Israeli jurisprudence includes foreign and religious influences such as rabbinic halacha and Islamic sharia laws. While it is not mandatory to refer to religious laws when arguing a case, the wisdom of the ancient sages often proves to be superior to that of the people who came together to compile the regulations that apply to common law.
It was for this reason that the late National Religious Party leader and Religious Affairs Minister Zerah Wahrhaftig established and directed the Institute for Hebrew Law at the Ministry of Justice.
The significance of Hebrew Law was also recognized by the Israel Bar Association, which has a special committee of experts on Hebrew Law.
When he was Speaker of the Knesset, President Reuven Rivlin also established a Hebrew Law committee to examine whether legislation was in fact in keeping with Hebrew Law and Jewish values.
For the third consecutive year, the Distinguished Fellows in Hebrew Law came to the President’s Residence to be congratulated by President Rivlin.
This year’s honorees were Itamar Wahrhaftig, the son of Zerah Wahrhaftig, who academically has followed in his father’s footsteps both as a scholar and teacher; and retired Judge Yaakov Bassak.
Also present were Justice Minister Ayelet Shaked, Justice Hanan Melcer representing the Supreme Court, former deputy president of the Supreme Court Elyakim Rubinstein, who was last year’s Hebrew Law laureate, Efi Naveh, president of the Israel Bar Association, Itzhak Natovich, who chairs the Hebrew Law faction at the Bar Association and Habayit Hayehudi MK Nissan Slomiansky, who chairs the Knesset Constitution Law and Justice committee which cooperates with the Justice Ministry, the Supreme Court and the Bar Association in promoting and advancing Hebrew Law.
Rivlin underscored the importance of ancient legal sources, especially when there is a gap between the law and justice.
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Natovich, who reviewed the history of Jewish Law, said that initially the Sanhedrin in Jerusalem was an amalgamation of civil law and religious law, but later the two schools separated with civil law experts on one side and religious law experts on the other.
In the 13th century, he said, Maimonides wrote the first Jerusalem codex which was far more comprehensive than any common law codex.
Shaked said that during the past three years greater efforts have been made among all the parties concerned to make greater use of Hebrew Law.
“It’s important for us as a nation,” she declared. She was particularly appreciative of Rubinstein’s efforts in this direction during the period that he served in the Supreme Court.
Naveh, harking back to his days as a law student, said that he had studied British, American and International, but very little attention was given by his teachers to Hebrew Law. “There was a lacuna,” he said, noting that only lawyers and judges who came from religious homes knew anything about Hebrew Law. He insisted that Israeli Law should be based on Hebrew Law.
Melcer, who is not religious, said that he had once spoken at a public event about Hebrew Law, and out of respect had donned a kippa. Rubinstein had told him to remove it lest the audience think that Hebrew Law was strictly a province of the religious community.
Melcer said that he had learned over the years that if there is no civil law solution to a problem, it is recommended to go to Hebrew Law. “It amazes me how Hebrew Law, which was formulated 2,000 years ago, is applicable to current legal problems. Sometimes there’s a great philosophy in only one or two sentences.”
He praised Rubinstein for having integrated Hebrew Law not only into the Supreme Court but into everything he had done in his long and varied career.
Melcer emphasized that Rubinstein had always opted to take “a middle road a balanced road” whereas many other practitioners of Hebrew Law tend to be extreme.
After lauding his successors, Rubinstein, who had been a member of the Israel delegation at Camp David in 1978, and conscious of the fact that the 40th anniversary of the Camp David Accords was on September 17, decided to speak on the subject with specific reference to Jerusalem. He recalled that US President Jimmy Carter went along with the Egyptian position on Jerusalem and agreed Jerusalem was integral to the West Bank.
But Prime Minister Menachem Begin refused to concur, and in a brief letter to Carter dated September 17, 1978 wrote: “I have the honor to inform you, Mr. President, that on 28 June 1967 - Israel’s parliament (The Knesset) promulgated and adopted a law to the effect: ‘the Government is empowered by a decree to apply the law, the jurisdiction and administration of the State to any part of Eretz Israel (Land of Israel - Palestine), as stated in that decree.’
“On the basis of this law, the government of Israel decreed in July 1967 that Jerusalem is one city indivisible, the capital of the State of Israel.”
In other words, to quote Rubinstein, “Begin said ‘No.’”
Getting back to the subject of Hebrew Law, Rubinstein stated that it was “very important” that Hebrew Law not be regarded as simply a religious prerogative. “Hebrew Law is a national treasure.”
Sloniamsky, who is an ordained rabbi with a Masters degree in Hebrew Law as well as in physics, explained the difference between a shofet – a judge in a civil court – and a dayan – a judge in a religious court. Mostly he said, the shofet listens to the arguments of the lawyers. If the lawyers present a good argument, they usually win the case. But a dayan has to rely on his own intuition. He is the one who asks the questions, seeks the truth and comes to a conclusion. “He is also the one who puts soul into his ruling.”
To illustrate the latter point, Sloniamsky said that he had once been told a story by one of the daughters of the late Rabbi Ovadia Yosef, a former Sephardi Chief Rabbi and the spiritual mentor of the Shas party.
A distraught women had come to see Yosef to ask if the chicken she had brought with her was kosher. Yosef looked at the chicken from all sides and pronounced that it was. The woman was grateful and delighted After she left, Yosef’s aides were incredulous and asked how he could have told her the chicken was kosher when obviously it was not fit for Jewish consumption. The rabbi answered “You only looked at the chicken. I also looked into the woman’s eyes.”
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