Israeli Bill Prescribes Jewish Law in Absence of Legal Precedent

The proposal of the so-called 'Nation-State Law' has been submitted as a regular law rather than as a basic law, which has constitutional status

FILE PHOTO: Israel's High Court of Justice.
Gil Yohanan

A revised draft of the bill for a new basic law defining Israel’s identity as a nation-state requires courts rule “in light of the principles of Jewish law” in matters for which there is no current law or legal precedent. The proposal has also been submitted as a regular law rather than as a basic law, which has constitutional status. It has been criticized as potentially discriminatory toward women, Arabs and the gay, lesbian, bisexual and transgender community.

A basic law from 1980 contains a vaguer provision requiring judges to rely on “the principles from Jewish heritage of liberty, justice, fairness and peace” when existing law or case precedent are insufficient. Several subsequent judgments ruled that the 1980 provision does not mandate recourse to Jewish religious law, halakha. The current bill does so explicitly.

The move by the government coalition would refine the law to require greater application of Jewish law by the courts. The chairman of the Knesset Constitution, Law and Justice Committee, Nissan Slomiansky, is sponsoring a separate amendment to the 1980 basic law to make it identical to the latest nation-state bill. After the Knesset approved it in a preliminary vote, it was returned to the committee to ready it for the first of three additional votes required for it to become law.

In November, Prof. Mordechai Kremnitzer of the Israel Democracy Institute wrote that the new provisions are not only inherently harmful but are also part of “a broader process of the state-sponsored injection of religion. Jewish law is also harmed. Like any other coercion, a forced reference to Jewish law will create a negative attitude toward it.”

The move, he added, would create the possibility that law would be adopted that is anti-humanist, particularly when it comes to applying principles of equality. It would also require a resort to Jewish law in contexts that are not in keeping with the modern legal system, he said, in criminal law, for example, and could lead to difficulties in the interpretation of Jewish law.

The legal staff of the Knesset constitution committee expressed its concerns in June, writing that the proposed change could create tension “particularly with everything related to the manner in which Jewish law perceives women and non-Jews, which is different from the view accepted in a modern democratic system, as well as everything related to legal norms in criminal proceedings and in certain respects in public administrative law, fields that in some cases Jewish law is not sufficiently developed and in part is based on a fundamental outlook that is not in keeping with the outlooks accepted in modern countries.”

But the legal advisers added: “Although one can understand the concerns in this context, it appears that in light of basic laws that stress Israel’s character as a “Jewish and democratic” state and the fact that reference to Jewish law is not on specific subjects but rather principles that are on a high, abstract level, in cases in which tension is created between provisions of Jewish law and fundamental principles of the system, the judge can avoid such an explicit conflict and only choose those principles that are in keeping with [Israel’s] character as a “Jewish and democratic” state.

On Saturday night, Slomiansky told Haaretz: “The reference to the principles of Jewish law will not mean that tomorrow everyone with be required to put on tefillin or that women will have to go to a mikveh ritual bath. Justice Aharon Barak said ... Jewish heritage was like the Hebrew Encyclopedia. We don’t need Jewish law to be a mistress but rather a lady unto herself. A judge who is in favor of homosexuals, won’t resort to Jewish law in any event. Up to now, the most enlightened countries have not achieved the level of Jewish law, particularly on social issues.”

In the preface to his bill, Slomiansky wrote that “Jewish heritage” today “is generally interpreted as identified with the principles of Jewish law, but since the term is broad, there have been occasions in which it has been interpreted in an inclusive manner, including not only Jewish law but also other principles including those written about by modern Hebrew writers in philosophical works, etc.”

A special committee to advance the nation-state bill distributed the revised draft in an effort to create a consensus ahead of a session on Monday.

Central to the current version is the controversial subordination of Israel’s democratic character to its Jewish character, requiring courts, in petitions in which there is a conflict between these values, to give a preference to the country’s Jewish character. The version that has been released requires that any Israeli law be interpreted in light of Israel’s identity as the historic homeland of the Jewish people and that the exercise of national self-determination in the country is unique to the Jewish people. Only after that does the legislation deal with the country’s democratic character, suggesting either that the law is meant to enshrine Israel’s values “as a Jewish and democratic state” or alternatively “as a Jewish state with a democratic form of government in the spirit of the Israeli declaration of independence.”

The revised version grants a different status to Arabic and Hebrew in Israel. There are deliberations in the government coalition as to how to define the status of Arabic. One proposal would give it “special status in the country” and give its speakers “the right to language access” when it comes to state services “as to be provided by law.” Another version states: “Nothing in this section shall harm the status given in practice to the Arabic language before the application of this basic law.”

The revised version deals at length with the connection between the Jews of Israel and the Diaspora and anchors in the basic law the Law of Return, providing the right of Jews to immigrate to Israel. It also provides that Israel will work to preserve the cultural, historical and religious heritage of the Jewish people among Diaspora Jewry. Another section states: “The state will strive for the well-being of members of the Jewish people in distress and in captivity for being Jewish.” The revised version also states that the state is authorized, but not required, to establish communities for members of other religions in Israel.