JEWISH LAW IN ISRAEL
Per Bilde & Peter Steensgaard, eds., Zionismen og Israel: religion,
ideologi, stat: belyst ved det moderne Israel som eksempel. Aros, Aarhus,
1983, ISBN 87-7003-421-4, Pp. 167, Price: 122 Dkr. - The main theme of this
book is the relation between religion (Judaism) and ideology (Zionism).
The book consists of 6 papers on the background of Zionism, its beginning,
its history, and its development after the foundation of the State of Israel.
One of the papers, written by the counsellor of the Israeli Embassy in Copenhagen,
Ralph Walden (M.A., Oxon.), treats the relation between Jewish Religion
and legislation in the State of Israel. Walden discusses the theoretical
possibility of accepting Judaism as State religion and the practical (problematic)
consequences of having halakhah as basic law in a modern democracy.
Walden ends up by describing the extent to which halakhah has influenced
the actual legislation in Israel. (K.N.)
Y. Danzier, "A Symbolic Gesture which is more Harmful than Advantageous"
(Heb.), Hapraklit 33 (1981), 619-623. - In this short note, the writer
criticizes the Foundations of Law Act 5740-1980, in the light of
what he believes to be its purely symbolic nature. According to the writer,
reference to the principles of "freedom, justice, equity and peace
of the heritage of Israel" can only be symbolic, since not even the
modern scholars of Jewish law are capable of reaching any sort of agreement
on the definition of this type of general principle in Jewish law, a
fortiori the judges of the Israeli courts. The law imposes upon the
judge a task for which he is entirely unsuited and, as such, is a bad law.
(Y.S.K.)
S. Dichovsky, "A Critique of Rabbinical Court Decisions"
(Heb.), Diné Israel 13-14 (1986-1988) 7-19. - The author
deals with the relationship between both State and private Rabbinical courts,
and State Rabbinical courts and secular courts. He cites various instances
in which private Rabbinical courts recognized the superior jurisdiction
of the State Rabbinical courts, and outlines the reasons for this recognition.
Regarding the relationship between the Rabbinical courts system and the
secular courts, the author, who is a religious judge in the Rabbinical Appeals
Court in Jerusalem, discusses various cases in which the latter system has
encroached upon the authority of the former, and argues that the attitude
of the secular courts is partly responsible for the low reputation of the
Rabbinical courts system in Israel. The last part of the article is devoted
to the thorny issue of divorce proceedings in the Rabbinical courts, and
recommendations of a procedural nature are made with a view to solving the
problem of recalcitrant husbands who refuse to divorce their wives when
ordered to do so by the Court. (D.B.S.)
Z. Falk and D. Frimer, Dine nisu'in, Jerusalem: Mesharim, l983,
Pp. 178; see KS 59/2-3 no. 3896.
M. Keshet, "Foundations of Law Act, 1980" (Heb.),
Hapraklit 33 (1981), 611-618. - This law, which requires the judge
to turn to the "principles of freedom, justice, equity and peace of
the heritage of Israel" when he is in doubt as to the relevant law
for a particular case, is, in fact, a compromise between conflicting views.
In this article, the constitutional aspects of the new law are analysed,
and the conclusion reached that it is an attempt to encourage Israeli judges
to indulge in "judicial legislation" in doubtful cases. The author
also believes that whereas it will have little significance in matters of
Civil law, the Foundations of Law Act, 5740-1980, will have a considerable
effect in the area of Constitutional and Administrative law. (Y.S.K.)
Aharon Layish, Marriage, Divorce and Succession in the Druze Family,
Leiden: E.J. Brill, 1982, ISBN 90 04 06412 5, Pp. xxv, 474, Price: Gld.156
(Social, Economic and Political Studies of the Middle East, XXXI). - Israeli
legislation has established Druze Religious Courts with exclusive jurisdiction
in marriage and divorce, and concurrent jurisdiction in succession, both
for the Druze resident in Israel, and, since 1970, also for those resident
on the Golan Heights. This current substantial study is, as the sub-title
indicates, "based on decisions of Druze arbitrators and religious courts
in Israel and the Golan Heights." The author assesses these decisions
in both legal and sociological terms: the former, in the light of traditional
religious law, customary practice and modern legislation (especially that
of Lebanon and Syria), the latter with an eye to the actual effect upon
the status of woman. It reflects the author's intimate involvement with
the Druze community and its institutions, and makes substantial use of interviews
and other empirical data, as well as legal sources. Apart from its intrinsic
interest, the book provides a wealth of material for comparison with the
content and operation of Jewish religious law on these matters. (B.S.J.)
G. Leibson and P. Segal, eds., Mishpat ivri bipsikat bet hamishpat
ha'elyon, Jerusalem: Akadmon, l981, Pp. iv, 600; see KS 57/2
no. 2223.
M.Z. Nehorai, "Remarks on the Rabbinic Rulings of Rabbi Kook"
(Heb.), Tarbiz 59 (1990), 481-505. - Rabbi A.I. Kook, the first Ashkenazi
Chief Rabbi of Erets Yisra'el in the Mandatory period, provided the ideological
basis for modern religious Zionism in his voluminous writings, which incorporate
the belief that the Zionist movement was a Divine manifestation of God's
promise of redemption for Israel. As a result of this belief, R. Kook came
under fierce attack from extreme orthodox quarters, who rejected any move
to redeem Jews from Exile prior to the Messianic era and opposed the settlement
of Israel by non-observant Jews. R. Kook, however, was not prepared to compromise
on halakhic issues, since he saw the whole period through Messianic eyes,
and did not, therefore, feel the need to accommodate halakhah to
practical reality. In the course of the Messianic process, secular Zionism
would disappear, and all Jews would become thoroughly observant. Consequently,
there was no need to rule leniently on matters such as milking cows on the
Sabbath, Scripturally forbidden work during the shemittah year, women's
right to vote, and autopsies. In all these cases, Rabbi Kook's rulings,
had they been followed, would have been detrimental to the development of
the State, both economically and socially. In fact, these rulings were not
followed, even during his lifetime, and religious pioneers went to other
Rabbinic authorities who found ways of dealing permissively with all of
these issues. The author concludes that Rabbi Kook's popularity in Zionist
circles was due both to his ideology and his great standing in the Rabbinic
world, which provided the necessary legitimacy for the whole Zionist enterprise.
Subsequently, Zionist folk legend created an imaginary Rabbi Kook who had
allegedly legitimized a whole lifestyle, not merely the ideal of the renascence
of the Jewish State. (D.B.S.
Nahum Rakover, HaRambam vehahok bimedinat yisra'el, Jerusalem:
Sifriyat hamishpat ha'ivri, 1985, Pp. 563. - The passing
of the Hok Yesodot Hamishpat in 1980 has prompted an upsurge in research
and educational activity in Jewish law which may come to be seen as at least
as significant as any practical impact which the Law may have on the Israel
legal system. Professor Rakover, Deputy Attorney-General and Adviser on
Jewish Law in the Ministry of Justice, is at the very centre of this activity.
This book adopts an ingenious approach to the problem of making the classical
Jewish sources accessible to the Israeli legal public: Israeli civil law
statutes are annotated, clause by clause, with comparable provisions taken
from the Code of Maimonides. Such treatment is here accorded to statutes
on the major areas of civil law: capacity, agency, contracts (general and
special), security, sale, gift, hire, bailment, lost property, moveables
and real property. A book like this cannot be reviewed in the normal manner:
everything depends on how it will be used. And this admits of a multitude
of levels, from the most superficial to the posing of the deepest conceptual
and methodological problems concerning the character of Jewish law and the
process of comparison itself. (B.S.J.)
M. Shava, Hadin ha'ishi beyisra'el, Givatayim: Masada, l983,
2nd ed., Pp. xvii, 665 (Publications of the Faculty of Law, Tel-Aviv University,
13); see KS 59/2-3 no. 3899.
P. Shifman, Dine hamishpahah beyisra'el, Jerusalem: Harry Sacher
Institute for Legislative Research and Comparative Law, l984, Pp. iii, 335;
see KS 59/2-3 no. 2458. - This book deals with family law as administered
by the civil (as opposed to rabbinical) courts in Israel.
S. Shilo, "Comments and Some New Light on the Foundations of
Law Act" (Heb.) Shenaton Hamishpat Ha'ivri 13
(1987), 351-369. - In this review of the major theoretical difficulties
arising out of the Foundations of Law Act, 1980, the author highlights existing
debates and raises some new points on the status of custom as part of "the
heritage of Israel". The concepts of "analogy" and "lacuna"
are discussed in the context of the debate regarding the scope of the Act,
and the author concludes that the former is the major obstacle to the absorption
of Jewish law, and the latter does not apply to general principles such
as "good faith" and "the public good". Attention is
also paid to the notion of "the heritage of Israel" and the considerable
difficulties facing any attempt to separate principles of a transcendental
nature from specific legal provisions is discussed. The author cites various
decisions, including some District Court cases, in this wide-ranging overview
of a much-discussed, albeit rarely applied, piece of legislation. (D.B.S.)
Peter Steensgaard, "Jødisk religion som faktor i israelisk
indenrigspolitik", in Religion och samhälle i Mellanöstern,
ed. J-O Blichfeldt & J. Hjärpe (Vänersborg: Plus Ultra, l985),
161-83, ISBN 91-86668-06-4, Pp.311. - The article "Jewish religion
as factor in Israeli domestic policy" has as its main aim to demonstrate
the tension between orthodox religion and secular, public institutions in
modern Israel. The author gives a survey of the political situation and
underlines the problems of applying Halakhah in the twentieth century, e.g.
in matters of marriage and divorce or matters of immigration. (K.N.)
E. Tabory, "State and Religion: Religious Conflict Among Jews
in Israel", Journal of Church and State 23 (1981), 275-83. -
Tabory observes that in modern industrialized, Western nations, where "state
and religion are structurally separate" and society is "not governed
by religious adherence", different religions (or subgroups within a
religion) can be very tolerant of each other. This is so in the United States
where relations among Reform, Conservative, and Orthodox Judaism are fairly
good. But when a government, such as that of Israel, links church and state,
antagonism arises. Israel has given some religions legal authority over
even nonreligious members (whose membership is defined by the religion),
has favoured some Jewish groups over others, and has given some Jewish symbols
and observances a favoured status. In Tabory's view, a combination of political
and cultural factors so far has kept protests from assuming major proportions.
But further intertwining of church and state could upset that balance. To
make of Israel a truly unified nation, Tabory feels a lessening of the tension
is necessary. (D.H.P.)
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