In the haze of the current security situation, the Ministerial Committee for Legislation is slated to consider a bill Sunday that could herald the first step toward making Israel a country governed by Jewish religious law (halakha,) by injecting elements of Jewish law into Israeli law.
The sources of Israeli law were determined in the Foundations of Law Act, passed in 1980. According to the act, when a judge is required to decide a legal question that is not answered by law or prior court precedent, or by inference, he should turn to “the principles of liberty, justice, integrity and peace of the tradition of Israel [meaning Jewish tradition]” as a supplementary source.
Over the years, the court has interpreted this as a reference to the general principles of Jewish tradition and most judges have not accepted the view that it realizes the principles of Jewish law as written. In addition, because it has also been possible to find an answer to legal questions by inference, courts haven’t made much use of the provision of the 1980 act.
The sponsors of the new bill, led by Habayit Hayehudi Knesset member Nissan Slomiansky, take issue with the fact that the existing law does not obligate the courts to apply the principles of Jewish law, so they are seeking to amend the provision. The proposed legislation would require judges to look to Jewish legal principles (and it states so explicitly, unlike the current law,) as well as to principles of justice, integrity, peace, etc., prior to looking for answers by inference.
In the process, the bill would make Jewish law, sources of which include the Mishna, the Talmud and halakhic rulings, an integral part of Israeli law, without the filter of the current law. The legislation would oblige judges to apply such law, without allowing them to find answers according to the rules of inference.
It’s difficult to understand why the sponsors of the bill think it appropriate for a democratic country to adopt the principles of ancient religious law. Why should the entire Israeli population, a large portion of whom are not religious and some also not Jewish, be subject to Jewish religious law? And this with regard to a religious legal system that systematically discriminates against populations such as women and non-Jews. Secular judges and judges who are not Jewish will be required, according to the proposal, to rule accordsing to the principles of religious law. In order to “make things easier” for them, the proposed law provides for an official institute to “translate” Jewish law into modern language and make it accessible to all judges.
Beyond the message of extremism and coercion that the bill sends, it would strengthen questions about the legitimacy of Israel as a democratic country. The more evidence that Israel provides of its Jewish religious-state characteristics, particularly of the kind that imposes religious laws on residents who are not religious and not Jewish, the argument that Israel is a country that respects the rights of its citizens is substantially weakened.