Do Israeli Judges 'Look Down' on Jewish Civil Law?
According to a new study by Dr. Aviad Hacohen, Dean of the Shaarei Mishpat College, despite the talk by officials in Israel’s judicial system about the importance of Jewish law and its integration into the Israeli legal system, in practice no use is made of it and those who use it are looked down upon.
Justice Minister Yaakov Ne’eman has called in the past to incorporate mishpat ivri (Jewish civil law) into Israel’s law procedures. He is the present-day representative of a long tradition in the religious Zionist sphere, of those who hoped for mishpat Ivri to be the law of the Land.
These included Rabbi Kook, Rabbi Maimon and the hareidi-religious Rabbi Eliezer Waldenburg (the latter, in his book Hilchot Medinah, referred to it as "atchalta d'Geulah, the start of the redemption, in the arising of our own state on part of our Holy Land, with our own independent government," page 8).
While some criticized the idea, including opposition leader Tzipi Livni, others supported Ne’eman, including former Justice Minister Moshe Nissim, who is an observant Jew and son of a former Sephardic Chief Rabbi.
There have also been calls to make Jewish monetary law a part of Israeli law. The values and ethics in mishpat ivri are seen as placing it a notch above precedent-based law, as Jewish civil law has the stated objective of building a healthy, caring and just society.
But as Hacohen told Arutz Sheva on Sunday, the trend as can be seen from his research is a move away from Jewish law rather than toward it.
“The phenomenon of not using halakah is not a new phenomenon,” he said, pointing out that there have been a few exceptions but that in general the Supreme Court does not heed Jewish law in its rulings.
The problem, however, said Dr. Hacohen, is that “not only is there no use of Jewish law in court rulings, but judges actually make fun of the Jewish law.”
For example, he said, according to some guidelines that were distributed to judges, there is no need for an Israeli judge to have proven knowledge of Jewish law. He added that this is as evidence of a perception that judges who chose to rely on Jewish law may be not be promoted because of this fact.
Dr. Hacohen said that this attitude permeates the legal system, as judges and other individuals with senior positions in the judicial system say that young students should not “waste their time” studying Jewish law since it has no real chance of being used.
He brought another example of a judge who noticed that his friend was engaged in Jewish law and asked him, “Why did you dive into the deep waters of the Jewish law?”, or in other words: why are you engaged in something which has no real legal need?
Dr. Hacohen pointed out that these and other examples go against the Israeli law which requires a judge to turn to halakhic sources, especially when making decisions concerning fundamental rights, which Israeli law states must be based on Israel’s Jewish and democratic values.
There are judges who do quote Jewish civil law in their rulings, but they are becoming few and far between. This was a point of divergence between former Chief Justice Menachem Elon, who championed the use of Jewish civil law, and former Chief Justice Aharon Barak, who based his rulings on non-Jewish sources.
It is out of this concern that the Shaarei Mishpat College, which Dr. Hacohen heads, has launched a graduate program that will approach and make use of Jewish law from the start and not in retrospect.
Bar Ilan University's law department has mandatory courses in mishpat ivri as well as the opportunity for advanced degrees specializing in it. The Hebrew University of Jerusalem has a Mishpat Ivri Research Institute, once headed by former Chief Justice Elon.