If a colossal meteorite were hurtling toward earth and scientists unanimously agreed that humanity faced imminent extinction, it's safe to assume that nations and peoples would set aside their differences to save the planet.

Or - human nature being what it is - maybe they wouldn't.

The situation is infinitely more complicated when it comes to global climate change. As a two-week summit begins today in Copenhagen, the debate rages on between a majority working feverishly to forestall planetary cataclysm and a minority that says there is nothing to be alarmed about.

A 2007 survey found 54 percent of Israelis believed global warming was a pressing problem. A new poll found that only 48% still felt so. A recent Gallop poll found that one percent of Americans think the environment is the No. 1 issue. The number of Americans who "believe in" global warming has dropped to 57%.

And an EU poll found that just 50% of Europeans see climate change as the biggest issue facing humanity.


Who can blame Israelis - worried about jobs, social cleavages and the pending release of 1,000 terrorists, not to mention the prospect that Iran will detonate a nuclear device over Tel Aviv - for not putting global warming at the top of their concerns?

THAT THE globe is heating up is pretty widely accepted. Ice caps are melting; sea levels are rising. A relatively small increase in temperatures can cause massive environmental catastrophe. The earth needs just the right amount of gases in the atmosphere. Too little and the temperature would plummet; too much and greenhouse gases could cause global warming.

What is disputed is whether humans burning fossil fuels are to blame for climate change.

So it comes down to this. Wager that the prevailing thesis about planetary warming is correct, that contamination by humans is responsible for global warming, and you're morally obligated to do something about it. Fifty percent of anthropogenic global warming is carbon based, while the other half results from other man-made sources like burning of cow dung.

We think it is prudent to gamble on the side of those who would sensibly but systematically reduce emissions. Working for more breathable air and a reduced dependency on the oil cartel is not a bad thing, even if it turns out to have no impact on climate change.

The problem remains human nature. Some countries will exploit the crisis or try to catch a "free ride" on the sacrifices of the well-meaning. In 1997, industrialized nations agreed to emission targets in a pact known as the Kyoto Protocol, but these goals have not actually been implemented. The post-industrial European Union has pledged to cut its emissions by 20 percent by 2020.

If the problem is indeed man-made, industrialized and post-industrialized countries are inadvertently responsible for the bulk of heat-trapping pollutants. But it is the denizens of bottom tier countries who will suffer the most if the worst forecasts about global warming come to pass. Meanwhile, rapidly developing countries such as China and India want the economic benefits of industrialization, but not its political responsibilities.

It does not instill a sense of "we're all in this together" to watch some leaders in the non-industrialized world salivating at the prospect of a massive redistribution of wealth - actually economic and environmental reparations - to help them cope with the crisis ahead.

The Economist argues that greenhouse emissions can be reduced without impoverishing humanity. We don't see how, unless countries stop playing the blame game and observe a "from each according to their ability" motto.

THIS COUNTRY will be represented in Copenhagen by technocrats, MKs, ministers and environmental campaigners. Like many world leaders, Prime Minister Binyamin Netanyahu is waiting until the last minute before deciding whether to attend.

Israel is too tiny a country to have much of an impact on global emissions. Still, successive governments have committed to voluntarily adhere to international emissions targets. The State Comptroller's Office, however, has complained that a consolidated national plan remains overdue. In Israel, 87% of total greenhouse gas emissions are energy related. So we need to very substantially cut the growth of emissions by 2020.

From electric cars, solar energy and wind-power to safe nuclear energy, Israel is capable of leading by example on alternative energy. It should.

Tensions among Jews in Jerusalem

[This may be the only posting this week as I am out sick. Check back at the end of the week. Thanks]



A coalition for Jerusalem

The good news is that the hastily organized, barely advertised, after-Shabbat rally against ultra-Orthodox religious coercion in Jerusalem swelled to several thousand participants by the time it peaked in Zion Square. Unfortunately, such numbers fall woefully short of ensuring a city whose ethos needs to be tradition and tolerance. The demonstration was supposed to bring together secular, Reform, Masorti and modern Orthodox Jerusalemites. But while there was a scattered representation from progressive Orthodox quarters, the middle-of-the-road kipa sruga crowd was mostly absent.

Part of the problem, we suspect, is that Jerusalem is a small "c" conservative city. You won't draw the multitudes in defense of a woman's right to wear a tallit - even in the public plaza adjacent to the Western Wall - probably because many Jerusalemites are culturally Orthodox even if non-practicing.

Moreover, last night's rally featured both Meretz MK Nitzan Horowitz and Meretz municipal council member Pepe Allalo, thus signaling that this was a protest not just for people opposed to haredi bullying, but for those who also champion religious egalitarianism and gay rights.

The modern Orthodoxy are willing to take ideas from the outside world, perhaps interpret Halacha in a more broadminded way, but this does not connote laxity in observance on a drift on core tenets. Granted, theologically progressive Orthodoxy is pushing the envelope on women's participation at gender segregated services. At the end of the day, however, Orthodoxy is not egalitarian and simply cannot embrace homosexuality as being on par with heterosexuality.

That being the case, it would be more practical to pursue a broad-based Zionist coalition aimed at bringing together socially conservative Jerusalemites, the modern Orthodox along with progressives of various stripes to campaign for:

• Protecting mixed and secular neighborhoods from haredi encroachment, while lobbying for non-luxury housing construction that caters to these demographic groups;

• Demanding an equitable allocation of municipal resources especially in education, religious services and culture;

• Insisting on an absolute respect for the rule of law.

One can oppose haredi bullying without ridiculing other aspects of the community's lifestyle and without seeking fundamental changes in the religious status quo at the municipal level.

Disgraceful haredi behavior generates headlines, tarnishes Jerusalem's image, and propels the occasional counter-demonstration. But it is the methodical wielding of haredi clout and patronage that has left this city increasingly insular, close-minded and parochial. This reality begs for a wall-to-wall Zionist coalition.

In a sense we're really asking: What will it take to get rabbis of the caliber of a Michael Melchior and a Benjamin Lau off the dime? They may not march for egalitarianism, but will they stay home even as family style seating at national ceremonies for new olim at the Western Wall becomes de-facto forbidden? Will observant Jews of good will support the demands of Masorti and visiting US Conservative Jews for 24/7 free access to Robinson's Arch?

BY COINCIDENCE, Saturday night's anti-haredi coercion protest marched past the Great Synagogue where, on the first anniversary of Mayor Nir Barkat's stewardship at City Hall, he sat in dialogue with Jerusalem Post editor-in-chief David Horovitz.

Barkat made a generally favorable impression as someone who does not court confrontation. He is committed to growing jobs and oversaw a successful summer of culture in the capital, other tensions notwithstanding.

Barkat senses that the outflow of kipa sruga Jerusalemites is ebbing, citing an increase in the number of national religious youngsters in the schools set aside for them. He also notes that there was no decrease of enrollment in secular public schools.

The mayor thinks of himself as a CEO more than a politician. He's proud of the fact that he does not wheel and deal. Unfortunately, the mayor's lack of political acumen - especially in dealing with the volatile haredi community - has cost the city dearly even when, at the end of the day, the collective interest wins out. We trust that Barkat will come to appreciate that running this city requires him to hone his political acumen so that he is not repeatedly blindsided by controversy. He needs to keep lines of communication open with the rabbis, politicians, mukhtars and neighborhood activists who can help him head off trouble as he implements his agenda of jobs, housing... and tolerance.

Netanyahu, Mitchell & the Settlement Freeze

'It's not enough'


With the patience of a taxi driver at a red light about to turn green, the Palestinian leadership responded to Wednesday's announcement of an Israeli moratorium on new settlement building with: "It's not enough!"

Prime Minister Binyamin Netanyahu's unprecedented moratorium is both substantive and symbolic - the appropriate response to a Palestinian settlement freeze demand that is both emblematic and a red-herring.

THE DISPUTE between Palestinians and Israelis is not about settlements. It hinges on whether the Arabs are willing to recognize the legitimacy of Israel as the state of the Jewish people within any boundaries. Some find it convenient to imagine that the clash between the Zionist and Arab causes has transitioned to a non-zero sum game. That is hardly the dominant view in Israel.

In 1920, the international community gave Britain the responsibility of establishing a national home for the Jewish people in Palestine. But a year later London turned over eastern Palestine to Emir Abdullah and Transjordan was born. The Arab response? "It's not enough."

In 1937, the Peel Commission recommended dividing Palestine into Jewish and Arab states. The Zionists consented. The Arabs... said no.

In 1947, the UN General Assembly voted to partition Palestine into Jewish and Arab states. Again, the Jews agreed. The Arab response was: "It's not enough" and they tried to throttle the newborn Jewish state. Israel survived while the Arabs took the West Bank and Gaza. Did they then form a Palestinian state? Of course not, because these territories alone were "not enough."

In 1967, the Arabs failed to push an Israel living within the 1949 Armistice Lines into the sea and the West Bank came into Israeli possession. Magnanimous in victory, Israel offered peace. The Arab response? "No peace, no recognition, no negotiations."

In 1977, Egypt's Anwar Sadat courageously embarked on the path of peace. Israel withdrew from all territory claimed by Egypt, and Menachem Begin, moreover, offered the Palestinians something they had never enjoyed - autonomy. Israeli forces would have been re-deployed as a prelude to final status negotiations. The Arab response? "It's not enough."

As a result of the 1993 Oslo Accords, the PLO leadership was invited to return from Tunis and set up a Palestinian Authority in the West Bank and Gaza. But a double-dealing Yasser Arafat never genuinely embraced this historic opportunity for reconciliation. Hamas intensified its terror campaign which claimed dozens of Israeli lives (well before the Baruch Goldstein Hebron massacre in February 1994). Ehud Barak twice - at Camp David (July 2000) and at Taba (January 2001) - offered Arafat a Palestinian state accompanied by extraordinary territorial and political concessions. The Arab response? "It's not enough."

When Israel unilaterally pulled its settlers and soldiers out of the Gaza Strip in 2005, the Arabs again said: "It's not enough."

In 2008, Ehud Olmert offered Mahmoud Abbas 93 percent of the West Bank, plus additional territory from Israel proper. Abbas did not even deign to say "It's not enough" - he just walked away.

Then in June of this year Netanyahu, following in the footsteps of his predecessors, unequivocally accepted a demilitarized Palestinian state. The Arab response? "It's not enough."

Generation after generation, decade after decade, Israeli concession after concession, the Palestinians have never missed an opportunity to say, "It's not enough."

SO now the question is what will America do? Special Envoy George Mitchell reacted with sparing approval to Netanyahu's moratorium. "It falls short of a full settlement freeze, but it is more than any Israeli government has done before…" He then diluted this faint praise by coldly reiterating: "America does not accept the legitimacy of continued Israeli settlements."

A slightly more positive reaction came from Secretary of State Clinton who acknowledged that "agreed swaps" should be part of negotiations based on the 1967 lines.

To take additional risks for peace, Israelis must feel secure that the Obama administration wholly backs the 1967-plus formula. Washington needs to cajole Mahmoud Abbas back to the table to bargain in good faith, and it should extract diplomatic gestures from its Arab allies in reciprocity for the premier's concessions.

Otherwise, the discouraging message that comes across to Israelis who want an agreement is that no matter what we do it will always "fall short" with this administration and never be "enough" for the Arabs.