Ministers to Decide Whether Israeli Courts Must Use Jewish Law

'One wonders why Israeli law would want to take in religious principle written thousands of years ago and incompatible with a sovereign state in the 21st century,' says Prof Mordechai Kremnitzer.

Jonathan Lis
Jonathan Lis
Bezalel Smotrich.
Habayit Hayehudi MK Bezalel Smotrich.Credit: Olivier Fittousi
Jonathan Lis
Jonathan Lis

The Ministerial Committee for Legislation is due to decide Sunday whether to support legislation enabling Israeli courts to rule on the basis of Jewish religious law (halakha,) in cases where the law or previous rulings do not provide a clear decision.

Professor Mordechai Kremnitzer, vice president of the Israel Democracy Institute, says the bill, sponsored by MKs Nissan Slomiansky and Bezalel Smotrich (Habayit Hayehudi,) will “bring Israel closer to becoming a religious state and contravene Israel’s essence as a democratic state, which is the nation state of the Jewish people.”

The explanation attached to the bill says that a law passed in 1980 stipulated that the courts must look to Jewish heritage when ruling on a legal issue that cannot be resolved by existing law or precedent. However, it continues, judges have seldom done so, because the law is vaguely worded and advises judges to base their rulings on “the principles of freedom, justice, integrity and peace of Jewish heritage.” Additionally, the courts are permitted to rule according to inference (alternative legal sources) before turning to Jewish religious law derived from the Torah.

The new legislation proposes that in case of lacuna — the lack of a law or legal source addressing a situation — judges may base their decisions on the principles of halakha before going to alternative legal sources.

Slomiansky also proposes to replace the current law’s vague version with an explicit version saying “judges may rule on the basis of the Code of Jewish Law.”

In Kremnitzer’s opinion, written with Dr. Amir Fuchs and issued over the weekend, he warns that “this proposal will badly damage Israel’s status in the world and portray it as a state in which religious laws rule rather than democratic principles.”

According to Kremnitzer and Fuchs, the current law holds that if a court doesn’t find an answer to an issue in the law, in a written verdict or by inference, it must rule “in the light of the principles of freedom, justice, integrity and peace of Jewish heritage.” This wording indicates a hierarchy in which the law and legal precedents have precedence. The bill wishes to change this hierarchy so that a judge will no longer be allowed to reach a decision by inference. Instead he will be obliged to turn to halakhic law first.

In addition, the bill replaces the term “the principles of freedom, justice, integrity and peace of Jewish heritage” with “Jewish religious law,” making it clear that it’s not dealing only with general principles but with Jewish law itself.

“One wonders why Israeli law would want to take in, without the required screening or filtering, principles of religious law that was written thousands of years ago and consist of entire areas that are not compatible with a sovereign state in the 21st century, like discrimination against women and non-Jews,” Kremnitzer and Fuchs said.

They conclude by saying that the proposed legislation consists of “religious coercion that infringes of the right to freedom from religion, a freedom already undermined in Israel today by legislation, especially in issues of personal status.”

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