As we celebrate Yom Ha’atzmaut 5776/2016, we turn to an old question about Jewish law and political sovereignty: does halakhah, traditional Jewish law, provide for the existence and functioning of the modern Jewish state of Israel? We don’t have in mind here the fundamental issue of whether traditional Jewish law permits the Jewish people to form a sovereign political entity prior to the coming of the Messiah. We’re talking rather about something more mundane but no less essential: does halakhah recognize the legitimacy of Israel’s law and legal system?
Like all sovereign states, Israel possesses a legal system, courts and administrative agencies without which the state could hardly function. Yet Israeli law, which is built upon a foundation of pre-Mandatory Turkish law, the English common law tradition, and the acts of the Knesset and of Israeli courts since 1948, is not the same as Jewish law, if by that we mean the halakhah, which flows from the sacred Jewish legal texts and their long tradition of rabbinical interpretation. And because Israeli law is not “Jewish law,” leading Orthodox poskim declare that the Israeli legal system is illegitimate. This means that, with rare exceptions, observant Jews are forbidden to adjudicate their cases in the court system of the state of Israel. It also means that, according to these poskim, Israeli legislation and court decisions are not binding upon the Jewish citizens of the state.
The source of these rulings is located in a midrash on Exodus 21:1: “‘These are the rules you shall set before them’ – i.e., before them, Israelite judges, and not before idolaters.”[1] From here, the tradition learns that, apart from those rare exception mentioned earlier, Jews may not resort to non-Jewish courts in any instance where it is possible for them to utilize Jewish courts.[2] Crucially, by “non-Jewish courts” the poskim mean any court that administers non-Jewish law, even if its judges are Jews. Since the judicial tribunals of the state of Israel – the Jewish state of Israel, mind you – administer a law that is not identical with the halakhah, the poskim hold that they, too, are defined as “foreign” or “Gentile” courts (ערכאות של גויים).[3] Accordingly, rabbinical judges in Israel for the most part do not recognize the validity of Israel’s civil law. To the extent that they pay any attention to it in their rulings they refer to it as “custom” (minhag) or as “stipulations” (t’naim) or contractual agreements made between private parties. They do not, however, describe or dignify the acts of Israel’s courts – the batei hamishpat – as “law.”
There is, admittedly, an obvious logic to this prohibition: if Jews are obligated to live their lives in accordance with Torah law, then they should not abandon that law for any other legal system. Yet modernity has confounded this logic. In the Diaspora, in virtually every country in which we Jews have won citizenship, we have exchanged the legal and juridical autonomy that we once enjoyed in the ghetto and shtetl for the legal systems of the societies in which we now live. The vast majority of Jews[4] organize their lives and legal affairs – torts, contracts, financial obligations, and communal relations – according to the law and the court system of the surrounding society. And in Israel, the rebirth of Jewish sovereignty has led to the creation of a modern system of law, a law administered by the state – the legal and political institutions empowered by the people – and not by the Orthodox rabbinate.[5] That rabbinate, to repeat, has responded by declaring Israel’s legal system to be invalid. That the poskim, the putative representatives of the halakhah, brand the legal system of the Jewish state as “Gentile” law may strike some as ironic, but it is more than that: it is a declaration that the Jewish state is at its foundation a foreign entity, something not truly Jewish. That is nothing less than an embarrassment to all who would like to believe that there is no contradiction between Jewish nationalism and Jewish law.
Are we warranted in that belief? Is there a way out of the contradiction? As students of progressive halakhah, we think that there is a solution. We’ll explore it in our next post.
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[1] B. Gitin 88b,
[2] Rambam, Hil. Sanhedrin 26:7; Shulḥan Arukh, Ḥoshen Mishpat 26:1: אסור לדון בפני דייני עובדי כוכבים ובערכאות שלהם . The exceptions: Jews may resort to non-Jewish courts on matters over which the Jewish courts have no jurisdiction (for example, criminal law); Jews may likewise invoke the aid of the Gentile legal system in situations where the Jewish courts prove powerless to enforce their decisions and to secure justice for the litigants.
[3] R. Ovadyah Yosef, Resp. Y’ḥaveh Da`at 4:65, cites the following g’dolim as holding that it is forbidden for Jews to adjudicate their cases in the Israeli state courts: R. Zvi Pesaḥ Frank; R. Eliezer Yehudah Waldenberg (the “Tzitz Eliezer”); R. Avraham Karelitz (the “Ḥazon Ish”); and R. Yizhak Halevy Herzog. R. Yosef himself, of course, agrees with the prohibition. See, in general, Eliav Schochetman, “מעמדם ההלכתי של בתי המשפט בישראל”, Teḥumin 13 [1992-1993], pp. 337ff.
[4] With the exception of those living within ḥaredi enclaves, who continue to utilize Torah law (din Torah) and rabbinical courts (batei din) for the administration of their legal affairs.
[5] True, the institutional Orthodox rabbinate (rabbanut) controls the laws of marriage and divorce for Jewish citizens of Israel, but only because the secular legal system – an explicit enactment of the Knesset – empowers it to do so.