The pluralist

The pluralist

By LAUREN GELFOND FELDINGER
December 24, 2009 17:02
professor hofri 248.88

professor hofri 248.88. (photo credit: )

When the British left Palestine in 1948, the fledgling Israeli government adopted most of the laws of the Mandate. Today, after six decades of slow revisions and additions, the law is based on a massively pluralistic mix of statutes and precedents. Legal material inherited from previous regimes includes vestiges of Ottoman law and law enacted by the British high commissioner. Original legislation and amendments to existing law have been frequently inspired by Western legal systems, and increasingly by commitments to international treaties. And then there are laws, old and new, based on religious commandments. Like in many post-colonial countries across the Middle East, the enactment of certain religious legal traditions as state law dates back to the Ottoman system of giving acknowledged religious minorities some autonomy, authorizing their religious courts to deal with family matters, including marriage, divorce, paternity and alimony. The power of the civil courts to also rule on certain family matters has gradually increased over the last century. Israel has also occasionally adopted Jewish legal ideas outside family law, as in the prohibitions on raising pigs and having public transportation and entertainment in Jewish neighborhoods on Shabbat. In 1980, a statute providing that courts faced with new legal questions should refer, when other sources fail, to "the principles of freedom, justice, rectitude and conciliation found in Jewish tradition," was enacted. But its practical impact has been very limited. Dr. Adam Hofri-Winogradow, assistant professor at the Hebrew University's Faculty of Law, an expert on legal history and comparative law, calls the country's legal pluralism "a complicated puzzle." With the public hotly debating the future of the legal system - especially since Justice Minister Yaakov Neeman called for a greater inclusion of Jewish law - Hofri-Winogradow has been at work on papers dissecting this puzzle and putting it back together in unprecedented ways. Rather than standing with the pro-religious or pro-secular camps, he has been searching for the best of both, with an eye to human rights values. Where does Israel fall on the spectrum of separation of religion and state? The Western principle of separation of church and state, originating in Christian-dominated societies, has little traction in our part of the world. Even elsewhere, strict separation is rare. It is principally a feature of the French constitutional tradition, which insists on an absolutely secular state. This insistence led to the well-known legislation banning the wearing of kippot, veils and other types of religious headgear in French state schools. The US, for example, follows a more mixed model. While the First Amendment to the US Constitution provides that "Congress shall make no law respecting an establishment of religion," many American politicians follow agendas committed to religious, often Christian, values. Until quite recently, even ostensibly "secular" Western or Eastern bloc legal systems, created and controlled by a secular legislature or ruler rather than by revelation or a clerical elite, included norms which were clearly of Judeo-Christian origin. Since the 1960s, and increasingly during the last 20 years, however, nearly all Western legal systems - the US less than most - have removed much of the emphatically Judeo-Christian material from their law, with some systems in Western Europe now approaching full de-Christianization. Israel, however, adheres to the Middle Eastern model of having the state identified with a certain religion and responsible (for example) for funding religious services. Most areas of Israeli law reflect the state's identity as a Jewish state. Was there anything surprising about Neeman's remarks that Israel's legal system should incorporate more Jewish law? He was speaking to an audience of rabbis at the annual conference of the judges of private, non-state Jewish religious courts specializing in civil, commercial and labor law. I am working on an article on the recent appearance of many new non-state Jewish religious courts specializing in those areas of law. Such courts have long been popular in the haredi sector. Now, some religious Zionists - who used to be devotees of the state rabbinical courts for family law and the state civil courts for everything else - are founding their own non-state Jewish religious courts for civil and commercial affairs. Dozens of new courts have been established since 2005. Speaking before such an audience, Neeman's expressing the old religious Zionist credo of having the Jewish state adopt Halacha as its legal system was not surprising. Where does the law community stand on the issues raised by Neeman? With 50,000 lawyers in Israel, there is hardly one "community" with one party line. Many secular lawyers regard Israel's preservation of several religious systems of family law, with religious court systems to enforce them, as either a mistake, a tragedy or both. Some observant lawyers probably share some or all of this sentiment. Other observant lawyers probably share Neeman's sentiments, as religious Jewish law is clear that Jews are forbidden to sue in courts applying any other legal system, unless given permission to do so, on a case-by-case basis, by a religious Jewish court. Many of Israel's present-day Orthodox scholars of Jewish law - both haredi and religious Zionist - hold Israel's civil, secular state courts to be an object of this prohibition, even though most of their judges are Jewish. For one committed to this reading of Jewish law, it is the Jewish state's courts applying a non-Jewish legal system that would seem tragic. Most of Israel's lawyers follow personal convictions - religious or otherwise - so far as their hopes and fears for the future of Israeli law are concerned. Could religious law play an even bigger part in the future? It is possible, yes, that there will be more religious law applied. If a massive majority of Israel's Jews come to support the application of Halacha to additional subjects, and this support is reflected in the Knesset, we could eventually edge somewhat closer to a "Halacha state," so far as the law applied to Israel's Jews is concerned. It seems unlikely that Jewish law shall be applied to non-Jews in any significant way. Jewish religious conservatives focus on having Jews obey Jewish law, not on having others obey it. Could it happen in criminal law? The application of halachic and Shari'a criminal law - including the stoning of adulterers and amputating thieves' hands, respectively - is unlikely in Israel. Israeli criminal law is almost completely secular, including very little that echoes either Halacha or Shari'a. It still reflects a British Mandatory ordinance of 1936. What about the death penalty? In ancient Jewish law, as reflected in the Bible, the death penalty was prominent. Around the time of Christ, however, it almost went out of use, as the developing law of evidence made proving the relevant allegations hard. Requiring two observant Jewish male witnesses to prove that a capital offense has been committed - Shari'a requires four male witnesses - means criminal law becomes significantly less savage. It also means many cruel acts may remain unpunished. And so an additional, newer layer of penal norms developed on top of the earlier, holy stratum. Maimonides tells us, following earlier sources, how Shimon ben Shetah had, during the first century BCE, 80 women suspected of witchcraft hanged in Ashkelon, respecting no evidential requirements at all. Later, the partial autonomy granted to Jewish communities in the Diaspora often did not extend to criminal matters, and so Jews were subject to non-Jewish criminal law. How much does and can religious law influence personal matters? In family law, Israel preserves the Ottoman millet system, which gave several minority communities a limited autonomy to run, and adjudicate on, their own family affairs (as well as some matters of ritual, such as kashrut) according to their own religious legal traditions. Civil legislation started during the late Ottoman era, from about 1840; it added to and replaced Shari'a, as well as establishing a civil court system. But the millet system remained in place. The British Mandatory authorities were obliged by the terms of their League of Nations Mandate to conserve the rights of Palestine's various religious communities. Article 2 of the 1922 Mandate said that Great Britain shall be responsible for safeguarding the civil and religious rights of all communities. And so the mandatory power preserved the Ottoman millet system. Not that the British required a great deal of convincing - even in non-mandate colonies, Britain was reluctant to interfere in the family law applied to natives. When Israel was established during the bitter war of 1948, there was no time for a thoughtful process of law reform. An ordinance of May 19, 1948, provided that the law which existed at the end of the Mandate was to be preserved, unless specifically abrogated, and bits have since been abrogated, slowly. But political divisions have prevented, for example, the creation of a civil marriage option. The millet system is still with us. True, the Supreme Court has slowly narrowed down the jurisdiction of the various religious courts. Sometimes the Knesset contributed to this process, as in 2001, when the Family Courts Act of 1995 was amended to provide that civil courts for family affairs shall have concurrent jurisdiction with Christian and Muslim religious courts over matters such as child support, alimony and custody. But the core issues of marriage and divorce remain exclusively under the jurisdiction of the various religious courts. There is relatively little legislative action in family law. We are just one post-colonial state among many, with fascinating parallels to others, such as India and Pakistan, which also apply religious legal traditions to most of their inhabitants' family law matters. From a human rights point of view, it is a tragedy that family law was chosen - in Israel, Lebanon, Egypt, Syria, Pakistan, India and other places - as the key area of law where religious law is applied. The human rights - particularly women's rights - problems in religious family law are notorious. Many of them, such as (in Jewish law) the problem of agunot and that of exploitative divorce agreements, are consequences of divorce being subject to husbands' voluntary decision. Shari'a has its own problems: It has done even less than Halacha to rid itself of polygamy - a man may still, under Shari'a, marry up to four wives, so long as he can provide for them all. While Maimonides says a man can even marry a hundred wives, polygamy is now quite a rare practice in Judaism, banned for Ashkenazim and rare for others (though Rabbi Ovadia Yosef has insisted that it is permitted for non-Ashkenazim, and even appropriate, in situations where the former marriage has effectively ended, and the wife is either physically or mentally absent, or willfully and unreasonably refuses to accept a get). Other examples of human rights violations in Jewish religious family law are kohanim not being able to marry divorcees, and all Jews not being able to marry gentiles. Is family law the only area of law that influences human or civil rights? Is it an issue, for example, that secular and non-Jewish people can't ride buses or enjoy entertainment on Shabbat? While many people, including myself, are quite uncomfortable with those facts, I doubt whether every case of discomfort should be seen as a human rights problem. The human rights rhetoric should be reserved for the true cases of agony - the agunot problem, not the problem of not being able to ride a bus. Otherwise the insistence that human rights be respected becomes merely a verbal proxy for an insistence on a secular lifestyle. True, if you are very religious, a devout follower of Halacha, then the human rights perspective might be less or not important to you; you might believe that the concerns of justice are adequately taken care of by Halacha itself. But if you hold human rights standards to be important, then parts of religious family law - Jewish, Muslim and Christian - appear problematic. The occasionally inflexible application of Halacha in family law by our state rabbinical courts - even, on occasion, choosing less flexible opinions on purpose - does little to redress those problems. But there are other parts of Halacha which could, in principle, be applied as state law with little or no negative human rights implications. Are you saying that Israel could benefit by removing religious law from family law while looking to it in other areas of law? Civil and commercial law is a part of the law where a lot of Jewish law could be applied with few or no negative consequences. Since generations of Jewish merchants obeyed Jewish civil and commercial law while living in gentile surroundings, Jewish civil and commercial law has kept developing and is thus relatively up to date; it requires less refashioning than other parts of Jewish law to be successfully applied by a modern state. Now, Israeli civil and commercial law is based on a mix of ideas drawn from Western legal systems and international treaties, with a little Jewish law thrown in. Some original Israeli legislation in this area draws on talmudic ideas and phraseology [but] the fundamentals are Western. In fact, on some issues, Halacha can be said to be more human-rights-compliant than secular Western law. The obvious example is the law of lending at interest: Both Halacha and Shari'a do not in principle allow this form of financing. They object because it distributes the risk of entrepreneurship unfairly between entrepreneurs and financiers. The risk of failure is born wholly by the former, while the lender is in principle due his principal and interest whether the venture succeeds or fails. Both Halacha and Shari'a prefer an alternative financing model where the lender has a stake in the venture, and bears some of the loss in case of failure. The Islamic banking sector, which has become an important part of every Muslim-majority and many Western economies, is built on this alternative model. Perhaps the Jewish law of lending should be put to similar use in Israel. There is, for example, potential in the convoluted device known as heter iska, but this potential has yet to be realized by our courts. True, there is much in halachic private and commercial law that needs modernization, but the flexibility inherent in those parts of Halacha should allow for this. In fact, the modernization of halachic civil and commercial law is already occurring outside the state legal system, as many rabbis and halachic scholars in Israel and abroad discuss the application of halachic ideas to present-day economic and financing structures. The conference Neeman spoke at featured many speakers who addressed exactly such themes. How likely is it that Israel would move away from Jewish law in family law and move towards Jewish law in civil law? Not very likely, unfortunately. From a religious point of view, Halacha believes in strictness in family law and in flexibility in civil law; so devout Jews will be hard-pressed to agree to the secularization of Israel's state law on family issues. Our state rabbinical courts have proven less than willing to refashion certain central points of Jewish religious family law so as to adapt them to a modern society. Should Jewish law, other religious legal systems and the law of non-Western countries be considered pertinent sources of comparative law? The Justice Ministry and Knesset do look at comparative law when new legislation is formulated. When not bound by international treaties, our legislators, elected and nonelected, generally look to Western legal systems for inspiration; sometimes Jewish law is looked at as well. There are prejudices stopping many Israelis from considering the law of non-Western states, or non-state legal traditions besides Jewish law, as potential sources of normative material. I believe, however, that all sources are legitimate and all precedents are interesting. If the majority wants more religious law and if the law allows for it, are there checks and balances to prevent the state from becoming a theocracy? Those are major ifs. No state is actually ruled by God. Some states, such as Iran, are ruled by high-level clerics; others, such as Saudi Arabia, are largely ruled according to some system of religious law. If Israel develops a clear, solid and stable majority which believes that more Halacha than is currently applied by Israel's state courts should be applied by them, or if - as some leaders of the non-state halachic civil law court movement hope - more and more Israelis give up on the services of the largely secular state court system in favor of non-state halachic courts, we may end up with more halachic adjudication. One should, however, be careful not to confuse the question of whether Israel is or will be a democracy or not with the separate issue of which legal norms are applied by the state's courts to subjects such as family or civil law. I personally believe that the multiethnic, multifaith character of Israeli society - the fact that it includes large blocs of both Jews and Muslims - shall probably prevent the establishment of either a halachic or a Shari'a state, either in the sense of clerical rule or in the sense of much of those religious legal traditions being applied by state courts. Those two large population blocs - Jews and Muslims - shall probably check and balance each other. But no one can really tell; one should be careful not to predict, baselessly, the realization of one's personal hopes as a likely forecast.


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