Justice Elon characterized the Jewish heritage and the democratic tradition and the task of the courts to interweave them.
By BERNARD AUERBACHScales of Justice 370(photo credit: REUTERS / Stephane Mahe)
At a recent conference at the Israel Bar Association in Jerusalem, which dealt with the subject of Jewish law in the legal system of the State of Israel, many of the participants, prominent judges and scholars of Jewish Law, frequently referred to Menachem Elon, who recently died, as “our teacher.”The specific topic at the conference was: “Is the Torah of Israel Relevant to our Times?” If there is a positive response to this question in the field of Mishpat Ivri, i.e. civil, criminal and public law, it is due especially to the work of Menachem Elon. His efforts, made in his capacities as professor of law and justice of the Supreme Court and in his voluminous writings were directed at placing what is called “Mishpat Ivri” on the table of the study and discussion of Israeli law, and establishing a partnership between the two legal systems.It is impossible in a short article to adequately cover the many facets of his accomplishments.The most that can be done is to describe some of the important aspects of his work.The major sources of his views are found in his decisions in the Supreme Court and in his magnum opus, Mishpat Ivri – History, Sources, Principle. It was my privilege to translate Mishpat Ivri into English, Jewish Law – History, Sources and Principles (four volumes, published by the Jewish Publication Society, 1994), together with my co-translator, Melvin Sykes, esq., but it was much more than a privilege, it was a real pleasure to become acquainted with Justice Elon.During the decade of work on the project, his encyclopedic knowledge of Jewish and general law quickly became apparent. He had a pleasant manner, a congenial disposition and a sharp sense of humor. On one occasion, when there were two ways of interpreting a passage in his book, he said, “When I wrote the passage, both G-d and I knew its meaning. Now only G-d knows.”It is my purpose here to call attention to those aspects of his writings in which he took an original approach to the study and application of the halachic system. As to the scope of Jewish legal study, Elon emphasized the importance of the study of the post-Talmudic period. Contrary to the bulk of the early scholarly literature in Jewish Law that was devoted mainly to the biblical and Talmudic periods, Elon viewed the Halacha as a living law for practical application in the real world, to be applied to reach the solution of real-life problems.For a valid understanding of any halachic principle, it was therefore necessary to trace the development of that principle during the various historic stages to determine how it was applied in various circumstances.Such a study would enable the scholar or decision-maker to draw conclusions with regard to how to adopt the principle for practical application under his own conditions.For this reason, Elon emphasized the importance of the responsa literature, which originated after the Talmud. He also gave special prominence to the communal legislation of the Jewish communities throughout the world from the 10th to the 18th centuries.The responsa literature contains decisions by authoritative halachic decision-makers in actual cases; the decision is reached after arguments by both sides have been presented and explains the grounds for the decision. They therefore have greater authority than theoretical conclusions. Elon greatly relied for his conclusions on the responsa literature.A good example of this approach is the decision by Justice Elon in the case of Rosenstein vs Solomon, made in 1984. The issue in the case centered on the subject of self-help. In reviewing Jewish Law on the subject, Justice Elon found that the Talmudic sources and the Codes of Maimonides and the Shulchan Aruch took the view that a person may resort to self-help in certain circumstances. For example, to retake property from a trespasser, even after the trespass has already been effectuated, so long as the facts clearly indicate that the property has been stolen.However, Justice Elon held that this rule should not be currently applied. He stated that under Jewish Law, “where prevalent moral conditions [so] require... the interest in preserving the public peace is to be given priority...,” and the case must therefore be first brought to court before any action is taken.In support of his decision, Justice Elon cited a responsum by R. Jacob Reischer (18th century, Poland). In a similar case, R.Reischer held that “the rationale that he who knows the truth may do everything to assert his right... is inapplicable nowadays in view of the increase in the number of robbers, thieves and violent men....”A lesser known but important chapter in the history of Jewish Law to which Elon gave great prominence was that of the legislature enactments of the Jewish communities throughout the world from the 10th to the 18th centuries, when these communities had juridical autonomy.The communal enactments by the townspeople or their elected representatives in the areas of civil, criminal and public law became an integral part of the halachic system. The enactments were binding on any dissenting minority under the principle of majority rule.The provisions of the enactments could be inconsistent with existing halachic rules under the principle that monetary rules may be varied by agreement.An interesting aspect of the “communal enactment” phenomenon was the procedure for “judicial review.” Legislation by the communal authorities was subject to review by the halachic authorities. Justice Elon’s formulation of the standard of review was to ensure that the enactment did not violate “the general principles of justice and equity embodied in Jewish Law,” specifically “equality before the law, the protection of minority rights and the rights of the disadvantaged, and the aspiration to improve social discipline and the social order.” (Jewish Law Vol. 2, p.760, English Ed).The two Basic Laws adopted by the Knesset in 1992: Human Dignity and Freedom, and Freedom of Vocation both state as their purpose – “to anchor in a Basic Law the values of the State of Israel as a Jewish and democratic state.”Justice Elon characterized the dual reference as “two strands – the Jewish heritage and the democratic tradition... and it is the task of the courts to interweave them into the synthesis indicated by the Basic Law.”Throughout his life and career, Menachem Elon sought to achieve such a synthesis. If there is any prospect that this goal will be realized, it is due principally to the work of Menachem Elon.The author is professor of law (emeritus), University of Maryland Law School. He made aliya in 1992.
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