Jewish Law in Israel — Hope and Renewal

Abstract

The article examines Israeli secular courts’ encounters with Jewish law. It focuses on cases decided since the adoption in 1980 of the Foundations of Law statute that authorized courts to consider certain principles of “Israel’s heritage,” when determining the law that governs a case. In 2018 the Knesset amended the statute to make clear that Jewish law (mishpat ivri) is a source of law. This presents a conundrum because, as rabbis have recognized for centuries, much of Jewish law dealing with preserving the social order is impractical. The article finds that some cases have shied away from using Jewish law when they might have used it to fashion a rule of law. Others have found that Jewish law is inconsistent with modern values and have advocated that Jewish law be reformed, even though the secular courts have no authority to make those reforms. In other instances, the courts have assumed that the Knesset did not intend to incorporate Jewish law. Despite these difficulties, a court should look for wisdom wherever it may be found. Any new state is bound to look to its people’s heritage for guidance in creating a new legal order. This is all the more understandable in the case of the Jewish people for whom the study and practice of the vast corpus of Jewish law has been central to its identity for centuries. The Knesset’s call to incorporate Jewish law into the law of the state and the courts’ grappling with the rich rabbinic literature at least give the law-making process a Jewish flavor and help to define Israel as a Jewish state.