According to law, every municipality must appoint a property tax reduction committee, and this committee must include an opposition representative whose role is to oversee the reductions granted by the majority group. In the Bnei Brak municipality, they decided to appoint to the committee a representative who left the coalition and joined the opposition. The only opposition faction objected to this move and insisted that a representative from their side participate in the committee. The dispute reached the Supreme Court, and Justice Neal Hendel proposed resolving the issue in light of a principle established by Hebrew law already in the XIII century, according to which in every community decision-making process, the majority must hear the minority’s opinion so it can properly consider the criticism against the decision. A decision-making process in which the minority cannot voice its opinion is an invalid process. Based on this, the Supreme Court ruled that the largest opposition faction would choose its representative on the property tax reduction committee.
The fact that in the XXI century, a legal discussion in Israel is resolved through the legal concepts formulated by XIII century sages is remarkable. But this doesn’t only happen in Bnei Brak. Hebrew law is a cornerstone of modern Israeli law. I talked to Prof. Benny Porat, head of the Institute for Research in Jewish Law at the Faculty of Law of the Hebrew University in Jerusalem, about the influences of Hebrew law on our legal system today.
Let’s start from the beginning: What is the formal relationship between the Israeli legal system and Hebrew law? Does Hebrew law have any legal authority, or is it merely a source of inspiration?
“We have to distinguish between the realm of marriage and divorce and other areas of law. In the realm of marriage and divorce, Hebrew law (Halakha) has had a special status since the early years of the state. It was then determined that for Jewish couples, marriage and divorce would be carried out according to the Torah law and would be adjudicated in rabbinical courts.
“In other areas of law, Hebrew law did not have special status. Judges who were interested in its counsel turned to it, and those who were not interested did not turn to it. This situation changed, ostensibly, in 1980 when the Foundations of Law Act was enacted, which anchored judges’ obligation to turn to Hebrew law in cases of a non liquet (or a lacuna), meaning a situation for which there is no applicable law. However, the debate between opponents of integrating Hebrew law and supporters continued, and in practice, the Foundations of Law Act did not significantly change the practical status of Hebrew law in Israeli law. Judges interested in its counsel continue to turn to it, while judges interested in disconnecting from it continue not to turn to it.
“All this is from a formal perspective. From a practical perspective, there are judges who regularly turn to Hebrew law to draw inspiration for solving the problems they face. They are not the majority, but this is an existing, consistent voice that deserves to be heard, and the upcoming series is dedicated to this.”
Would broader use of Hebrew law make Israeli courts more similar to rabbinical courts?
“The concepts of Hebrew law and Halakha are close to each other, but at the same time, distinct from one another. The concept of Halakha refers to the rules of religious conduct that relate both to commandments between man and God (such as prayer, Sabbath, and kashrut) and to matters between man and his fellow man (such as murder, contract formation, and laws of evidence) from the religious perspective of Jewish tradition. The concept of Hebrew law, on the other hand, refers to the Zionist project of transforming the legal parts of Halakha into the building blocks of the modern legal system in the State of Israel.
“The term Hebrew law is part of an entire semantic field that contains additional concepts, such as the Hebrew language, the first Hebrew city, Hebrew labor, the Hebrew calendar, the Hebrew University, and more. Therefore, although the same Talmudic sources may be the source for rulings – both in rabbinical courts and in the courts of the State of Israel – the context is different. In rabbinical courts, turning to Halakhic sources is done out of religious consciousness and religious subordination. In contrast, when judges in Israeli courts turn to Talmudic sources, they do so out of a cultural consciousness, not necessarily religious one; they conduct a cultural dialogue with them.”
From which major Jewish sources does Israeli law currently draw inspiration?
“When judges choose to turn to Jewish sources to draw inspiration for their rulings, a 3,000-year-old library opens before them. It includes biblical literature (the Tanakh), the Mishnah and the Talmud, Hebrew literature from all Jewish diaspora communities from the many centuries after the Talmud, and the literature of legal rulings in the modern era. This library is enormous in scope, and it contains the wisdom of generations of thousands of Jewish sages. A judge who wants to draw inspiration from this generational wisdom can use various databases with efficient search software. Recently, artificial intelligence tools have been added to these, making Hebrew law literature even more accessible.”
Is Israeli law indeed mostly a copy of the English legal system?
“The Israeli legal system is eclectic, meaning Israeli law does not distinctly belong to a particular legal tradition, but rather shows the fingerprints of many legal systems. Just as Israeli culture was created from the ingathering of exiles and contains cultural influences from many traditions, Israeli law has also been influenced by many traditions. English law has a great influence on Israeli law, mainly due to the Mandatory period that preceded the State of Israel, but this is not an absolute influence. Other European legal systems, such as German law, also had an influence. Naturally, in recent decades American law has had a great influence on Israeli law, and throughout the many years of Israeli law, there has also been some influence from Hebrew law; sometimes it was more prominent and sometimes less so.”
Do you know of other modern countries where ancient legal systems are used?
“Naturally, examples can be found in the Muslim world. Modern Muslim countries grapple similarly with the question of how to balance their ancient Muslim cultural sources with modern needs. In the Far East as well, similar dilemmas can be found, as modern countries like China grapple with the question of where to give expression to their traditional legal heritages. In contrast, this is less common in the Christian world, because the Christian religious heritage, unlike Islam and Judaism, did not view law as a central religious field worthy of development and expansion.”
In your view, is there sufficient use of Hebrew law in the Israeli legal system? Where would you expand its use?
“In my view, the Israeli legal system does not make sufficient use of Hebrew law sources. Most judges fear them or are unfamiliar with them, and therefore hesitate to turn to them. The fear stems from the mistaken assumption that judges’ turning to Hebrew law would pave our way to a Halakhic state. As I explained earlier, turning to Hebrew law is done not out of religious-Halakhic commitment, but from a desire for cultural dialogue of a modern people with its rich ancient sources. What will be the results of this dialogue? The judges will decide. It is regrettable that this dialogue does not take place sufficiently.
“If we were to choose a particular legal field where this lack of connection is especially prominent, it would be welfare law. Welfare law deals with the question of society’s obligation to protect the welfare of weak populations (the poor, elderly, disabled, and so on). This legal field preoccupied Hebrew law scholars throughout the generations, and its roots reach back to the Bible. In truth, it is difficult to think about modern welfare law without the first revolution the Torah created in this field; it laid the foundation for the intellectual revolution that created welfare law. Therefore, it is particularly regrettable that usually, judges do not turn to the Jewish library when they grapple with deep questions in the field of welfare law.”
This article was originally published in Hebrew.
For more, see Prof. Benny Porat’s online series at BAC, “The contribution of Jewish law to Supreme Court rulings” (in Hebrew).
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