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“I’m in the East but my Law is from the West:”
The East-West Dilemma in Israeli Mixed Legal System
Nir Kedar
Israel is counted among the “classical mixed jurisdictions,” that suits F.P. Walton’s
definition from the beginning of the 20th century: “Mixed jurisdictions are legal
systems in which the Romano-Germanic tradition has become suffused to some
degree by Anglo-American law.”
1
Yet, the civil-law—common-law mixture is only
one element in the broader puzzle of Israel’s legal identity. Put it simply, the question
is: “what makes Israeli law ‘Israeli’?” Even before independence, the Zionists were
obsessed with the question how to fashion the legal order and the law in the future
Jewish state and these concerns bewilder Israelis until our days. This ongoing debate
on the “‘Israeliness’ of Israeli law” is marked by the tension between east and west.
This “east-west dilemma” does not correspond (directly) to the Jewish-Arab conflict,
neither to the Jewish internal quarrel between Ashkenazi and Sephardi (or Mizrahi)
Jews.
2
Instead, it indicates the tension between the universal – western-like –
character of Israeli law and the wish of many Israelis to express in their laws the
identity and culture of the Jewish state located in the Middle East.
The current paper has two aims: the first is to analyze the live debate on the
character of Israeli law, demonstrating the dominance of the “east-west dilemma” in
Zionist and Israeli legal discourse from as early as the turn of the twentieth century to
our days; and the second is to demonstrate the manner in which the Zionist movement
Dean, School of Law, Sapir Academic College, Israel. The article was published as Nir Kedar, “I’m
in the East but my Law is from the West: The East-West Dilemma in Israeli Mixed Legal System,”
in Vernon Palmer (ed.), Mixed Legal Systems, East and West, Farnham: Ashgate 2015, pp. 141-150.
1
Frederick P. Walton, The Scope and Interpretation of the Civil Code (Montreal: Wilson & Lafleur
Ltée 1907, reprinted by Toronto: Butterworths 1980, with an introduction by M. Tancelin) 1, cited
in William Tetley, “Mixed Jurisdictions: Common Law vs. Civil Law (Codified and Uncodified)”
(1999) 4 Uniform L. Rev. 591 (part 1) (part 2 was published in (1999) 4 Uniform L. Rev. 877);
Frederick P. Walton, “The Civil Law and the Common Law in Canada” (1899) 11 Jurid. Rev. 282,
291; Vernon V. Palmer, Mixed Jurisdictions Worldwide: The Third Legal Family (Cambridge, UK:
Cambridge University Press, 2001) 7-10, 17 ff.
2
“Ashkenazim” is the common title of Jews originated from Central and Eastern Europe (Ashkenaz
is the Hebrew medieval name of Germany). “Sephardim” (or “Mizrahim”) is the name of Jews
originated in the Mediterranean. It is some times used as the title of all non-Ashkenazi Jews (i.e. all
Jews from the Mediterranean, the Moslem world, and the rest of Asia and Africa).
2
and later the State of Israel handled this delicate and complex problem up until the
1980s: silencing the quarrel by avoiding as much as possible any political or legal
discussion of the issue, while paying the Jewish “east-west dilemma” a symbolic
tribute.
The paper has two parts: the first will display the “east-west dilemma,” its history
and three of its expressions: the Israeli attitude towards Europe (and western law in
general), the Israeli approach to the “East,” and the indecisions concerning modern
Jewish identity; and the second part analyzes the Zionist and Israeli praxis of “cultural
silencing” and explains the importance of the symbolic presence of Jewish “Eastern”
law within the Israeli modern “Western” law.
I. The East-West Dilemma in Modern Jewish Culture and Law
The legal tension between east and west is in fact rooted in one of the two deepest
dilemmas of modern Jewry: the shape of Jewish culture in the modern secularized
world (the other problem would be of course that of modern anti-Semitism). The
gradual political emancipation during the last two hundred and fifty years and the
ongoing process of secularization forced the Jews – first in Western Europe and later
in other parts of the world – to find a way to remain Jewish while abandoning
traditional Judaism; both the religious faith and the traditional way of Jewish life. This
question has confounded modern Jewry for the last two hundred and fifty years and is
still a major source of cultural and political controversy in Israel.
3
The legal field was one arena in which the cultural dispute took place as many
Zionist lawyers strived to mold a legal system that would be both Jewish and
progressive (an adjective which they used to describe a western oriented system).
Their idea, born in the early twentieth century, was to use Jewish law as a major
source of the Jewish state-in-the-making legal system. For that purpose, a new term
3
Among the many books and article in this subject, see André Neher, Clef pour le Judaisme. Paris:
Seghers, 1977; Simon Herman, Jewish Identity: A Social Psychological Perspective, Jerusalem:
Hassifriya Haziyonit, 1979 (Hebrew); Yehoshua Rash (editor), Regard and Revere – Renew Without
Fear: The Secular Jew and his Heritage, Tel-Aviv: Hakibbutz Ha’artzi, 1986 (Hebrew); David
Zucker, We the Secular Jews: What is a Secular Jewish Identity? Tel Aviv: Yedioth Ahronoth, 1999
(Hebrew); Avi Sagi, A Critique of Jewish Identity Discourse, Ramat-Gan; Bar-Ilan University, 2002
(Hebrew); Yehuda Friedlander et al., The Old Shell Be Reviewed and the New Sanctified: Essays on
Judaism, Identity and Culture, Tel-Aviv: Hakibbutz Hameuchad, 2005 (Hebrew).
3
was coined: “Hebrew law” (mishpat ivri). The scholars who created this expression
did not intend to discuss the law of the ancient Hebrews, but rather to distinguish
between the general (religious) Jewish set of commandments and the body of legal
norms (themselves part of Jewish law) that seemed fitting for incorporation into the
future Jewish state.
The cultural enthusiasm of the early Zionist lawyers should be understood also in
light of the legal-intellectual environment of the time, where the historical and
nationalist schools of legal thought were still very much à la mode. Developed by
jurists such as Friedrich Karl von Savigny in early nineteenth-century Germany, the
historical-cultural-nationalist perception of law spread all over Europe in the course of
the next decades, and regained new impetus towards the end of the century. The 1892
new edition of Savigny’s famous Vom Beruf unserer Zeit für Gesetzgebung und
Rechtswissenschaft (originally published in 1814) was especially influential in fin de
siècle Central and Eastern Europe.
4
As Assaf Likhovski rightly points out, “Hebrew
law was born out of an affair between German Professors and Zionist students.”
5
Already at an early stage the enthusiastic Zionist lawyers have found that the task
of carving modern Hebrew law was not easy a task, as it entailed cultural and
intellectual dilemmas characteristic to processes of legal borrowing.
6
First, they had to
decide on their attitude toward Europe and European law. Europe was the place where
most Jews emigrated from, and the place to which they were affiliated by powerful
historical and cultural bonds. Most Israelis saw themselves (and still do) as
Europeans, and believed that their culture and law should be European-based,
especially since they perceived European law and culture as superior to other cultures
and laws. Thus it was clear to most Israelis that their laws will have the European
shape of constitution and legal codes, and that the content of the law will be heavily
4
Friedrich Karl von Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft
(1814), Freiburg: i.B. Mohr 1892.
5
Assaf Likhovsky, “The Invention of ‘Hebrew Law’ in Mandatory Palestine,” 46 American Journal
of Comparative Law (1998) 339, 341. On the influence of the historical school of law on Hebrew
Law see also Arie Edrei, “Why Teach Jewish Law?” 25 Tel Aviv University Law Review (2001)
467, 468-471 (Hebrew); Amihai Radzyner, “‘Jewish Law’ between ‘National’ and ‘Religious,’” 26
Bar-Ilan Legal Studies (2010), 91, 101-105 (Hebrew).
6
On the problems of identity reflected in the work of the “Society of Hebrew Law” see Assaf
Likhovski, Law and Identity in Mandate Palestine, Chapel Hill: The University of North Carolina
University Press 2006, 138-151; idem, supra note 5, at 357-372; Radzyner, supra note 5.
4
influenced by western legal principles and norms. Furthermore, Israelis cherished the
western ideas of democracy and the rule of law and saw them not as mere political
procedures, but as substantial components of their national identity. Israelis love to
say that their political community is as democratic as it is Jewish. Thus, the question
Israeli lawyers asked themselves was never whether to abandon western law,
replacing it with Jewish or “Israeli” law, but actually which of the two main European
legal tradition Israel should embrace: the Anglo-Saxon tradition or one of the
continental Romano-Germanic traditions.
7
On the other hand, Europe was also the continent of the Jews’ lachrymal past, the
place of exile, oppression and persecution. It was the vale of tears from which they
were expelled and where they were almost annihilated during the Holocaust. For these
reasons, the new Israelis wanted to turn their back on Europe and create their own
culture and law. In 1938, Moshe Silberg, a distinguished Israeli lawyer who would
become a justice on the Israeli Supreme Court, rejected the idea of the German or
7
Israel is unique among the “classical mixed jurisdictions” by the fact that it is not a civil law system
that was later “taken over” by common law, but rather a common law jurisdiction that later
embraced – and only to a certain degree – civil law. Despite the civilian heritage of the Ottoman
law (which drew heavily on French law), local law in what was then Palestine underwent a massive
process of Anglicization during the thirty years of the British Mandate. As a result, to a great extent
Israel was established in 1948 as a common law country. It was only in the 1960s that Israeli private
law moved towards the civilian tradition, when the Israeli Parliament (Knesset) passed a series of
statutes that were deeply influenced by German and other Romano-Germanic private laws (See
Steven Goldstein, “Israel” in Palmer, supra note 1 at 448-468; Celia Wasserstein-Fassberg,
“Language and Style in a Mixed System” (2003) 78 Tul. L. Rev. 151, 155-157; Palmer, supra note 1
at 30-31). Moreover, there is no single civilian influence upon Israeli laws. Although German law
was the main source of Israel’s new civilian-like private law, Israeli law drew on other civilian
systems as well: French (mainly through the Ottoman law), Italian and Swiss, while at the same
time it remained profoundly inspired by English, American, and Canadian laws as well (Fassberg,
at 158). It is important to note however that as opposed to other mixed legal systems, this
transformation of Israeli law, which took place during the 1960s and 1970s, was not viewed by
most Israelis as a fundamental revolution with deep impact on their culture. No cultural or political
debates were attached to the legislative processes. If at all, several jurists complained that the new
wave of legislation also reflected the western legal culture paying no heed to the Jewish legal
heritage (Nir Kedar, “Law, Culture and Civil Codification in a Mixed Legal System,” (2007) 17
Canadian Journal of Law and Society, 177).
5
even Swiss civil code as a model for the law of the future Jewish state, because “for
us Jews, there is nothing more abominable than the German spirit”.
8
Likewise, the Zionist lawyers had to resolve their rapport with the “East”. On the
one hand, their return to the East was not only a return to the geographical “Zion”, but
also to the conceptual “Zion,” the ideal of creating a model society according to the
lofty principles of the biblical prophets. The East was also the cradle of western
civilization. The great civilizations of Egypt and Mesopotamia, and later the great
Moslem empires, possessed sophisticated legal systems, and gave humanity science
and technology, the monotheistic idea, and biblical morality. The East, then, was a
veritable treasure house of symbols and laws. Early Zionist jurists believed that the
Jewish renaissance would lead the awakening of the East. Consider for example this
“open letter” published in 1910 by the young Samuel Eisenstadt, who would become
a prominent figure in the Hebrew Law movement:
History calls us… look to the shores of the Arab sea and the rivers of India!
Great and ancient Eastern nations awake from the slumber of the ages and fight
for their liberty. A commotion of revival is heard in the halls of ancient culture,
in the halls of the biblical world. A new and enlightened society is being formed
on the shores of Asia and in its laws and social customs, the spirit of religion is
reflected in its pure Eastern form… The East longs and yearns for the revelation
of a stern and original Eastern law, which sucks and feeds from the sources of
Eastern religion. To such and eastern society… we should bring our advanced
law, the law of the ancient Semitic nation, the first and foremost of the
enlightened nations of western Asia.
9
As can be seen from this paragraph, young Eisenstadt and his comrades held
orientalist views which were both romantic and belittling. They admired the East but
at the same time saw it as a backwater, and conceived of Moslem and Ottoman law as
non-rational, chaotic, and generally unsuited to the Jewish state-in-the-making.
Eisenstadt wrote his open letter while still in Russia. The encounter of these young
romantic jurists with the harsh reality of the Jewish-Arab conflict bolstered their
8
Moshe Silberg, “The Law in the Hebrew State,” in idem, In Inner Harmony: Assays and Articles
(Zvi Tarlo & Meir Hovav editors), Jerusalem: Magnes, 1981, 180, 198 (Hebrew).
9
Samuel Eisenstadt, “On the History of Hebrew Law,” The Future (1910) 192, 208 (Hebrew). Cited
in Likhovski, Law and Identity, supra note 6, at 144, and cf. generally id. at 141-144.
6
suspicion towards the East and Eastern law, strengthening their Western legal and
cultural orientation.
10
But the main problem of the Hebrew Law movement was the complex relations
between Israel and Judaism. The Zionist movement was, of course, the Jewish
national movement, and as such it emphasized Jewish cultural and collective identity.
On the other hand, Zionism – like all national movements – was a revolutionary
movement that sought to break with the past and revolutionize all aspects of Jewish
public life. Thus, Zionism developed a complicated – not to say schizophrenic –
attitude towards Judaism: it was a national movement that wished to remind the Jews
of their individual and collective identity, and at the same time it sought to revitalize
Judaism. Israel suffers from the same schizophrenia. It depicts itself (even in its laws)
as a Jewish and democratic state. However, it is not clear what Jewishness means
here, i.e., what it means to be Jewish in Israel. Religious Jews claim that to be Jewish
means to be a religious Jew, a Jew who believes in the tenets of the Judaism and lives
according to the commandments of Jewish religion (known as halakha). Most Jews,
however – in Israel and abroad – do not see themselves as religious people though
they identify themselves as Jewish. In the same manner, it is not clear what does
Jewish law (or Hebrew law) means in today’s Israel: how is it related to ancient
Jewish law or to Jewish culture in general, how will it reflect both Jewish (“Eastern”)
and modern (“Western”) values.
The problem of establishing modern Israeli law on Jewish legal foundation has two
facets: external and internal. The external aspect corresponds to the regular problems
of legal borrowing and transplantation; similar to the problems that bewildered the
Zionists with regard to Western or Eastern law: what to borrow from Jewish law and
how to transplant it in the modern legal fabric. The internal aspect refers to Jewish
law’s special characteristics that hinder the task of turning it into the living law of a
modern state.
Borrowing from Jewish law is not easy a task since it is a rich and ancient legal
tradition composed of many historical and normative layers.
11
Judaism, like Islam, but
10
It is interesting to note though that the encounter with the harsh political reality in Palestine did not
weakened Eisenstadt’s strong belief in human brotherhood and Jewish-Arab cooperation. See
Likhovski, Law and Identity, supra note 6, at 144-145.
7
unlike Christianity, is an orthopraxy, a “legal religion” in the sense that it is a holistic
system composed of countless norms that dictate the life of the believer from the
moment s/he wakes up until the moment s/he goes to sleep, from birth till death.
Jewish law encompasses every aspect of private and public life. It deals with civil,
commercial, and public law, and even dictates what the Jewish believer may eat, drink
and wear (these are the laws of kashrut – the dietary laws concerning kosher food).
Jews call their holistic religious-legal system halakha.
The Tora – the first five books of the Bible – is considered by Jews to be the basic
source of halakha. But, in spite of the central place of the Bible in Jewish faith and
law, halakha mainly progressed through a process of “questions and answers” (in
Hebrew: she’elot u’tshuvot, or “shut”), a process that recalls the Roman institution of
responsa. People would ask the rabbis for a halakhic solution to a particular issue, and
the rabbis would base their answer on Jewish law. Halakha, therefore, is a set of
numerous answers – or decisions – a sort of Jewish common law. From time to time
the halakha was codified. Some of these codes are very old. In addition to the Bible
itself, the Mishna and Talmud should also be mentioned. The Mishna was the first
compilation of Jewish oral halakha, codified in the early 3rd century A.D. in Palestine
by Rabbi Yehuda Hanassi. The Talmud, which was codified around the 5th century
A.D. in Palestine and then re-codified in the 6th century in Persia, contained the
Mishna and rabbinic commentaries on the Mishna that had been gathered in the
centuries following its codification (these commentaries are known as the Gemara).
Additional rabbinic codes were codified later – during the middle-ages and in modern
times – the most famous and important of them are perhaps Maimonides’ Mishne
Tora (completed in 1180) and the Shulkhan Arukh by Rabbi Yossef Karo (published
in 1565). The codes (and especially the Talmud) are heavily cited by the rabbis and
considered the primary sources of halakha, but it is clear that over the centuries
Jewish law progressed mostly through responsa – the answers and decisions of the
rabbis. It is thus clear that the borrowing from Jewish law is a complicated requiring
many decisions.
11
Cf. my article “Israeli Law as a Lieu de mémoire (et d’oubli): Remembering and Forgetting Jewish
Law in Modern Israel” in Oliver Drupbacher et al. (eds.), Erinnern und Vergessen / Remember and
Forget, Munich: Meidenbauer Verlag, 2007, 196.
8
Zionist jurists bickered raucously among themselves over the questions such as:
Which of the legal sources of Jewish law should they apply? Should they prefer the
codes or the responsa? Is there a preferable line of responsa: one of the Ashkenazi
legal traditions or a Sephardi one? Should they prefer the Mishna and Talmud that
were compiled in Palestine or was better to adopt modern sources? Should they
transplant specific Jewish legal norms or institutions, borrow general “Jewish” legal
principles, or perhaps embrace the Jewish legal philosophy and way of reasoning,
while fashioning their own modern laws by themselves? How free were they to
change and update the traditional sources?
12
Jewish law imposed yet another set of problems to the modern Zionist jurists: a set
of “internal” problems that derive from Jewish law’s specific character and
philosophy. I will briefly sketch three of these problems: the scope of Jewish halakha
and its special form; halakha as a holistic religious system; and the authority of the
legislators and judges.
The first internal problem that hampers the incorporation of Jewish law into
modern state law lies in the halakha itself, or to be more exact – in the scope and form
of halakha which make it very difficult to transform the halakha into a modern legal
system. The Halakha is indeed a holistic system, but in fact the use of Jewish law in
many vital areas of living is impossible since there is simply no reference to them in
halakha, and no central halakhic institution that can fill this void with legislation (the
Halakha is silent for example in constitutional and administrative law as well as in
many modern commercial areas of law). In addition to halakha’s limited scope (by
today’s standards), its unique form, that is incompatible with the modern state, must
also be taken into consideration. Halakha developed as a decentralized and pluralistic
system of responsa administered (if this word can be applied to the diffuse evolution
of halakha) by generations of rabbis. The responsa are characterized by frequent
disagreements among the rabbis and by halakhic questions that remain unresolved.
Although the creation of a centralist legislative body of halakha is theoretically
possible, such a development is very unlikely, as it would be a major break from the
Jewish legal pluralistic and decentralized tradition. This makes codification almost
impossible since we do not know which norm to choose in the numerous cases of
contradictory norms or unresolved questions.
12
See Radzyner, supra note 5, at 100-110, 124-132; Likhovski, supra note 5, at 357-361, 368-370.
9
The second internal problem that hinders the incorporation of Jewish law into
modern state law is the nature of halakha as a religious holistic system. This problem
can be stated in the following manner: can halakha be applied optionally; and if so,
which parts of the halakha should used? Non-observant Jews who cherish their rich
Jewish heritage will be pleased to incorporate parts of Jewish law into the laws of
their modern states, but they will also insist on using only those parts that are
appropriate to modern life. They will agree to transplant certain rules, principles, or
institutions onto modern secular laws, while rejecting other parts of halakha that they
deem unsuitable for a modern, non-religious society. From the religious point of view,
on the other hand, halakha cannot be “incorporated” into any other legal or normative
system since it is a unified, eternal, divine system that has precedence over any
earthly social legislation. The validity of a halakhic norm stems from its being, ipso
facto, part of halakha, and not from the activity of a secular legislator or the decision
of a temporal judge. At most, the integration of other norms or institutions into
halakha may be possible – under certain conditions – but not the other way around.
Likewise, from the religious point of view, halakha cannot be integrated into a non-
religious system because such an inclusion would profane its holy essence. The very
essence of halakha as a holistic unified religious system makes its incorporation into
modern state law nearly impossible.
The third and most difficult intra-Jewish problem that hampers the integration of
Jewish law into modern state law is the problem of authority, i.e., who has the
authority to legislate or interpret the law? According to Jewish law only ordained
rabbis can decree halakha, since according to Jewish belief they are part of a
continuous chain that began with Moses, who got the Tora from God. If the law is not
enshrined by the rabbis, then it is not part of Jewish law, even if it based upon
halakhic material. If the state legislates norms that originate in halakha, religious
believers will obey this law, but only because it is the law of the state and not because
they accept it as Jewish law. Naturally non-religious Jews, or people of other faiths,
do not accept this religious concept of authority, which is incompatible with modern
ideas of democracy and the rule of law. They want their laws to be legislated by a
democratic secular parliament and interpreted by independent judges, not by rabbis.
These problems hinder the incorporation of Jewish law into modern Israeli law,
making the east-west Jewish problem an unsolved living dilemma.
10
II. The Place of Jewish Law and Judaism in Contemporary Israeli Law
The term “Hebrew law” was devised by a group of Russian Zionists in Moscow who
established the “Society of Hebrew Law” (khevrat hamishpat ha`ivri) in late 1917.
13
Most of the group’s members were non-religious Jews, but all of them – religious and
non-religious alike – believed that the national and cultural renaissance of the Jewish
people must be accompanied by a legal resurgence as well, and that the growing
Zionist community should use its own rich legal heritage as the basis of its laws rather
than derive its inspiration solely from modern western law – “the law of Gentiles.”
The group invented the term “Hebrew law” in order to emphasize that they had no
desire to force Jewish religious-legal system upon the new legal system but rather to
take legal norms that had developed in halakha and that were judged suitable for
modern society, and use them for the law of the future Jewish state. Their idea was to
revive legal norms from Jewish halakha and complement or amend them with norms
taken from modern non-religious legal systems so that the new law would satisfy the
needs of modern life.
The disagreements among Jews with regards to questions of identity resulted in the
foundation of two more societies for Hebrew law: one in Jerusalem and the other in
London. The anarchy that followed the Bolshevik Revolution forced the Russian
“Society of Hebrew Law” to cease its activity in Moscow. At the beginning its
members moved to Kiev and then to Odessa, but the “society” could not operate there
as well and its members decided to recommence their project in Palestine. The
majority of them indeed immigrated in the early 1920s. But before most of them
arrived to the holy land, another company was registered in Jerusalem under the title:
“A Legal Society for Hebrew Law.” Although the Russian society was probably the
inspiration for the Palestinian one, the two companies had a rather different character:
the Jerusalem society, like the London branch that was established in 1925,
14
was
more conservative and held a more religious conception of Hebrew law than the
Moscow society. When the Muscovites arrived to Palestine they formally joined the
Jerusalem society but the tensions between the two groups were evident, and many
initiatives were carried out independently by former member of the Moscow society
13
On the term “Hebrew Law” see Likhovski, supra note 5, at 348-350; Radzyner, supra note 5, at 99-
100.
14
On the London society see Amihai Radzyner, “Jewish law in London: Between two Societies,” 18
Jewish Law Annual (2009) 81.
11
in spite of the society’s formal opposition. Thus for example, members of the society
published not one but two different legal journals – the first (edited by Samuel
Eisenstatd) represented the progressive secular “Russian line,” while the second
expressed the more conservative-religious “Palestinian line.” The Muscovites even
organized a world conference in Hebrew Law in 1934 and founded the Tel Aviv
College for Law and Economics in the same year, two initiatives that were strongly
rejected by the Jerusalem society.
15
In addition, the society organized frequent public
lectures, financed several independent studies, created bibliographies of Jewish legal
sources, translated Roman legal sources (e.g. Gaius’ Institutions) into Hebrew, and
drew up general plans for the incorporation of Jewish law into the future state. Last
but not least, members of the society served as judges or consultants in the “Hebrew
Peace Courts” – an autonomous non-religious system of Jewish courts of arbitration
established in 1909.
Despite the efforts of the Hebrew Law Society, the majority of the Jewish
population in Palestine and abroad found little interest in the work of the society’s
both branches. In Palestine, most Jews used British Mandatory law and the Mandatory
court system, and paid little attention to the issue of Jewish legal autonomy or revival
and to the incorporation of Jewish law (be it halakha or Hebrew law) into the modern
law of the Zionist community. With the lack of active (and paying) members, the
society became insolvent in 1938 and closed down its formal activities.
16
Until 1948 the tension between Jewish law and secular state law was hardly felt
because an independent Jewish state did not exist, and the law in Palestine was
Ottoman and later British. But as the establishment of the State of Israel approached,
and especially after independence, the question of Jewish law and its incorporation
into Israeli law burgeoned into a source of legal, political and cultural controversy.
Once it became a matter of time when the independent Jewish state would be
established in parts of Palestine, Jewish lawyers began to draft laws – many of which
were based on halakha – for the future state. Between 1938 and 1948 (and especially
after 1945) over ten codes based on Jewish halakha were drafted by religious and
non-religious lawyers. These codes dealt with all aspects of the law - from private law
15
On the Society of Hebrew Law see Likhovsky, supra note 5; Radzyner, supra note 5; Ronen Shamir,
The Colonies of Law: Colonialism, Zionism, and Law in Early Mandate Palestine. Cambridge UK:
Cambridge University Press, 2000, 30-48.
16
See Radzyner, supra note 5, at 163.
12
to penal law to constitutional law.
17
Despite the long debates in the months prior to
Israel’s establishment, the political and legal elite decided that Israel would retain
British Mandatory law.
18
Although the decision was intended chiefly to stave off
chaos and anarchy in the fledging state, the question of Jewish law and its integration
into Israeli law was also one of the reasons that affected the decision to keep British
Mandatory law and not embark on the task of legislating a novel, original Israeli law.
As a consequence of this decision, Jewish law plays practically no role in Israeli
law today. The law of the State of Israel is completely westernized (although Israel
never translated or copied the laws of another country en bloc as Turkey, China and
Japan did, for example). Israel always drafted its own original laws according to its
needs and social purposes, but its inspiration came from western laws and not Jewish
law. Only one enclave of religious law took root in Israeli law: family law, which, in
the period of Ottoman rule over Palestine, was considered part of religious law and
not civil law. Ottoman law stated that all matters of family law would be decided
according to the religious law of the faith to which a certain citizen belonged.
19
According to the Ottoman system (called millet), shari’a courts had exclusive
jurisdiction over family matters among Moslems; rabbinic courts had parallel
jurisdiction over Jews; and the courts of the multivarious Christian churches had a
similar domain over their members. When the British conquered Palestine in 1917
they preserved this arrangement. The Israelis did the same in 1948, although Israeli
law narrowed the authority of the religious courts to the area of marriage and divorce,
while all other issues of family law come under the jurisdiction of civil family courts,
unless the parties wish otherwise.
Family law notwithstanding, Jewish law as such was omitted from Israeli law. Not
a single Israeli law is based in its entirety on Jewish law. Indeed, the Israeli Ministry
of Justice has a special department for Jewish law that is supposed to suggest ways of
17
See Amihai Radzyner, “‘A Scholar who was not properly eulogized’ – J.S. Zuri and his Jewish Law
Studies on the Background of Jewish Law Research History,” 23 Jewish Law Annual (2005) 253,
315 note 196 (Hebrew).
18
See Nir Kedar, “New Perspectives on the Foundation of the Israeli Legal System,” 11 Israel (2007)
1 (Hebrew).
19
In legal term we would say that the Ottoman state received by reference the religious law of family.
On the reception of religious law by reference see Izhak Englard, Religious Law in the Israel Legal
System, Jerusalem: Hebrew University Press, 1975, 56-77.
13
incorporating Jewish law into modern Israeli legislation, and to add the perspective of
Jewish law to all legislative debates. Although a few academics – Menachem Elon is
the most prominent among them – claim that Jewish law has a profound influence on
Israeli legislation and jurisprudence,
20
most Israeli lawyers – both religious and non-
religious – agree that this influence is minimal and that Jewish law is employed
mostly on the rhetorical level, and much less so on the practical level.
21
Even laws
that are compatible with principles or norms in Jewish law, and that seem to be based
upon Jewish law, are not really so. Israel’s laws are generally drafted according to
modern western legal, political and economic principles, and only in retrospect, after
the bill is completely formed, does the Justice Ministry’s Department for Hebrew Law
add the “Jewish perspective” – as a kind of symbolic embellishment – to the bill’s
statement of purpose.
In fact, Israel not only refrained from incorporating Jewish law into its laws, but
also made every effort to avoid futile disputes, fancy declarations and strict formal
decisions on matters of culture, religion and identity in general. Under Ben-Gurion
and Herman Cohn, the Attorney General in the 1950s and Ben-Gurion’s confidant, a
‘silencing policy’ on religious and cultural issues turned in practice into the unofficial
position of the Israeli legal system. This was expressed in the sweeping support of the
judicial elite in legislating a piecemeal constitution, actually basic laws, instead of a
comprehensive formal constitution, in the hope to prevent the rise of ideological and
cultural disputes in the process of formulating and enacting a constitution, among
others over the issue of the state’s Jewish character and the Jewishness of its laws;
22
This was also expressed in the avoidance of any legislation which necessitated a
positive clarification of the Israeli Jewish identity, and in the almost total avoidance
by judges and legal scholars of such discussions, whether in their verdicts or academic
20
Menachem Elon, Jewish Law: History, Sources, Principles – Ha-Mishpat Ha-Ivri. Philadelphia:
Jewish Publication Society, 1994, Vol. 4; Menachem Elon et al., Jewish Law (Mishpat Ivri): Cases
and Materials, New York: Bender, 1999, 420-422.
21
For a critique of Elon see Yitzhak Englard, “Research on Jewish Law - Its Nature and Function,” 7
Mishpatim (1976) 34 (Hebrew).
22
See Nir Kedar, Ben-Gurion and the Constitution, to be published in Ramat-Gan: Bar Ilan
University Press 2014, chapter 5.
14
legal publications.
23
Until the 1980s, the Israeli legislature strived to avoid the
treatment of religious and cultural issues such as “what is Judaism” and “who is a
Jew,” and even to include in the laws explicit expressions like “a Jewish state” or
“Jewish heritage.”
Some scholars claim that the reason for the exclusion of Jewish law – and even of
Jewish culture – is due to historical contingency. In the first years of statehood there
was simply no time to legislate; Israeli lawyers, who were mostly non-religious, stuck
to what they knew best – modern western law.
24
This explanation has a lot of truth to
it. As noted, the major concern of Israel’s emerging political and legal elite was to
prevent chaos and anarchy. For this reason it preserved the law that had been in effect
during the British Mandate. The new state’s legislators feared that the creation of a
novel and original legal system would be too lengthy of a process. As mentioned
earlier, it is also true that most Israeli lawyers – in the 1950s as today – are non-
religious who have no expertise in Jewish law. As ardent modernists some of them
even conceive of Jewish law as an obsolete system belonging to the distant past, and
certainly inappropriate for a modern enlightened state.
25
These lawyers are obviously
incapable of navigating in the “sea of Talmud” in order to apply its treasures to the
benefit of Israeli law and society.
Yet, what looks like sheer expediency and ignorance was really a deliberate
position rooted in the Zionist movement’s stubborn preference for the creation of a
Jewish political-legal framework over the cultural discussion of the Jewish people’s
nature and identity. Zionism was born in the second half of the nineteenth-century out
of the belief that without statehood, which would provide Jews with some degree of
self-determination, no Jewish culture could flourish over time. Reality in Europe
23
“Silencing” is a known constitutional tactic. See: Stephen Holmes, “Gag Rules and the Politics of
Omission,” in Constitutionalism and Democracy (Jon Elster & Rune Slagstad editors), Cambridge:
Cambridge University Press 1998, 19-58; Gideon Sapir, Constitutional Revolution in Israel: Past,
Present and Future, Israel: Bar Ilan UP, Haifa UP and Yediot Ahronot 2010, 223-243 (Hebrew).
24
Ron Harris, “Absent-Minded Misses and Historical Opportunities: Jewish Law, Israeli Law, and the
Establishment of the State of Israel,” in: On Both Sides of the Bridge: Religion and State in the Early
Years of Israel, (Mordechai Bar-On & Zvi Zameret editors), Jerusalem: Yad Ben-Zvi, 2002, 21
(Hebrew); Amihai Radzyner, “The ‘Hebrew Law’ is not Halakhah (Nevertheless it has Value),” 16
Akdamot (2005), 81, 86-87 (Hebrew).
25
See for example Amihai Radzyner & Shuki, Friedman, “The Israeli Legislator and Jewish Law,
Haim Cohn between ‘Tomorrow and Yesterday,’” 29 Tel-Aviv L. Rev. (2005) 167 (Hebrew).
15
showed that even in places where Jews achieved emancipation and equality, it would
be impossible to ensure in the long term the fruitful existence of Jewish culture and its
resistance against the dangers of depletion and assimilation. Much less was it possible
to ensure the future of Jewish existence, both physical and cultural, in places in which
Jews have been persecuted. The Zionist solution, therefore, was based on the effort to
establish an independent state or at least sovereignty of a lesser degree, under which
Jewish modern culture would be able to exist freely over many generations. To this
end, from its inception, Zionism focused all its energies and resources on the creation
of statehood for Jews and the building of a society upon that statehood. All factions of
the Zionist movement were united against the calls of what was known as “spiritual
Zionism” to base the Zionist revolution on an internal Jewish cultural debate and on
the creation of a modern Jewish culture.
Spiritual Zionism, headed by Ahad Ha`am,
26
evolved in the end of the nineteenth
century, seeking to initiate the Zionist revolution from inside, that is, from the shaping
of a modern Jewish culture that would preserve the ancient spiritual characteristics of
Judaism but adapt them to the modern world, primarily by their secularization.
27
This
position, which attracted many intellectuals, and continues to do so to this day, was
rejected in its entirety by the Zionist majority already at the end of the 19th century.
All Zionist parties – including even the religious Hamizrahi movement
28
– bitterly
opposed cultural-spiritual Zionism, and it remained marginal after the establishment
of Israel as well. The Zionist movement regarded spiritual Zionism as hopeless and
even dangerous. It was hopeless because cultural shaping alone could not rescue
Judaism from its predicament, and certainly not the Jews from theirs. The majority of
Zionists believed that there was no future to Jewish culture without the framework of
a sovereign state that would allow it to flourish, and without an aware and educated
civil society that would support the national framework and strengthen it. What was
26
Ahad Ha`am was the pen name of Asher Zvi Hirsch Ginsberg (18.8.1856-2.1.1927), a leading pre-
state Zionist thinker, known as the founder of cultural (“spiritual”) Zionism. With his secular vision
of a Jewish “spiritual center” in Palestine he confronted Theodor Herzl’s political Zionism.
27
See for example Ahad Ha`am (Asher Zvi Ginsberg). “This is not the Path”. Hamelitz 15.3.1889,
reprinted in Ahad Ha`am’s Complete Writings, Tel Aviv: Dvir, 1946, 11-14 (Hebrew).
28
See Eliezer Don-Yehiye, “Ideology and Policy in Religious Zionism,” 8 Hatzionut (1983) 103
(Hebrew) (discussing Rabi Reines’ and Religious Zionism’s opposition to Ahad Ha`am).
16
the point of debating endlessly the questions of Jewish culture when there was no
institutional, social and political guarantee that would ensure its existence?
Furthermore, Zionist orthodoxy always regarded cultural approaches such as Ahad
Ha`am’s as dangerous to Zionism. According to most Zionists, the cultural lure of
those positions – the belief that it was possible to preserve everything that is good and
beautiful in Judaism and also shape a new, modern, and enlightened Judaism to
bestow it upon the Jewish masses – concealed the fact that this was a hazardous
course with an unclear route and destination. It was not clear what Jewish culture was,
what should be preserved and what should be discarded, or what was the objective of
this cultural contemplation. Zionist leaders knew that cultural Zionism would draw
away precious resources of the Jewish people, lead to culture war, and even threaten
the unity of the Zionist movement and its ability to carry out the monumental tasks
before it. Therefore, in the course of Zionist history, the potentially dangerous cultural
debate was always rejected in favor of the effort to establish an independent state and
civil society. The dominant Zionist position was that the culture of the Jewish state
would be Jewish by definition, as most of its citizens will be Jewish and because the
national framework will express the culture of the Jewish majority and will support it.
Thus, the rejection of Hebrew law was in fact the legal expression of Israel’s
silencing policy, endeavoring to suppress harsh cultural and political disputes. The
Zionist, and later the Israeli, elite preferred to adopt English law rather than taking the
treacherous path of carving an original “Hebrew” type of law that would express –
perhaps – their Jewish culture and identity, but was more likely to ignite a
Kulturkampf and even arouse political unrest.
One should note that the “silencing” semi-formal policy corresponded to the
common Jewish modern way of life. Most modern Jews – in Israel and abroad – have
“solved” the east-west problem by simply avoiding it. They are secular Jews who
consider themselves Jewish. They speak Hebrew, celebrate Jewish holidays, honor
Jewish rituals, and revere Jewish symbols, yet they do so without being committed to
the Jewish faith or to the principles of halakha. Most secular Jews act the way they do
without giving much thought to the exact definition of their identity or Jewishness as
bridging the east and the west.
29
29
See Gideon Katz & Nir Kedar, “Judaism from the Perspective of Secular Israeli Intellectuals,” 14
Democratic Culture (2012).
17
Still, Jewish law does have an important cultural function in Israeli law. Although
it plays practically no role in Israeli law, Jewish law is retained primarily as a symbol.
The will of Israeli society to keep Jewish law as a symbol explains why the Israeli
taxpayer is prepared to finance a special department for Jewish law in the Ministry of
Justice, even though its influence on the final legislation is basically insignificant.
Likewise, the desire to preserve Jewish law as a symbol also explains the tradition of
a “Hebrew law chair” on the Supreme Court. Since Israel’s establishment, one of the
Supreme Court’s justices is an expert in “Hebrew law,” whose role is to explicate
Jewish law’s view of the issue before the court. The desire to preserve Jewish law also
explains its remarkable presence in the curricula of Israeli law schools: all Israeli law
students must take at least one course in “Hebrew” law. And finally, the significance
of Jewish law as an important part of Israeli culture explains why Israel has
bequeathed names taken from Jewish law to many of its laws and legal institutions.
For example the proposed new Israeli civil code is not called simply “the civil code”
(hakodex ha’ezrakhi) even though the word “codex” is used in Hebrew; instead, it is
called khok diney mamonot – diney mamonot being the halakhic expression for
private law. Likewise, the law of rehabilitation and the law of unlawful enrichment
also use in their titles expressions from biblical Hebrew, although these archaic
idioms are not used today by Hebrew speakers (and are not even understood by most
of them).
Although Jewish law played no role in the legislation of the new Israeli civil code,
it is still symbolically present in its title. Jewish law was put in a symbolic quarantine
out of a premeditated silencing policy that endeavored to avoid cultural and political
clashes among the different groups within Israeli immigrant society. But thanks to that
policy the east and the west manage to live in relative harmony on the verge of the
Israeli volcano.
III Conclusions
Since its establishment in 1948, Israel has been engaged in an ongoing debate over its
identity, over the ways to create an Israeli “Jewish east-west mélange.” The legal field
did not escape these dilemmas as well. Israelis were bothered by questions like: which
of the European legal tradition to embrace and to what degree, how to regard Moslem
law and other eastern legal tradition, and to what extent should Jewish law be
incorporated into the laws of the nascent state. Familiar with these debates, Israelis are
18
also well aware of their potential harm; academic cultural debates in a class room, a
coffee shop or an intellectual salon can rapidly deteriorate into a bitter culture war or
even into a violent clash. Contrary to the intellectuals’ instinct, Israeli society makes
every effort to prevent its identity problems from penetrating the political and legal
arenas.
In the legal domain, the “silencing policy” was expressed in the legislation a
“constitution without a preamble:” a series of basic law instead of a comprehensive
formal constitution; in the avoidance of any legislation which necessitated a positive
clarification of the Israeli Jewish identity; and in the almost total avoidance by judges
and legal scholars of such discussions. Since the “Hebrew Law Project,” was
potentially harmful it was practically abandoned as well (although “formal” Israel and
the Israeli intelligentsia constantly express their obligation to its execution). Israelis
did not solve the (unsolvable) east-west dilemma in their formal laws and constitution,
but their actual everyday life bridges that gap.
