Former assistant attorney- general Prof. Nahum Rakover said on Monday that non-Jewish jurists who come to Israel are often surprised to learn that Israeli legal practice is not based solely on Jewish law. Americans are particularly surprised, he continued, because so much of American law derives from Jewish law, while Israeli law also draws from Ottoman and British law.
Rakover was speaking at the third annual award ceremony of Yakir Hamishpat Haivri (Distinguished Scholar of Jewish Law), established by the Israel Bar Association in memory of former Supreme Court justice and world renowned expert on Jewish law, rabbi professor Menachem Elon, who died in 2013 at the age of 89.
This year’s laureates were beloved university lecturer, the late rabbi professor Aaron Kirschenbaum, who died in February, just as this year’s recipients were being selected; and former Supreme Court justice Yaakov Turkel, whose headed the commission investigating the boarding by Israeli Naval commandos of the Turkish ship Mavi Marmara, that led to a deep, six-year diplomatic rift between Turkey and Israel.
The ceremony was held at the President’s Residence with the participation of President Reuven Rivlin, Justice Minister Ayelet Shaked, judges, academics, lawyers and members of the Kirschenbaum and Turkel families.
Attorney Itzhak Natovich, who heads the National Zionist faction at the Israel Bar Association, noted as moderator that the Bar Association takes Jewish law very seriously and regards it as something living, relevant and applicable to current situations.
Natovich singled out Nir Hendel, Moshe Drori and Zvi Weizman as judges who almost invariably invoke Jewish law. Natovich also mentioned State Comptroller Joseph Shapiro, a previous Jewish law laureate, who as a judge referred frequently to Jewish law.
Natovich reflected that if the Jews had remained in the Land of Israel and had not gone into exile, Jewish law would definitely prevail in this country.
Rivlin recalled that when he was still an MK and a member of the Knesset’s Constitution Law and Justice Committee, he and the late MK rabbi Avraham Ravitz went to visit Rabbi Eliezer Shach, who was hailed as the greatest scholar and arbiter of his generation. The subject of their discussion was a Jewish and democratic state. Shach said he had no problem defining democratic, but that defining Jewish was far more complex. He asked Rivlin what he meant by a Jewish state, and Rivlin understood immediately that this was neither the time nor place to take the matter further.
Rivlin himself does not see any conflict between Jewish and democratic, and has repeatedly said so in Israel and abroad throughout the two years of his presidency. He said so again on Monday, but acknowledged that deciding where to give priority to Jewish law in relation to Israeli civil law is problematic.
Shaked injected a humorous note into the discussion when she said that she had heard that Turkel had not initially intended to study law, but had set his heart on becoming an engineer. She was the fulfillment of his original dream, she said, having been an engineer for 12 years and now finding herself in the role of justice minister.
Though secular herself, Shaked emphasized the importance of in-depth knowledge of Jewish law, and suggested that all judges should refer to it when making their decisions. Justice Elyakim Rubinstein is extremely knowledgeable of Jewish law she said, adding that she would like to see more judges with similar expertise.
Momentarily giving her personal attention to Turkel, Shaked said that his name was associated with almost every significant commission and that he was known to be a workaholic. Former Supreme Court president Aharon Barak had told her that when judges took a rest period during the day, Turkel could be seen working in his office. When Barak had asked him why he didn’t rest, Turkel had replied that he believes in working from morning till night.
Bar Association president Efi Naveh said that while all faiths that are practiced in Israel are represented by Bar Association members who are given free expression to raise issues regarding their respective faiths, “we have to remember that in a Jewish state we have to promote Jewish law. In court, when we find a lacuna in civil law, we must return to our sources for guidance.” This is not always easy, he added, because not all judges have a religious background, and therefore are not familiar with Jewish law.
Shapiro said that when he was informed that he had been selected for the distinction he had demurred, thinking that a mistake had been made, because he is not religiously observant. But then he had come to the conclusion that this was precisely why he had been selected – to serve as a role model for other secular judges to relate to Jewish law with the same enthusiasm as he does.
As a practicing attorney, he had also referred to Jewish law he said, but it was it was difficult to track down sources.
With the advent of the Internet, it has become much easier, said Shapiro. Turkel said that in researching Jewish law he always looked for the humane, and cited as an example a quotation from Maimonides, who said a judge should be a person who has children, because this is a factor that will make him more compassionate than someone without children.
There is also a saying that a cohane (member of the priestly caste) should love the public, and if he doesn’t, he shouldn’t be a cohane. “The same holds true for a judge,” said Turkel, adding that throughout his legal career, he had done his best to be humane.
Attorney-General Avichai Mandelblit, who had been a student of Kirschenbaum’s at Tel Aviv University, said that he had been most fortunate to study under him. When ever he is asked for the name of the lecturer who had the greatest influence on him, he names Kirschenbaum, who simply inspired a love for learning.
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